International Legal Protection For Victims of Environmental Abuse

International Legal Protection for
Victims of Environmental Abuse

Michelle Leighton Schwartz'
I. INTRODUCTION: UNDERSTANDING THE PROBLEM ............................ 355
Il. THE USE OF HUMAN RIGHTS DOCTRINE TO PROTECT VICTIMS OF ENVIRONMENTAL ABUSE . 359
A. Substantive Human Rights ....................................... 361
1. Right to Life ........................................... 361
2. Rights of Indigenous Peoples ................................. 364
3. Other Human Rights ........................................ 367
B. Procedural Human Rights: Rights to Information and Participationin Environmental
Decisions ................................................ 368
1. Freedom ofErpression and the Right to Political Participation............. 369
2. The Emerging Right to Environmental Information .................... 371
C. The Emerging Right to a Healthy Environment ......................... 373
III. THE PLIGHT OF ENVIRONMENTAL REFUGEES .............................. 375

A. Causes of EnvironmentalMigration ................................ 376
1. Irrigationand Flood-ControlProjects ............................. 376
2. Desertification ........................................... 377
3. Policies of InternationalFinancialInstitutions ....................... 378
B. Legal Protectionfor EnvironmentalRefugees .......................... 379
IV. PROVIDING EFFECTIVE RIGHTS AND REMEDIES ............................ 381

A. Broadening Substantive Human Rights Violations to Include Environmental Human
Rights ................................................. 381
B. Modifying EstablishedHuman Rights Enforcement Mechanisms ............... 383
1. Modifying Proceedings Before the InternationalCourt of Justice ............ 383
2. Modeling Mechanisms on the InternationalLabour Organisation............ 384
3. Utilizing National Tribunals ................................... 386
V. CONCLUSION ................................................. 387
I. INTRODUCTION: UNDERSTANDING THE PROBLEM
Environmental disasters are increasing. They often result from human

activities, such as the disposal of toxic chemicals, the generation of power,
t Director, Project on Human Rights and the Environment, Natural Heritage Institute; LL.M. in
International Law, London School of Economics, 1987; J.D., Golden Gate University, 1986; B.A.,
University of California, Davis, 1982. The Natural Heritage Institute (NHI) provides counseling and
advocacy for public interest organizations and government institutions on natural resource problems,
including international conservation and human rights. This paper is based directly on the author's report
presented to the U.N. Subcommission on Prevention of Discrimination and Protection of Minorities and
to other U.N. bodies. Michelle Leighton Schwartz, 1992 Report on the Relationship Between Human
Rights and the Environment (1992) (unpublished manuscript, on file with author). The Report was
completed under the author's direction after more than two years of investigative work and legal research
undertaken by the author and others associated with NHI, including consultants Catherine O'Neill and
Edward Daniels; NHI staff members Christine Leas and Kathleen Fabiny; and law clerks Elizabeth
Blomberg, Leila Clark, Chris Hagan, Dale Lawrence, Brian McAllister, Mark Wolfe, and Elizabeth
Wroblicka. The author especially thanks Philip B. Williams and the International Rivers Network Staff
for their technical assistance, and Myra Krieger, Soni Leighton, Douglas Schwartz, Brian D. Smith, and
Gregory A. Thomas for their editorial contributions.
YALE JOURNAL OF INTERNATIONAL LAW Vol. 18:355, 1993
and the exploitation of oil. Mismanagement of natural resources has caused
severe watershed erosion, desertification, and atmospheric pollution, which,
in turn, have seriously impaired human life. Although the human suffering
associated with environmental destruction is growing, international and
regional human rights organizations and institutions have yet to clarify the
obligation of governments to protect and provide remedies for these victims.
This paper seeks to inspire such clarification and suggests legal and
institutional reforms toward that end.
The development of large hydropower projects illustrates how resource
extraction activities can displace human populations, disrupt food production,
and spread disease.' Uprooted communities, who must leave behind age-old
social organizations and enter unfamiliar societies, often lose their cultural
identity. Individuals within those communities, left helpless by the loss of
their communal support systems, often become migrant laborers; some turn
to prostitution or alcohol; and many die from diseases previously unknown to
them, such as influenza, tuberculosis, and measles. 2 Moreover, the people
most affected by environmental damage are often excluded from their
government's development planning, leaving them powerless to control their
future.
The James Bay hydroelectric project in Quebec (Hydro-Quebec) poignantly
illustrates this perverse process. Hydro-Quebec has affected the lives, cultural
heritage, and livelihood of tens of thousands of native Cree and Inuit. River-
flow alterations have interfered with fish spawning and have desiccated the
estuarine wetlands that supported waterfowl. Riverbank erosion drowned
thousands of caribou, a staple of the community's diet. The disruptions also
caused the release of the toxic metal mercury into the biotic food chain,'
making freshwater fish unsafe to eat.4 More than half of the James Bay Cree
have absorbed unsafe levels of mercury.' Although many reports have been
1. Improper dam construction can cause the spread of disease to local populations. For example, when
developers do not clear standing forests before filling a reservoir, the forest biomass provides breeding
grounds for disease-carrying organisms. Common diseases resulting from such dereliction include malaria,
schistosomiasis, onchocerciasis, and encephalitis. A.W.A. Brown & J.0. Doem, Health Aspects of Man-
made Lakes, in MAN-MADE LAKEs, THEIR PROBLEMS AND ENVIRONMENTAL EFFECTS 755, 756-61
(William C. Ackerman et al. eds., 1973).
2. See id. at 759-60. The Yanomami Indians of Brazil are a case in point. See infra text
accompanying notes 39-40, 56-57.
3. Mercury is commonly found in rocks throughout the north in an insoluble form that does not affect
the air and water. However, bacteria associated with decomposition of organic matter transform it into
methyl mercury, which vaporizes, enters the atmosphere, and then falls back into the water, where it
enters the food chain. Hydroelectric projects, like new reservoirs, induce a burst of decomposition that
accelerates the release of mercury. Peter Gorrie, The James Bay PowerProject,CANADIAN GEOGRAPHIC,
Feb.-Mar. 1990, at 21, 27 (finding that mercury levels in fish downstream from LaGrande dams climbed
to six times their normal levels within months of project's completion).
4. According to a March 1988 study, with mercury levels remaining high for 10 to 20 years, the
region's fish may not be safe to eat for another generation. Id. at 27-28.
5. Id. at 27.
InternationalLegal Protection
prepared on various aspects of the project, Hydro-Quebec has never
committed to undertake a full and independent environmental and social
impact assessment.6
The hydroelectric projects currently under way in Brazil provide another
example. 7 The government's electric power monopoly, Electrobras, plans to
build eighty dams in Amazonia by the year 2020. In all, the dams will flood
approximately one million square kilometers of land, most of it lying along
the Amazonian rivers' middle and upper reaches, which are occupied by
indigenous peoples. These communities have limited access to information and
no real opportunity to participate in the government's planning of hydroelec-
tric power development As most of this area still lacks basic infrastructure,
legal and protective agencies often do not exist. Government corruption and
suppression of information have stifled the region's ability to achieve the
levels of participatory democracy that have emerged in other areas of Brazil.9
Unsustainable development practices have led to another critical
phenomenon. The increased desertification, flooding, and pollution world-
wide, coupled with high rates of population growth, poverty, and economic
polarization, have left tens of millions of people homeless. These "environ-
mental refugees" migrate within and across borders. Left unchecked, the mass
migrations will continue to increase and will, in turn, contribute to environ-
mental degradation in the areas of refuge. Although the environmentally
dispossessed comprise the fastest growing category of migrants in the world,
international organizations have yet to address their plight effectively. The
lack of legal protection for environmental refugees exacerbates their crisis.
Traditional norms of international law offer individuals no meaningful
protection from these threats.' 0 International law addresses responsibility for
environmental harm only in cases of transfrontier pollution. In that context,
international duty arises from the principle that one should use one's own
property in a manner that does not harm others. Commonly referred to as sic
utere, this principle is supported by the decisions of international tribunals,"
6. Id. at 22-23. Project planning has occurred with no public hearings and very little questioning. Id.
at 31. Therefore, as Alan Penn, a geographer appointed by the Cree to Hydro-Quebec's environmental
review committee, noted, "[t]he kind of data collection that is going on is not designed to focus on
problems, but to provide general reassurance." Id. at 27.
7. BARBARA J. CummiNGs, DAM THE RIVERS, DAMN THE PiOPLE 46-51 (1990) (discussing effects
of Balbina dam project on Waimiri-Atroari tribe); Philip M. Fearnside, Brazil's Balbina Dam:
Environment Versus the Legacy of the Pharaohsin Amazonia, 13 ENVTL. MGMT. 401, 410-17 (1989)
(same).
8. See Fearnside, supra note 7, at 401, 403.
9. CuMMINGS, supra note 7, at 90.
10. National laws are not discussed in this paper. While many national constitutions espouse a right
to protection of the environment, that right is rarely justiciable. See infra note 101 and accompanying text.
Furthermore, many countries have not developed laws like those in U.S. jurisprudence to remedy personal
injuries caused by environmental harm.
11. See, e.g., Trail Smelter Case (U.S. v. Can.) 3 R.I.A.A. 1905 (1938 & 1941). The Trail Smelter
arbitration tribunal was responsible for introducing the principle of sic utere into international
the declarations of governments, 2 and the codification of customary
international law by publicists. 3
For several reasons, however, individuals harmed by environmental
mismanagement cannot rely on sic utere to remedy their injuries. First, a
violation of sic utere occurs only to the extent that a state can be viewed as
directly or indirectly responsible for the action: liability for extraterritorial
environmental degradation is predicated upon the complainant's ability to
attribute the offending act or omission to the defendant state; show that the
state breached an international duty; demonstrate that a causal relationship
existed between the state's conduct and the injury claimed; and prove material
damage. 4 Furthermore, even if complainants could establish all the above
elements, they really have no truly workable and accessible international
mechanism for the adjudication and settlement of their claims. International
tribunals, as presently constituted, are severely limited in their ability to
contribute to the development of an operational international liability
regime. 5 Because only states have standing to appear as parties to proceed-
ings before the International Court of Justice (ICJ),"6 individuals or associa-
tions of individuals must attempt to prevail upon their national governments
to espouse their claims. Seldom, however, do their governments acquiesce:
states are generally reluctant to risk relinquishing even a small quantum of
their sovereignty by submitting to binding third-party adjudication. 7
Moreover, potential state complainants may decline to bring actions against
offending states for fear that they will be called to task for their own polluting
environmental law, holding that 'no State has the right to use or permit the use of its territory in such a
manner as to cause [environmental] injury ... in or to the territory of another or the properties or persons
therein, when the case is of serious consequence and the injury is established by clear and convincing
evidence." Id. at 1965; see also Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Judgment of Apr. 9)
(confirming "every State's obligation not to allow knowingly its territory to be used for acts contrary to
the rights of other States').
12. See, e.g., DECLARATIONOF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT,
princ. 21, U.N. Doc. AICONF.48l141Rev.1, U.N. Sales No. E.73.1I.A.14 (1973) [hereinafter
STOCKHoLM DECLARATION]; U.N. CONF. ON ENV'T AND DEV. [UNCED], RIO DECLARATION ON
ENVIRONMENT AND DEVELOPMENT, princ. 2, U.N. Doc. AICONF.151/51Rev.1, reprinted in 31 I.L.M.
874, 876 (1992) [hereinafter Rio DECLARATION].
13. See, e.g., Restatement (Third) of the Foreign Relations Law of the United States, §§ 601(1),
601(2)(b) (affirming a state's responsibility for any significant injury its activities cause to environment
beyond limits of its jurisdiction).
14. Developments in the Law - InternationalEnvironmentalLaw, 104 HARv. L. REV. 1484, 1494
(1991) [hereinafter Developments]. But see BRIAN D. SMrrIH, STATE RESPONSIBILITY AND THE MARINE
ENVIRONMENT: THE RuLEs OF DECISION 6-7 (1988) (contending that "material damage" may not need
to be proved once offending act and breach have been attributed to state).
15. See generallyDevelopments, supra note 14, at 1498-1504.
16. U.N. CHARTER art. 34 (Statute of the International Court of Justice).
17. See Abram Chayes & Antonia Chayes, Adjustment and Compliance Processes in International
Regulatory Regimes, in PRESERVING THE GLOBAL ENVIRONMENT 280, 287 (Jessica Tuchman Mathews
ed., 1991) (noting that standard provisions in international environmental agreements for voluntary
arbitration or settlement before International Court of Justice are seldom invoked and commenting that
'[t]he characteristic distaste for judicial settlement is likely to prevail in future international regimes').
conduct in other situations.'" Finally, the source and content of the law that
is to be applied by international tribunals remain unclear. 9
On the other hand, existing human rights mechanisms (or those which
could be established under a progressive human rights regime) present a much
more promising vehicle for the protection of environmental victims. Several
international human rights tribunals and other bodies may hear, and in some
cases provide redress for, the complaints of individuals.2z Furthermore,
existing jurisprudence evidences a trend within the international community
to recognize responsibility for the environment as a governmental obligation
to protect human rights. Nevertheless, there is little jurisprudence on the
rights that are implicated by environmental problems or the standards by
which states will be held accountable for violating those rights.
This paper advocates the further development of human rights doctrine to
protect environmental victims. Thus, part II discusses prevailing international
legal standards that govern states' conduct toward individuals in environmental
matters, as well as standards evolving through treaty and customary
international law. Part III considers the case of environmental refugees,
highlighting the current international legal system's failure to provide them
with adequate protection and humanitarian assistance. Finally, part IV
identifies the reforms that international human rights bodies should consider
in order to provide effective remedies for violations of human and environ-
mental rights. Specifically, it recommends the clarification of international
human rights doctrine to protect environmental victims and the adoption of an
international convention with standards for preventing human rights abuses
associated with environmental harm. The paper concludes by arguing that such
an instrument must specify procedures for remedying these abuses.
II. THE USE OF HUMAN RIGHTS DOCTRINE TO PROTECT VIcTIMs OF

ENVIRONMENTAL ABUSE
Several theories support the contention that government action violates

international human rights law if it causes environmental damage that results
in harm to an individual or group. One theory holds that environmental
damage is actionable whenever a victim can link it to an established or
fundamental human right, such as the right to life. 2 ' A more expansive
18. Developments, supra note 14, at 1502 & n.63. Additional standing requirements further
circumscribe the efficacy of the ICJ in the area of international environmental protection. For example,
a state must show injury to one of its own legally protected interests, precluding it from seeking to bring
action for injuries to shared or global resources. See South West Africa (Eth. v. S. Aft.; Liber. v. S.
Afr.), 1966 I.C.J. 4, 47 (July 18) (Second Phase) (holding that no state had standing before the ICJ to
charge South Africa's responsibility for breaches of obligations to international community and stating that
doctrine ofactiopopularis"is not known to international law as it stands at present").
19. Developments, supranote 14, at 1504-06.
20. See infra notes 140-147 and accompanying text.
21. See THE RIGHT TO LIFE IN INTERNATIONAL LAW 13-14 (B.G. Ramcharan ed., 1985) [hereinafter
theory holds that environmental damage, at some as yet undefined threshold,
is actionable because everyone has the right to live in a healthy environ-
ment.' The existence vel non of this latter right and its precise content and
nature have stirred much debate.' A third theory argues for intergenerational
equity, based on the notion that each generation is a planetary trustee for
succeeding generations. Under this theory, each generation has a moral
obligation to protect the environment for immediate benefit and for the benefit
of future generations. It is unclear whether this concept conveys an enforce-
able right.24
All three theories yield the conclusion that states have a fundamental duty
to refrain from environmentally destructive acts which could injure human
beings (again, the threshold for violation is uncertain), and to take affirmative
action to prevent environmental harm where possible. 5 Some proponents of
these theories argue that, in fulfilling their human rights obligations, states
may be obliged to promulgate standards to regulate environmental quality,
especially to prevent and control pollution to the air, water, and soil. 26
These theories are undergoing analysis by the Sub-commission on the
Prevention of Discrimination and Protection of Minorities under the mandate
of the U.N. Commission on Human Rights.27 The Sub-commission's
investigation has found that international, regional, and national bodies have
adopted many instruments that could be used to strengthen environmental
protection. 28 Still, whether potential victims can use these documents to
RAMCHARAN]. Other arguably fundamental human rights implicated by environmental damage are the
rights to health, privacy, culture, work, and freedom of expression and association. See infra part lI.B.
22. See W. PAUL GORMLEY, HUMAN RIGHTS AND ENViRONMENT: THE NEED FOR INTERNATIONAL
COOPERATION (1976) [hereinafter GORMLEY, HUMAN RIGHTS]; W. Paul Gormley, The Legal Obligation
of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human
Rights Norms, 3 GEO. INT'L L. REv. 85 (1990) [hereinafter Gormley, Legal Obligation].
23. Some view the right as a "third generation/solidarity right," deriving from the first two
generations of rights enumerated in the International Covenants on Human Rights. See, e.g., Philip Alston,
Conjuring Up New Human Rights:A Proposalfor Quality Control, 78 AM. J. INT'L L. 610, 611 (1984);
Gormley, Legal Obligation, supra note 22, at 105-110; Dinah Shelton, Human Rights, Environmental
Rights, and the Right to Environment, 28 STAN. J. INT'L L. 103, 122-25 (1991) [hereinafter Shelton,
Human Rights].
24. See generally EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL
LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQurrY (1989); Dinah Shelton, The Right to
Environment, in THE FUTURE OF HUMAN RIGHTS PROTECTION IN A CHANGING WORLD, FIFTY YEARS
SINCE THE FOUR FREEDOMS ADDRESS, ESSAYS IN HONOR OF TORKEL OPSAHIL (Asbjom Eide & Jan
Helgesen eds., 1991) [hereinafter Shelton, Right to Environment].
25. See infra part III.B; see also GORMLEY, HUMAN RIGHTS, supra note 22, at 32-64; Gormley,
Legal Obligation, supra note 22, at 86; Shelton, Human Rights, supra note 23, at 123-24; Janusz
Symonides, The Human Right to a Clean, Balanced and Protected Environment, Address at the Conference
on Ecology and Law in the Baltic Sea Area 7 (Aug. 26, 1990) (transcript on file with author).
26. See, e.g., Gormley, Legal Obligation, supra note 22, at 99.
27. E.S.C. Res. 1990/41, U.N. ESCOR Hum. Rts. Comm'n, 46th Sess., Supp. No. 2, at 102, U.N.
Doc. E/1990/22E/CN.4/1990/94 (1990).
28. Human Rights and the Environment: PreliminaryReport, U.N. ESCOR, Hum. Rts. Comm'n,
Sub-comm'n on Prevention of Discrimination and Protection of Minorities, 43rd Sess., Agenda Item 4,
at 3-7, U.N. Doc. E/CN.4/Sub.2/1991/8 (Fatma Zhora Ksentini, Special Rapporteur) [hereinafter
prevent an environmental threat to their lives, health, livelihood, and culture,
or to seek redress for injuries, remains uncertain.
Other U.N. bodies have only begun to consider the relationship between
human rights and the environment. Although state participants at the U.N.
Conference on Environment and Development (UNCED) agreed on the need
to protect victims of environmental destruction, the UNCED failed to address
environmental human rights in any meaningful way, to develop any programs
for U.N. or regional bodies, or to set a future agenda on this issue. 9
The human rights at issue can be divided into several categories. Section
A discusses substantive human rights. When human life is threatened,
tribunals could interpret these rights to prevent governments from destroying
the environment. Section B examines procedural human rights, which
tribunals could interpret to guarantee access to government processes that
could affect environmental quality. Finally, section C analyzes the proposed
"right to a healthy environment."
A. Substantive Human Rights
Because very few cases have analyzed the human rights implicated by
environmental problems, the circumstances under which environmental
damage or the threat of damage meets the threshold of a human rights
violation remains unclear. The following examination of the rights to life,
self-determination, and freedom from apartheid and genocide seeks to
illustrate the legal connection between environmental damage and human
rights violations.
1. Right to Life
The right to life is a fundamental, non-derogable human right. 0 The

Universal Declaration of Human Rights states that "[e]veryone has the right
to life, liberty, and security of person."31 Several instruments attempt to
clarify the substance of that right by prohibiting the "arbitrary"32 or
Ksentinil.
29. The author participated in the Preparatory Committees for the UNCED, and raised these concerns
with governments during negotiations.
30. As a Special Rapporteur of the U.N. Commission on Human Rights noted, the right to life is "a
fundamental right in any society, irrespective of its degree of development or the type of culture which
characterizes it, since this right forms part of jus cogens in international human rights law. The
preservation of this right is one of the essential functions of the State." RAMCHARAN, supra note 21, at
14; see also Ksentini, supra note 28, at 15.
31. Universal Declaration of Human Rights, art. 3, G.A. Res. 217A, U.N. Doc. A1810 (1948)
[hereinafter Universal Declaration]; see also International Covenant on Civil and Political Rights, opened
for signature Dec. 19, 1966, art. 6(1), 999 U.N.T.S. 171, 174 [hereinafter Political Covenant].
32. See, e.g., Political Covenant, supra note 31, art. 6(1); African Charter on Human and Peoples'
Rights, openedfor signatureJune 26, 1981, art. 4, O.A.U. Doc. CAB/LEG/67/3/Rev.5, 9 I.L.M. 58
"intentional"33 deprivation of life. International and regional tribunals have
further clarified these instruments, indicating that states may have affirmative
duties to protect the lives of those within their jurisdictions.
The International Human Rights Committee has declared that a state's
failure to take appropriate measures to prevent the disappearance and killing
of an individual violates the right to life under Article 6 of the International
Convention on Civil and Political Rights. 4 In Velasquez Rodriguez, the
Inter-American Court of Human Rights held that parties to the American
Convention on Human Rights have an obligation to ensure the free exercise
of the rights recognized under that convention, including the right to life. The
obligation implies the duty
to organize the governmental apparatus and, in general, all the structures through
which public power is exercised, so that they are capable of juridically ensuring the
free and full enjoyment of human rights .... States must prevent, investigate and
punish any violation of the rights recognized by the Convention and, moreover, if
possible attempt to restore the right violated and provide compensation as
warranted for damages resulting from the violation.'
The Court further clarified that the duty to prevent violations "includes all
those means of a legal, political, administrative and cultural nature that
promote the protection of human rights."3 6
In Soering v. United Kingdom, the European Court of Human Rights held
that extradition of a defendant to a state under whose jurisdiction he could
suffer torture or inhumane and degrading treatment constituted a serious,
foreseeable violation of the defendant's human rights. The European Court
concluded that given this potential human rights violation, the state could not
extradite the defendant to the jurisdiction in question.37 These decisions
support the general principle that states have a positive obligation to prevent
situations within their jurisdictions that are likely to imperil human life.38
The affirmative duty of states to protect the right to life should logically
(1981) [hereinafter African Charter]; American Convention on Human Rights, opened for signature Nov.
22, 1969, art. 4(l), 36 O.A.S. T.S. 1, OEA/Ser.LV/II.23, doc. 21 rev. 6, 9 I.L.M. 673 (1970)
[hereinafter American Convention].
33. See, e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, art. 2(1), 213 U.N.T.S. 222, 224 [hereinafter European Convention].
34. Communication No. 161/1983, CCPRIC311D15911983 (holding that states must investigate
culpable parties in disappearance cases).
35. Velasquez Rodriguez Case, Inter-Am. Ct. H.R. 1988, App. VI, at 70-71, OAS/Ser.LN/lII. 19,
doc. 13 (Aug. 31, 1988) [hereinafter Velasquez Rodriquez Case]; see also Godinez Cruz Case, Inter-Am.
Ct. H.R. 1989, App. I, at 55, OASISer.LNIIII.21, doc.14 (Aug. 31, 1989). Both cases involved the
disappearances of two men in the Honduras. Declaring that the Honduran government's failure to prevent,
investigate, or punish the perpetrators violated the victims' human rights, the Court held the government
accountable to the victims' families.
36. Velasquez Rodriguez Case, supra note 35, at 70-71.
37. Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser.1) (1989) (forbidding extradition from United
Kingdom to United States to face charges for murder which were punishable by death in United States).
38. See RAMcHARAN, supra note 21, at 6-7, 10 (arguing that jus cogens nature of right to life
prescribes that governments be held internationally accountable for not taking all possible measures "to
reduce infant mortality and to eliminate famine, malnutrition, and epidemics'); see also Gormley, Legal
apply to circumstances in which a state's activities pose life-threatening
environmental risks. The few judicial pronouncements on the subject support
this conclusion. In a pioneering case involving the indigenous Yanomami
Indians, the Inter-American Commission on Human Rights found that
environmental degradation can indeed violate the right to life. The Commis-
sion found that the Brazilian government had violated this and other human
rights by not taking timely and effective measures to prevent environmental
harm leading to the loss of life, cultural identity, and property among the
Yanomami.39
Unfortunately, this case did not clearly delineate the scope of these rights.
The Commission did not analyze the rights in relation to particular events, but
only stated sweepingly that the government had violated these rights.' Thus
for now, one can only conclude that human rights doctrine obligates
governments to take some measures, as yet undefined, to prevent serious
hazards to the lives of indigenous populations from development activities.4 1
Human rights tribunals should expand this obligation to protect non-
indigenous groups. The International Human Rights Committee made a step
in this direction when it considered whether a nuclear waste disposal site in
Port Hope, Canada, jeopardized the lives of nearby residents. 42 Residents
had alleged that the 200,000 tons of radioactive waste remaining in Port Hope
after a partial clean-up by the government posed serious health risks in
violation of Article 6(1) of the International Covenant of Civil and Political
Rights.43 Although the Committee did not reach the merits because of
jurisdictional defects, 44 it observed that the case "raised serious issues with
Obligation, supra note 22, at 96-97, 111.

39. Case No. 7615, Inter-Am. C.H.R. 24, 28, 33, OEA/Ser.LN/11.66, doc. 10 rev. 1 (1985)
[hereinafter Yanomami Case]. Government-approved development in the Amazon region caused various
life- and culture-threatening harms to the Yanomami population, including their displacement, the break-up
of social organization, introduction of prostitution and disease, and destruction of encampments. Id. at 26-
27. In its opinion, the Commission recommended that the Brazilian government take numerous health and
other protective measures and report to the Commission on its implementation of these measures. Id. at
33-34. See also William A. Shutkin, InternationalHuman Rights Law and the Eanh: The Protectionof
Indigenous Peoplesand the Environment, 31 VA. J.INT'L L. 479, 489-90, 499 (1991).
40. Yanomami Case, supra note 39, at 33. The Confederaci6n de Nacionalidades Indfgenas de la
Amazonia Ecuatoriana (CONFENIAE) and the Sierra Club have filed a petition with the Inter-American
Commission on Human Rights that tests the legal theories of this case. The petition contends that Ecuador
is harming the Huaorani people by allowing oil exploration and related development that will have negative
impacts on native lands. See Petition for the Huaorani People at 15, The Huaorani People v. Ecuador,
Inter-Am. C.H.R. (June 1, 1990) (on file with author).
41. While the recent groundswell of interest in protecting the endangered ecosystems of indigenous
groups has led many states to recognize indigenous rights, the breadth of these rights remains
controversial. See infra part I.A.2.
42. E.H.P. v. Canada, No. 6711980, 2 Selected Decisions of the Hum. Rts. Comm. Under the
Optional Protocol 20 (1990) [hereinafter Port Hope Case].
43. See supra note 31 and accompanying text.
44. Port Hope Case, supra note 42, at 27. The Committee dismissed the proceeding, because the
victims failed to exhaust all of the local remedies within Canada.
regard to the obligation of States parties to protect human life. 45
How the right to life will be interpreted in various environmental contexts
remains uncertain.' The extent of the measures that a government must
undertake to prevent human life-threatening environmental damage may
depend upon the nature and foreseeability of the harm. The pertinent cases,
however scant, are important because they suggest an emerging trend among
environmentally-abused victims to invoke human rights doctrine for protection
and redress, and the willingness of human rights tribunals to apply this
doctrine to cases involving environmental harm.
2. Rights of Indigenous Peoples
From time immemorial, indigenous peoples47 judiciously managed their

natural resources for food, shelter, medicine, tools, and cultural enrichment.
They lived in productive harmony with the land. Today, "there are over 200
million indigenous people and many of them live in some of the world's most
vulnerable ecosystems. '4 Oil exploration, mining, deforestation, dam
construction, and pollution degrade their environment, placing their cultural
heritage - and sometimes their very survival - in peril. Often, indigenous
communities are forced to leave their lands and either relocate to impover-
ished areas on the outskirts of cities or shantytowns, or leave their friends and
family to become migrant laborers.4 9
International standards for the protection of indigenous peoples are
evolving rapidly. The International Labour Organisation's Convention
Concerning Indigenous and Tribal Peoples in Independent Countries provides
certain guarantees for indigenous peoples:
Governments shall have the responsibility for developing, with the participation of
45. Id.
46. As legal scholars and activists confine to press international human rights bodies to impose
liability upon states for environmental hazards, the right to life and the duties of states to protect this right
are likely to become better defined. One scholar has called for imposition of both civil and criminal
liability. RAMCHARAN, supranote 21, at 13-14. But see Gormley, Legal Obligation, supra note 22, at 96.
47. Although no clear definition of the term "indigenous peoples" exists, most scholars agree on
several criteria:
Indigenous peoples are the descendants of the original inhabitants of territories since colonized
by foreigners; they have distinct cultures which set them apart from the dominant society; many
have, until comparatively recently, had a high degree of control over their development;
indigenous peoples have a strong sense of self-identity.
Ksentini, supra note 28, at 8; see also International Labour Organisation: Convention Concerning
Indigenous and Tribal Peoples in Independent Countries, openedfor signature June 27, 1989, art. 1, 28
I.L.M. 1382, 1384-85 [hereinafter ILO Convention 169] (defining "indigenous and tribal peoples"). As
many indigenous groups continue to oppose definition, the precise definition of indigenous peoples remains
controversial. See Russel Lawrence Barsh, Current Developments, Indigenous Peoples: An Emerging
ObjectofInternationalLaw,80 AM. J. INT'L L. 369, 373-76 (1986) (discussing origins of Draft Principles
for U.N. Declaration on Rights of Indigenous Peoples).
48. See Ksentini, supranote 28, at 8.
49. Shutkin, supra note 39, at 490-91.
the peoples concerned, co-ordinated and systematic action to protect the rights of
these peoples and to guarantee respect for their integrity. .... Special measures
shall be adopted as appropriate for safeguarding the persons, institutions, property,
labour, cultures and environment of the peoples concerned.'
Nevertheless, the special relationship between indigenous people and their
environment is not yet formally recognized in a human rights instrument.51
Advocates of indigenous peoples should therefore seek to broaden established
rights, such as the rights to self-determination and to freedom from apartheid
and cultural genocide.
The right to self-determination is the right of peoples under colonial and
alien domination to choose their political status freely and to pursue their
economic, social, and cultural development without discrimination.52 In its
broadest sense, the right to self-determination encompasses the rights of
indigenous peoples to regain, enjoy, and enrich their cultural heritage;53 "to
maintain and develop their identities, languages and religions;" 4 and "to
maintain, protect and have access to sacred sites."55
Regional human rights tribunals may soon begin to recognize the
importance of the right to self-determination where environmental resources
of indigenous populations are under attack. In the Yanomami Case, the Inter-
American Commission on Human Rights stated that international law presently
"recognizes the right of ethnic groups to special protection on their use of
their own language, for the practice of their own religion, and, in general, for
all those characteristics necessary for the preservation of their cultural
identity. "' The Commission's determination that Brazil violated the
Yanomami's rights to life, liberty, health, residence, and freedom of
movement may have amounted to a determination that Brazil violated the
50. ILO Convention 169, supra note 47, arts. 2 & 4. However, states may not adopt measures which
are against the wishes of indigenous peoples. Id.
51. Ksentini, supra note 28, at 10.
52. Political Covenant, supra note 31, art. 1. The right is viewed asjus cogens, binding on all states
as customary international law. See U.N. HuM. RTs. COMM'N, SUB-COM'N ON PREVENTION OF
DISCRIMINATION AND PROTECTION OF MiNoR.iEs, THE RIGHT TO SELF DETERMINATION: HISTORICAL
AND CURRENT DEVELOPMENT ON THE BAsIs OF UNITED NATIONS INsTRUMENTS at 32, U.N. Doe.
E/CN.4/Sub.2/404/Rev.1, U.N. Sales No. E.80.XIV.3 (1981) (Aurelieu Critescu, Special Rapporteur);
U.N. HUM. RTS. COMM'N, SUB-COMM'N ON PREVENTION OF DISCRIMINATION AND PROTECTION OF
MINORITIES, THE RIGHT TO SELF-DETERMINATION: IMPLEMENTATIONOF UNITED NATIONS RESOLUTIONS
at 11-13, U.N. Doc. E/CN.4/Sub.2/405/Rev.1, U.N. Sales No. E.79.XIV.5 (1980) (H6ctor Gros Espiell,
Special Rapporteur) [hereinafter ESPIELL]; Christopher P. Cline, PursuingNative American Rights in
InternationalLaw Venues: A Jus Cogens Strategy after Lyng v. Northwest Indian Cemetery Protective
Association, 42 HASTINGS L.J. 591, 628 (1991).
53. ESPIELL, supra note 52, at 8.
54. ILO Convention 169, supra note 47, preamble.
55. DiscriminationAgainstIndigenousPopulations, U.N. ESCOR, Hum. Rts. Comm'n, Sub-comm'n
on Prevention of Discrimination and Protection of Minorities, 40th Sess., Provisional Agenda Item 12,
at 3, U.N. Doc. EICN.4/Sub.211988/25 [hereinafterDraftDeclaration](working paper by Erica-Irene A.
Daes); see also ILO Convention 169, supra note 47, art. 13 (calling for respect for spiritual value of
indigenous peoples' relationship with their land).
56. Yanomami Case, supra note 39, at 31.
Yanomami's right to self-determination.' Since the Commission did not
directly address the self-determination question, it remains unclear whether the
Commission will interpret self-determination as imposing a duty upon states
to protect and preserve the environment when its degradation could affect
indigenous peoples. The Commission is currently considering this claim in
regard to the circumstances of the Huaorani people of Ecuador.58
The International Convention on the Suppression and Punishment of the
Crime of Apartheid defines the crime of apartheid as the taking of any
measures calculated to prevent a racial group or groups from participation in the
political, social, economic and cultural life of the country and the deliberate
creation of conditions preventing the full development of such a group or groups,
in particular by denying to members of a racial group or groups basic human rights
and freedoms..."
The international community considers apartheid a crime against humanity,
so that freedom from apartheid is jus cogens and binding on all nations.6"
The destruction of tribal heritage and culture may implicate the interna-
tional crime of apartheid when a government pursues development strategies
that intentionally disenfranchise members of indigenous groups on the basis
of cultural heritage or that prevent them from participating in decisions
regarding their own displacement. International tribunals, however, have yet
to consider the environmental rights of indigenous peoples within the
framework of apartheid law.
Cultural genocide, or "ethnocide," can result when exploitation of natural
resources forces the displacement of indigenous populations. The Draft
Indigenous Rights Declaration sets forth the rights of indigenous peoples to
protection against "ethnocide," which it defines as "any act which has the aim
or effect of depriving [indigenous peoples] of their ethnic characteristics or
identity, of any form of forced assimilation or integration, of imposition of
*foreign life styles and of any propaganda directed against them."61 In
contrast, the Genocide Convention defines genocide as any one of five types
of acts, including those committed with intent to destroy a national, ethnic,
racial, or religious group by "deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction."62 Genocide is
"contrary to the spirit and aims of the United Nations and condemned by the
57. See Cline, supra note 52, at 624.

58. See supranote 40.
59. G.A. Res. 3068, U.N. GAOR, 28th Sess., Supp. No. 30, at 76, U.N. Doc. A/RES/3068,
reprintedin 13 I.L.M. 50, 53 (1973).
60. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity, openedfor signature Nov. 11, 1970, art. 1(b), 754 U.N.T.S. 73, 75.
61. DraftDeclaration, supra note 55, at 3.
62. Convention on the Crime and Punishment of the Crime of Genocide, openedfor signature Dec.
9, 1948, art. 2, 78 U.N.T.S. 277, 280.
civilized world,"'63 and is thus jus cogens." When ethnocide amounts to
genocide, it must be condemned as genocide. 6s
Advocates have argued that in circumstances where partial or full
extinction of a people is likely, a government's deliberate destruction of the
environment and cultural heritage of indigenous peoples is a form of
genocide." As discussed earlier, the displacement of indigenous groups by
development projects can lead to such a break-down in the historic social
structure of these groups and to the disintegration of cultural identity and
unity, as recognized in the Yanomami Case.
3. Other Human Rights
Environmental threats may also violate other human rights, such as the
rights to health, livelihood, culture, privacy, and property. In the Yanomami
Case, for example, the Inter-American Commission on Human Rights not
only held that the Brazilian government had violated the right to life, but also
stated sweepingly that it had violated the rights to liberty and personal
security, residence, movement, and the preservation of health and well-
being.67 These rights are embodied in international instruments such as the
Universal Declaration of Human Rights, the International Covenants, and
arguably in customary international law.6" However, neither international
human rights bodies nor other tribunals have determined the content or limits
of these rights.
One exception is the right to privacy.69 In Powell and Rayner, the
European Court of Human Rights held that noise pollution can interfere with
one's right to privacy because it affects the quality of one's family and home
life.7" The Court, however, found that privacy rights must be balanced
63. Id. at preamble.

64. See Cline, supra note 52, at 593.
65. Id. at 628.
66. See supra note 40 (pending case of Huaorani Indians in Ecuador); see also Cline, supra note 52,
at 594.
67. Yanomami Case, supra note 39, at 33; see also supra note 39 and accompanying text.
68. See Political Covenant, supranote 31, arts. 1 & 17; International Covenant on Economic, Social
and Cultural Rights, arts. 6(2), 11, 12 & 15, 993 U.N.T.S. 3, 7-9; Universal Declaration,
supra note 31, arts. 12, 17, 23, 25 & 27; see also The Human Rights Situation in the Islamic Republic
ofIran, U.N. ESCOR Hum. Rts. Comm'n, 41st Sess., at 3-9, U.N. Doe. EICN.411985120 (1985) (stating
that "the basic provisions of the Universal Declaration of Human Rights can be regarded as having attained
the status of customary international law" and that International Covenants contain norms which "represent
universal standards of conduct for all peoples and all nations").
69. European Convention, supra note 33, art. 8; ICCPR, supra note 31, art. 17; Universal
Declaration, supranote 31, art. 12; see also Stefan Weber, EnvironmentalInfonnation and the European
Convention on Human Rights, 12 HuM. RTS. L.J. 177, 182 (1991) (arguing that polluting activities may
infringe on right to privacy).
70. Plaintiffs had claimed that noise from nearby Heathrow airport interfered with their enjoyment
of privacy and family life. While the court upheld the government's decision against the claimants, it did
so only after determining that they had a valid privacy interest which had been duly considered by the
367
against broader community interests. The Court did not rule out the possibility
that a state may have a duty under certain circumstances to prevent harm from
activities which threaten private life.7
B. ProceduralHuman Rights: Rights to Information and Participationin

Environmental Decisions
Rights to information and political participation are fundamental to the

exercise of traditional human rights, because one's survival and well-being
depend upon knowledge of environmental risks and the ability to minimize or
avoid them. Uninformed communities cannot adequately protect their lives,
livelihood, property, cultural heritage, and natural resources; nor can they call
for reforms in their government's environmental management policies.'
States should be held to an affirmative duty to assess the environmental and
public health risks associated with activities under their jurisdiction or control,
and to inform those persons potentially affected.
The recognition of such an obligation under human rights doctrine would
guarantee a type of due process for persons affected by government-sanctioned
harm to the environment. An informed public can prevent the execution of an
ill-conceived development project, lobby for the regulation of hazardous
facilities, and take similar steps to protect itself from harm. 73 Moreover,
public involvement in environmental management can reduce the risk of
political, economic, and cultural conflict that can lead to widespread human
rights violations. Open public discussions would help build broader consensus
and overcome group differences.74
state. The court stated that, "the quality of the applicant's private life and the scope for enjoying the
amenities of his home have been adversely affected by the noise generated by aircraft using Heathrow
Airport..... Article 8 is therefore a material provision." Powell and Rayner Case, 172 Eur. Ct. H.R.
(ser.A) at 18 (1990) [hereinafter Powell and Rayner Case]; see also Shelton, Human Rights, supra note
23, at 114-15.
71. Powell and Rayner Case, supra note 70, at 18-19.
72. International financial institutions seem to contribute to the problem, often conducting secret
negotiations with aid recipient countries:
Denied even basic information about the projects that affect them, the peoples of the Third
World are cast into the role of passive recipients of aid, and more often than not become victims
of its arbitrary and ill-judged effects. In promoting this lack of accountability and excluding the
public from any involvement in decision-making, these organizations are institutionalizing
undemocratic forces and reinforcing the very economic structures of exploitation and repression
that are responsible for the poverty and underdevelopment they are trying to alleviate.
PopularParticipationin Its Various Forms as an Important Factorin the Development and in the Full
Realization of All Human Rights, U.N. ESCOR, 47th Sess., Agenda Item 7(b), at 17, U.N. Doc.
EICN.4/1991111 [hereinafter PopularParticipation](quoting Survival International); see also infra notes
122-128 and accompanying text (discussing displacement caused by development programs financed by
international institutions).
73. See Robert D. Bullard, Race and EnvironmentalJusticein the UnitedStates, in this issue, at 319,
329-33.
74. Symonides, supranote 25, at 14. Governments participating in the UNCED extolled the virtues
of public participation, especially in developing actions programs to control desertification:
This due process would be further strengthened by granting non-state
actors the right to participate in intergovernmental decision-making. Such
participation by those individuals and communities affected by the outcome of
environmental projects will increase the credibility and force of the resulting
standards. Given that international environmental laws and policies seek to
regulate the behavior of individual non-state actors, increased participation by
non-state actors should increase the efficacy of global environmental
protection and reduce the incidence of conflict.75
International human rights legal doctrine should therefore recognize the
state's obligation to disclose and to facilitate citizen participation.76 Interna-
tional bodies and tribunals should interpret the following specific rights to
allow access to information and participation in environmental decisions.
1. Freedom of Expression and the Right to PoliticalParticipation
The right to free expression is a fundamental human right recognized in

many international instruments.77 It encompasses the right of individuals "to
The experience to date on the successes and failures of programmes and projects points to the
need for popular support to sustain activities related to desertification and drought control. But
it is necessary to go beyond the theoretical ideal of popular participation and to focus on
obtaining actual active popular involvement, rooted in the concept of partnership. This implies
the sharing of responsibilities and the mutual involvement of all parties.
Report of the UNCED, U.N. GAOR, Agenda Item 21, at 66, U.N. Doe. AICONF.151/26 (Vol. II)
(1992).
75. See Developments, supranote 14, at 1600-01.
76. See Shelton, Human Rights, supra note 23, at 117-18. The U.N. General Assembly has
recognized that popular participation is necessary for meaningful socio-economic development. During the
last decade, the Human Rights Commission considered evidence that supports the importance of public
participation in all facets of government. See PopularParticipation,supra note 72, at 2-19; U.N. ESCOR,
45th Sess., Agenda Item 8(c), at 4-28, U.N. Doc. EICD.4I1989I11 (1988); U.N. ESCOR, 44th Sess.,
Agenda Item 8(c), at 4-9, U.N. Doc. EICN.411988/11 (1987); U.N. ESCOR, 43rd Sess., Agenda Item
12, at 2-26, U.N. Doc. at EICN.4I1987l21 (1987); U.N. ESCOR, 41st Sess., Agenda Item 8(c), at 1-22,
U.N. Doc. EICN.411985110 (1985); U.N. ESCOR, 40th Sess., Agenda Item 8, Annex, U.N. Doc.
EICN.411984112 (1984); Population Participationin its Various Forms as an Important Factor in the
Development and in the Realizationof Human Rights, U.N. GAOR, 38th Sess., Agenda Item 85(c), at 5-
15, U.N. Doc A/38/338 (1983); id. at 1-123, U.N. Doc. AI38I3381Add.1; id. at 3-22, U.N. Doc.
A/38/338/Add.2; id.at 2, U.N.Doc. AI33I338/Add.3; id. at 2, U.N. Doe. A138l338IAdd.4. It also
proclaimed that popular participation is a human right, U.N. E.S.C. Res. 1983131, cited in U.N.
EcoNoMIc AND SOCIAL COUNcIL, COMM'N ON HUMAN RIGHTS, STUDY ON THE RIGHT TO POPULAR
PARTICIPATION IN ITS VARIOUS FORMs AS AN IMPORTANT FACTOR INTHE FULL REALIZATION OF ALL
HUMAN RIGHTs, at 2, 6, U.N. Doc. EICN.4l1984I12. But see Alston, supra note 23, at 607 (proposing
adoption of procedural reforms to ensure more adequate reflection and coordination in proclamation of new
human rights).
Some legal writers contend that the right to political participation encompasses the right to participate
in government decisions concerning environmental risks, in the formulation and implementation of
environmental policy, and in the developrment of regulations and laws concerning the environment. These
writers also contend that these environmentally-oriented participatory rights have already been established.
See, e.g., Gormley, Legal Obligation, supra note 22, at 108-09; Symonides, supranote 25, at 13-15.
77. See, e.g., Universal Declaration, supra note 31, art. 19; Political Covenant, supra note 31, art.
19; European Convention, supra note 33, art. 10; see also The Right to Freedom of Opinion and
Expression, U.N. ESCOR, Hum. Rts. Comm'n, Subcomm'n on Prevention and Protection of Minorities,
seek, receive and impart information and ideas through any media regardless
of frontiers. " 8 Historically, this right has not entailed an obligation of
governments to impart information sought by the public. It has, however,
recently been interpreted to include the "right of the public to be properly
informed."' This right should be expanded to include a "right of access" to
"
government-held environmental information where that information would

affect the health of a specific individual or group of individuals."0
Freedom of expression is a necessary component of the right to political
participation. The Political Covenant provides that "[e]very citizen shall have
the right and the opportunity . . . [t]o take part in the conduct of public
affairs, directly or through freely chosen representatives."s For this right to
be fully realized, governments must disclose relevant information when
citizens request it. Furthermore, in matters which affect fundamental rights,
governments should take the initiative to disclose relevant information in a
manner reasonably calculated to put the potentially affected parties on actual
notice so that those parties may take steps to protect their interests.
The scope of the right to free expression should be expanded and the right
to political participation should be well defined. Those persons potentially
threatened by the environmental impact of a development project should have
a right to access relevant information, and in cases of potentially serious
harm, governments should have an obligation to disclose such information in
order to place the affected parties on notice.8 2
41st Sess., Provisional Agenda Item 4, U.N. Doc. EICN.41Sub.211990111 (1990) (Daniel Turk & Louis
Joinet, Special Rapporteurs) [hereinafter Turk & Joinet].
78. Universal Declaration, supra note 31, art. 19. The restrictions on this right include those
prescribed by law and necessary for national security, public safety, and the protection of the reputation,
confidentiality, and the rights of others. Id. art. 19(3).
79. The European Court of Human Rights has interpreted Article 10 of the European Convention "as
guaranteeing not only the freedom of the press to inform the public, but also the right of the public to be
properly informed," especially where that information relates to public health and safety. Sunday Times
v. United Kingdom, Judgment No. 30, 2 Eur. H.R. Rep. 245, 66 (1979) (Court report). The House of
Lords had sought to stop the Sunday 71mes from publishing an article about the thalidomide tragedy. The
Court, recognizing a strong public interest in knowing about precautions the manufacturers took before
selling the drug, found a violation of Article 10. It held that restrictions placed on the freedom of the press
must be narrowly interpreted and "sufficiently pressing to outweigh the public interest." Id. at 66.
80. Weber, supra note 69, at 182; Giorgio Malinverni, Freedom of Information in the European
Convention on Human Rights and in the InternationalCovenant on Civil andPoliticalRights,4 HUM. RTS.
L.J. 443, 447-50 (1983).
81. Political Covenant, supra note 31, art. 25. For a general discussion of the emerging right to
political participation, see Gregory H. Fox, The Right to PoliticalParticipation,17 YALE J.INT'L L. 539
(1992).
82. In addition, the right of privacy may encompass a right of access to environmental information
and a duty upon states to provide such information. See Malinverni, supra note 80, at 450; Weber, supra
note 69, at 182; see also supra note 69 and accompanying text (discussing Powell and Rayner and privacy
right in environmental context generally). In the Gasldn case, the European Court found that the European
Convention on Human Rights protects a vital interest in receiving information concerning one's privacy
interest (in this case information necessary to understand one's childhood), but that a state may be justified
in withholding that information if necessary to protect the confidentiality of those who submitted it. Gaslin
Case, 160 Eur. Ct. H.R. (ser.A) (1989). This decision suggests that an individual may have a right of
370
2. The Emerging Right to Environmental Information
Historically, international environmental law has been limited to duties that

states owe to each other to prevent activities within their territory from
causing environmental harm to other states. However, an emergent trend in
customary international law recognizes the informational duties that states owe
to individuals within and outside their borders.8" The U.N. Convention on
Environmental Impact Assessment in a Transboundary Context embodies this
trend." Parties to the Convention must not only establish procedures that
permit public participation in environmental impact assessment, but must also
prepare extensive documentation on those assessments. 5 The party of origin
must provide its own residents and residents of other affected states equal
opportunity to participate in environmental impact assessment procedures.86
The affected states' residents must be informed of, and be provided with, the
opportunity for making comments or objections to the competent authority of
87
the state of origin.
access to information that is of vital concern to the requesting person's privacy interest and whose
disclosure would not violate the confidentiality of other individuals. Together, the Powell and Goskin cases
may stand for the principle that an individual has a right of access to information that concerns an
environmental threat to that person's home life. See Weber, supra note 69, at 182.
83. This emergent right is distinct from the rights to freedom of expression and political participation
discussed at supra notes 77-82 and accompanying text. The instruments listed in infra note 88 evidence
this trend.
84. Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991,
30 I.L.M. 800 (1991) [hereinafter Environmental Impact Convention]. Signatories include the European
Economic Community, former republics of the Soviet Union, and the United States. Id. As of June 11,
1991, 28 states had signed the convention.
85. Id. at 803. The documentation must describe the proposed activity and its purpose, reasonable
alternatives, the potential environmental impact, mitigation measures, and monitoring and management
programs, as well as the predictive methods and assumptions used and uncertainties in compiling the
required information. It must also include an outline for monitoring and management programs and a non-
technical summary. Id. at app. II.
86. Id. art. 2(6). The party of origin is the party under whose jurisdiction the proposed activity would
take place.
87. Id. art. 2(8). The party of origin must "arrange for distribution of the documentation to the
authorities and the public of the affected Party in the areas likely to be affected and for the submission of
comments to the competent authority of the Party of origin... within a reasonable time before the final
decision is taken on the proposed activity." Id. art. 4 (emphasis added); see also Convention on the
Protection of the Environment, Den.-Fin.-Nor.-Swed., Feb. 19, 1974, art. 3, 1092 U.N.T.S. 279, 13
I.L.M. 591 (1974) [hereinafter Nordic Convention] (providing equal access for victims of environmental
disputes to courts and proceedings within each state party to a transboundary dispute); Council
Recommendation on Implementing a Regime of Equal Right ofAccess and Non-discriminationin Relation
to TransfrontierPollution, OECD Doe. C(77)28(Final) (May 23, 1977), reprinted in 16 I.L.M. 977
(1977).
Whether individuals may enforce these provisions against offending states is an issue that will arise
if and when a state fhils to implement the required assessment procedures. Enforcement by individuals
seems likely in the European Community, where the European Court of Justice has ruled that individuals
may invoke European Community law in national courts. See generally Gerhard Bebr, Community Report,
in FEDERATION INTERNATIONALE PoUR LE DRorr EUROPEEN, REMEDIES FOR BREACH OF COMMUNITY
LAw 10.1-10.3 (1980) (discussing "direct effects" doctrine). A recent Council Directive supports this
conclusion. Council Directive 90/313, 1990 O.J. (L 158) 56 [hereinafter EC Directive] (requiring states
Numerous other international instruments advance a similar governmental
obligation to ensure public access to environmental information and decision-
making."5 The most recent of these is the Rio Declaration on Environment
and Development which specifies that
[e]nvironmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have
appropriate access to information concerning the environment that is held by public
authorities, including information on hazardous materials and activities in their
communities, and the opportunity to participate in decision-making processes.
States shall facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.89
Read together, the great number of treaties and international instruments that
enshrine this principle evidence an evolving right under customary internation-
al law - a right that obligates states to provide the public with information
and access to governments' environmental decisions. This right should be
incorporated into human rights doctrine, because it is fundamental to the
enjoyment and protection of other human rights, as discussed above.
A related legal issue arises after an environmental disaster occurs. Do
states have an obligation to warn all other states affected or potentially
affected by an accident causing transboundary environmental harm? If so,
what is the extent of that obligation? Although numerous states have entered
into bilateral and multilateral agreements for information exchange during
environmental accidents,9" whether such an obligation has been established
to ensure that public authorities make information relating to environment available to any inquirer,
regardless of whether that person proves direct interest in information).
88. See, e.g., RIO DECLARATION, supra note 12, princs. 10 & 17; EC Directive, supra note 87;
Ministerial Declaration on Sustainable Development in the ECE Region, para. 16(g), in Action for a
Common Future:Report of the Economic CommissionforEuropeon the Bergen Conference, U.N. GAOR,
Prep. Comm. for the UNCED, 1st Sess., Provisional Agenda Item 2(e), at 18, 26, U.N. Doc.
AICONF.1511PCI10 (1990); Ministerial Declaration on Environmentally Sound and Sustainable
Development in Asia and the Pacific, para. 27, in Reportof the Economic and Social Commissionfor Asia
and the Pacific on the Ministerial-Level Conference on Environment and Development in Asia and the
Pacific,U.N. GAOR, Prep. Comm. for the UNCED, 2d Sess., Agenda Item 2(b), at 36, 39, U.N. Doc.
A/CONF.151/PC/38 (1990); Draft ECE Charter on Environmental Rights and Obligations, Experts
Meeting of the Economic Commission for Europe, princ. 4 (Oslo, Oct. 29-31, 1990) (on file with author)
[hereinafter Draft ECE Charter]; Our Common Future, princ. 6, in Report of the World Commission on
Environment and Development, U.N. GAOR, 42d Sess., Provisional Agenda Item 83(e), at 339, 340,
U.N. Doc. A/421427 (1987) [hereinafter Bnmduland Legal Principles];World CharterforNature, G.A.
Res. 37/7, U.N. GAOR, 37th Sess., 48th plen. mtg., Supp. No. 51, princs. 23 & 24, U.N. Doc. A/37/7
(1982); Conference on Security and Cooperation in Europe, Final Act, Dep't of St. Pub. 8826, 14 I.L.M.
1292 (1975) [hereinafter Helsinki Accords]; see also U.N. ENV'T PROGRAMME, SYSTEM-WIDE MEDIUM-
TERM ENVIRONMENT PRO GRAMME FOR TBE PERIOD 1990-1995 at 98-100 (1988); EnvironmentalInpact
Assessment, princs. 7 & 8, UNEP Doc. UNEP/GC/14126 (June 10, 1987); Environmentally Sound
Management of Hazardous Wastes, guideline 9, UNEP Doc. UNEP/GC/14/30 (June 17, 1987).
89. RIO DECLARATION, supra note 12, princ. 10.
90. See, e.g., Agreement on Air Quality, Mar. 13, 1991, U.S.-Can., art. V, 30 I.L.M. 676, 680-81
(1991) ('If either Party becomes aware of an air pollution problem that is of joint concern and requires
and immediate response, it shall notify and consult the other Party forthwith.'); Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal, art. 13, UNEP Doc.
UNEP/IG.80/3 (Mar. 22, 1989), reprinted in 28 I.L.M. 649, 669-70 (1989); CouncilDecision on the
as a principle of customary international law remains unclear. Most
commentators do agree, however, that customary law requires states to
provide information during nuclear emergencies, 9 indicating an emerging
disclosure obligation in cases of serious harm. Furthermore, humanitarian
principles may require states to provide information to potential nuclear
victims in foreign countries.' The International Atomic Energy Agency's
guidelines also espouse such an obligation: "Dissemination of information to
the public is an important responsibility of the appropriate authorities in each
State. Particular arrangements ensuring the necessary co-ordination across
international borders should be established. "' The Nordic Convention on the
Protection of the Environment does not limit this obligation to nuclear
accidents; rather, it requires that information about environmentally harmful
activities be published "in the local newspaper or in some other suitable
manner" where necessary to protect public or private interests. 94
C. The Emerging Right to a Healthy Environment
The growing number of international, regional, and national instruments

which mention the right to a healthy environment seem to evidence the
evolution of a right to live in a safe environment. Nevertheless, whether such
a right exists remains controversial. Furthermore, interested parties have yet
to clarify the scope, content, and enforceability of a "right to a healthy
environment."95
At the UNCED, participating states adopted the non-binding96 Rio
Exchange of Information ConcerningAccidents Capableof Causing TransfrontierDamage,title D, OECD

Doc. C(88)84(Final) (July 8, 1988), reprintedin 28 I.L.M. 249, 252 (1989) ("In the event of an accident
or imminent threat of an accident capable of causing transboundary damage, the country of the [hazardous]
installation shall immediately transmit an emergency warning to the exposed countries.').
91. Phillippe Sands, Introductionto CHERNOBYL: LAw AND COMMUNIcAToN 1, 39 (Peter Sands ed.,
1988). Numerous international, regional, and bilateral instruments deal with notification in the case of
nuclear accidents. See, e.g., Convention on Early Notification of a Nuclear Accident, Sept. 26, 1986, S.
Treaty Doc. No. 4, 100th Cong., 1st Sess., 25 1.L.M. 1370 (1986); Council Decision 87/600/Euratom,
1987 O.J. (L 371) 76; Agreement on Integration, July 29, 1986, Arg.-Braz., protocol 11, 27 I.L.M. 905,
920 (1988) (relating to instant reporting and mutual assistance in cases of nuclear accidents and
radiological emergencies); LAEA Statement Summarizing Decisions Taken at the Special Session of the
Board of Governors Concerning the Chernobyl NuclearAccident, 25 I.L.M. 1009 (1986); see generally
INTERNATIONAL ATOMIC ENERGY AGENCY, LEGAL SERIES No.15, BILATERAL, REGIONAL AND
MULTILATERAL AGREEMENTS RELATING TO CO-OPERATION IN THE FIELD OF NUCLEAR SAFETY (1990);
Sands, supra, at 35-45, 174-78.
92. See Sands, supra note 91, at 39-40 (quoting ICJ's recent reaffirmation of Corfu Channel rule
regarding notification in Military and Paramilitary Activities (Nic. v. U.S.), 1986 I.C.J. 1, 112 (Merits));
see also supra note 11-19 and accompanying text (discussing principle of sic utere).
93. Guidelines on Reportable Events: Integrated Planning and Information Exchange in a
TransboundaryRelease of RadioactiveMaterials 4.5.1, IAEA Doc. INFCIRC/321 (Jan. 1985), reprinted
in A.O. ADEDE, THE IAEA NOTIFICATION AND ASSISTANCE CONVENTIONS IN CASE OF A NUCLEAR
ACCIDENT: LANDMARKS IN THE MULTILATERAL TREATY-MAKING PROCESS 183 (1987).
94. Nordic Convention, supranote 87, art. 7.
95. ALEXANDRE KISS & DINAH SHELTON, INIERNATIONAL ENVIRONMENTAL LAW 22-23 (1991).
96. However, since the Rio Declaration was developed to reconfirm the Stockholm Declaration, it
373
Declaration which proclaims: "Human beings are the centre of concerns for
sustainable development. They are entitled to a healthy and productive life in
harmony with nature."97 The Rio Declaration does not specify that an
individual has a "right" to live in a healthy environment, as did the Stockholm
Declaration twenty years earlier,9" but rather stipulates that individuals are
"entitled" to a healthy life. Whether the latter term is meant to convey
something less than a "right" is unclear. Significantly, the Rio Declaration
does provide that states should develop national laws regarding liability and
compensation for victims of pollution and other environmental damage."
Various regional documents also profess the right of people to live in a
healthy environment. However, these, too, are general and vague. 1°° Many
countries have included environmental rights in their constitutions, 10' but
these provisions remain largely aspirational and express national goals or
intents, rather than justiciable rights.
These instruments evidence the evolution of a substantive right to a healthy
environment in international law."°2 States and human rights bodies must
clarify the precise nature and content of such a right in order for it to protect
people and their environment effectively. Until they do so, procedural
could be viewed as part of customary international law. See Gormley, Legal Obligation, supra note 22,
at 98 (arguing that Stockholm Declaration constitutes customary international law).
97. Rio DECLARATION, supra note 12, princ. 1; see also The Need to Ensurea Healthy Environment
for the Well-being of Individuals, G.A. Res. 45/94, U.N. GAOR, 45th Sess., Supp. No. 49A, at 178,
U.N. Doec. A/45149 (1990) (recognizing that "all individuals are entitled to live in an environment adequate
for their health and well-being").
98. STOCKHOLM DECLARATION, supra note 12, princ. 1 (proclaiming a "fundamental right to
freedom, equality and adequate conditions of life, in an environment of a quality that permits life of
dignity and well-being"); see also BrundriandLegalPrinciples,supranote 88, princ. 1 (stating that "[a]ll
human beings have the fundamental right to an environment adequate for their health and well-being).
99. Rio DECLARATION, supra note 12, princ. 13.
100. See, e.g., African Charter, supra note 32, art. 24 ("All peoples shall have the right to a
generally satisfactory environment favorable to their development."); Protocol of San Salvador, Nov. 14,
1988, art. 11, O.A.S. T.S. No. 69, 28 I.L.M. 156 (1989) ("Everyone shall have the right to live in a
healthy environment and to have access to basic public services.... The States Parties shall promote the
protection, preservation and improvement of the environment.'); Draft ECE Charter, supranote 88, princ.
1 ("Everyone has the right to an environment adequate for his general health and well-being."). The
Protocol of San Salvador refers to enforcement mechanisms, but the state reporting scheme for rights other
than civil and political rights is unlikely to help victims of environmental harm. See Protocol of San
Salvador, supra.
101. These are Albania, Algeria, Austria, Bahrain, Belgium, Bolivia, Brazil, Bulgaria, Burma, Chile,
China, Columbia, Costa Rica, Czechoslovakia, Ecuador, El Salvador, Ethiopia, Greece, Guatemala,
Equatorial Guinea, Guyana, Haiti, Honduras, Hungary, India, Islamic Republic of Iran, Republic of
Korea, Mozambique, Namibia, Netherlands, Nicaragua, Nigeria, Panama, Papua New Guinea, Paraguay,
Peru, Philippines, Poland, Portugal, Romania, Russian Federation, Spain, Sri Lanka, Sweden,
Switzerland, Taiwan, Tanzania, Thailand, Turkey, United Arab Emirates, Vanuatu, Viet-Nam, Yemen,
and the former Yugoslavia. See Ksentini, supra note 28, at 5-7 (listing constitutional provisions); WEISS,
supra note 24, at 297-327 (same).
102. Kiss & SHELTON, supranote 95, at 21-31; c. Gormley, Legal Obligation,supra note 22, at 85
(arguing right to environment has been established); Symonides, supra note 25, at 7-8 ("The right to a
clean, balanced and protected environment is a fundamental one because it is vital for the exercise of other
individual rights and duties, including the right to life."). But see Alston, supranote 23, at 608 (debating
credibility of declaration of right absent formal process to consider establishment of that new right).
guarantees, such as those discussed in section B above, may serve as a

surrogate protection against environmental harm. 3
m. THE PLIGHT OF ENVIRONMENTAL REFUGEES
The exploitation and degradation of natural resources has led to the

creation of a new refugee phenomenon: "environmental refugees." These are
people fleeing natural disasters, such as radical land transformations, the
construction of dams and irrigation works, or toxic contamination."l°
Environmental refugees now comprise the largest, as well as the fastest
growing, group of displaced persons in the world."0 5 Over 135 million
people may be at risk of being displaced by severe desertification alone."
103. Shelton, Right to Environment, supra note 24, at 24-25 (arguing right to environment can be
viewed as procedural right, requiring state to adopt procedural guarantees against arbitrary action which
could significantly affect environment); see also Shelton, Human Rights, supra note 23, at 117; Kiss &
SHELTON, supra note 95, at 25-26.
104. Environmental refugees has been defined as people "forced to leave their traditional habitat,
temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by
people) that jeopardized their existence and/or seriously affected the quality of their life." ESSAM EL-
HINNAWI, U.N. ENV'T PROGRAMME, ENVIRONMENTAL REFUGEES 4 (1985). An environmental disruption
refers to "any physical, chemical and/or biological changes in the ecosystem (or the resource base) that
renders it temporarily or permanently unsuitable to support human, life." EL-HNNAWI, supra, at 4.
Environmental refugees full into three broad categories: those displaced temporarily by a natural disaster;
those permanently displaced by changes to their subsistence base such as development projects; and those
who migrate temporarily or permanently because of environmental degradation affecting their quality of
life. Environmental factors cause these persons to migrate both within and across national boundaries. Id.
at 4-5.
105. The author directed an extensive project to document the tragedy of environmental refugees in
various regions of the world. These case studies, co-published by the NHI, were submitted to a group of
experts organized to assist the U.N. High Commissioner for Refugees, International Organization on
Migration, and governments in better understanding the problem and in developing solutions. See
ANTHONY V. CATANESE, UNIVERSITIES FIELD STAFF INT'L & NATURAL HERITAGE INST., HAITI's
REFUGEES: POLITICAL, ECONOMIC, ENViRONMENTAL (Field Staff Reports No. 17, 1990-91); CLARENCE
MALONEY, UNIVERSITIES FIELD STAFF INT'L & NATURAL HERITAGE INST., ENVIRONMENTAL AND
PROJECT DISPLAcEMENT OF POPULATION IN INDIA, PART I: DEVELOPMENT AND DERACINATION (Field
Staff Reports No. 14, 1990-91) [hereinafter MALONEY, PART I]; CLARENCE MALONEY, UNIVERSITIES
FIELD STAFF INT'L & NATURAL HERITAGE INST., ENVIRONMENTAL AND PRoiECT DISPLACEMENT OF
POPULATION IN INDIA, PART II: LAND AND WATER (Field Staff Reports No. 19, 1990-91) [hereinafter
MALONEY, PART 11]; THoMAS G. SANDERS, UNIVERSITIES FIELD STAFF INT'L & NATURAL HERITAGE
INST., NORTHEAST BRAZILIAN ENViRONMENTAL REFUGEES, PART I: WHY THEY LEAVE (Field Staff
Reports No. 20, 1990-91); THOMAS G. SANDERS, UNVERSrriEs FIELD STAFF INT'L & NATURAL
HERITAGE INST., NORTHEAST BRAZILIAN ENViRONMENTAL REFUGEES, PART II: WHERE THEY Go (Field
Staff Reports No. 21, 1990-91); SUSAN TAMoNDONG-HELIN & WILLIAM HELN, UNIVERSITIES FIELD
STAFF INT'L & NATURAL HERITAGE INST., MIGRATION AND THE ENVIRONMENT: INTERRELATIONSHIPS
IN SUB-SAHARAN AFRICA 1 (Field Staff Report No. 22, 1990). The author, along with other non-
governmental organizations, has presented testimony on this issue to a U.N. subcommission. See Written
Statement Submitted by Human Rights Advocates, U.N. Hum. Rts. Comm'n, Sub-comm'n on Prevention
of Discrimination and Protection of Minorities, U.N. GAOR, 44th Sess., Agenda Item 4, U.N. Doc.
E/CN.41Sub.2119911NGO/10 (1992). On the refugee problem, see generally JODI L. JACOBSON,
WORLDWATCH INST., ENVIRONMENTAL REFUGEES: A YARDSTICK OF HABITABILITY (Worldwatch Paper
No. 86, 1988); Refugee Policy Group, Conference Report: Migration and the Environment (Jan. 19-22,
1992) (unpublished manuscript, on file with author) [hereinafter RPG, Migration Report].
106. Cf. U.N. POPULATION FUND, POPULATION, RESOURCES, AND THE ENVIRONMENT: THE
375
Although the problem has reached critical proportions, these refugees are
among the most vulnerable: they do not fall within the traditional legal
definition of "refugee""0 7 and thus generally do not qualify for international
assistance and protection. Existing laws and institutions must be modified to
protect and assist environmental refugees.
A. Causes of EnvironmentalMigration
1. Irrigation and Flood-ControlProjects
Large-scale irrigation projects share many of the environmental and human

impact problems of the hydro-power dams, discussed in part I. For example,
the Narmada Project in India, one of the biggest water development and
resettlement projects ever planned, will displace more than one million people
in the states of Maharashta and Madhya Pradesh.' Nearly two hundred
thousand of these people are members of indigenous groups."° Although the
Maharashta government has promised two hectares of land to all displaced
persons over eighteen years of age, insufficient land and infrastructure makes
fulfillment of this pledge unlikely. In fact, only five to ten percent of those
displaced by this project have received compensation under the rehabilitation
program since its institution six years ago. 10 Furthermore, no reliable
mechanism exists in India to involve the affected people in project planning
or to redress their injuries."1
The Volta River dam in Ghana is another example. Resettlement proposals
tied to the project changed significantly over the years. Approximately 80,000
CRITICAL C-ALLENGEs 32 (1991) [hereinafter UNFPA]. Exacerbated by population growth, poverty, and
economic polarization, these mass migrations are in turn likely to contribute to environmental degradation
in the resettlement areas. See id. at 32.
107. See infra notes 129-134, 136 and accompanying text.
108. See K.V. Raju & Clarence Maloney, Environmental Refugees in India 10 (Jan. 1992)
(unpublished manuscript, on file with author); see also MALONEY, PART I, supra note 105; MALONEY,
PART II,supra note 105.
109. Raju & Maloney, supra note 108, at 10.
110. Id. at 10-11, 20 (contending that all land in India "even remotely suitable for agriculture is under
the plow"); see also MALONEY, PART 1, supra note 105, at 6-7 (contending that government used outdated
appraisals for compensation and allotted land already occupied by others or land unsuitable for cultivation).
111. Raju & Maloney, supra note 108, at 19. Because of the lack of an established framework for
negotiations between displacees and the government,
project authorities often refuse to have anything to do with the outstees' organizations.
Many of the oustees' organizations claim that as a result of the government's insincere
attitute towards compensation, when the oustees are physically removed, they get compensated
a nominal amount and then their grievances are supposed to completely cease.
This attitude of the government has led to a general loss of faith among the displaced
persons and further exacerbates the polarization. The media too, often turn partisan, divided
along language, communal or political lines.
Id.; see also EDWARD GOLDSMITH & NICHOLAS HILDYARD, THE SOCIAL AND ENVIRONMENTAL EFFECTS
OF LARGE DAMs 19-23 (1984) (discussing general insensitivity of governments to needs of peoples
displaced by dams).
people were displaced by the dam. Of these, 17,000 immediately opted for a
cash settlement and left the area. Another 64,000 moved to new villages;
however, a large number soon moved on when they were faced with shortages
of housing, cleared land, money, and food."'
2. Desertification
Unsustainable farming practices stemming from overpopulation,'

poverty, 114 drought," 5 and economic pressures". have led to widespread
land degradation in various Third World countries. Desertification, for
example, affects about 3.6 billion hectares, or about one quarter of the
world's total land area. 7 About half of the people most threatened by
desertification live in the Sahel, a semi-arid zone stretching across the entire
continent of Africa, from Mauritania in the West to the Horn of Africa in the
East."' Droughts in the area can last for years, or even decades. Over the
past few decades, intensive farming and rapid deforestation have led to
massive soil depletion and erosion. Ground cover not cleared for cultivation
is harvested for cooking fuel, frequently in violation of local laws."' A
recent study by the World Conservation Union (IUCN) concluded that,
"[a]lternative fuel and building supplies could reduce the pressure on the
shrinking forests. But unless those alternatives are available, people in the
Horn will not stop cutting wood until the entire region is totally defor-
112. Ronald Graham, Ghana's Volta Resettlement Scheme, in THE SOCIAL AND ENVIRONMENTAL
EFFECTS OF LARGE DAMS, VOLUME TWO: CASE STUDIES 131, 133-34 (Edward Goldsmith & Nicholas
Hildegard eds., 1986). For additional case studies, see Schwartz, supra note t, at 58-72.
113. According to U.N. projections, the earth's population will grow by one billion by the turn of
the century. If unchecked, world population would pass ten billion by 2050, with 97% of that growth
occurring in developing countries, where arable lands have already become marginal. U.N. DEP'T OF
PUBLIC INFORMATION, EARTH SUMMIT IN Focus, No. 6, at 2-3, U.N. Doc. DPI/1200-92202 (1991).
Population growth and movement interrelate significantly with environmental factors, contributing to
natural resource destruction and the creation of environmental refugees; international laws and policies
must address the problem of population growth.
114. See Combating Poverty, Changing Consumption Patterns, and Demographic Dynamics and
Sustainability, Preparatory Comm. for the UNCED, 4th Sess., Provisional Agenda Item 2(c), at 2, 12,
A/CONF.1511PC/IO0IAdd.2 (1991), reprinted in 1 AGENDA 21 & THE UNCED PROCEEDINGS 59
(Nicholas A Robinson ed., 1992) [hereinafter Combating Poverty].
115. See ManagingFragileEcosystems:CombatingDesertficationandDrought,Preparatory Comm.
for the UNCED, 4th Sess., Agenda Item 2(c), at 13, A/CONF.1511PC/100/Add.17 (1991), reprinted in
I AGENDA 21 & THE UNCED PROCEEDINGS, supra note 114, at 369 [hereinafter Managing Fragile
Ecosystems].
116. Debt-laden countries, under pressure to maximize production of commodities for export,
frequently overuse fragile soils. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, FROM ONE
EARTH TO ONE WORLD 18 (1987).
117. Managing FragileEcosystems, supra note 115, at 5; see also EL-HINNAWI, supranote 104, at
10-13; IUCN, FIGHTING FOR SURVIVAL: INSECURITY, PEOPLE AND THE ENVIRONMENT IN THE HORN OF
AFRICA 89-100 (Robert A. Hutchison ed., 1991); UNFPA, supra note 106, at 32-35.
118. TAMONDoNG-HELIN & HELIN, supra note 105, at 1.
119. Id. at 3. The fuelwood deficit in the region has been estimated at 50%. Id.
ested."' 2 ° This study estimated that "by the year 2010 some 38,000 square
kilometres of the Ethiopian highlands will be down to bare rock and a further
area of 60,000 square kilometres will have less than 10 centimetres of soil
remaining on it."'' This degradation of land forces the people dependent
on it to abandon their agricultural subsistence and relocate to already
overpopulated cities nearby, where the influx of additional people will
contribute to further land degradation.
3. Policies of InternationalFinancialInstitutions
International financial organizations contribute to the environmental

refugee problem by financing projects that displace populations. Bank policies
to mitigate the effects of involuntary displacement" have proven ineffective
at preventing the problem, largely because host governments have ignored
them.'" For example, during the 1980s, the World Bank financed 101
projects that caused the displacement of approximately 1.6 million to 1.8
million people. 24 The World Bank itself has estimated that between 1.2
million and 2.1 million people are displaced worldwide because of new dam
construction alone." z Although it has thus far failed to prevent such
displacement, the World Bank has at least acknowledged that displacement
"can cause profound distress, disruption of social and productive structures,
26
increased poverty, and environmental damage.",,
Recognizing the World Bank's failure to enforce its policies concerning
120. IUCN, supra note 117, at 94.

121. Id. at 93.
122. The World Bank's initial resettlement policy called on host governments to avoid or minimize
involuntary displacement wherever possible, to encourage community participation in planning and
implementing resettlement, to invest sufficient resources to assist resettlers in their efforts to improve or
restore their previous living standards, and to compensate displaced persons for their losses at replacement
cost. Revised policy guidelines, issued in October 1991, require a resettlement plan for every project that
causes involuntary displacement. WORLD BANK, ANNUAL REPORT 1992 58-59 (1992). However, the
policy remains aimed primarily at mitigating the resettlement impacts rather than affording public
participation in the decision-making process. Interview with Owen T. Lammers, Executive Director of
International Rivers Network, in Berkeley, C.A. (Feb. 25, 1992); see also Letter from Owen T. Lammers,
Executive Director of International Rivers Network, to E. Patrick Coady, U.S. Executive Director of the
World Bank 1 (June 27, 1991) (on file with author) (arguing that Environmental Assessment Operational
Directive must treat public participation as fundamental component of environmental review process, rather
than as peripheral issue). But see WORLD BANK, ANNUAL REPORT 1990 63-67 (1990).
123. Letter from U.S. Senators Robert Kasten & Patrick Leahy, Committee on Appropriations, to
Nicholas F. Brady, U.S. Secretary of the Treasury 1 (June 25, 1991) [hereinafter Kasten & Leahy Letter]
(on file with author).
124. Michael M. Cernea, Involuntary Resettlement: Social Research, Policy, and Planning, in.
PUTrING PEOPLE FIRsT: SOcIOLOGICAL VARIABLES IN RURAL DEVELOPMENT 188, 192 (Michael M.
Cernea ed., 2d ed. 1991). It should be noted, however, that these projects represented less than five
percent of the total number of projects approved by the Bank during this period. Id.
125. Id. But see Raju & Maloney, supra note 108, at 203 (estimating higher numbers of persons
displaced by dam projects in India alone).
126. WORLD BANK, WORLD BANK DEVELOPMENT REPORT 59 (1990).
resettlement of people forcibly displaced by large-scale projects, a U.S.
Congressional committee threatened to withhold part of the appropriations for
the World Bank.127 Given the World Bank's poor track record, the approach
suggested by the Congressional committee's purse-string threat may offer the
most promising option for protecting environmental refugees created by
12
internationally-financed projects. 8
B. Legal Protectionfor Environmental Refugees
The definition of "refugee" in the Convention Relating to the Status of

Refugees (Refugee Convention) restricts the scope of protection to those who
fear civil or political persecution.'29 The Refugee Convention defines a
refugee as any person who, "owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection
of that country."130 Because of this restrictive definition, nations who have
adopted the Convention have not yet accorded refugee status to environmental
migrants."' International organizations established to foster protection and
aid for refugees, such as the U.N. High Commissioner for Refugees
(UNHCR), must also constrain their activities to addressing the needs of
political refugees. In a recent report, a group under the UNHCR noted that
there is a need to provide international protection to persons outside the
current international legal definition of refugee."2 The Refugee
127. Congress demanded that the World Bank submit to the U.S. Treasury and to the Senate
Appropriations Committee a list of all current projects in which people were being forcibly displaced and
the action plans for each project. It also demanded that the Bank seek agreement with the borrowers to
ensure that the projects comply with the Bank's resettlement policy by mid-1993. Kasten & Leahy Letter,
supra note 123, at 4-5. Finally, it also urged the World Bank to modify its policies so that environmental
documents and opportunities for comment are made available to the public. Id. at 5.
128. Greater involvement of international human rights bodies and non-governmental organizations
(NGOs) could also serve this end.
129. James Hathaway, A Reconsiderationofthe UnderlyingPremiseofRefugee Law, 31 HARV. INT'L
L.J. 129, 150 (1990).
130. Convention Relating to the Status of Refugees, July 28, 1951, art. l(A)(2), 189 U.N.T.S. 137,
152; see also Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S.
267. As of 1991, about 100 countries had acceded to the each of these instruments.
131. See, e.g., Immigration and Nationality Act of 1990, 8 U.S.C.A. § 1101(a)(42)(A) (West Supp.
-1992). Moreover, because of increasingly hostile national sentiments against refugees, see Daniel
Kanstroom, Wer Sind Wir Wieder? Laws ofAsylum, Immigration, and Citizenshipin the Struggle for the
Soul of the New Germany, 18 YALE J. INT'L L. 155, 156 (1993), denial rates for asylum are currently
high in many states. RPG, Migration Report, supra note 105, at 22.
132. The group examined the situation of certain categories of persons seeking asylum and refuge,
including internally displaced persons and those forced to leave or prevented from returning to their homes
because of human-made disasters, natural or ecological disasters, or extreme poverty. Report of the
Working Group on Solutions and Protection,Exec. Comm. of the High Commissioner's Programme, Sub-
comm. of the Whole on Int'l Protection, 42nd Sess., at 3, U.N. Doc. ECISCP/64 (1991) [hereinafter
Working Group on Solutions].
Convention's conceptualization of refugees is inadequate today because it
ignores the overwhelming number of people whose rights to health, food, and
employment are threatened by environmental disasters. A more comprehen-
sive, functional definition of refugee must be developed. 33'
Two regional groups have defined "refugee" more expansively. The
Organization of African Unity's Convention Governing the Specific Aspects
of Refugee Problems in Africa (OAU Convention) states that the term applies
to every person who, owing to external aggression, occupation, foreign domination
or events seriously disturbingpublic orderin eitherpartor the whole of his country
of origin or nationality, is compelled to leave his place of habitual residence in
order 134to seek refuge in another place outside his country of origin or nation-
ality.
If environmental disruptions "seriously disturb public order", those
affected by these events may be refugees within the OAU Convention's
definition. However, this definition restricts refugee status to those who seek
refuge in another country. Those who are internally displacedwould not come
within the OAU definition of refugee.
Similarly, the Cartagena Declaration, adopted by the Organization of
American States, also incorporates an expansive definition of "refugee." It
includes in its definition of refugee persons who have fled "their countries
because their life, safety or liberty have been threatened by widespread
violence, foreign aggression, domestic conflict, massive violation of human
t
rights or other situations that have seriously disturbed public order. 135
Significantly, natural disaster is not listed as one of the threats that place
environmental migrants within the definition of refugee. Thus, even these
more expansive definitions do not protect the nearly twenty million people
who have been displaced within their countries because of environmental and
other causes."3 6 The definitions of refugee contained in the OAU Convention
and the Cartegena Declaration apply only to persons who have fled their
133. See James A.R. Nafziger, A Commentary on American Legal Scholarship Concerning the
Admission ofMigrants, 17 MICH. J.L. REFORM 165, 169 (1984) (recommending determination of refugee
status based on "urgent human need"); Human Rights and the Environment, U.N. GAOR, Hum. Rts.
Comm'n, 43rd Sess., Agenda Item 4, at2, EICN.41Sub.2119911NGO144 (1991) (statementby International
Education Development, Inc.).
134. Convention Governing the Specific Aspects of Refugee Problems in Africa, June 20, 1974, art.
1(2), 1001 U.N.T.S. 45, 47 (emphasis added). As of September 31, 1991, 41 member states of the
Organisation of African Unity had adopted the definition.
135. Declaration of Cartegena, para. 3, in Yanomami Case, supra note 39, at 179-80 (approved at
Colloquium on International Protection of Refugee in Central America, Mexico and Panama: Legal and
Humanitarian Programs, Cartegena, Colombia, Nov. 19-22, 1984); see also Hdctor Gros Espiell et al.,
Principlesand Criteriafor the Protectionof andAssistance to CentralAmerican Refugees, Returneesand
DisplacedPersons in LatinAmerica, 2 INT'L J.REFUGEE L. 83, 94-96 (1990); Hathaway, supra note 129,
at 131 n. 10. This requires an objective examination of the situation in the country and the situation of the
particular individual or group of persons. Espiell et al., supra, at 93.
136. Refugee Policy Group, Conference Report: Human Rights Protection for Internally Displaced
Persons 1 (June 24-25, 1991) [hereinafter RPG, Internally Displaced Persons] (unpublished manuscript,
on file with author).
country of origin or nationality, in conformity with existing international legal
principles.
Furthermore, international humanitarian law provides little, if any,
protection for victims of internal disturbances. 3 7 These persons consequently
have received very little protection and assistance from human rights
organizations. 3 ' In recent years, however, U.N. agencies, non-governmen-
tal organizations (NGOs), and foreign governments have experienced
moderate success in providing humanitarian assistance despite non-cooperative
governments.' 3 9 Environmental refugees can only hope that this trend will
continue and that the world community will begin to respond to their plight.
IV. PROVIDING EFFECTIVE RIGHTS AND REMEDIES
Several key international instruments do not specifically refer to

environmental rights. Thus, the definitions of human rights in international
instruments should be expanded to include the right to a clean and healthy
environment. However, the articulation of rights means little unless
accompanied by effective remedies. Therefore, access to human rights
tribunals and national courts should be expanded to facilitate the presentation
of environmental human rights claims.
A. Broadening Substantive Human Rights Violations to Include Environmental

Human Rights
The primary problem with providing a remedy for environmental damage

in the existing human rights legal fora is that international human rights
instruments do not clearly define environmental rights. Thus, many adjudica-
tory human rights institutions which can hear claims brought by individuals,
such as those discussed below, cannot hear the claims of many environmental
victims.
For example, the International Human Rights Committee (IHRC) may only
consider issues arising under the International Covenant of Civil and Political
Rights (Political Covenant)." 4 Thus, a victim would need to demonstrate a
137. It is unclear whether the mandates of international humanitarian organizations allow them to
provide assistance to internally displaced persons. RPG, Internally Displaced Persons, supra note 136, at
2. For example, the Executive Committe of the High Commissioner's Programme has indicated that the
competence of the U.N. High Commissioner for Refugees does not generally extend to people displaced
inside their own countries because of natural or ecological disasters. Working Group on Solutions, supra
note 132, at 9.
138. RPG, Internally Displaced Persons, supra note 136, at 2.
139. Id. at 8.
140. The IHRC was established under the Political Covenant. Political Covenant, supra note 31, art.
28. It consists of 18 human rights experts, charged with overseeing the implementation of the Covenant.
The IHRC may investigate individual complaints against states party to the Optional Protocol.
serious threat to her life from the probability of an environmental disaster, or
show actual physical harm, in order to make a claim before the IHRC. A
claim concerning environmental damage that injured one's general health,
economic stature, or cultural identity would not necessarily fall within the
IHRC's jurisdiction. As such, it is uncertain whether the IHRC can effectively
serve the needs of many environmental victims. 4' In order for the IHRC to
address the claims of all environmental victims, the substantive rights
enunciated in the Political Covenant would have to be supplemented with a
right to be protected from environmental harm. This may require the
development of an additional protocol.' 4 2
The Commissions and Courts established pursuant to the European and
American Conventions review the international human rights embodied in
those Conventions, including the rights to life, privacy, and cultural survival.
Each of these rights can be asserted to protect victims from environmental
harm. 43 Like the Political Covenant, however, these conventions do not
provide clearly defined environmental human rights enforceable by individu-
als. Consequently, like the IHRC, these tribunals may hear complaints from
environmental victims only if the victims can demonstrate harm to the human
rights defined in these regional conventions.
As these examples demonstrate, the primary inadequacy of the various
adjudicatory human rights institutions is that the conventions and instruments
under which they operate do not expressly include the right to a clean and
healthy environment." Thus, until protocols or conventions are adopted,
protection for victims of environmental harm will depend upon the willingness
of international and regional human rights bodies and tribunals to interpret
existing human rights to achieve the goal of a clean and healthy environ-
ment. 45
141. The IHRC cannot enforce its decisions. Rather, it can only request that a state modify its
behavior and provide redress to the victim. Dr. Henn-Jgiri Uibopuu, The Internationally Guaranteed Right
of an Individual to a Clean Environment 114 (modified text of paper presented at the International
Conference on the Law in Protection of the Environment, held at Szombathely, Hungary, Sept. 6-10,
1976, on file with author). The IHRC hopes that public reports identifying an offending state will
encourage other states and the public to condemn that government, thus pressuring it to change its
behavior.
142. See Gormley, Legal Obligation, supra note 22, at 15-16.
143. The decisions of both the European and American human rights institutions, which occasionally
award compensation to victims, are binding on member states. Under the European Convention, for
example, the Court may award compensation to the aggrieved party and request the Committee of
Ministers to supervise the enforcement of the judgement. See, e.g., Neumeister Case, 17 Eur. Ct. H.R.
(ser.A) at 20-21 (1974) (awarding compensation for lawyer's fees necessary to prevent illegal detention);
see generally GORMLEY, HUMAN RIGHTS, supra note 22, at 52-53.
144. Indeed, of the international agreements governing human rights, only one makes express
reference in the text to a human right to environment. African Charter, supra note 32, art. 24; see Melissa
Thorme, EstablishingEnvironmentas a Human Right, 19 DEN. J. INT'L. L. & POL'Y 301, 317 (1991).
145. Some argue that the right to life implicates the right to a healthy environment. See, e.g.,
Uibopuu, supra note 141, at 106-10.
To facilitate this process, the IFHRC and the Inter-American and European
Courts and Commissions should (1) identify the rights in the covenants and
conventions that may be violated by environmental abuses; (2) specify the
limits and content of those rights in protecting environmental victims; and, (3)
based upon the foregoing evaluation, investigate environmental human rights
abuses of governments.
Furthermore, to best address the needs of all environmental victims, the
U.N. Human Rights Commission should draft either a protocol to an existing
human rights convention or a new convention that recognizes a fundamental
right to a clean and healthy environment and that provides special protections
for environmental refugees. The instrument should require governments to (1)
ensure the right of all persons to know about potential environmental threats
and to effectively participate in all environmental decision-making; (2)
evaluate the environmental risks associated with their activities or those that
they approve; and (3) disapprove projects or activities that may harm
residents, unless they implement mitigating measures developed with citizen
input. To be effective, the instrument should provide victims with a right to
compensation 1" which can be enforced by an international agency.
B. Modifying EstablishedHuman Rights Enforcement Mechanisms
The re-interpretation and expansion of existing human rights should be

accompanied by broadening access to human rights institutions and national
tribunals. The following sections present several such possible modifications.
1. Modifying ProceedingsBefore the International Court of Justice
The Statute of the International Court of Justice sets forth restrictive

standing requirements. 47 Numerous scholars have proposed expanding this
provision to allow individuals to petition and appear as parties before the
Court.' Given the myriad shortcomings of the international liability
146. An "enforceable right to compensation" is provided by other international instruments. See, e.g.,
European Convention, supra note 33, art. 5(5); Political Covenant, supra note 31, art. 9(5); see generally
Study Concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross
Violations ofHuman Rights and Fundamental Freedoms, U.N. ESCOR, Hum. Rts. Comm'n, Sub-comm'n
on Prevention of Discriminationand Protection of Minorites, 44th Sess., Provisional Agenda Item 4, U.N.
Doc. EICN.4Sub.211992I8 (Theo van Boven, Special Rapporteur).
147. See supra notes 16-17 and accompanying text. By contrast, the Inter-American Commission on
Human Rights may consider petitions by individuals, groups, or NGOs, including, in most cases, petitions
lodged on behalf of third parties. American Convention, supra note 32, art. 44; see also Shutkin, supra
note 39, at 492. The European Commission on Human Rights may also hear individual petitions against
states who have declared to recognize the Commission's competence to receive such petitions. European
Convention, supra note 33, art. 25. Still, the only remedy available to individual environmental victims
in states not party to these conventions is for them to persuade their own government to take up their cause
against an offending state.
148. GoRMLEY, HUMAN RIGHTS, supra note 22, at 15; Gormley, Legal Obligation, supra note 22,
49
'
regime, modification of the standing requirements of the ICJ to permit the
opportunity for individual petition would afford only marginal gains in
protecting individuals from environmental abuses. 5 ' Efforts to expand the
role of the ICI in the protection of the environment would be better directed
toward encouraging the Court to adopt the doctrine of actio popularis.
Under actiopopularis, states may claim violations of obligations owed to
the world community; for example, one state may challenge another's
activities which damage common resources. Although the ICJ has declined to
adopt this doctrine,' 5 ' more recent evidence suggests that the Court may
have reconsidered its position. '52 The expansion of the actio popularis
doctrine to allow any state to proceed on a claim against another state for
degrading the global commons might not only encourage states to challenge
other states' environmental practices, but would also augment the ICJ's
contribution to the development of the corpus of international environmental
law. 53 Other procedures, as discussed below, are better-suited to address
the human rights abuses suffered by individuals and non-state groups because
of environmental harm.
2. Modeling Mechanisms on the InternationalLabour Organisation
Procedures similar to those of the International Labour Organisation (ILO)

would be desirable for enforcing the individual and collective human rights
implicated by natural resource exploitation and degradation. Human rights
at 96.
149. See supra notes 10-19 and accompanying text.
150. Moreover, the mere fact that the Court and the international community of states have
consistently refused to expand the standing requirements to include individuals counsels against
emphasizing this approach. The ICJ, it seems, is determined to remain a Court reserved for the resolution
of intergovernmental disputes.
151. See supra note 18.
152. See Barcelona Traction, Light & Power Co. (Beig. v. Spain), 1970 I.C.J. 4, 32 (Feb. 5)
(recognizing human rights obligations were owed to community of nations, although generally only victim
state has right to proceed on a violation). Cf. Nuclear Tests, (Austl. v. Fr.), 1974 I.C.J. 253 (Judgment
of Dec. 20); Nuclear Tests, (N.Z. v. Fr.), 1974 I.C.J. 457 (Judgment of Dec. 20).
153. See Developments, supranote 14, at 1498, 1502. A similar procedure has met with some success
in the context of the International Labor Organization, whereby any member state may file a complaint
against another member state's practices violative of any convention which both states have ratified. In
such cases, the Governing Body appoints a Commission of Inquiry, pursuant to Articles 24-26 of the ILO
Constitution, to investigate the allegations and to make the findings public, even if the interests of the
petitioning state are not "directly" affected. Thus, for example, the government of Ghana challenged
Portugal's behavior with respect to nationals of Angola, Guinea, and Mozambique under the Abolition of
Forced Labour Convention. Report of the Commission Appointed UnderArticle 26 of the Constitutionof
the International Labour Organization to Examine the Complaint Filed by the Government of Ghana
Concerning the Observance by the Government ofPortugal of the Abolition of Forced Labour Convention,
1957 (No. 105), 45 I.L.O. OFF. BULL., Supr,II (Apr. 1962). The proceedings were conciliatory in nature
and the Commission commended Portugal for its cooperation throughout the investigation. See W. PAUL
GORMLEY, THE PROCEDURAL STATUS OF THE INDIVIDUAL BEFORE INTERNATIONAL AND SUPRANATIONAL
TRmBuNAuS 56-57 (1966).
384
scholars continue to applaud the ILO's mechanisms; 154 some have urged
their applicability specifically to international environmental rights.155
Among the most appealing aspects of the ILO system is the provision in the
ILO Constitution allowing individuals to petition through "an industrial
association of employees or of workers."' 6 Upon receipt of a petition in
cases involving protection of trade union freedoms, forced labor, or
employment discrimination, a special commission hears the complaint and
issues findings and conclusions. The proceedings are conciliatory in nature,
and respondent governments have generally been cooperative. 15 7 A system
modelled on the ILO could be effective in the environmental context, as many
regional and international NGOs with expertise in environmental and human
rights matters could play a role in representing the concerns of aggrieved
victims.
The ILO's provision for petition by associations may only be invoked by
associations that have "recognized standing" in the labor movement. In the
environmental context, this requirement could have the perverse effect of
favoring only established non-governmental organizations and the causes that
they wished to espouse. This could effectively deny representation of the
concerns and claims of fledgling and non-traditional associations of peo-
ples. t58 As the purpose of this requirement is to diminish "frivolous" or
politically-motivated claims,159 it may be preferable in the environmental
context to create a board to screen petitioners.
Finally, members of the ILO are bound not only by the conventions which
they have ratified, but also by a "common law" comprised of the ILO
Constitution and interpretations thereof, as well as the Conventions and
Recommendations promulgated at the International Labour conferences. 1"
This aspect of the ILO system, too, might be desirable for the international
environmental regime because it would contribute to the advancement of the
corpus of shared obligations and interests of states.
154. See, e.g. RICHARD B. LILLICH & FRANK C. NEWMAN, INTERNATIONAL HUMAN RIGHTS:
PROBLEMS OF LAW AND POLICY 385-86 (1979) (noting that ILO has "what many observers regard as the
most effective program extant in international human rights implementation").
155. See, e.g., GORMLEY, HUMAN RIGHTS, supra note 22, at 44-45 & 45 n.41 (presenting case for
applicability of some aspects of ILO mechanisms to international environmental rights); Thorme, supra
note 144, at 340 (same).
156. Constitution of the International Labour Organisation, Oct. 9, 1946, art. 23, T.I.A.S. 1868, 15
U.N.T.S. 40, 84; see also Gormley, Legal Obligation, supra note 22, at 102-03.
157. See generally GORMLEY, PROCEDURAL STATUS, supra note 153, at 57-60. In the case of trade
union rights, complaints are first screened by the Governing Body. Id. at 59.
158. See, e.g., Developments, supra note 14, at 1602-03 (noting related concerns arising from NGO
involvement in intergovernmental decision-making processes).
159. Thorme, supra note 144, at 340.
160. Both of these sources of law are binding upon all Member States and are enforceable pursuant
to Articles 24-26 of the ILO Constitution. See GORMLEY, HUMAN RIGHTS, supra note 22, at 46 ("[Tlhe
significance of the ILO common law is that it is binding on ILO Members without the requirement of
ratification. Legal obligations are assumed by the acceptance (or the continuation) of ILO membership.").
385
3. Utilizing National Tribunals
Domestic courts should be utilized to enforce claims arising under

international human rights and environmental law.' People harmed by
pollution originating in another state should be allowed to bring claims in the
national courts of the polluting state.' 62 The adjudication of such claims in
national courts may have the important advantage of providing an enforceable
judgment. 6 3 However, the effectiveness of this approach would depend on
64
the polluting state's environmental standards and remedies.
States may accomplish this by agreement. For example, the Nordic
Convention provides access to courts and administrative agencies for foreign
victims of transnational pollution."'6 Moreover, by providing injunctive, as
well as compensatory, relief,'66 the Nordic Convention moves toward a
preventative approach to eliminating transfrontier environmental degradation.
Similar conventions at the regional level and among states with comparably
developed environmental legal orders would further the goals of an indivi-
dual's right to redress and international environmental protection.
161. Cf. Anthony D'Amato, The Relation of the Individual to the State in the Era of Human Rights,
24 TEX. INT'L L.J. 1, 12 (1989) (advocating use of national tribunals for enforcement of human rights
standards).
162. Developments, supranote 14, at 1609-10. Some international environmental instruments already
recognize the usefulness of such an approach. See, e.g., Brundtland Legal Principles, supra note 88,
princs. 13 & 20:
States shall apply as a minimum at least the same standards for environmental conduct and
impacts regarding transboundary natural resources and environmental interferences as are applied
domestically. . . . States shall grant equal access, due process and equal treatment in
administrative and judicial proceedings to all persons who are or may be affected by
transboundary interferences with their use of a natural resource or the environment.
Another candidate for national court enforcement involves the sort of extraterritorial adjudication wherein
a national court hears a private claim brought by foreign citizens challenging acts of a corporate entity of
that nation having harmful effects abroad. This instance, however, is somewhat more controversial.
Developments, supra note 14, at 1611-12, 1632, 1634-35.
163. Id. at 1621.
164. Id. at 1610. State practice varies. See Symonides, supra note 25, at 16-17 (discussing remedies).
Some states provide for redress when claimants can prove tangible physical or emotional harm from
environmental damage, while others provide for a right of action by citizens to enforce environmental
protection statutes regardless of whether they can prove physical injury. For example, India's tort laws
in this regard were sufficient to hold Union Carbide liable for damages to the victims of the company's
Bhopal disaster. These laws are based in part upon Rylands v. Fletcherand a myriad of codes prescribing
liability and remedies for physical injuries resulting from the negligent conduct of others. See generally
Rylands v. Fletcher, L.R. 3 H.L. 330 (1868); 12 ANNUAL SURVEY OF INDIA LAW 42.44 (1985);
Symposium, The Bhopal Tragedy: Social and Legal Issues, 20 TEx. INT'L L.J. 267 (1985). See STEPHEN
C. McCArFREY & ROBERT E. LuTz, ENViRONmNTAL POLLUTION AND INDrviDuAL RiGHTs (1978), for
an expansive survey of state procedures for hearing individual claims related to environmental pollution.
Note that some states do not provide for any meaningful redress at all. Id. at xx.
165. See Nordic Convention, supra note 87, art. 3; Uibopuu, supra note 141, at 104.
166. Nordic Convention, supra note 87, art. 3 & protocol.
V. CONCLUSION
The increasing significance of environmental crises around the world

warrants the development of international environmental human rights
standards. The governments participating in the U.N. Conference on
Environment and Development did not adopt a framework for protecting
environmental victims. Therefore, for the present, any meaningful protection
must come from within the human rights system. This paper has suggested
several ways to reinterpret, expand, and modify existing human rights
instruments and procedures to protect victims of environmental abuse. The
most effective and well-defined protection would come through the adoption
of a new instrument which specifically provides a right to a healthy and safe
environment and establishes standards to govern state conduct. Taking these
measures will protect the growing numbers of actual and potential environ-
mental victims.

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International Legal Protection for

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III. THE PLIGHT OF ENVIRONMENTAL REFUGEES .............................. 375

IV. PROVIDING EFFECTIVE RIGHTS AND REMEDIES ............................ 381

V. CONCLUSION ................................................. 387

I. INTRODUCTION: UNDERSTANDING THE PROBLEM

Environmental disasters are increasing. They often result from human

II. THE USE OF HUMAN RIGHTS DOCTRINE TO PROTECT VIcTIMs OF

Several theories support the contention that government action violates

A. Substantive Human Rights

The right to life is a fundamental, non-derogable human right. 0 The

Obligation, supra note 22, at 96-97, 111.

2. Rights of Indigenous Peoples

From time immemorial, indigenous peoples47 judiciously managed their

57. See Cline, supra note 52, at 624.

3. Other Human Rights

63. Id. at preamble.

B. ProceduralHuman Rights: Rights to Information and Participationin

Rights to information and political participation are fundamental to the

1. Freedom of Expression and the Right to PoliticalParticipation

The right to free expression is a fundamental human right recognized in

government-held environmental information where that information would

Historically, international environmental law has been limited to duties that

C. The Emerging Right to a Healthy Environment

The growing number of international, regional, and national instruments

Exchange of Information ConcerningAccidents Capableof Causing TransfrontierDamage,title D, OECD

guarantees, such as those discussed in section B above, may serve as a

m. THE PLIGHT OF ENVIRONMENTAL REFUGEES

The exploitation and degradation of natural resources has led to the

1. Irrigation and Flood-ControlProjects

Large-scale irrigation projects share many of the environmental and human

Unsustainable farming practices stemming from overpopulation,'

International financial organizations contribute to the environmental

120. IUCN, supra note 117, at 94.

B. Legal Protectionfor Environmental Refugees

The definition of "refugee" in the Convention Relating to the Status of

IV. PROVIDING EFFECTIVE RIGHTS AND REMEDIES

Several key international instruments do not specifically refer to

A. Broadening Substantive Human Rights Violations to Include Environmental

The primary problem with providing a remedy for environmental damage

B. Modifying EstablishedHuman Rights Enforcement Mechanisms

The re-interpretation and expansion of existing human rights should be

1. Modifying ProceedingsBefore the International Court of Justice

The Statute of the International Court of Justice sets forth restrictive

2. Modeling Mechanisms on the InternationalLabour Organisation

Procedures similar to those of the International Labour Organisation (ILO)

Domestic courts should be utilized to enforce claims arising under

The increasing significance of environmental crises around the world

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