American Journal of Law & Medicine

The public health impact of global environmental problems and the role of international law.

I. INTRODUCTION

For several decades now we have been acutely aware of the increasingly intensifying effect that environmental degradation has on human health. While many of these effects are localized, given the increasingly global nature of environmental problems their impact on human health has also become global in dimension. Health experts are becoming more and more concerned about the potential impact on public health if no precautionary measures (1) are taken to deal with these global environmental problems.

Of course, environmental problems have consequences beyond their public health impact. The emphasis in this Article on public health should not be taken as advocating an anthropocentric approach to environmental problems. This Article focuses on public health as a way of drawing attention to the enormity of the problem. By doing so, it also seeks to draw a link with the human rights discourse. The emphasis on other species, however important they are for an ecosystem, unfortunately does not appear to draw the same amount of attention or reaction from the international community as the potential impact on human beings.

The present Symposium is devoted to environmental law and public health, an important and topical subject given the ever-increasing magnitude of environmental problems and their impact on public health. The Symposium should be commended for highlighting this issue in a timely manner. While environmental law is not the only solution to the problem, it certainly plays a significant role in dealing with public health problems caused by environmental issues. The present Article seeks to discuss the role that international law can play in relation to the public health impact of global environmental problems. It first discusses the human right to health and the nature of the problem, particularly in relation to the depletion of the ozone layer and global warming. It analyzes the relevant treaty provisions that are applicable with a view to understanding whether public health aspects are adequately covered. It then discusses the role of international law in relation to these issues and, finally, the author discusses the emerging right to a healthy environment as a possible solution.

II. HUMAN RIGHT TO HEALTH

The United Nations ("U.N.") Charter was the first international instrument to refer to the need to find solutions to health problems. (2) While it "only commits the United Nations to promote solutions to health problems" and "does not declare a right to health for individuals," (3) it does indicate the importance of this right.

The U.N. Charter was closely followed by the Constitution of the World Health Organization in 1946 which referred to health as a fundamental right, (4) and the Universal Declaration of Human Rights ("UDHR") in 1948. The latter referred to health in the context of the right to an adequate standard of living. (5) The UDHR does not recognize right to health as a separate, stand-alone right; rather, it is linked to the right to an adequate standard of living. In other words, health and well-being is used to measure the standard of living. (6) As one writer points out, "[a]lthough health as a stand-alone right was not fully developed in the Declaration, it was deemed important enough to include as a specific item of the right to an adequate standard of living for every person." (7)

Twenty years later, the U.N. again endorsed the right to health, this time in the International Covenant on Economic, Social and Cultural Rights. (8) This is the first time that an international human rights instrument recognized health as a stand-alone right. Article 12 provides that "[t]he State Parties to the Present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." (9) While health itself is not defined, Article 12 makes it clear that it encompasses both mental and physical elements. The Covenant further provides that these rights shall be implemented on the basis of non-discrimination (10) and on the principle of equality. (11) Both these principles are intrinsic to all human rights recognized under international law. (12) However, all rights enshrined in the Covenant are subject to the limitation in Article 2(1): unlike civil and political rights, economic rights are to be achieved progressively subject to the availability of resources. (13)

In addition, there are several procedural rights which are relevant for the achievement of right to health. The right to health-related information, the right to participate in the decision-making process, as well as the freedom of speech and expression are relevant. These are rights recognized in the International Covenant on Civil and Political Rights (14) and are increasingly applied in relation to the environmental field as well. (15) If information on health-related issues is not readily available or accessible, it is not possible to come to an informed decision. Similarly, if a forum is not available to articulate one's opinion regarding a health-related issue, providing mere information is not sufficient. Thus, information and participation are twin rights which must go hand in hand. One without the other becomes meaningless. (16)

While health is an important right in itself, it is also crucial to the enjoyment of other rights. For example, if a person suffers from a health problem, he or she may be prevented from enjoying the right to work, the right to education, and/or the right to an adequate standard of living. Health is also dependent on economic development; poor people are more vulnerable to disease and are less likely to have basic nutrition and access to safe drinking water and sanitation. This link between health and poverty was recognized in the U.N. Millennium Declaration. (17)

Human rights instruments do not readily link the right to health with a healthy environment, probably because such a link was not apparent when the earlier human rights treaties were adopted. Despite the fact that environmental concerns were being raised almost at the same time that the two main covenants (the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights) were adopted, (18) the two covenants remain silent on the issue. It took the human rights community more than three decades to finally link these two issues. (19) The General Comment No. 14, adopted by the Committee on Economic, Social and Cultural Rights in 2000, explicitly recognizes this link:

 
   The Committee interprets the right to health, as defined in 
   article 12.1, as an inclusive right extending not only to timely 
   and appropriate health care but also to the underlying determinants 
   of health, such as access to safe and potable water and adequate 
   sanitation, an adequate supply of safe food, nutrition and housing, 
   healthy occupational and environmental conditions, and access to 
   health-related education and information, including on sexual and 
   reproductive health. A further important aspect is the participation 
   of the population in all health-related decision-making at the 
   community, national and international levels. (20) 

The Committee further notes that the right to health embraces a wide range of socio-economic factors such as "food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment." (21) Thus, the Committee has clearly recognized that a healthy environment is a prerequisite to the enjoyment of the right to health, thereby affirming the link between health and environment.

In recognition of the importance of the right to health, the U.N. Commission on Human Rights appointed a Special Rapporteur in August 2002 to study the issue. The Special Rapporteur submitted his first report entitled "The right of everyone to the enjoyment of the highest attainable standard of physical and mental health" (22) to the Commission in 2003.

The Special Rapporteur, in his first report, identifies three primary objectives for his mandate:

* To promote--and encourage others to promote--the right to health as a fundamental human right;

* To clarify the contours and content of the right to health; and

* To identify good practices for the operationalization of the right to health at the community, national and international levels. (23)

He notes further that his work will be guided by the principle that "international human rights law, including the right to health, should be consistently and coherently applied across all relevant national and international policy-making processes." (24) Having surveyed the sources of the right to health at the international, regional and domestic levels, the Special Rapporteur notes that the right to health is an inclusive right, extending not only to healthcare but also to the underlying determinants of health such as access to safe and potable water and adequate sanitation, healthy environmental conditions and access to health-related education and information. (25) He further contends that the right to health can be broken down into more specific entitlements, such as the right to maternal, child, and reproductive health; healthy workplace and natural environments; the prevention, treatment, and control of diseases, including access to essential medicines; and access to safe and potable water. (26)

It is surprising that this list does not include a right to nutritious food and the right to sanitation, which are equally relevant to the right to health. The above categorization, however, emphasizes the importance of a healthy environment (both workplace and natural) for people to enjoy their right to health. In other words, a healthy environment is a sine qua non for the right to health to be meaningful.

The Special Rapporteur also notes that "the right to health extends across a wide and diverse range of issues, some of which are highly complex." (27) In this regard he looks at the right to health and poverty, and the right to health, discrimination, and stigma as his main themes; (28) he also discusses the millennium development goals in this regard. (29)

III. ENVIRONMENTAL INSTRUMENTS AND PUBLIC HEALTH

In contrast to the human rights instruments which have been rather slow to link health and the environment, international environmental instruments have been much more forthcoming. From their inception, environmental instruments have referred to this link. Thus, for example, Principle 1 of the Stockholm Declaration (30) provides that "[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being...." (31) While it is not clear what is meant by "adequate conditions of life," Principle 1 does seem to indicate that an environment of a particular quality is necessary for man to enjoy his rights. Principle 1 of the Rio Declaration (32) is more explicit: "Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature." (33) While this formulation has been criticized as being anthropocentric, (34) it does emphasize the link between human health and the environment. Agenda 21, (35) adopted at the Rio Conference, devotes a chapter to the issue of human health. Noting that sound development is not possible without a healthy population, it points out that "the linkage of health, environmental and socio-economic improvements requires intersectoral efforts. …

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