Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment

The right to clean or healthy environment, or what may be called environmental right, is one of the most controversial emerging rights since the agitation for the recognition of the link between human rights and the environment started gaining momentum at international law forums. This is happening partly because, at the global level, no treaty attempts to delimit the scope of this right explicitly; an endeavour which would have served as a form of guide to national jurisdictions. Given that the UN General Assembly recently officially resolved that a clean, healthy and sustainable environment is a universal human right, and considering the implication this may have on national jurisdictions, it has become more imperative to redefine this right for the ease of enforcement. This paper seeks to examine the conceptual and the theoretical conundrum as well as the criticisms of the right to clean, safe and healthy environment that have largely played a prominent role against the enforcement of the rights in general. The paper also examines constitutional challenges associated with the recognition of the rights in Nigeria and the judicial effort in the case of Gbemre v SPDC in attempting to expound the constitutional right to life to include the right to the environment. The paper finds that the right to the environment has been described and qualified diversely from one jurisdiction to another rendering the same susceptible to the challenges of interpretation. The paper, however, suggests that given the importance of the right, same should be interpreted, no matter how it is qualified, to mean a right to an environment fit for human living, the courts being sufficiently able to draw the line between what environment is fit and what is not for human habitation.

清洁或健康环境权，或称环境权（environmental right），是自推动认可人权与环境之间关联的活动在国际法论坛上日益升温以来，最具争议的新兴权利之一。出现这一情况的部分原因在于，全球层面尚无任何条约试图明确界定该权利的适用范围——而这本可为各国司法管辖区提供参考指引。鉴于联合国大会近日正式决议将清洁、健康且可持续的环境确立为一项普遍人权，且考虑到该决议可能对各国司法管辖区产生的影响，重新界定该权利以便利其实施已愈发紧迫。本文旨在探讨清洁、安全与健康环境权在概念与理论层面的难题，以及针对该权利的各类批评——这些批评总体上对该权利的实施构成了主要阻碍。本文还探讨了尼日利亚在认可该权利过程中遭遇的宪法层面挑战，以及Gbemre诉SPDC案中司法机关试图将宪法生命权的内涵延伸至环境权的司法实践。本文发现，不同司法管辖区对环境权的界定与定性各不相同，导致该权利极易面临解释层面的争议。不过本文认为，鉴于该权利的重要性，无论其被如何定性，均应将其解释为一项享有适于人类生存的环境的权利，而司法机关完全有能力划定何种环境适于、何种环境不适于人类居住的界限。