Academic journal article
By Atapattu, Sumudu
American Journal of Law & Medicine , Vol. 30, No. 2/3
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 measures1 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-discrimination10 and on the principle of equality. …