This third formulation postulates that environmental rights belong to the environment, and possesses non-affectation to the persons. People are entrusted with the responsibility or right to enforce environmental rights basically as “stewards of the environment” and definitely not as “victims of environmental damage”.
A right to environment should not be categorized as a synthesis rights, because it embodies specific features that makes it distinct and does not constitute a “shell right” targeted at enhancing the realization of any other rights. Actually, the criticism of this right emanates from the incapacity we have to mould it into one of the old categories of human rights. However, we cannot and should not classify this new right as either a civil and political right, or an economic, social and cultural right, or a solidarity right because it goes beyond the distinctions and embodies certain elements found in each of these three categories.
The right to environment requires States to abstain from activities which are harmful to the environment and adopt and enforce policies promoting protection, conservation and improvement of the environmental quality. Secondly, it appears on several counts that the right to environment is not purely and solely an individual right. One may single out the rights of the future generations whose interest must be taken into account but whose individual members cannot be indentified21.
More details on environmental rights
However, the opposition of the recognition of a right to environment has claimed that the right is too wide-ranging, cannot be judicially enforced and is thus not a human right. But it must first be noted that human rights are not by themselves confrontational rights.
Hence, the possibility to bring a claim to a court is not a basic characteristic of a right given that a large part of the realization of human rights relates for instance to domestic policy-making by States, and some rights may or may not be partially enforceable before a court. The existence of the right and it implementation and enforcement procedures should, as a consequence, not be confused. Another reason to distinguish enforcement and existence of the norm stems from the formulation of human rights on a universal level. Most rights can be formulated either as obligations of fulfilment or obligations of abstention with a similar content and one should not examine only the wording but also the substance of the rights. Human rights court have already shown their capability to give a specific content to vaguely worded provisions and should therefore be able to do likewise for a right to environment.
Several commentators submit that the implementation of the right to environment would be best achieved through the advocacy of rights to information, to consultation in the decision-making process and to access to courts, revamped in an environmental setting.
It appears that access to information, participation and access to court can have a tremendous impact on the realization of a right to environment and its enforcement. However, in practice these procedures are mostly used in the framework of industrial development and reflect mainly concerns about the quality of life of people, whose lives are not directly threatened by their physical environment and who have the financial capability to vindicate their rights.
Another school argues that there cannot be a substantive right to environment because the quality of the environment cannot be defined universally a priori, the norm is too imprecise and the claim is not enforceable. They, therefore, claim that environmental protection in a human rights setting can be realized through specific procedural rights as a right to environmental information.
Such claims do not appear well-founded in several courts: neither the imprecision of the formulation nor its enforceability bears on the status of environmental right. Secondly, all rights as have been widely accepted can be made justifiable. Finally, procedural rights should be labeled instrumental rights as they give the structural framework necessary for the realization of all substantive fundamental human rights and not only the right to environment.
The right to environment warns that every person has a responsibility for the protection and the improvement of the environment. Again, and this is new in the human rights language it also opens a time perceptive by speaking of future generations.
In BP Southern African (pty) ltd VMEC for Agriculture, Conservation, Environment and land Affairs, the applicant in this case approached the court to review and to set aside the decision of the Gauteng provincial Department of Agriculture, Conservation, Environment and Land Affairs which refused the application for authorization to develop a filling station. The application was refused in terms of Section 21(1) and 22 (1) of the Environment Conservation Act 73 of 1989 (The ECA) which provides:
“The Minister may by notice in the Gazette identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.”
As a result, the application for opening of a new filling station was rejected.
Presently, three theoretical approaches to the relationship between environment and the human rights are identified. The first sees the environment as a “pre-condition to the enjoyment of human rights”. The second views human rights as “tools to address environmental issues both procedurally and substantively. The third integrates human rights and the environment under the concept of sustainable development.