Humans right to live in a healthy environment and the current reality
The right to live in a healthy environment is a natural human right, which should be recognized and enforced by international human rights law and national law. The Vietnamese law provides relatively comprehensive regulations on institutions and key resources, in order to ensure the right to live in a healthy environment. However, the practice of ensuring this right for individuals and citizens according with the law in our country is still limited.
1. International Law
The United Nations Conference on Environment and Development (UNCED - Rio de Janeiro - 1992): states: “Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature."
In a Resolution of 8 October 2021, the United Nations Human Rights Council (UNHRC) with 43 votes in favor and 4 abstentions recognized that access to a healthy and sustainable environment is a global right. While not legally binding, this resolution shows the strong political commitment of UN member states to that right and can be a catalyst for change. It is expected to make positive environmental outcomes by increasing public awareness, improving accountability and enforcement.
According to the European Parliament, more than 120 countries are the parties involved to at least one binding regional treaty that declares the right to live in a healthy environment. Among these, the Aarhus Convention in Europe stands out for its focus on procedural rights (the right to information, public participation and access to environmental-related justice). Although, the European Convention on Human Rights does not contain any provision regarding the right to live in a healthy environment, but on 29 September 2021, the Parliamentary Assembly of the Council of Europe recommended the drafting of an additional protocol in this respect.
In addition, Article 37 of the Charter of Fundamental Rights of the European Union stipulates that a high level of environmental protection must be incorporated into EU policies, but does not recognize an individual's right to live in a healthy environment.
The European Parliament, in its June 2021 resolution on the EU biodiversity strategy for 2030, considers that the right to live a healthy environment should be recognised in the EU Charter and that the EU should take the lead on the international recognition of such a right.
On July 28, 2022, the United Nations General Assembly adopted a resolution (with 161 votes in favor and 0 against) recognizing the right to live in a clean, healthy and sustainable environment as a human right. This approval shows the efforts of the United Nations General Assembly in calling on governments to strengthen environmental protection activities in order to bring to people a healthy environment and solve related problems to the environment.
2. Sueing/requesting the government to guarantee this right and reality of settlement and solution
In reality, the implementation of this right is still inadequate due to great challenges. Internationally, this right has not yet been recognized in a globally and legally binding convention like The Universal Declaration of Human Rights in 1966. Such a Convention would face considerable difficulties when it comes to human rights. The world's major powers, such as the United States and China, are still hesitant about recognizing this right.
Whether countries have enshrined the right to live in a healthy environment in their legal documents, including their Constitutions or not, it is extremely difficult to guarantee this right to citizens even for those in need even developed countries with a modern legal system because of the lack of sanctions and provisions in law and in practice to control and prevent violations. Even this violation is tacitly allowed by the Governments of other countries for economic purposes despite these countries issued legal regulations and signed agreements on environmental protection. This has led to many lawsuits which the plaintiff suing the Government of their countries to claim the Government for compensation of the damage, to guarantee this right or even for the purpose of protecting the environment.
In the United States, the Supreme Court of the United States announced on November 2, 2018 that the trial of a case brought by 21 people, including minors, against the federal government for its role during the global warming crisis, can continue. Juliana v. The United States is underway in round 9, in Oregon. The plaintiffs, many of whom live in parts of the country affected by climate change, including extreme weather events, wanted a federal judge to order the federal government to develop a plan to tackle climate change.
In Spain, on September 15, 2020, Greenpeace Spain, Oxfam Intermón, and Ecologistas en Acción filed a motion notifying the Supreme Court of their intention to sue the Spanish Government, alleging failure to take adequate action on climate change. The plaintiffs assert that Spain is in violation of Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action. On March 31, 2022, the Supreme Court rejected Greenpeace's argument and confirmed the previous ruling.
Although the lawsuit is still waiting for a final decision, it shows the difficulty in suing the Government to protect the people's legitimate rights about the right to live in a healthy environment when not every lawsuit is successful and adequate compensation for the people. However, suing the Government to ensure the right to live in a healthy environment is more and more common than before, becoming a voice for people on environmental issues and a claim for compensation of the Government to take measures to protect the environment and their rights.
Initiatives to adopt the concept of ecosystem rights have been or are being carried out in many parts of the world, including Bolivia, Turkey, Nepal and various cities in the United States. For example, Bolivia passed The Mother Earth Law of 2010 to recognize natural rights at the national level. The Constitutional Court and Supreme Court of Colombia recognized the rights to the Atrato River and the Amazon ecosystem in 2016 and 2018, respectively.
In addition, the regulation that the Government can be the subject of lawsuits is also a practical solution to ensure the right of people to sue. Although some legal systems make it more difficult for people to sue their government for civil violations, some states (known as the Crown) in the UK and other common law states of the Commonwealth) are generally not exempt from domestic action, and domestic civil action may be brought against the State in a similar manner as against any other defendant.
In New South Wales, for example, the New South Wales Government Litigation Act 1988 provides that the Government can be sued in the same way as any individual. This has been enforced in environmental proceedings against state entities. There is no limit to the types of civil proceedings that can be brought or the remedies a court can order against the Crown. Similarly, in the United Kingdom, the Crown Proceedings Act 1947 provides for the right to sue the Government and the Government's liability for torture. However, the courts are limited to issuing specific injunctions or actions against the Government and ordering land or property acquisition. Similar provisions are also found in Canada.
3. Vietnamese law
According withClause 1, Article 96 of the 2013 Constitution of Vietnam, the Government has the following tasks: “To organize the implementation of the Constitution, laws and resolutions of the National Assembly, ordinances and resolutions of the Standing Committee of the National Assembly, and orders and decisions of the President"
According with Article 74 of the 2013 Constitution of Vietnam, the Standing Committee of the National Assembly has the following duties and powers:
- To oversee the implementation of the Constitution;
- To suspend the implementation of documents of the Government, Prime Minister, Supreme People's Court or Supreme People's Procuracy that contravene the Constitution
- To supervise and guide the work of the People’s Councils; to annul resolutions of the People's Councils of provinces or centrally run cities that contravene the Constitution
According with Article 98 of the 2013 Constitution of Vietnam, the Prime Minister has the following duties and powers: “To suspend the implementation of, or annul the documents, of Ministers, Heads of ministerial-level agencies, People’s Committees, Chairpersons of the People’s Committees of provinces or centrally run cities that contravene the Constitution, laws or documents of state agencies at higher levels; to suspend the implementation of resolutions of the People’s Councils of provinces or centrally run cities that contravene the Constitution, laws or documents of state agencies at higher levels and, at the same time, to propose the Standing Committee of the National Assembly to annul them; "
Other legal provisions on environmental protection such as Decree No. 201/2013/ND-CP in November 27, 2013 detailing the implementation of a some articles of the Law on Water Resources have specified measures to protect the water environment and water resources or the Law on Environmental Protection provides for compensation for damage, but there is no monitoring mechanism.
In Vietnam, suing individuals or organizations for causing adverse effects on the environment is quite common, but suing the Government for protecting their legal rights is still quite new, even on environmental issues. For various reasons, such as for the purpose of protecting the government's reputation, people are not aware of their rights, especially there has not appropriate legal framework. Currently, the Vietnamese Court has not had jurisdiction to settle the case against the Government yet because of the lack of legal provisions. The lawsuits against the Vietnamese government are mainly in the fields of economy and investment when foreign investors sue the Government, the State of Vietnam or a state agency or organization authorized by a state agency to manage the state based on the promotion and protection of investments agreements, trade agreements or other international treaties with provisions on the promotion and protection of investments to which Vietnam is a contracting party; or contracts, agreements between the Government of Vietnam or Vietnamese government agencies and foreign investors in the form of PPP, BCC, BOT, BT.
Until now, Vietnam has only a few legal provisions related to lawsuits to settle compensation for environmental damage, such as Clause 2, Article 133 of the Law on Environmental Protection 2020, whereby the settlement at Courts shall comply with regulations on compensation for non-contractual civil damages and civil procedure law.
However, according with Clause 3, Article 68 of the Law on Civil Procedure 2015: “The defendant in a civil lawsuit is the person against whom the plaintiff initiates a lawsuit or the other agencies, organizations and individuals prescribed by this Code initiates a lawsuit to request the Court to resolve the civil lawsuit when they holds that the legitimate rights and interests of the plaintiff have been infringed upon by such person". Although the defendant in a civil case is defined as a "person", in practice the defendant in a civil case is understood as an individual, organization or agency, but whether the Government is the subject of the defendant in a civil lawsuit is not specified in any regulation. This makes it difficult for the Court and the plaintiff when the Court can easily refuse to accept the petition when it thinks that the Government cannot be the defendant of the civil lawsuit or the plaintiffs face many difficulties in pursuing the lawsuit when the costs and time to be spent are quite considerable.
Taking legal action based on human rights can help to remedy environmental pollution and put pressure on the Government to solve many other problems such as living in clean air or obtaining natural resources. clean water to drink. In conclusion, Vietnam is a country with high economic growth, which also leads to increasingly serious environmental pollution. These environmental problems have been and will be negatively impacted and hindered the country's sustainable development goals. Therefore, the National Assembly and the Government need to take measures to prevent the environment from being polluted, guarantee the people's rights to live in a healthy environment, and develop necessary legal regulations so that people can take legal action when necessary to guarantee their own rights.
In addition to completing the procedural legal provisions related to lawsuits/claims the Government to ensure the right to live in a healthy environment, there are a few legal regulations in the world that Vietnam can learn from, such as the recognition of the Rights of Nature. In 2008, Ecuador became the first country in the world to officially recognize and exercise the Rights of Nature, which is regulated in the Constitution of Ecuador. Accordingly, Article 71 of the Ecuadorian Constitution concerning the Rights of Nature states: “Nature, or Pachamama, where life is reproduced and taken place, has the right to full respect for its existence and for the maintenance and reproduction of its life cycles, structure, function and evolution. All people, communities, peoples and nations can call on public authorities to exercise their Right to Nature”.
Do Anh Tuan
References
- Nguyen Manh, Current urgent environmental problems: reality and solutions, https://www.tapchicongsan.org.vn/web/guest/bao-ve-moi-truong/-/2018/825770/ but-van-de-moi-truong-cap-bach-hien-now-thuc-trang-va-giai-phap.aspx,
- European Parliament, A universal right to a healthy environment, https://www.europarl.europa.eu/RegData/etudes/ATAG/2021/698846/EPRS_ATA(2021)698846_EN.pdf,
- African Commission on Human and Peoples' Rights, African Charter on Human and Peoples' Rights, https://www.achpr.org/legalinstruments/detail?id=49#:~:text=The%20African%20Charter%20on% 20Human,freedoms%20in%20the%20African%20continent
- UN General Assembly declares access to clean and healthy environment a universal human right, https://news.un.org/en/story/2022/07/1123482, Greenpeace v. Spain I, http://climatecasechart.com/non-us-case/green-peace-v-spain/
