Right to a Healthy Environment

The claimants on the case were representatives of local communities, herders living in Tuya bag, and the NGO “Owners of Huvsgul Lake”. The claim was submitted by CHRD’s lawyers, alleging that the mining licenses issued by the Geological and Cadastral Department were illegal, according to the article of 9.1. 7 of the Mongolian Administrative Act, and should be invalidated.

The Ulaanbaatar Capital City Administrative Court issued decision n. 36 early in 2013, refusing to accept the claim and to suspend the licenses. The Appellate Administrative Court affirmed decision n.36. The case was taken to the Administrative Review Chamber of the Supreme Court, which held trial on June 24, 2013, issuing Resolution n. 117. The latter Court established that the Cadastral Department of the Mineral Authority should consider illegal the issuance of two extraction licenses and six exploration licenses to “Talst margad” Ltd.

The Supreme Court decision was based on the constitutional right to live in a healthy and safe environment and to be protected from ecological unbalances.


Pakistan: Zia v. WAPDA, P L D 1994 Sup. Ct. 693

(though international documents like the Rio Declaration are not binding, the Court observed, ''the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence.'')

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 261)

(the Court in this case referred to the 1992 Rio Declaration on Environment and Development and other nonbinding agreements as having been transformed into ''Custoary International Law though [their] salient feature[s] have yet to be finalised by the International law Jurists.''

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

The defendant had made moves to install industry near a lake. The Indian Supreme Court ruled against the defendant. It referred to various courts around the world, and to a decision of the Inter-American Commission on Human Rights, when it said that ''the concept of a healthy environment as a part of the fundamental right to life, developed by our Supreme Court, is finding acceptance in various countries side by side with the right to development.''

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 260)

The Indian Supreme Court allowed the laying of pipes as it found that the plan to do so was thought out and would not unduly damage the enrivonment. The Court referred to the Declaration of the 1972 Stockholm Conference on the Human Environment as the ''Magna-Carta of our environment''. The laying of such pipes would be in line with the Declaration, and thus the Court allowed it. In other cases, the Court imported into domestic law the principles or concepts of sustainable development, the ''polluter pays'' principle, and the precautionary principle.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

The Petition for Prohibition and Mandamus before the Court challenges the constitutionality of (1) Republic Act No. [RA] 7942 (The Philippine Mining Act of 1995); (2) its Implementing Rules and Regulations (DENR Administrative Order No. [DAO] 96-40); and (3) the FTAA dated March 30, 1995,6 executed by the government with Western Mining Corporation (Philippines), Inc. (WMCP).

On January 27, 2004, the Court en banc promulgated its Decision8 granting the Petition and declaring the unconstitutionality of certain provisions of RA 7942, DAO 96-40, as well as of the entire FTAA executed between the government and WMCP, mainly on the finding that FTAAs are service contracts prohibited by the 1987 Constitution.

The Decision struck down the subject FTAA for being similar to service contracts,9 which, though permitted under the 1973 Constitution,10 were subsequently denounced for being antithetical to the principle of sovereignty over our natural resources, because they allowed foreign control over the exploitation of our natural resources, to the prejudice of the Filipino nation.

Subsequently, respondents filed separate Motions for Reconsideration. In a Resolution dated March 9, 2004, the Court required petitioners to comment thereon. In the Resolution of June 8, 2004, it set the case for Oral Argument on June 29, 2004.

What is the proper interpretation of the phrase Agreements Involving Either Technical or Financial Assistance contained in paragraph 4 of Section 2 of Article XII of the Constitution (National Economy and Patrimony - The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils...)?

Court ruling:

This Court cannot but be mindful that any decision rendered in this case will ultimately impact not only the cultural communities which lodged the instant Petition, and not only the larger community of the Filipino people now struggling to survive amidst a fiscal/budgetary deficit, ever increasing prices of fuel, food, and essential commodities and services, the shrinking value of the local currency, and a government hamstrung in its delivery of basic services by a severe lack of resources, but also countless future generations of Filipinos.

For this latter group of Filipinos yet to be born, their eventual access to education, health care and basic services, their overall level of well-being, the very shape of their lives are even now being determined and affected partly by the policies and directions being adopted and implemented by government today. And in part by the this Resolution rendered by this Court today.

Verily, the mineral wealth and natural resources of this country are meant to benefit not merely a select group of people living in the areas locally affected by mining activities, but the entire Filipino nation, present and future, to whom the mineral wealth really belong. This Court has therefore weighed carefully the rights and interests of all concerned, and decided for the greater good of the greatest number. JUSTICE FOR ALL, not just for some; JUSTICE FOR THE PRESENT AND THE FUTURE, not just for the here and now.


After discussions that ended on 04. 08. 1997, the representatives of the Government and Freeport Mac Moran of USA and its affiliate IMCO Agrico initialled the final drafts of the Mineral Investment Agreement and subsidiary documents in respect of a deposit of phosphate rock at Eppawela in the Anuradhapura district. The proposed agreement granted the Company the sole and exclusive right (a) to search and explore for phosphate and other minerals in the Exploration Area (b) to conduct test or pilot operations at any location within the Contract Area (c) to develop and mine under Mining Licences any phosphate deposits (including associated minerals) found in the Exploration Area.

The petitioners being residents of Eppawela engaged in cultivation and owning lands there, one of whom was the Viharadhipati of a temple, complained of infringement of their rights under Articles 12(1), 14(1)(g) and 14(1)(h) of the Constitution by reason of the proposed agreement. They relied on the analysis of several professional experts and reports of the National Academy of Science and the National Science Foundation who were of the opinion that the proposed agreement will not only be an environmental disaster but an economic disaster.

Court ruling:

In the introduction to the proposed Mineral Investment Agreement, it is stated, "The Government seeks to advance the economic development of the people of Sri Lanka and to that end desires to encourage and promote the rational exploration and development of the phosphate mineral resources of Sri Lanka." (The emphasis is mine.)

Undoubtedly, the State has the right to exploit its own resources, pursuant, however to its own environmental and development policies. (Cf. Principle 21 of the U.N. Stockholm Declaration (1972) and Principle 2 of the U.N. Rio De Janeiro Declaration (1992). Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment. (Principle 14, Stockholm Declaration). Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. (Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4, Rio De Janeiro Declaration). In my view, the proposed agreement must be considered in the light of the foregoing principles. Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not legally binding in the way in which an Act of our Parliament would be. It may be. It may be regarded merely as `soft law'. Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri Lanka. Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the superior Courts of record and by the Supreme Court in particular, in their decisions.

                                                    xxx                                        xxx                                     xxx

It is unnecessary for the purposes of the task in hand to enter into the matter of the alleged beneficial nature of the proposed agreement: The petitioners' case is that there is an imminent infringement of their fundamental rights guaranteed by Articles 12(1), 14(1)(g) and 14(1)(h). I have stated my reasons for upholding their complaints. The "balancing" exercise referred to by learned counsel has been already done for us and the Constitution sets out the circumstances when any derogations and restrictions are permissible. Article 15(7) of the fundamental rights declared and recognized by Articles 12 and 14 are "subject to such restrictions as may be prescribed by law", among other things, for "meeting the just requirements of the general welfare of a democratic society." In the light of the available evidence, I am not convinced that the proposed project is necessary to meet such requirements. In any event, the circumstances leading to the imminent infringements have not been, "prescribed by law" but arise out of a mere proposed contract, and therefore do not deserve to be even considered as permissible.

For the reasons set out in my judgment, I declare that an imminent infringment of the fundamental rights of the petitioners guaranteed by Articles 12(1), 14(1)(g) and 14(1)(h) has been established.



Bichhri is a small village in Udaipur district of Rajasthan. To its north is a major industrial establishment, Hindustan Zinc Limited, a public sector concern. That did not affect Bichri. Its woes began somewhere in 1987 when the fourth respondent herein, Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum [said to be the concentrated form of Sulphuric acid] and Single Super Phosphate. The real calamity occurred when a sister concern, Silver Chemicals [Respondent No.5], commenced production of `H' acid in a plant located within the same complex. `H' acid was meant for export exclusively. Its manufacture gives rise to enormous quantities of highly toxic effluents - in particular, iron-based and gypsum-based sludge - which if not properly treated, pose grave threat to mother Earth. It poisons the earth, the water and everything that comes in contact with it. Jyoti Chemicals [Respondent No.8] is another unit established to produce `H' acid, besides some other chemicals. Respondents Nos.6 and 7 were established to produce fertilizers and a few other products.

All the units/factories of Respondents Nos.4 to 8 are situated in the same complex and are controlled by the same group of individuals. All the units are what may be called "chemical industries". The complex is located within the limits of Bichhri village.

                       xxx                  xxx                 xxx

Since the toxic untreated waste waters were allowed to flow out freely and because the untreated toxic sludge was thrown in the open in and around the complex, the toxic substances have percolated deep into the bowels of the earth polluting the aquifers and the subterranean supply of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, the main stay of the villagers. The resulting misery to the villagers needs no emphasis. It spread disease, death and disaster in the village and the surrounding areas. This sudden degradation of earth and water had an echo in Parliament too. 

                       xxx                  xxx                 xxx

It is averred by the respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped manufacturing `H' acid since January, 1989 and are closed. We may assume it to be so. Yet the consequences of their action remain - the sludge, the long-lasting damage to earth, to underground water, to human beings, to cattle and the village economy. It is with these consequences that we are to contend with in this writ petition.

Court ruling:

This is a social action litigation on behalf of the villagers of Bichhri whose right to life, as elucidated by this Court in several decisions, is invaded and seriously infringed by the respondents as is established by the various Reports of the experts called for, and filed before, this Court. If an industry is established without obtaining the requisite permission and clearances and if the industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, can it be suggested with any modicum of reasonableness that this Court has no power to intervene and protect the fundamental right to life and liberty of the citizens of this country. The answer, in our opinion, is self-evident. We are also not convinced of the plea of Sri Bhat that R.P.C.B. has been adopting a hostile attitude towards his clients throughout and, therefore, its contentions or the Reports prepared by its officers should not be relied upon. If the respondents establish and operate their plants contrary to law, flouting all safety norms provided by law, the R.P.C.B. was pound to act. On that account, it cannot be said to be acting out of animus or adopting a hostile attitude. Repeated and persistent violations call for repeated orders. That is no proof of hostility. 

                       xxx                  xxx                 xxx

In Oleum Gas Leak Case, a Constitution Bench discussed this question at length and held thus:

"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non- delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.

The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all responsable care and that the harm occurred without any negligence on its part.

                       xxx                  xxx                 xxx

The question of liability of the respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz., the "Polluter Pays" Principle. (note: the Court states that this principle was adopted in "absolute terms in Oleum Gas Leak Case.")


This case dealt with the questions whether the Constitution guaranteed the right to a clean environment as a part of the right to life and whether there was locus standi of NGOs or individuals working for the protection of the environment. The petitioners claimed that the respondents’ industrial activities had caused environmental degradation to Godawari forest and its surroundings. The respondents’ factory emitted dust, minerals, smoke and sands, which had excessively polluted the nearby water bodies, land and atmosphere of the said area, thus causing danger to the property, life and health of the people around. Thus the petitioners filed this writ petition seeking mandamus in the name of the respondents, to enforce the right of the people to live in a healthy environment.

The court was of the view that a clean and healthy environment was part of the right to life under Article 11 (1) of the Constitution of the Kingdom of Nepal 1990. Life was threatened in polluted environment and it was the legitimate right of an individual to be free from a polluted environment. As the protection of environment was directly related with life of the human being, it should be accepted that this matter was included in Article 11(1) of the Constitution of the Kingdom of Nepal (1990).

Regarding the locus standi the court emphasized that the applicant had a profound interest in the present environmental issue. In fact an environmental problem was a matter of public interest and concern. The petitioner had a strong relationship with the environmental subject of the present dispute. The present Constitution had established public interest as a protectable fundamental right. Also, environmental conservation according to the constitution was one of the basic Directive Principles of the State. Environmental conservation was one of the objectives of the applicant, so the applicant had locus standi for the prevention of the environmental degradation.

The court also stressed that it was beyond doubt that industry was the foundation of development of the country. Both the country and society needed development, but it was essential to maintain environmental balance along with industry. However, the petitioner had not been able to clearly point out a specific section of the law that had not been obeyed or followed. For the purpose of mandamus, legal duty had to be definite and fixed. Therefore mandamus could not be issued. Taking into account the sensitive, humanitarian issue of national and international importance such as the protection of the environment of Godawari area, the court decided to issue directives in the name of the respondents to enforce the Minerals Act (1985), enact necessary legislation for protection of air, water, sound and environment and to take action for protection of the environment of Godawari area.


Pakistan: Shehla Zia and Ors v. WAPDA, PLD 1994 SC 693

The Petitioners were residents in a locality in Islamabad. The Water Resources and Power Development Authority (WAPDA) was to construct an electrical grid station in that area. The Petitioners protested on the ground that the electromagnetic field created by the high voltage transmission lines would be hazardous to their health. Moreover, the designated green belt in that area would be destroyed. Thus aggrieved by the proposed construction, they filed a petition in the Supreme Court. They placed on record several international studies and reports that linked electromagnetic radiation with cancer, depression and heart disease among other health problems. The Respondent Government however, contended that the plan was safe and risk free. Moreover, the Respondent contended that the petition did not specify any fundamental rights that were violated and hence was not maintainable.

Decision and Reasoning

The Court held that although the studies provided by the Petitioners were recent and up-to-date, it was not possible to ascertain conclusively whether there was a causal link between the effects of electromagnetic fields and human health. However, because there might be "lurking danger" in electromagnetic radiation, the best course of action would be to err on the side of safety even if the studies were inconclusive. Furthermore,the research conducted by the Respondent Government was more than 20 years old, and hence ill equipped to assuage the Petitioners' fears. The Court held that the Respondent Government should therefore adopt a precautionary approach akin to Principle No. 15 in the Rio Declaration. The Court also held that an independent Commission should be established to determine how to balance the need for energy production and possible hazards to human life. This Commission would be "manned by internationally known and recognised scientists having no bias and prejudice." It would examine claims relating to setting up of electrical grid stations and its opinion would be sought before any such construction. With the consent of both parties, the Court appointed National Engineering Services Pakistan Pvt. Ltd (NESPAK) as this Commission. NESPAK would “examine the plan and the proposals/schemes of WAPDA in the light of the complaint made by the Petitioners and submit its report” and “suggest any alteration or addition which may be economically possible for constructing a grid station” if necessary. The Court finally held that the petition was maintainable. It held that the Petitioners had a credible fear of their constitutionally guaranteed right to life being violated due to the proposed acts of the Respondent Government, and that the right to life was broad enough to encompass situations such as the present case. The Petitioners were thus entitled to approach the courts for a preventive remedy. Moreover, the Court held that the effects of electromagnetic radiation on human health would be largely unknown to people residing nearby, who would suffer silently without realizing that their lives were at risk. Therefore, it was in the interest of the citizens at large that such a petition could be filed.


Several minors, represented by their parents, filed a complaint (in the form of a taxpayers' class suit) against the Secretary of the Department of Natural Resources to require him to ensure the "full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests" by "their generation as well as generations yet unborn." The lower court dismissed the complaint. The petitioners appealed to the Supreme Court to question the lower court decision.

The Supreme Court ruled in favor of the Petitioner minors:

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.


Bangladeshi and Indian courts, as well as scholarly articles, have cited this case.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 251)