健康生活权还是消除污染权?--国际法视野下良好环境权的兴起

The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment under International Law

在没有环境权作为权利依据的情况下,无论是在国际还是区域层次,人们常常援引生命权、健康权等若干人权条款来防控和应对环境滥用行为。环境权概念的诞生是环境问题出现以后人类法治文明发展演进的必然结果,目前已有一系列国际环境法律文件对其做出了或直接或间接的规定,并出现了许多可贵的司法案例。对于环境利益的保护,环境权提供了很好的制度工具。在环境权的侵权救济上,原告只需证明被告所涉的活动会对其生活环境的环境品质造成不利影响即可,而不需证明对他们的健康或幸福造成了损害。当然,为了界定何为不健康的环境,作为原告的环境权人必须依靠国家机构设定的相应最低限值,如环境质量标准。这种方式的优点是,受害者不必等到污染活动对他们的健康造成了现实损害,因为在某些场合这可能需要数年的时间。相反,只要有证据表明污染排放超过了法律规定的最低限值,原告就可以采取行动,以阻止污染活动的继续和后续损害的发生。此外,以环境权为环境诉讼的请求权基础,还可以规避证明污染活动与损害后果之间存在因果关系的"经典"难题,事实上,这是具有长期性和累积性的污染致害证明上最困难的问题之一。然而,受各方面因素的影响,环境权还面临诸多的理论难题:环境权究竟是一项什么权利,环境权与生命权、健康权之间有什么关系,如何认识和解决环境权与发展权之间的矛盾,可以用可持续发展权化解这一矛盾吗?……总之,通过环境权制度的创设,实现对环境受害者的有效保护,还有很漫长的路要走。

In the absence of a specific right to a healthy environment, several human rights have been invoked to vindicate environmental abuses at the international level as well as the regional level. The emergence of the concept of environmental rights has historical inevitability. At present, there are a series of international environmental legal documents that have made direct or indirect regulations, and there have been some valuable judicial cases.With regard to the parameters of the right, it is submitted that the right to a healthy environment provides the better formulation. Besides being easier to establish, it has the advantage of being flexible to suit each situation. Claimants need only establish that the activity in question resulted in creating an unhealthy environment for him/her to live in. They do not need to establish damage to their health or well-being at that point. In order to establish an unhealthy environment, they would rely on the threshold limits created by the Environment Authority in their country, assuming, of course, that such limits have been established, or they may rely on generally accepted international standards, defined, for example, by the World Health Organization. The advantage of this approach is that victims do not have to wait until damage to their health materializes, which could take years in some in-stances. Instead, they could take action to stop a polluting activity from continuing and causing catastrophic damage later on by merely showing that the emissions have crossed the threshold levels established by law. This formulation also allows evidence of the potential victim’s own health, if his health is in a worse condition than others, and would also relax the principle of locus standi where the victim must show that he has suffered damage over and above others. This proposal also circumvents the problem of establishing causation between the polluting activity and damage to health,which is one of the most difficult issues to prove in relation to harm caused by pollution, where the harm is often long-term and cumulative. While a right to a healthy environment would go a long way in protecting the right of aggrieved persons, its utility is limited as it is anthropocentric in nature.