RESEARCH BACKGROUND

The relationship between human rights protection and environmental protection is a fascinating, uneasy, and increasingly urgent one. According to Fitzmaurice, there are three main schools of thought. One that supports the view that there are no human rights without an environmental right, another that see the right, both as an already existing or as an emerging one, as a highly questionable proposition, and finally a school that admits the existence of a right to a healthy environment, deriving its existence from other human rights, such as the right to life, the right to health and the right to information. Dinah Shelton, a well known scholar working in both fields of international human rights law and international environmental law, observes the connection: “The international community has adopted a considerable array of international legal instruments, and created specialized organs and agencies at the global and regional levels to respond to identified problems in human rights and environmental protection, although oft en addressing the two topics in isolation from one another.” What is the real relationship between human rights protection and environmental protection at the international level?

RELATIONSHIP BETWEEN HUMAN RIGHTS PROTECTION AND ENVIRONMENTAL PROTECTION AT THE INTERNATIONAL LEVEL

Linkages Between Human Rights Protection and Environmental Protection in International Instruments

The myriad declarations, international conventions and agreements that address human rights and environmental protection – separately and jointly – reflect the international community's recognition that international actors, particularly States, have obligations in these areas, and individuals, as well as groups of peoples, have a number of rights.

In the international sphere, the earlier evolution of human rights law has influenced and sometimes inspired innovations in international environmental law; in turn, the emergence of a concern for the environment has encouraged international lawyers to explore and attempt to understand and utilise the interrelationship and even interdependence of human rights and environmental protection.

From a historical perspective, the 1972 Stockholm Declaration on the Human Environment, which was born in the United Nations Conference on the Human Environment, was the first international instrument to establish an explicit link between human rights and environmental protection.

GENERAL CONCLUSION

It is widely acknowledged that protected areas are not only a means for the protection of the natural environment, but also a means for achieving harmony between humans and nature. Increasingly, it is also recognised that protected areas cannot be seen in isolation from the communities that have inhabited or used their resources, nor can many of them be seen only as wildlife conservation sites, given that these communities may perceive the same areas as cultural landscapes or areas for essential survival. Various sections of society may value the same area differently, and there is no single “right” way to achieve conservation. As Brockington, Igoe and Schmidt-Soltau state, “the ultimate challenge facing conservationists today is not only to reconcile errors of the past but also to determine how to shape human interactions with nature in landscapes of which people are a part.” The conservation and management of protected areas have long discussed “balancing” the needs of different stakeholders when in reality win-win situations are difficult to realise.

This book has explored how to adopt a rights-based approach to conserve protected areas to achieve a better balance between human rights protection and protected areas conservation in China. It has provided adequate answers to three sub-research questions: (1) What is the added value of a human rights-based approach to conservation? (2) How to solve the potential conflicts regarding human rights protection and protected areas conservation in China according to some principal lessons learned from Europe? (3) Based on the experiences and lessons learned from the legal systems and case law in Europe, how to implement a human rights-based approach in protected areas conservation in China?

Rather than predicting the developmental tendency between human rights protection and environmental protection or debating whether a right to an environment would be widely accepted or not, it would be practical to find a better balanced approach to solve the existing conflicts regarding human rights protection and environmental protection based on the existing linkages between these two issues at the international level. In essence, a human rights based approach could be regarded as both a means and an end: protecting the environment, in particular conserving protected areas, is ultimately about making sure that everyone's human rights are met.

The introduction and discussion on the relationship between the four human rights and protected areas pointed out that the global human rights texts do not explicitly mention environmental protection, let alone protected areas conservation. However, indigenous peoples, as a most relevant group for environmental protection, are already empowered with some rights relevant to environmental protection, although some rights were only included in soft law instruments. The main reason for this is that most early human rights instruments were adopted earlier than environmental instruments. Nevertheless, recent changes in human rights instruments and organs have reflected a developmental tendency towards more concern for environmental protection. For instance, the ILO Convention No. 169 states the right of indigenous peoples to “participate in the use, management and conservation” of the natural resources pertaining to their lands. Article 29(1) of the United Nations Declaration on the Rights of Indigenous Peoples strongly holds that “indigenous peoples have the right to the conservation and protection of the environment.” In addition, the CERD has applied the principle of free, prior and informed consent (FPIC) in nature conservation (see 5.1.1.1.2).

However, in practice, non-indigenous local people and communities that are concerned with environmental protection should also be taken into account. This is also the main reason why this book uses the term “local people and communities” which has been explained in the introduction chapter (see 1.1.2.1).

Ellen Desmet concludes that: “except in the European human rights system, attention for the impact of nature conservation at the international level has been almost exclusively focused on the situation of indigenous peoples.” However, in general, the European human rights organs have been reluctant to pronounce themselves on the conflict between conservation measures and the interests of individuals or minorities, given the complexity and sensitivity of the issue at stake. A wide margin of appreciation has been left to the national States.

According to what has been introduced and explored, some similar conflicts can be found both in China and in Europe (see 4.4). It is noted that the conflicts regarding human rights protection and protected areas conservation in different countries cannot be easily judged from their “appearance”, normally they are the mixed products of political, economic, cultural, historical and legal factors.

As we have seen in the introduction (see 1.1.4), there can be strong linkages between halting the ongoing loss of biodiversity through protected areas, improving human livelihoods, and ensuring peoples’ rights. The right to property is among the human rights most prone to be affected by nature conservation. In most cases, property rights have played a decisive role in determining whether communities would be involved in proposed conservation and environmental projects. Indeed, to secure the right to property is a precondition to the effective enjoyment of core human rights, for instance the right to life and the right to respect private and family life, home, and correspondence. A system of land tenure that acknowledges different layers of use, access, control, and ownership and accommodates both traditional indigenous system of land tenure alongside modern property rights is the starting point in the process of recognition and inclusion of stakeholders in decisions pertaining to land and related resources. As for the local people and communities, the essence of property to land is not the possession of a physical piece of land per se, but the right to live offthe land, and enjoy the benefit stream it provides.

RELATIONSHIP BETWEEN THE RIGHT TO PROPERTY AND PROTECTED AREAS

Man may possess such things as are appropriate to preserve himself and satisfy his needs; it is over these things that his right to liberty is exercised in all its fullness, this is called property. At a more fundamental level, the property laws raise issues of what can be “owned” and what “ownership” entails. More specifically, property laws are the legal concepts that most strongly enshrine the view that economic wealth, freely pursued through the free use and enjoyment of natural resources, will provide for both individual and the so-called net social benefit, or common good.

GENERAL RIGHT TO PROPERTY IN INTERNATIONAL AND REGIONAL HUMAN RIGHTS INSTRUMENTS

The Universal Declaration of Human Rights includes the right of everyone to own property alone as well as in association with others, and in Article 17, it adds that “no one shall be arbitrarily deprived of his property.”

Procedural rights are generally regarded as an aspect of the rule of law and detached from substantive rights. Procedural rights, as entry points for supporting substantive rights, play an irreplaceable role in helping substantive rights come into practice, when an interference occurs. For instance, broad access to information promotes better decisions by mobilising a demand for sustainable solutions to problems. However, procedural guarantees of information and participation can prove insufficient to protect the environment if a fully informed society decides to sacrifice environmental quality in order to advance economic or cultural considerations. Nevertheless, people should be involved in decisions that potentially affect them. To empower people with procedural rights could be a better guarantee for their involvement.

Historically, after the 1972 Stockholm Conference on the Human Environment, environmental scholars and activists began to consider human rights in a more instrumental fashion, identifying those rights whose enjoyment could be considered a prerequisite to effective environmental protection. They focused in particular on the procedural rights of access to environmental information, public participation in decision-making, and access to justice and remedies in the event of environmental harm.

This was confirmed by “Our Common Future” (the Brundtland report) published in 1987. And then, the World Commission on Environment and Development (WCED) adopted a list of proposed legal principles for environmental protection and sustainable development, the first of which reads “all human beings have the fundamental right to an environment adequate for their health and wellbeing”. Principle 6 specifically concerns the right to information and equal access and due process in administrative and judicial proceedings.

After these, the Convention on Trans-boundary Effects of Industrial Accidents was the first international treaty to contain the three procedural environmental rights, which are the right to information, the right to participation and the right to access to remedies (Article 9). Three months later, these three procedural environmental rights were approved in Principle 10 of the Rio Declaration on Environment and Development. It says that: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.

Protected areas are widely recognised as a cornerstone of biodiversity management and sustainable development. A large number of global and regional treaties and other instruments promote the establishment of protected areas. Among these, the CBD, with 193 countries as members, is a particularly important endorsement of protected areas. It states that, as far as possible and appropriate, parties shall “establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity”. Other agreements and actions in the international arena also support protected areas.

Under this global framework on protected areas, this idea was actively supported by some NGOs, for instance IUCN's WCPA (World Commission on Protected Areas). The WCPA is the major global network of protected areas specialists; its mission is “to promote the establishment and effective management of a representative world-wide network of terrestrial and marine protected areas”. Besides this, the fifth IUCN World Parks Congress, which is regarded as a landmark global forum on protected areas, held in Durban in 2003 under the title “Benefits Beyond Boundaries”, aimed to consolidate the role of protected areas in conserving biodiversity, as well as encouraging debate on their role in human development, in the fight against poverty and in moderating the effects of global change. This led to the more formalised process of the CBD's Programme of Work on Protected Areas, adopted in 2004, and still relevant to policy today. It triggered the launch of regional and national protected areas initiatives, and facilitated the documentation of social, economic, cultural, ecological and legal benefits of protected areas. As a result, protected areas have become a major instrument to reduce the rate of worldwide biodiversity loss. This calls for the effectiveness in protected areas management.

The CBD's Programme of Work on Protected Areas aimed to help countries meet specific targets on biodiversity. The CBD 2010 Biodiversity Target, which was agreed in April 2002, was the first set of targets. This target was subsequently endorsed by the World Summit on Sustainable Development and the United Nations General Assembly, and was incorporated as a new target under the Millennium Development Goals; however, this target was not met, leading to a reformulation of the Biodiversity Target.