Can the ICESCR Be an Alternative for Environmental Protection? Analysis of the Effectiveness of the ICESCR in Holding State and Non-State Actors Accountable for Environmental Degradation

Abstract

Businesses, human rights, environmental protection - areas which at first sight might seem to have little in common, are in fact greatly intertwined and as businesses become more internationalized, the need to have clear-cut laws regulating the relations among these areas becomes inevitable. Companies and transnational corporations nowadays have great impact on the environment all over the world through their activities, such as logging forests for mining purposes and in this way changing the biodiversity, the quality of air etc, creating tailing dumps which threaten the rivers, planting non-native species and displacing the native ones in this way as well affecting the biodiversity, overusing and wasting water in the oil and gas sector, etc. All these activities eventually affect not only the biodiversity, but also human well being. Thus, one method for tackling the problem of environmental degradation is creating universal mandatory norms to which all corporations would adhere. Another method, however, which is considered in this work in more details, is the approach to the issue of environmental degradation from the human rights perspective, particularly from the perspective of each human being having the right to live in a healthy, clean environment. As the reflection of this right is found in the state binding UN Covenant on Economic, Social and Cultural Rights (ICESCR), we consider this indirect approach to the environmental protection as a possible effective method for addressing the issues of environmental degradation. Therefore, in this work we first justify our choice of approaching the environmental protection from the perspective of state’s human rights obligations, rather than from the perspective of voluntary guidelines adopted by corporations and financial institutions. We then analyze how relevant articles of the ICESCR address the issue of environmental degradation. After this analysis we identify possible obstacles which may hinder the fulfillment of the Covenant provisions. Based on the observations, we summarize the extent to which the ICESCR can serve as an alternative for environmental protection, acting as a temporary measure, until the guidelines adopted by the corporations and financial institutions aimed at protecting human rights and the environment become universal and mandatory.