Is there a right to clean air?
Teachers should refer to the article Rights in Hong Kong for background on how human rights are enshrined in the HKSAR.
Teachers should refer to Article 24 of the United Nations Convention on the Rights of a Child, The right to health, and The right to life for the text of the treaties.
Questions
1. In what ways are the right to health of children similar to the right to health and the right to life? Are they different in any respect?
2. Should the right to clean air be included in these rights? How would you include them?
3. If you were to draft a right to clean air for Hong Kong people, how would you phrase the right to clean air?
4. If English is not your first language, you can access these articles in your mother tongue e.g. Chinese. Does the Chinese version of these articles mean the same thing as the English articles?
Interpreting our rights to give us clean air
Teachers should note that there is no explicit right to clean air in any international covenant on human rights – the concept is often implied into other rights such as the right to health and the right to life.
It is the role of courts in Hong Kong to interpret these treaties that apply to Hong Kong and decide whether or not matters such as clean air are implied in our rights: see The duty to enforce the Basic Law.
Teachers can refer to the category Right to Clean Air for cases where the right to life and health is discussed in the context of air pollution. They can also refer to the interpretations of these rights by other authorities in that context.
Questions
1. How can there be a right to clean air if the treaties on human rights say nothing about it?
2. Do you think that having a right to life and a right to health gives you a right to clean air?
3. Is the Government in breach of the treaties on human rights if the air you breathe is not clean?
Absolute and aspirational rights
One of the key differences between the rights enshrined in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights is the fact that civil and political rights are relatively absolute e.g. the right to life entitles a person to continued survival, and it is very clear when that right is breached. By contrast, the fulfillment of economic, social and cultural rights is dependent on factors such as the economic development of a country, and those rights must be looked at in the context of the extent to which they may be fulfilled. Hence, the right to health is only to the extent of the ‘highest attainable standard’, and not an absolute standard of perfect human health.
This difference is mirrored in Hong Kong’s own laws. The Air Quality Objectives, which are the non-mandatory standards of air pollution in Hong Kong law, are set with the “best use of air” and the “public interest” in mind.
Questions
1. If there is a right to clean air, does it mean that any activity that creates pollution should be stopped? How would your life be affected if no activities that created pollution could be continued?
2. Is there a way to balance the right to life and health with the need to create pollution? How do you think that balance can be achieved?
3. If we have to balance our right to life and health with the need to create pollution, how would we know when the Government may be in breach of our rights because of air pollution?