CONCEPTUAL CHALLENGES TO THE RECOGNITION AND ENFORCEMENT OF THE RIGHT TO CLEAN, SAFE AND HEALTHY ENVIRONMENT

The right to clean or healthy environment, or what may be called environmental right, is one of the most controversial emerging rights since the agitation for the recognition of the link between human rights and the environment started gaining momentum at international law forums. This is happening partly because, at the global level, no treaty attempts to delimit the scope of this right explicitly; an endeavour which would have served as a form of guide to national jurisdictions. Given that the UN General Assembly recently officially resolved that a clean, healthy and sustainable environment is a universal human right, and considering the implication this may have on national jurisdictions, it has become more imperative to redefine this right for the ease of enforcement. This paper seeks to examine the conceptual and the theoretical conundrum as well as the criticisms of the right to clean, safe and healthy environment that have largely played a prominent role against the enforcement of the rights in general. The paper also examines constitutional challenges associated with the recognition of the rights in Nigeria and the judicial effort in the case of Gbemre v SPDC in attempting to expound the constitutional right to life to include the right to the environment. The paper finds that the right to the environment has been described and qualified diversely from one jurisdiction to another rendering the same susceptible to the challenges of interpretation. The paper, however, suggests that given the importance of the right, same should be interpreted, no matter how it is qualified, to mean a right to an environment fit for human living, the courts being sufficiently able to draw the line between what environment is fit and what is not for human habitation.


INTRODUCTION
The agitation for clean, safe and healthy environment has just assumed a more progressive dimension with the recent official resolution of the UN General Assembly recognising the right to clean, healthy and sustainable environment as a universal human right.There has always been high demand on modern governments to diversify, industrialise, promote and sustain a sound economy to enable them to create jobs, provide housing and meet other human and capital needs. 1 While this crave is imperative and properly placed, same has thrown nature 'out of balance' 2 and man has begun to grapple with a catalogue of environmental challenges whether in developing or developed countries.In order to strike a balance between preservation of the environment and promoting sound economy, many countries, including Nigeria 3 , have had to adopt several approacheslegislative 4 , ministerial 5 , political and judicial to address the evolving environmental concerns.Thus, human rights advocates 6 have found the Brown Etareri Umukoro, Oghenerukevwe Ituru need to extend the frontiers of human right campaign by seeking for the recognition and enforcement of an emerging right referred to as environmental right, particularly to provide a quality, adequate and satisfactorily 7 safe environment for human living.Though laudable this project is, it is not absolved of controversies, challenges or even confusion both real and imagined in the attempt to insist on a right to clean, safe and healthy environment.

Understanding the term Environment
Part of the challenges facing the recognition and the enforcement of the right to a clean environment anywhere stems from the intricate nature of the term 'environment' itself.Thus, as a corollary to the discussion on the concept of the right to clean environment, it is imperative to start with what the term environment connotes.It has been said that 'the environment may encompass everything, and almost everything that happens in society can implicate the environment.' 8s simple as the term seems, the conceptual underpinnings are not devoid of divergence.While some see the environment from human right angle (anthropocentric), others see the right to the environment as right for the environment itself (ecocentric).Besides, the term 'environment' is inherently broad and neutral 9 with diverse synonyms such as nature, earth, Report offers what may be the broadest definition, or better still, components, of environmental rights.It suggests that the possible components of substantive human rights or perhaps several rights to the environment can be seen in one source that sets out no less than fifteen rights related to environmental quality."R. Ako, "The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives from Nigeria and India" (2010) 3 NUJS Law Review 426.These include (a) Freedom from pollution, environmental degradation and activities that adversely affect the environment or threaten life, health, livelihood, well-being or sustainable development; (b) protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems; (c) the highest attainable standards of health; (d) safe and healthy food, water and working environment; (e) adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment; (f) ecologically sound access to nature and the conservation and the use of nature and natural resources; (g) preservation of unique sites, and (h) enjoyment of traditional life and subsistence for indigenous peoples.Thus, para. 2 of the Draft Principles on Human Rights and the Environment E/ CN.4/Sub.2/1994/9,Annex I (1994), which provides that "All persons have the right to a secure, healthy and ecologically sound environment" and that "this right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible" was a follow up of the Ksentini Report.Brown Etareri Umukoro, Oghenerukevwe Ituru ecology,10 ecosystem11 , biosphere,12 biodiversity,13 etc.The meaning of the term is also coloured by some social, economic or political considerations in certain circumstances.For instance, some have linked environmental problems to the improper distribution of natural resources which is creating tension in the environment. 14The term, therefore, does not lend itself to the exclusive preserve of any particular field of learning in underscoring an acceptable meaning.Environmental scientists, environmental lawyers, analysts and commentators all have equal challenge in the theoretical voyage into the ambit of the term 'environment.'According to Dupuy and Viñuales 15 : "A first question that arises when we attempt to understand the object of international environmental right law is whether the term 'environment' refers or can be pinned down to a single concept or meaning.The term 'environment' pervades scientific, political and media discourse and, yet its meaning remains unclear.As with the concept of 'time' of which Augustine said that we know what it means so long as we are not asked for a definition, the term 'environment' is as simple to understand intuitively as it is difficult to circumscribe precisely."The fact that the term lends itself to diverse interpretations has been cited as one of the major challenges facing the judicial enforcement and onstitutionalisation of the right.According to Daly: "Constitutionally enshrined environmental rights are particularly challenging for courts for a number of reasons, many of which flow from the lack of certainty about what the "environment" actually entails and how a meaningful The question therefore is: what environment do we mean whenever there is reference to the phrase environment, and by extension, the right to clean, safe and healthy environment?Understanding what environment means is critical to whatever right that is attached to the environment.For instance, the environment has been defined as "everything which surrounds spatial entity, abiotic or alive."17In the Oxford Dictionary of Ecology, the term 'environment' is defined as: "[t]he complete range of external conditions, physical and biological, in which an organism lives.The environment also includes social, cultural, and (for humans) economic and political considerations, as well as the more usually understood features such as soil, climate, and food supply." 18he Supreme Court of Chile had this to say on the environment: "[T]he environment, environmental heritage and preservation of nature, of which the Constitution speaks and which it secures and protects, is everything which naturally surrounds us and that permits the development of life, and it refers to the atmosphere as it does to the land and its waters, to the flora and fauna, all of which comprise nature, with its ecological systems of balance between organisms and the environment in which they live."19In the same vein, the New Zealand Environment Act of 1986 defines the environment as including: (a) ecosystems and their constituent parts including people and communities; and (b) all natural and physical resources; and (c) those physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes; and (d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters.20To some scholars, the environment constitutes "an object of religious, cultural, and historical importance"21 , while to others, it is "the physical landscape of a people's history and future." 22From the above, it is apparent that though the definition of the term varies from place to place, there is a common denominator.That is, the term environment means more than the ecosystem -it includes everything in it.It is a description of the entire way of life of the people and people may not meaningfully enjoy full happiness if removed from what they understand as their environment.

The Concept of the Right to Clean Environment
Besides the challenge of ascertaining what the environment itself entails, there is also the more complex conceptual difficulty of underscoring the import of the various phrases which have been employed in describing the relationship between the environment and human rights being described in this work as the right to clean environment.The meaning of the phrases such as the 'right to clean environment' or the term 'environmental human right' 23 are not delimited by any known human right or environmental law instrument whether international, regional or domestic. 24However, these phrases have emerged and have been accepted as relating to the nexus between human rights and the environment. 25Thus, in most discussions on the relationship between human rights and the environment, several terminologies and adjectives have been employed to denote the meaning of the concept.Some of these terms are 'environmental rights,' 26 'fundamental lived in Tinet Forest since time immemorial.Though the court refused plaintiffs' claim in the overall interest of the Kenyan people as the Ogiek people were continuing to exploit natural resources of the Tibet forest indiscriminately the court found that an environment could be a physical landscape of a people's history and future. 23These rights can be both substantive and procedural.environmental rights,' 27 'right to healthy 28 or clean 29 or quality 30 or adequate 31 environment', etc.Most of the times, when these terms are used in legal instruments or discourses, they are intended to explain the relationship between the environment and human rights, 32 or those rights described as fundamental rights in the Constitution. 33According to Rodriguez-Rivera: 34 "There is the issue of the quality of environment involved in the right to a satisfactory environment.quality," "healthful," "clean," "adequate," or something else?What does a fundamental right to a quality environment entail?" 36 As confusing as these adjectives may be (and even in the absence of any qualification of the environment), it is apparent that an environment suitable 37 for human living is the focus of every draftsman, jurist, legal commentator, or human right activist in the pursuit of human right to the environment.For instance, the Supreme Court of Montana 38 faced with the task of elucidating the implications of a right to a specified environmental quality in the case of Montana Environmental Information Center et. al. v. Department of Environmental Quality 39 refused to be carried away by the description qualifying the word "environment" in the Montana Constitution.Article II, Section 3 of the Montana Constitution 40 provides in part that: "All persons are born free and have certain inalienable rights.They include the right to a clean and healthful environment." In this case, the contention of the plaintiff, inter-alia, was that part of the Montana Constitution violated by the legislatures when they amended a State law to provide a blanket exception to requirements governing discharges from well water without regard to the degrading effect that the discharges would have on the surrounding or recipient environment. 41he Court held that: "… the right to a clean and healthful environment is a fundamental right because it is guaranteed by the Declaration of Rights found at Article II, Section 3 of Montana's Constitution, and that any statute or rule which implicates that right must be strictly scrutinized and can only survive scrutiny if the State establishes a compelling state interest and that its action is closely tailored to effectuate that interest and is the least onerous path that can be taken to achieve the State's objective." 42The holding of the Court was predicated upon what the court felt was the intentions of the drafters of the Constitution as regard the scope of 36 May and Daly, n27, 370-371.Weston and Bollier also have this to say: "we use the phrase 'clean and healthy environment' to encapsulate the numerous adjectives that, alone or in combination, are used to identify or define this right, e.g., 'adequate,' 'decent,' 'balanced,' 'biodiverse,' 'resilient,' 'safe,' 'sustainable, ' and 'viable,' in addition to 'clean' and 'healthy.'In no way, however, should this or other abbreviated usages (e.g., 'human right to environment,' 'right to environment') be interpreted to diminish the right from its fullest protective meaning."BH Weston, and D Bollier, 'Toward a Recalibrated Human Right to a Clean and Healthy Environment: Making the Conceptual Transition' (2013) 4 (2) Journal of Human Rights and the Environment 117. 37I am not unmindful of the fact that even the adjective "suitable" could raise sufficient linguistic questions as any other adjective. 38(1999)  environmental quality guaranteed by the Constitution.The Court considered the drafting history of the constitutional amendment and noted that the original draft had no adjectives preceding the word environment.The Court did not allow itself to be restricted by the adjectives: 'clean' and 'healthful' describing the kind of environment anticipated by the Constitution.The Court recalled a delegate involved in the drafting as explaining that descriptive adjectives such as 'healthful' or 'unsoiled' were not initially included in the Montana Constitution.It was because the majority felt that the use of the word 'healthful' would create room for environment polluters.The court was of the view that, in excluding water discharges from well tests, the statute makes it impossible for the State to "prevent unreasonable depletion and degradation of natural resources" as required in the Montana Constitution, an act that could undermine the fundamental right of the Montana people to clean and healthy environment.The Court stated further: "We have not had prior occasion to discuss the level of scrutiny which applies when the right to a clean and healthful environment guaranteed by Article II, Section 3 or those rights referred to in Article IX, Section 1 are implicated.ineffective, like the right to development, and may undermine the very notion of human rights." 45It is also imperative to examine whether some of these terms e.g., 'right of the environment,' 'right to the environment,' 'environmental rights' and the 'right to clean environment' mean one and the same thing.Some suggests that there is a difference between the "right of the environment" and "right to the environment."Citing Rodriguez-Rivera, Ebeku 46 reiterated: "The right of the environment is founded upon the notion that the environment possesses rights derived from its own intrinsic value, separate and distinct from human use of the environment."In other words, the environment itself has certain rights for itself that should be preserved.This is the view of those who see the environment from eco-centric standpoint.However, May and Daly 47 admit that "definitional issues abound, including whether 'environment' is anthropogenic or should include eco-centric interests such as biodiversity…" Cullet on the other hand sees environmental protection "not only as a meaningful instrument for the realization of all human rights but also as a goal in itself." 48he term 'environmental right,' on the other hand, is seen as encapsulating both the substantive and the procedural human rights necessary for the implementation and realisation of the right to a satisfactory environment. 49Boyle's 50 analysis of the right is more embracing.According to him: "Environmental rights do not fit neatly into any single category or "generation" of human rights.They can be viewed from at least three 51 perspectives, straddling all the various categories or generations of human rights."Some others see the environment as "an independent value and needs a strict protection as other commonly agreed value such as right to property 45 Cullet, emphasizes the point that "The formulation of the right as a plain 'right to environment' is no more imprecise than a right to a healthy or clean environment as these qualifying adjectives are themselves vague and subject to divergent interpretations or the right to life and health. 52Mushkat, 53 on his part identifies a distinction between 'environmental human right' and 'ecological right.'According to her: "A degree of discord may be observed between those who focus on environmental human rights in the narrow sense of the term and those who seek to promote the broader idea of ecological rights.This stems from the intellectual tension, real or apparent, between the anthropocentric and ecocentric philosophical perspectives.The former conceives the environment whether explicitly or implicitly, as a mere good which serves to satisfy human needs and possess no intrinsic value in itself.… The ecological viewpoint posits that the environment is a condition of all life on earth.It follows that limitation on individual human freedom may be required in order to protect nature, which encompasses the human species."Given that most instruments creating or alluding to the right to the environment do not set out the meaning and scope of the right, and given that various instruments qualify the right using diverse languages and descriptions, some authors have fallen into the temptation of interpreting some of the terms as though they could represent different ideas.Having regard to the spirit behind the pursuit of human right within the context of the environment, it is safer to conclude that the terms such as 'environmental right,' 'right to environment,' 'right to clean environment,' etc. are all employed towards the objective of securing a habitable environment for man. 54According to Onvizu, 55 "The right to a healthy environment is controversial, but scholars have attempted to link the environment to human rights."Some 56 are of the view that: "Environmental rights are even broader as they include nonhuman phenomenal as well. 57 culture, non-discrimination, peace and children's health, 58 as well as the health of the earth's water, ground, and air."Other scholars 59 have exercised some care in dealing with the terms by delimiting the scope to avoid confusion.However, in arguing a case for ecocentric approach to the environment, Boyle appears to have compounded the dichotomy between the right to the environment and environmental rights.He asks: "Should we continue to think about human right and the environment within the existing framework of human rights law in which the protection of human is the central focusessentially a greening of the rights to life, private life and property -or has the time come to talk directly about environmental rights in other words a right to have the environment itself protected?Should we transcend the anthropocentric in favor of the eco-centric?" 60Boyle appears to have used the term environmental right as if it relates to the right to have the environment itself protected.This is what others understand as the right to the environment.One may want to ask, therefore: is environmental right only about having "the environment itself protected?Is it strictly relating to the environment from eco-centric perspective?Is the protection of the environment strictly for the sake of the environment itself?When the environment is safe, is it only for the sake of nature?The answers to these questions are not in the affirmative.This is because the term environmental rights literally should connote a right derived from the environment and this right should be all inclusive.The result of environmental rights should be beneficial to both the environment and man.
It is a common ground that from the context in which some of these adjectives are used by scholars, environmental and human rights advocates agree that, broadly speaking, ecological or environmental rights suggest a connection between the environment and human rights.It can be suggested, therefore, that "by implication, environmental rights are akin in all respects to other rights that reflect morally justified individual demands." 61To this extent, the meaning and scope of each of these terms should be limited to the context in which the author puts them as there appears to be no agreement as to what strictly each of these terms represent other than they represent a right to live in a suitable environment, the court being in a better position to determine the suitability of the environment in each case.
It is in this light that Justice Feliciano of the Philippine refused to see difficulty or complication in the interpretation of the phrase "a balanced and 58 See May and Daly, Ibid.See also, ECOSOC, U.N. Commission on Human Rights, Sub-com.On Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, 248, U.N. Doc.E/EN4/Sub.12/1994/a(July 6, 1994) prepared by Fatma Zohra Ksentini. 59According to Weston and Bollier, "We use the phrase "clean and healthy environment" to encapsulate the numerous adjectives that, either alone or in various combination, are used to identify or define this right, e.g., "adequate," "decent," "ecologically balanced," "resilient," "sustainable," and "viable" in addition to "clean" and "healthy."Weston and Bollier, n24,1. 60  "It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to 'a balanced and healthful ecology'.The list of particular claims, which can be subsumed under this rubric appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares…" 62 The position, therefore, is that the right to clean environment is at the root of very breach committed against the environment.

DEFINING THE RIGHT TO CLEAN ENVIRONMENT
Admittedly, defining a term has been one of the most Herculean tasks in the field of law.But where definition becomes inevitable, it is irrelevant how much ink is spilled in attempting to proffer one. 63It has been identified that the meaning of a word lies in its use in the language. 64It may be true too that the meaning of a word is just more words that stand in for them. 65owever, it is not out of place if one considers the meaning of the term environmental rights (as if this subsumes other related terms) with the hope of arriving at a near universally acceptable definition, even though the term may be coloured, some of the time, by its contextual appearance.Trying to develop a general platform to cover the terms is to improvise a framework to ensure that each term does not have to depend on the context in which it is used at all times but on the general notion of what it is accepted to mean.
The term "environmental rights" has raised a lot of dust and it is still generating more issues, moral, social, legal, and so forth, some of these issues having to do with the ambit of the entire idea of the linkage between human rights and the environment.It is, therefore, a complex term.Some authors rather embarking on the difficult task of proffering a definition have decided to draw inspiration from available relevant legal instruments as aid in elucidating the import of the term.Wet and Plessis state that: 66 62 Minors Oposa v. Factoran,n2,224. 63 Arnold, has said that law for instance can never be defined with equal obviousness, however it should be said that adherence of legal instrument must never give up the struggle to define.See Arnold T., The Symbol of Government, 1935 p.36  "Environmental rights contained in domestic bills of rights and international human rights instruments often consist of a complex combination of legal obligations.Their interpretation tends to be a particularly challenging task.Arguably, this also holds true for the environmental right in section 24 of the Constitution of the Republic of South Africa Act, 1996 (Constitution).Fortunately, however, there is a growing body of public international law, as well as foreign domestic law, on which one may draw to render the abstract language of section 24 [of the South Africa Constitution] more concrete for judicial application."Why Wet and Plessis feel that public international laws and domestic laws may be helpful in clarifying the language of the South Africa Constitution relating to environmental rights provisions, it may even be more confusing in some other jurisdictions.This is because according to May and Daly "the almost complete lack of evidence of framers' intent about environmental provisions reinforces the sense of randomness." 67It is thought, therefore, that it will rather be more rewarding if legislatures and drafters of Constitutions have a near-generally acceptable scholarly idea of what is environmental rights to aid in formulating environmental right provisions than to look forward to discordant legislative provisions, whether domestic or otherwise, for guidance.
Notwithstanding that these terms present a contextual conundrum (i.e., "the right to clean environment," "environment human rights," "environmental rights," the right to healthy environment, etc), all terms are used interchangeably 68 in this study as though all mean the same thing.However, it is desirable to underscore what they represent by way of definition.
Some scholars have made some attempts at defining the concept.According to MacDonald: "[E]nvironmental rights are those rights related to environmental standards or protection that are safeguarded so as to benefit someone or something.That someone or something could be the environment itself, humans or combinations thereof.Environmental rights thus concern the 346.They lament that the South African Constitutional Court has not yet had sufficient opportunity to clarify the meaning of section 24 of the South African Constitution.Section 24 of the South African Constitution, 1996 provides: "Everyone has the right [a] to an environment that is not harmful to their health or well-being; and [b]. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures thati.prevent pollution and ecological degradation; ii.Promote conservation; and iii.Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development."Ibid.Wet and Plessis, however, draw inspiration from the way in which international human rights bodies (both universal and regional) have interpreted and applied the relevant provisions of the respective human rights instruments within their jurisdiction.Ibid. 67See, May and Daly,n27,376. 68 For instance, Ebeku uses the term 'right to a satisfactory environment' to denote the three ramifications on human right to a satisfactory environment which he noted in his work.right to protect human health and private or common property (including the "natural" environment) from damage or potential damage sourced through the environment." 69tubu, on the other hand, states that: "Environmental right …[is the] right that gives human beings a primary right to a sustainable global environment.It has been defined as the right of individuals and peoples to an ecologically sound environment and sustainable management of natural resources conducive to sustainable development. 70The term manages to be both elusive and controversial: elusive because there is no universal definition, controversial because many from the sector define it from an eco-centric perspective (environment first) while the human rights constituency is predominantly anthropocentric (humans first)." 71According to Alan Boyle, "Environmental rights, give environmental quality comparable status to the other economic and social rights... [and]  would recognize the vital character of the environment as a basic condition of life, indispensable to the promotion of human dignity and welfare, and to the fulfillment of other human rights." 72t is imperative to note at this point that the terms "the right to clean environment," "environmental human rights" and "environmental rights" or even the right to healthy environment may not mean exactly one and the same thing even though it is obvious that all terms relate to the relationship between the environment and human being.For instance, if attention must be given to the definition of the word 'health' by the World Health Organisation (WHO) 73 then not every clean environment in the strict sense of the word 'clean' 74 denotes a healthy environment.WHO defines 'health' as "a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity." 75everal other generally accepted definitions of the word 'health' exist.Bircher 76 defines health as "a dynamic state of well-being characterized by a physical and mental potential, which satisfies the demands of life commensurate with age, culture, and personal responsibility."Saracci 77 defines it as "a condition of well-being, free of disease or infirmity, and a basic and universal human right."The Australian Aboriginal people generally have this to say about health: "…Health does not just mean the physical well-being of the individual but refers to the social, emotional, spiritual and cultural well-being of the whole community." 78Health can be "a whole of life view and includes the cyclical concept of life-death-life." 79he question therefore is: if the word 'health' connotes a state of healthiness, taking a bearing from the WHO's definition, can there be a 'healthy' environment in that sense?And if we have a healthy or healthful environment, does this simply mean a clean environment?Most governments feel threatened by obnoxious fumes and smokes in the atmosphere (and do not have problem treating these situations as unhealthy) but not with noise 80 (suggesting that if the issue is that of noise alone, the environment is clean enough) even though both situations affect the health of man.
The definition by WHO may be aspirational yet if analyzed within the context of environmental right, it has the possibility of sharpening government policies on the environment.According to Erika, "the 'critical aspect of the contribution that the right to health can offer to law and policy involves challenging conventional assumptions regarding the nature of 75 See the Principle of the WHO Constitution at <https://www.afro.who.int/sites/default/files/2017-07/constitution_of_health_en.pdf>accessed 15 August 2022.Though, a critic argues that the "WHO's definition of health is utopian, inflexible, and unrealistic, and that including the word "complete" in the definition makes it highly unlikely that anyone would be healthy for a reasonable period of time.It also appears that 'a state of complete physical mental and social well-being' corresponds more to happiness than to health.

THE NIGERIAN EXPERIENCE
The issue of the right to clean environment has not been robustly articulated in Nigerian courts.The first authority on the right to clean, safe and healthy environment in Nigeria is the famous Federal High Court case of Mr. Jonah Gbemre and Shell Petroleum Development Company Nigeria Ltd and 2 Other. 82This authority, though very weak, has given that it is a lonely Federal High Court decision whose substance was not tested on appeal, has heightened the campaign for the recognition of the right to clean environment in Nigeria.Since then there has never been any scholarly discussion on the right to clean environment or on Chapter Two of the Constitution, or on social, economic and cultural rights in Nigeria without some pontifications on Gbemre v SPDC. 83In this case, the Applicants alleged, inter alia, that the operation of the Respondents in continuing to flare gas in their community contaminated and polluted their environment and exposed them several diseases including respiratory illnesses, asthma, cancer, increased premature deaths and also reduced crop yield on the land. 84As a result, the applicants urged the Court to declare their right to pollution-free environment entrenched under the Constitution and the African Charter on Human and Peoples' Rights.The substance of the claim of the applicants was that the Constitutionally guaranteed fundamental rights to life and dignity of the human person provided in the Constitution and reinforced by the African Charter on Human and peoples' Right (Ratification and Brown Etareri Umukoro, Oghenerukevwe Ituru Enforcement) Act inevitably includes the right to clean and healthy environment. 85All the reliefs of the applicants were granted.
The Judge has been highly commended for giving a purposeful interpretation to the fundamental rights contained in the Constitution and the African Charter.Some scholars feel that even though the Supreme Court did not have the opportunity to pronounce on the case, Gbemre v SPDC gives the sign that the African Charter can ground a valid application for the enforcement of socio-economic and cultural rights in the Nigerian Courts. 86ccording to Ladan, "[t]his is a landmark judgment in the sense of application of fundamental human rights to an environmental case for the first time in Nigeria, consistent with the trend in other jurisdictions." 87his notwithstanding, there are pockets of scepticisms shrouding Gbemre's case, particularly, having regard to the provisions of sections 6(6) (c) and 20 of the Nigerian Constitution.Section 20 of the Constitution provides that "the State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria."The provision of section 20 is under Fundamental Objectives and Directive Principles of State Policy (FODPSP).By section 6(6) (c) of the same Constitution, FODPSP are not enforceable.Section 6(6) (c) provides: "The judicial powers vested in accordance with the foregoing provisions of this section …shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution…" This section has been the major setback to the recognition and enforcement of all socio-economic rights as well as the right to clean, safe and healthy environment in Nigeria.The Court in Gbemre's case was exceptionally courageous by giving a broader interpretation to the provisions of the Constitution (which guarantee the right to life and the dignity of the human person) to include the right to live in a clean, safe and healthy environment.However, it has been correctly observed that "broadly interpreting the right to life to include the protection of environmental rights is not yet an established legal principle in Nigeria." 88This leads us to why Gbemre's case has not opened up the way to right-based environmental justice in Nigerian.Apart from the uneasiness which trailed the political environment after the judgment, some constitutional lawyers feel that only the Constitution should protect the calibre of rights envisaged in Article 24 of the African Charter and that section 6(6) (c) of the Nigerian Constitution having made mockery of section 20 of the same Constitution, there exists no further basis for upholding environmental rights in Nigeria. 89Others wonder why the Court did not make a statement on section 20 of the Constitution.As such, Gbemre not having been directly predicated on the Constitution appears to lack necessary force of law associated with fundamental rights provisions.
In summary, it must be admitted that the Court in Gbemre's case refused to be carried away by any conceptual, theoretical or constitutional limitation which has always been canvassed against the enforcement of the right to clean environment in jurisdictions where the right is inexplicit.No court has followed Gbemre's path since over 17 years of the decision.
In the more recent case of Centre for Oil Pollution Watch v. Nigeria NNPC90 the Appellant was a Non-Governmental Organisation [NGO] involved in the reinstatement, restoration and remediation of environments impaired by oil spillage/pollution; it also ensured that environments are kept clean and safe for human and aquatic live/consumptions.which has not evolved up to the stage, where litigants like the Appellant can ventilate the sort of grievance couched in its Amended Statement of Claim.As it is, the position of the law on the subject is that the plaintiff must show [enough] interest in the suit."Thus, the Acha community was denied access to justice on the basis of locus standi.The court again failed to look at the issue of the right to live in a clean, safe and healthy environment in Nigeria.As it stands in Nigeria today, the government is not under any compelling duty to improve on the environment as there is no enforceable right to clean, safe and heathy environment.Accordingly, more depends on the judiciary in the struggle for the enforceability of environment rights in Nigeria.A vibrant judiciary must seek alternative pathways to environmental justice.

THE IMPLICATION OF THE UN GENERAL ASSEMBLY RESOLUTION ON THE RIGHT TO THE ENVIRONMENT
The 28 July 2022 is a very remarkable day for the struggle for the recognition of the right to clean environment as a universal human right.the United Nations General Assembly finally categorically recognised that a "clean, healthy and sustainable environment is a universal human right." 91he UN General Assembly with 161 votes and eight absentees adopted a significant resolution calling upon States, international organisations, and business enterprises to intensify efforts to ensure a healthy environment for all.This, no doubt, is a historic resolution.The Resolution recognises that "the impact of climate change, the unsustainable management and use of natural resources, the pollution of air, land and water, the unsound management of chemicals and waste, and the resulting loss in biodiversity interfere with the enjoyment of this right -and that environmental damage has negative implications, both direct and indirect, for the effective enjoyment of all human rights." 92he struggle for the recognition of the right to clean environment started 50 years ago when the United Nations Conference on the Environment in Stockholm adopted the Stockholm Declaration 93 which was the first statement by international community to address environmental issues from human rights angle and "marked the start of a dialogue between industrialised and developing countries on the link between economic growth, the pollution of the air, water and the ocean, and the well-being of people around the world." 94The Declaration of Principle on the Human Environment was meant to inspire and guide the people of the world in the preservation and enhancement of the environment.50 years after the UN General Assembly has found the need to categorically and officially resolve that the right to clean, safe and sustainable environment is a universal human right.
With the official recognition of the right to clean environment at international level there is hope as the stage is now set for the advancement of the right at domestic level in jurisdictions where the right has not been given outright recognition.Some countries like Nigeria identify environmental rights in a manner that makes it difficult to enforce directly. 95igeria with a rapidly deteriorating environment as a result of decades of unabated exploration and exploitation of oil, pollution victims still have no clear constitutional guarantee to clean environment.This legislative and judicial inertia is not common to Nigeria and has remained largely so in some countries partly, because of lack of sufficient force at international level.In the African continent, there is the African Charter on Human and Peoples' Rights which clearly recognises the right to 'satisfactory environment' in article 24. 96 This Charter has also been domesticated in Nigeria 97 but the judiciary in Nigeria has not been able to give effect to the right because it is listed as non-justiciable right in the Constitution 98 which makes the Ratification and Enforcement Act a toothless dog.On the hand, the African Charter is not enforceable because section 12 of the Constitution states that treaties must be domesticated before they can be enforced in Nigeria.While the recent UN General Assembly Resolution may mean well for many other nations without explicit and enforceable environmental rights provisions, it may not be the same for some countries like Nigeria until the various constitutional challenges have been addressed.

CONCLUSION
In the history of the struggle towards the recognition of the right to a clean, safe and healthy environment all over the world, many governments have begun to give a thought to the recognition of environmental rights particularly through constitutional provisions. 99This is likely going to 95 Other countries in this category are Afghanistan, Algeria, Cameroon, Comoros and Norway.May and Daly,n27,388. 96 Article 24 of the Charter provides that 'all peoples shall have the right to a general satisfactory environment favourable to their development.'For a fuller discussion on this, see generally, M Linde and L Louw, 'Considering the interpretation and implementation of article 24 of the African Charter on Human and Peoples' Rights in light of the SERAC communication' (2003) 3 African Human Rights Law Journal 167-187. 97African Charter on Human and Peoples' Right (Ratification and Enforcement) Act Cap A9 LFN  2004.(Hereafter, Ratification and Enforcement Act). 98Section 20 and 6(6) (c) of the Constitution. 99Boyd states that "Today [environmental right] … is widely recognized in international law and endorsed by an overwhelming proportion of countries.Even more importantly, despite their recent vintage, environmental rights are included in more than 90 national constitutions.These provisions are having a remarkable impact, ranging from stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water."DR receive a higher recognition with the recent resolution of the UN General Assembly clearly and officially stating that a clean, healthy and sustainable environment is a universal human right.With this bold step by the international community, the interpretation of the concept and enforcement of this right at different levels now calls for further attention.There is a measure of disharmony between those who emphasis on environmental human rights in the narrow sense of the term and those who seek to promote the broader idea of ecological rights.These later agitators see the right as the centre of human existence.Thus, whether the right is termed as 'environmental right,' 'right to environment,' 'right to clean environment,' 'right to satisfactory environment,' or 'right to decent or healthy environment,' all are descriptions towards the objective of securing a habitable environment for man.It is suggested that whatever context in which the right is used, or whatever conceptual challenges that may be associated with the import of the right, judicial efforts should be geared towards interpreting the right to provide the full enjoyment as envisaged by the UN General Assembly Resolution and other instruments especially where environmental right is not explicitly provided for. 100aking lead from the Montana's Case, 101 it does appear that there is a general understanding of the import of the right to clean and healthy environment no matter how it is described.Even if all a statute states are that citizens shall have right to the environment it should be interpreted by the courts 102 to mean a right to an environment fit for human living, the courts being sufficiently able to draw the line between what environment is fit and what is not for human habitation.
healthy ecology".According to the jurist's claims on the right to a balanced and healthful ecology can be founded on almost every wrong against the environment.He said:

ISSN 2564-016X | Journal of Environmental Law & Policy | 02 (02) (August 2022): 01 <https://doi.org/10.33002/jelp02.02.01> Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment
See Human Right-Based Approach to Health and Environment: Report of a Regional Seminar, by World Health Organization, Bangkok, Thailand, 20-21 August 2007, p.13 <www.apps.searo.who.int/pds-doc/B3222.pdf>accessed 13 January 2022 (hereafter, Human Right-Based Approach to Health and Environment).It is generally agreed amongst authors that there is no international agreement as to what environmental human rights are; but they can be broadly grouped into three areas i.e., "the

Journal of Environmental Law & Policy | 02 (02) (August 2022): 01 <https://doi.org/10.33002/jelp02.02.01> Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment 10
Nor have we previously discussed the showing which must necessarily be made to establish that rights guaranteed by those two constitutional provisions are implicated.However, our prior cases which discuss other provisions of the Montana Constitution and the debate of those delegates who attended the 1972 Constitutional Convention, guide us in both respects…we conclude that the right to a clean and healthful environment guaranteed by Article II, Section 3, and those rights provided for in Article IX, Section 1 were intended by the constitution`s framers to be interrelated43See the text of the Judgment at <http://www.elaw.org/node/2090>accessed 25 January 2015.It is obvious from the above that the framer of the Montana Constitution being aware of the nature of problems definitions can cause decided to avoid qualifying the word 'environment' in the original draft.44Ebeku,citing A Boyle, 'The Role of International Law in the Protection of the Environment' in A Boyle & M Anderson (eds.), 'Human Rights Approaches to Environmental Protection' (Oxford University Press, 1996).Brown Etareri Umukoro, Oghenerukevwe Ituru

ISSN 2564-016X | Journal of Environmental Law & Policy | 02 (02) (August 2022): 01 <https://doi.org/10.33002/jelp02.02.01> Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment 11
and political processes.On this view their role is one of empowerment: facilitating participation in environmental decision-making and compelling governments to meet minimum standard of protection for life, private life and property from environmental harm.A second possibility is to treat a decent, healthy or sound environment as an economic or social right, comparable to those whose progressive attainment is promoted by the 1966 UN Covenant on Economic Social and Cultural Rights.Ibid.Brown Etareri Umukoro, Oghenerukevwe Ituru

ISSN 2564-016X | Journal of Environmental Law & Policy | 02 (02) (August 2022): 01 <https://doi.org/10.33002/jelp02.02.01> Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment 16
See the Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June 1946, which came into force on 7 April 1948.The issue of health as regard the determination of what is a safe environment cannot be brushed aside because "the right to health extends to the underlying determinants of health, which include a healthy environment."SeeTheReport of a Regional Seminar by World Health Organization n. 23, 12.74For instance, AS Hornby, Oxford Advanced Learner's Dictionary (8 th edn, Oxford University Press, 2010) defines clean as 'not dirty.' 73Brown Etareri Umukoro, Oghenerukevwe Ituru

ISSN 2564-016X | Journal of Environmental Law & Policy | 02 (02) (August 2022): 01 <https://doi.org/10.33002/jelp02.02.01> Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment 17
" Niyi Awofeso, 'Re-defining 'Health' at <https://courses.sfcollege.edu/courses/398612/files/33934478/download?wrap=1> accessed 15 August 2022. 76Niyi Awofeso, Ibid, citing J Bircher, Towards a Dynamic Definition of Health and Disease (Med.Health Care Philos, 2005) 335-341. 77Niyi Awofeso, Ibid citing R Saracci, The World Health Organization needs to Reconsider its Definition of Health (1997) BMJ 409-410. 78Final Report and Recommendations of the National Health and Medical Research Council-Promoting the Health of Indigenous Australians: A Review of Infrastructure Support for Aboriginal and Torres Strait Islander Health Advancement (NHMRC, 1996) part 2. This Report was, however, rescinded by the National Health and Medical Research Council on 24 March 2005.The Report now exists only for historical purposes. 79Niyi Awofeso, Ibid citing HG Nijhuis and LJG Van der Maesen, 'The Philosophical Foundations of Public Health: An Invitation to Debate' (1994) J. Epidemiol Community Health 1-3. Brown Etareri Umukoro, Oghenerukevwe Ituru constraints and the consequences of policy choices in order to provide new possibilities for improving health." 81 80Until around 1975 most governments viewed noise as a 'nuisance' rather that environmental problem let alone a human issue.Up till today, noise pollution is only redressable in Nigeria under the common law of tort.In Oregon, however, the word "unreasonable" which is used to qualify the word noise is "commonly defined as: "not conformable to reason, irrational, not governed or influenced by reason, immoderate, excessive, exorbitant, foolish, unwise, absurd, silly, preposterous, senseless and stupid."SeeStatev Marker (1975) 21 Or.App.671, 675.

ISSN 2564-016X | Journal of Environmental Law & Policy | 02 (02) (August 2022): 01 <https://doi.org/10.33002/jelp02.02.01> Conceptual Challenges to the Recognition and Enforcement of the Right to Clean, Safe and Healthy Environment 20
It sued the Respondent at the Federal High Court, Lagos, wherein it claimed inter alia for the: The Respondent on its part contended that the Appellant lacked the requisite locus standi to institute or maintain the action as presently constituted, as the Appellant had neither suffered damage nor been affected by the injury allegedly caused to the Acha Community.The Court of Appeal in dismissing the appeal of the Appeal Court had this to say:"The position of the law may have changed to cloak 'pressure groups, NGOs and public-spirited taxpayers' with locus standi to maintain an action for public interest, as argued by the Appellant, but that is in other countries, not Nigeria.The truth of the matter is that there is a remarkable divergence in the jurisprudence of locus standi in jurisdictions like England; India; Australia, etc., and the Nigerian approach to same, Brown Etareri Umukoro, Oghenerukevwe Ituru