At the confluence of environmental and human rights law
The recent recognition of the human right to a healthy environment partakes of both international environmental and human rights law and is likely to benefit, and benefit from, both areas of law. In particular, including environmental concerns in the panoply of human rights is likely to: aid enforcement and implementation, strengthen both procedural and substantive rights and, highlight that environmental protection is a necessity for living with dignity.
The UNGA recognized a right to a clean, healthy, and safe environment on July 28, 2022, and while we know exactly what it says, no one yet knows what it actually means. Like any right, there may be a vast chasm between the language on paper and its manifestation in the lives of people around the world.
But we have some clues, because the right to a healthy environment did not arise fully grown like Athena out of the mind of Zeus. Rather, it is the product of two well-developed bodies of law – human rights and environmental law – and it can benefit, and benefit from, both.
This essay suggests four ways in which the marriage of environmental and human rights may enhance the conceptualization and the implementation of both: (i) enforcement of rights, (ii) procedural rights, (iii) substantive human rights, and (iv) environmental dignity rights.
1/ Enforcement of rights
There are thousands of international environmental law treaties and other forms of agreements, but they are woefully lacking in enforcement. The reasons for this are legion, but suffice it to say here, they fall into three categories. First, international law in general is nearly impossible to enforce because it relies on the willingness of nations that have done wrong to decide to do right. Second, environmental law is particularly resistant to enforcement because environmental degradation (including actions that contribute to climate change) are lucrative and those in power have personal and political incentive to ignore environmentally protective rules. Neither of these is likely to change with the international recognition of a right to a healthy environment. But a third reason that environmental protection has resisted enforcement is that it has historically been written as obligations on sovereign states, not as rights of human beings. And the new Resolution does change that. This gives environmental protection some footing in the edifice of human rights law.
Human rights are well established in international law. Deriving from the recognition of human dignity, they have legal roots in the Universal Declaration of Human Rights and twin International Covenants of Rights, scaffolded by treaty-based and charter-based conventions, declarations, and other instruments, and they are enforced by commissions, councils and other bodies that have produced a body of jurisprudence that grows year by year. This is not to ignore the many profound barriers to implementation, but just to identify the structural mechanisms that human rights law has enjoyed for 70+ years that have inclined the world toward greater implementation, even if the promise of human rights law has not yet been fulfilled. In addition to mechanisms of implementation at the international level, many human rights are protected in national constitutions and in many countries they are enforceable and sometimes enforced in courts of competent constitutional jurisdiction, producing an even vaster body of law at the national level. The opportunity for individuals and communities to vindicate their rights to a healthy environment will grow as environmental rights are recognized as human rights.
2/ Procedural rights
In addition to enhancing the possibility of enforcement, recognizing environmental interests as human rights connects environmental protection with other well established human rights, in both their procedural and substantive dimensions. Procedural rights – including especially rights of public participation, information, and access to justice – have been recognized for decades in the environmental context (see Stockholm Declaration on the Human Environment; 1992 Rio Declaration on Environment and Development; 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters; Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean). Indeed, their importance to environmental rights has outpaced substantive rights to a healthy environment. It will be useful, as the UNGA Resolution moves toward actualization and implementation, to see that the procedural rights that have been recognized in the environmental field are kin to civil and political rights that have been recognized for decades as human rights, including public participation and democratic decision making, including freedom of speech and association. These are spelled out most explicitly in the International Covenant and Civil Political Rights and are seen as well in most national constitutions. Integrating the environmental and human bodies of rights can enhance both and can also strengthen their support for substantive rights, as others have said. The daily fatal risks to the lives and safety of environmental human rights defenders attests to the growing imperative of protecting the rights of civic participation of those who seek to protect the natural environment.
Likewise, equality rights – already well entrenched in human rights and constitutional law – can now more seamlessly be brought to bear on environmental problems, contributing a language and a body of law to environmental inequities that fall along racial, gender, economic, and other entrenched lines. Merging the human right to equal treatment with environmental rights can therefore provide a rights-based approach to the pervasive problem of environmental injustice – at both local and global levels.
3/ Substantive Human Rights
Legal recognition of the human right to a healthy environment may compel recognition that human rights cannot exist when the natural environment is unsafe or unhealthy. In this way, it reinforces the indivisibility and interdependence of all human rights and reduces the silo-ization and fragmentation that has beset international human rights law.
Human beings (and other living beings) need a healthy environment in order to survive and enjoy all other rights. As the Supreme Court of Nepal has said: “it cannot be imagined to live with dignity in a polluted environment…” This is obvious to anyone who thinks about it but has not been acknowledged in international law until now. Human rights – the rights which we are entitled to exercise and enjoy as a function of being human (Universal Declaration of Human Rights, art. 1) – are therefore dependent on securing environmental rights, including a stable climate. The most basic human rights that ensure biological needs of survival, including the right to food and to water as well as to breathable air, all depend on a clean and stable environment. The right to the highest attainable standards of physical and mental health are threatened by polluted environments and an unstable climate. Building a home or a school on toxic ground impairs the right to shelter and the right to education, just as inadequate access to safe and clean water does. Other rights, too, depend on healthy and stable environments: rights to civic participation including the freedom of association, the right to engage in democratic decision making and the right to vote are impossible in an unstable climate subject to floods and fires. And, at the societal and national levels, the human rights to peace and security are threatened by water scarcity, drought, climate instability, and resource depletion. These are all fundamental human rights that depend on a healthy environment.
Environmental concerns exemplify the interdependence and indivisibility of human rights. Because a healthy environment is a precondition to so many other human rights, it manifests their interdependence and illustrates the indivisibility of many human rights. Integrating environmental concerns into the existing framework of human rights law has the potential to make human rights law less fragmented or compartmentalized and more realistic or pragmatic.
4/ Environmental Dignity rights
Most fundamentally, recognizing environmental rights as human rights firmly grounds them in the dignity roots of human rights law.
Human rights are the rights we have by virtue of being born a member of the human family. They derive from the recognition and the reaffirmation of faith in human dignity (UDHR, Preamble and art. 1). Indeed, dignity is sometimes described as the alpha and the omega of human rights: human dignity is what gives us the “right to have rights” and it is the ultimate purpose of human rights, and indeed of rule of law itself. That is, we choose to secure the things we want and to settle disputes by law rather than violence because only law can protect human dignity. We adhere to a regime of human rights so that more people can live fuller lives of dignity.
Dignity can be thought of simply as the inherent and equal worth of every person, everywhere. It pertains to all persons, simply by virtue of being born – “All people are born equal in dignity and rights,” the UDHR affirms – meaning that it exists independent of state acknowledgment or legal recognition. Dignity rights, however, are the state-granted rights that flow from the recognition of human dignity. These are, principally, the rights enumerated in the UDHR and its twin covenants, as well as other globally or constitutionally recognized rights. Until now, although some constitutions recognized the right to a healthy environment as a dignity right, international law did not.
To recognize environmental rights as rooted in human dignity expands and strengthens environmental rights in at least three dimensions. First, in most understandings, dignity rights are inviolable. Insofar as environmental rights derive from the fact of human dignity, they can not be compromised and are not subject to balancing; just as there is no justification for torture or (in most countries) capital punishment, there is no justification for violating the dignity right to a clean and healthy environment. One consequence of their inherence and inviolability, dignity rights are owed to people as needed to live with dignity. In some instances, this will require government forebearance, as in the decision to not grant a timber license or to not open a new mine. In other instances, dignity may only be satisfied if the government takes affirmative steps, as may be needed to clean up a polluted river or to ensure that environmental burdens are borne equitably. Thus, the traditional distinction between positive and negative rights (and the concomitent impediments to judicial actualization of positive rights) dissipates in the face of dignity needs. Finally, recognition of environmental rights as a dignity-based imperative reinforces the intergenerational nature of environmental rights. Since future generations of human beings will have just as much dignity as present generations, their claims to a clean, healthy, and safe environment are equal to the claims of those presently living.
Thus, the international recognition of the human, dignity-based right to a healthy environment may enhance both the conceptualization of environmental rights as part of the catalogue of human rights, and their implementation in international and domestic fora.