The Contribution of Transnational Environmental Rules and Standards to Realisation of the Human Right to a Healthy Environment
This essay analyses the adoption of Resolution 76/300 by the United Nations General Assembly (UNGA), which recognises the right to a clean, healthy and sustainable environment as a universal human right. Notwithstanding the adoption of this important new instrument, this post seeks to demonstrate that a variety of forms of novel transnational regulatory activity already exist, promoting practical realisation of environmental rights.
The adoption on 28th July 2022 by the United Nations General Assembly (UNGA) of Resolution 76/300 finally recognising the right to a clean, healthy and sustainable environment as a universal human right to be enjoyed by all marks the latest development in a saga stretching back several decades. For some time, provisions under several regional human rights frameworks have expressly recognised such a right, including Article 24 of the 1981 African Charter on Human and Peoples’ Rights and Article 11 of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. Particular provisions of other regional human rights conventions, not including such an explicit reference, have been interpreted to incorporate a right to environment, most notably Article 8 of the European Convention on Human Rights on the right to respect for private and family life and for the home. In support of both such express and inferred sources of a right to environment, a strong body of conventional practice and case law has emerged, elaborating incrementally on the scope and content of the right under each instrument. Procedural environmental rights have long been enshrined in Europe under the 1998 Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, an approach more recently adopted in the Latin America and Caribbean region by the 2018 Escazú Agreement.
1/ Persistent support for a human rights-based approach
In addition, a human rights-based approach to addressing problems of environmental harm and degradation has long received the consistent support of all relevant UN bodies, including the Human Rights Council (and the Independent Expert / Special Rapporteur on Human Rights and the Environment), the Committee on Economic, Social and Cultural Rights, the Office of the High Commissioner for Human Rights, the United Nations Environment Programme, and the United Nations Development Programme. Such support has included active efforts to identify practical solutions for the implementation and full realisation of such a right, which assist many States in incorporating some version of the right into their constitutional or legislative frameworks. On the strength of such support among States and intergovernmental bodies and of the right’s continuing normative elaboration, judicial actors have felt increasingly confident in confirming the existence of such a right. For example, in 2018 the Inter-American Court of Human Rights delivered an Advisory Opinion on the Environment and Human Rights which found, in addition to the existence of an autonomous right to a healthy environment based on Article 26 of the American Convention on Human Rights (setting out the Parties’ commitment to achieving progressively full realisation of human rights), that any human right can be affected by environmental harm. While certain national court systems remain sceptical regarding the emergence of a justiciable environmental human right, recently including those of England and Ireland, adoption of Resolution 76/300 (with 161 votes in favour, 0 votes against, and 8 abstentions) may prove persuasive.
Whereas the normative scope and content of Resolution 76/300 will be analysed at length elsewhere, this blog post seeks to highlight the already existing rich montage of relevant and mutually complementary environmental standards, both formal and informal, substantive and procedural, which have been developed by a diverse cast of global, regional, State and transnational actors. Such rules and standards will inevitably inform legislative and judicial decision-making regarding realisation of an internationally recognised right to a clean, healthy and sustainable environment. There already exists an almost endless variety of forms of novel transnational regulatory activity, much of which currently succeeds in having a profound impact on environmental outcomes and on the realisation of environmental rights. Such novel, informal, and hybrid forms of environmental regulatory activity enjoy a complex symbiotic relationship with formal environmental law frameworks, filling lacunae and addressing deficiencies in such systems, owing, for example, to the globalised character of much modern commerce. As they proliferate, informal regulatory systems increasingly facilitate and influence the evolution of formal legal frameworks and thereby improve the responsiveness, flexibility, and accessibility of the wider ‘legal order’ for realising environmental human rights. This rich framework of normative governance will be further supplemented by practice developed in respect of implementation of the SDGs and the Targets and Indicators outlined thereunder.
Though debate will inevitably continue over the precise legal status of any human right to a healthy environment in international law, and in many national legal systems, the elaboration continues apace of a vast complex of related environmental rules and standards by a diverse cast of actors. Prominent examples include the OECD environmental policies to be followed by export credit agencies, technical regulations on ozone-depleting substances developed under the Montreal Protocol, the sustainable forestry criteria for certification of forest products developed by the Forest Stewardship Council, or the standards for the conduct of environmental assessments imposed upon borrowers by the World Bank institutions and other multilateral development banks (MDBs).
2/ Examples of relevant standards
Consider, for example, the wealth of sustainability certification and labelling schemes applying to diverse global supply chains, including, inter alia, those operated by the Forest Stewardship Council, the Aquaculture Stewardship Council, the Alliance for Water Stewardship, the Centre for Responsible Business, the Global Ecolabelling Network, the Marine Stewardship Council, or the Responsible Mining Foundation, each of which adheres to the Credibility Principles and Code of Good Practice adopted by the ISEAL Alliance, a non-governmental association providing a global membership association for such schemes. While each scheme elaborates detailed environmental performance standards for its specific sector, the ISEAL Alliance provides detailed guidance to the schemes on such issues as certification approval processes, performance review, enforcement of standards and review of decisions. The potential role of such schemes in promoting environmental human rights is illustrated by the success of the Roundtable on Sustainable Palm Oil (RSPO), also a member of the ISEAL Alliance, in tackling deforestation by palm oil producers in West Kalimantan, Indonesia, where an investigation by RSPO’s Complaints Panel resulted in suspension of errant producers’ RSPO membership and of their contracts to supply leading consumer goods companies.
Similarly, in the realm of project finance, sophisticated safeguard standards regarding the mitigation of pollution and climate impacts and the protection of biodiversity are imposed by MDBs with a view to protecting the environmental rights of persons potentially affected by bank-funded projects or activities. These institutions also promote key principles of environmental administrative governance, including transparency and meaningful public participation, as well as providing independent accountability mechanisms (IAMs) through which project affected persons or civil society can seek to enforce compliance. Such standards are inevitably inspired by multilateral environmental agreements (MEAs) and by the procedural environmental rights enshrined under the Aarhus Convention and the Escazú Agreement. Interestingly, the IAMs established by MDBs have also been active in addressing illegal appropriation and clearance of indigenous and local communities’ land in West Kalimantan by multinational palm oil producers (CAO). Following the example provided by intergovernmental MDBs, the vast majority of private-sector project-finance lenders also now adhere to similar standards, enshrined in the Equator Principles, for determining, assessing and managing environmental and social risks associated with major projects.
This rich complex of technical standards also informs and supports realisation of specific sectoral aspects of the broader right to a healthy environment. For example, standards relating to the physical safety and adequacy of water supplied for domestic purposes have long been set down in successive versions of the WHO Guidelines for Drinking-water Quality, while related standards have also been adopted by bodies such as the International Organisation for Standardisation (ISO), which has adopted more general service quality guidelines for utilities providing domestic water and sanitation services. Of course, MDBs providing finance for major water services projects are also developing standards for cost recovery which seek to adopt elements of a human rights-based approach by taking account of the affordability of water and sanitation services and providing safeguards for poor and vulnerable people, including restrictions on service disconnection for non-payment of charges. All such water and sanitation-related standards are now informed and endorsed by the elaborate framework of Targets and Indicators, and the related programme of periodic monitoring and reporting, established under SDG 6. At every level of decision-making regarding water and sanitation services, therefore, standards of governance informed by the practice of human rights, including standards concerned with transparency, participation, reviewability and accountability, have become pervasive.
3/ Transnational environmental rules and standards of administrative governance
Generally, the diverse sources of transnational environmental rules and standards are framed and guided by strict standards of administrative governance which provide for decision-making procedures which adhere to principles of legality, rationality, proportionality, respect for the rule of law, transparency, participation, fairness, efficiency, and respect for human rights. Significantly, as regards their role in supporting realisation of the human right to environment, almost all such governance frameworks include review procedures to ensure compliance with environmental standards and the accountability of actors exercising de facto regulatory authority in environmental matters. Such standards of administrative governance promote careful rule-making, efficient delivery of public goods, and the fair treatment of all actors in a manner supportive of any human rights-based approach.
Recognition of the manner in which day-to-day administrative governance standards have attended the progressive emergence in international human rights law of a right to a clean, healthy and sustainable environment is central to understanding this right’s role in creating a novel normative paradigm for environmental protection. Though the precise legal status, justiciability, and normative implications of the right are likely to remain unclear for some time, the proliferation of substantive and procedural standards in support of such a right testifies to the practical impact of the rights-based discourse in this area. Myriad aspects of the various steps required to implement a human rights-based approach to environmental protection have come to be defined by diverse types of standards, both formal and informal, adopted at the international and transnational levels. These include technical environmental and health-related standards, such as those pertaining to the quality of drinking water, standards relating to the protection of water resources, service standards for utility companies providing water and sanitation services, social and economic standards for the protection of vulnerable people, and governance standards designed to ensure the meaningful participation of stakeholders and the public in decision making concerning all aspects of water resources management and water services provision.
International legal instruments relating to the human right to environment will inevitably provide only broad, non-prescriptive normative guidance, relying on subsidiary instruments and guidance and on generally established practice for the elaboration of more detailed rules and standards. The elaboration of such details, often by means of transnational environmental governance frameworks, will usually allow a significant role for key non-State actors. Consider, for example, the 2015 Oslo Principles on Global Climate Change Obligations, elaborated by a group of legal experts seeking ‘to overcome the generally abstract nature of previous efforts to define the scope of legal obligations relevant to climate change [and] derived from broad fundamental principles and a wide range of well-established law’. In this way, rules and standards of transnational environmental governance can be expected to penetrate gradually into contemporary State practice on the human right to environment. Further, the technical complexity of many current environmental problems dictates that scientific expertise plays a central role, requiring intense interaction between environmental scientists, lawyers and policy-makers at every stage in the development and application of relevant rules. In the international climate regime, the work of the Intergovernmental Panel on Climate Change (IPCC) illustrates how scientific institutions assist the progressive evolution of the requisite rules and standards. In 2012 the international community established a similar institution in the field of biodiversity, the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES). Such institutional mechanisms constitute a vital communication process, allowing a very significant role for non-State actors, as is arguably required for the effective elaboration of a technically complex and scientifically contested field of international normativity.
National rules related to environmental rights, wherever they may be adopted, will come to rely heavily on widely accepted standards developed at the international and transnational levels, as indicative of international ‘best practice’. Such standards inevitably inform and facilitate the practical application of domestic rules. Best practice of this sort is not confined to formal standards developed and adopted by State-led and officially mandated international bodies. It also includes voluntary codes and other informal performance standards relevant to realisation of different aspects of the human right to environment which might in certain situations have a greater influence on the conduct of key actors than formal legal frameworks, even where such frameworks exist. Lack of international consensus regarding the formal legal status of the human right to environment, along with wide disparities in the right’s formal incorporation into national legal systems, illustrate the more general inadequacies inherent to traditional State-centred mechanisms for elaborating and enforcing economic, social and cultural rights. In response, a range of novel, and often informal, standards are emerging which serve incrementally to normativise the values promoted within the human right to environment.
In an observation equally relevant to the right to environment emerging in international human rights law, Prof Laurence Boisson de Chazournes has noted that international environmental law ‘still makes very few prescriptions’, but instead incites, accompanies and guides expected behavioural changes; it legitimizes new situations and contributes to the elaboration of politically accepted language, in which role she declares that ‘all normative means are useful to this end’.