Environmental Human Rights 101: Foundation
Foreword
Thi series of articles provides an analysis of the recent recognition by the UN General Assembly (UNGA) of “the access to a clean, healthy and sustainable environment, as a universal human right” (UNGA, 2022). The recognition of a universal human right to a healthy environment has been a long-awaited accomplishment for environmental law scholars, which brought to a conclusion a long course of preliminary steps that have paved the way to such a result in past decades. This itinerary, made of scholarly contributions, judicial rulings and domestic legislative recognitions, has highlighted the multiplicity of connotations that can be attributed to such a fundamental concept. The different perspectives adopted by different cultures and different fields of study are a feature of the human right to a healthy environment, which deem it necessary for such a right not to be encapsulated in a single, one-dimensional notion. It will be observed that, even after the successful adoption of the above-mentioned Resolution by the UNGA, the debate has been florid on the multiplicity of perspectives which can be taken to interpret the words it contained. There is no doubt that judicial courts will be invested in the very important task of setting precise legal standards. This series begins with the present article, which narrates a brief overview of the history behind the definition of the "healthy environment" notion in human rights law.
The Environmental Human Rights 101 series consists of six articles:
Environmental Human Rights 101: Foundation
Environmental Human Rights 101: Critiques
Environmental Human Rights 101: Judicial Milestones
Environmental Human Rights 101: The Urgenda Case
Environmental Human Rights 101: The UNGA Resolution
Environmental Human Rights 101: Anthropocentrism (and Other Similar Problems)
Foundation
Imprisonment in the Notion of Emergency?
For the longest time, the right to a healthy environment has been included in the theoretical category of “emerging rights” (Marks, 1980). This “emerging” status, fitting for an age in which the dramatic urgency of climate change had not consolidated itself yet, grew to become more and more inadequate with the development of strong scientific consensus on these aspects. The first important step of rapprochement between the notion of environmental and human rights can be traced in the 1972 Stockholm Declaration, which asserted the following words:
“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations” (UNGA, 1972).
In 1990, the UN Human Rights Commission (UNHRC) expressed increased awareness of “the increasing environmental degradation” (UNHRC, 1990). Two years later, the first environmentally specific committee was created, with the aim to complete a Special Report on “human rights and the environment” (UNHRC, 1992). The result was exciting, seen with today’s eyes: Special Rapporteur, Fatma Zohra Ksentini, in her Final Report recommended the UNHRC to “expand its general comment on the right to life in order to include environmental concerns” and praised the readiness of island states and indigenous populations in having developed the notion of a human right to the environment (Ksentini, 1994).
From that moment on, however, the passage between considering the environment as a proper human right has represented a chimaera: an enfant prodige deprived of adulthood. Despite legitimate enticement for seemingly global political support and the aforementioned granitic scientific consensus concerning the dangers of climate change, the human right to the environment was kept stuck in the incubation phase. The first major step back can be traced in the Rio Declaration, in 1992, where “the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies” was recognised, paying consent to a fragmentation of the environmental protection, which was entrusted onto each state’s internal rules.
During the following decades, environmental rights found consistent progression, growing in numbers and ramifications (Lewis, 2012). The time, however, never seemed ripe for the big step towards the adoption of the right to a healthy environment as a proper, finite human right (Soveroski, 2007). Scholarly recognition of “unquestionable” overlaps between climate change law and human rights law has been consistent (Mayer, 2013). The outcome of the 2012 Rio+20 Conference, committed to paper in a document named “The Future We Want”, denoted a partial step forwards from the previous Brazilian appointment (the aforementioned Rio 1992 Conference) with explicit recognition of the importance of the Universal Declaration of Human Rights, but yet without any reference to an international right to a healthy environment (Kotzé, 2018).
Interconnectedness
Despite the theoretical caveats expressed in the paragraphs above, the numerous overlaps between the progress of environmental law and the perceivable human rights violations caused by climate change-related phenomena have contributed to establishing, among international tribunals and political agreements, a stable relationship between human rights law and environmental law. To quote Shelton (2021): “Human rights depend on environmental protection and environmental law depends on the exercise of human rights law”.
In 2011, the United Nations High Commissioner for Human Rights (UNHCHR) filed a Report which delved specifically into the relationships between environmental protection and human rights law. The Report, moving from the assumption that human rights revolve around the recognition of a right to life and human dignity, expresses acknowledgement of the fact that basic human rights can not find any expression in the context of a threatening natural environment.
The Report also addressed the relationship between these two worlds from a procedural point of view, indicating that human rights judicial forums may represent the primary pathway for environmental norms to be enforced. This aspect is particularly relevant, as it conveys a form of acquaintance with the struggle for international environmental norms to be enforced in dedicated tribunals and, in a sense, almost accepts the necessity to combine the environmental law regime with the human rights judicial system. Regime interaction is a feature of the modern international legal framework and it is something which should not be viewed negatively, or as a remedy to the incompleteness of single legal regimes (Young, 2012). Instead, in a world of fragmented legal systems — both from the geographical point of view, both from the point of view of the subject addressed by the different legal regimes — constant interaction must act as a prevention mechanism for contradictory interpretations, both political and judicial (Koskenniemi & Leino, 2002). However, it must also be recognised that the relationship between the two regimes depicted in the 2011 UNHCHR Report may be interpreted as descriptive of a condition of interdependence, rather than mere interconnectedness.
The Need for Formal and Unitary Recognition
Along with the legal regime blend, some vanguardist judicial settlements and intergovernmental agreements — some of which will be analysed in the following chapters of this series — have adequately balanced the lack of an instrument that formally recognises environmental conservation as a stand-alone human right. The progress made in the field of international legal protection of the environment has been unquestionable in the past decades. Regardless of formal recognition of the right to a healthy environment, there are no reasons to predict that these progresses will stop, or slow down in the future.
Why is it, then, so important that a universal right to a healthy environment is formally recognised?
In the next chapter of this series, a study will be conducted on some of the aspects which render the subject of environmental protection particularly complicated to subsume under a legal spectrum. For one, environmental damage, almost by definition, is an extraterritorial phenomenon, in regards to which human contributions are spatially and temporally dispersed (Shaheen Moosa, 2020). It represents a universal problem and requires a universal solution.
Two preliminary aspects to take into consideration are that each State has developed its own certain degree of environmental protection and that human rights have arguably affirmed themselves as the most authoritative vehicle to prevent behaviours that violate human dignity (Woods, 2010). The adoption of a universally recognised right has the potential to impose a minimum standard towards all international actors in the degree of protection requested by international law (Kotzé, 2018). Indeed, wherever the international environment may fail to radiate enforcement, the affirmation of a human right to a healthy environment will draw the needed attention for the enactment of policies in favour of environmental protection (Horn, 2004). However, as will be seen in the last chapter of this series, international environmental law and international human rights law do respond to different aims, despite sharing many common aspects. Formal recognition of a human right to a healthy environment would be a key to clarity.
Bibliographical References
Horn, L. (2004). The Implications of the Concept of Common Concern of a Human Kind on a Human Right to a Healthy Environment. Macquarie Journal of International and Comparative Environmental Law 233.
Koskenniemi, M., & Leino, P. (2002). Fragmentation of International Law? Postmodern Anxieties. Leiden Journal of International Law 15.
Kotzé, L. (2018). In Search of a Right to a Healthy Environment in International Law. In:
Human Right to a Healthy Environment. CUP.
Ksentini, F. Z. (1992). Human rights and the environment: final report. Prepared by Fatma Zohra Ksentini, Special Rapporteur. 6 July 1994.
Lewis, B. (2012). Environmental rights or a right to the environment? Exploring the nexus between human rights and environmental protection. Macquarie Journal of International and Comparative Environmental Law, 8(1).
Marks, S. P. (1980). Emerging Human Rights: A New Generation for the 1980s. Rutgers Law Review, 33(435).
Mayer, B. (2013). Climate Change and International Law in the Grim Days. The European Journal of International Law 24(3).
Shaheen Moosa, C. (2020). Individual Obligations, Climate Change, and Shared Responsibility. Edukacja Etyczna 17.
Shelton, D. (2021). Human Rights and the Environment. In: International Environmental Law. BRILL.
Soveroski, M. (2007). Environment Rights versus Environmental Wrongs: Forum over Substance? Review of European, Comparative and International Environmental Law 16(3).
UN Conference on Environment and Development. Rio Declaration on Environment and Development. 12 July 1992. A/CONF.151/26 (I).
UN Commission on Human Rights. Human rights and the environment., 6 March 1990.
UN Commission on Human Rights. Report on the Forty-Eigth Session. 6 March 1992.
UN General Assembly. United Nations Conference on the Human Environment, 15 December 1972. A/RES/2994.
UN High Commissioner for Human Rights. Analytical study on the relationship between human rights and the environment. 16 December 2011. A/HRC/19/34.
Woods, K. (2010). Human Rights: Moral Authority and Philosophical Doubts. In: Human Rights and Environmental Sustainability. Edward Elgar Publishing.
Young, M. (2012). The Productive Friction between Regimes. In: Regime Interaction in International Law: Facing Fragmentation. CUP.
Visual Sources
Cover Image: Munch, E. (1909). The Sun [Painting]. Retrieved from: https://www.edvardmunch.org/the-sun.jsp
Figure 1: PhotoMIX Company (2018). Environment [Photograph]. Retrieved from: https://www.pexels.com/it-it/@wdnet/
Figure 2: Moraes, S. (2019). Guanabara Bay, Rio de Janiero [Photograph]. Retrieved from: https://www.pbs.org/newshour/world/worsening-environment-is-deadly-but-not-hopeless-un-report-says/.
Figure 3: The UN Human Rights Committee on September 18th, 2020 [Photograph]. Plataforma Media. Retrieved from: https://plataformamedia.com/en/2020/09/18/portugal-re-elected-to-the-united-nations-human-rights-committee/
Figure 4: Ferre, J. M. (2022). Palais Wilson [Photograph]. Retrieved from: https://lens.civicus.org/wanted-un-high-commissioner-for-human-rights/
