The Right to Healthy Environment

By: Arshia Jain

Introduction

Since the 1970s, when the Stockholm Declaration first mentioned it, the Right to a Healthy Environment has gradually evolved. The Stockholm Declaration paved the way for national and regional acknowledgment of the right to a healthy environment. The Right to a healthy environment is now “contained in regional human rights treaties and environmental accords binding more than 120 States,” according to UN Special Rapporteur David Boyd.

It is protected by the Constitution in more than 100 States and is included in more than 100 States’ environmental legislation. In all, 155 countries have recognized the Right to a Healthy and Sustainable Environment via legislation^[1]. Portugal was the first country to codify this right in its Constitution, which it did in 1976^[2]. Since then, the Right to a Healthy environment has extended across the globe in a way that no other “new” human right has before. States established a significant regional legal corpus asserting the Right to a Healthy Environment alongside these national mechanisms.

For example, according to the African Charter on Human and Peoples’ Rights (1981), “all people should have the right to a generally suitable environment favourable to their development.” It’s worth emphasizing that, unlike previous documents, the African Charter grants this right to a collective rather than an individual. Similarly, Article 38 of the Arab Charter of Human Rights (2004) safeguards everyone’s right to “a healthy environment.”

In Latin America, the Protocol of San Salvador to the American Convention on Human Rights (1998) recognizes everyone’s right to “live in a healthy environment,” and the Escaz Agreement (2018) aims to contribute “to the protection of everyone’s right to live in a healthy environment, both present and future generations.”

The acknowledgment of this right is less explicit in the European region. In its first article, the Aarhus Convention (1998), which is equal to the Escazu Agreement, States that “every individual of current and future generations has the right to live in an environment sufficient to his or her health and well-being.” The European Convention on Human Rights (1950) does not, however, specifically include the Right to a Healthy Environment. Environmental challenges are dealt with in a roundabout way through the European Court of Human Rights’ inventive and dynamic interpretation of the Convention, which provides limited protection based on already recognized human rights.

The Court, for example, has expanded the Right to Life provided by Article 2 to include the right to be safeguarded against the risk posed by hazardous industrial operations^[3]. Similarly, the right to a private and family life inherent in article 8 was interpreted to include a right to be safeguarded from substantial environmental harm^[4].

In September 2021, the Council of Europe’s Parliamentary Assembly considered going even farther, recommending the ratification of an extra protocol to the European Convention on Human Rights, which would include the Right to a Healthy Environment among other things.

The international recognition of the Right to a Healthy Environment is significantly further along since States have been hesitant to enact a binding legal instrument recognizing such a right up until now. As a result, the Right to a Healthy Environment has little legal weight in international environmental law. Apart from the Stockholm Declaration, the Rio Declaration (1992) said that “human beings are at the core of issues for sustainable development.” They have a right to a healthy and productive existence in the natural world. This evasive language suggests a reluctance among States to accept this right enshrined in the Rio Declaration.

Despite this reluctance, several projects have attempted to include the Right to a Healthy Environment in international treaties. For example, Article 14 of the IUCN’s Draft International Covenant on Environment and Development (1995) states that States “undertake to gradually realize the full fulfilment of all individuals’ right to live in an environmentally sound environment.” In its first item, the Draught Global Pact for the Environment (2017) proposes that the Right to a Healthy Environment be recognized^[5].

Resolution 48/13 of the Human Rights Council

The United Nations Human Rights Council passed a resolution on October 8, 2021, recognizing the right to a clean, healthy, and sustainable environment as a human right. This decision is a significant step forward. Even though it is not legally enforceable, its near-unanimous acceptance demonstrates agreement on the concept, substance, and relevance of this fundamental right.

1. The Path to a Successful Resolution

In September 2020, a Core Group of States on Human Rights and the Environment (Costa Rica, Morocco, Slovenia, Switzerland, and the Maldives) began exploratory negotiations on the Right to a safe, clean, healthy, and sustainable environment being recognized internationally. In March 2021, 69 countries, including previously hesitant countries like Germany, unanimously adopted a declaration advocating for the acceptance of this right.

The initiative of the Core Group received overwhelming support. More than a thousand non-governmental organizations (NGOs), including well-known groups like Birdlife International, Greenpeace, and Amnesty International, as well as specialized groups like the Center for International Environmental Law and the Global Pact Coalition, rallied behind their rallying cry. In addition, fifteen UN agencies signed a Statement affirming the acknowledgment of the right. Much of the credit for this massive mobilization goes to UN Special Rapporteur on Human Rights and the Environment David R. Boyd and his predecessor John Knox.

The Human Rights Council adopted Resolution 48/13 on October 8, 2021, by a vote of 43 in favor, none against, and four abstentions, following a year of intensive agitation (China, India, Japan, Russia). Despite these abstentions and the absence of the United States from the Council, the passage of this resolution demonstrates near-unanimous support for the Right to a Healthy Environment among the international community.

2. A Forward-Thinking Text

The first article of the Resolution acknowledges “the right to a clean, healthy, and sustainable environment as a fundamental right essential to the enjoyment of human rights.” This formulation incorporates the many terms used to refer to this privilege, as further discussed below. It also states that it is “connected to other rights that comply with current international law,” rather than being a stand-alone right. The text also invites States to take action by strengthening capacities and establishing policies that make this human right a reality.

Aside from the letter of the text, the passage of this resolution demonstrates that there is a growing consensus in support of environmental rights. While it does not have legal force, the symbol it symbolizes may be enough to persuade reluctant nations to include the Right to a Healthy Environment in domestic legislation. Furthermore, the momentum behind the right may lead to its stronger implementation in nations where it currently exists. Finally, it has the potential to accelerate the acknowledgment of the right in an international, legally enforceable document.

The resolution’s language makes it clear that it is only a starting point for more ambitious measures. It encourages the United Nations General Assembly to take up the issue, where States are considering introducing a similar resolution.

Conceptual overview and definition

Various formulations allude to the Right to a Healthy Environment, depending on the legal instrument. The right ‘to a healthy environment’ or the right ‘to live in a healthy environment is frequently mentioned in international documents. Despite this, there is rivalry over the descriptor ‘healthy.’ Some may advocate for the preservation of an “ecologically sound” environment (Draught IUCN Covenant), “a life of dignity and well-being” (Stockholm Declaration), “sufficient to his or her health and well-being” (Aarhus Convention), and “respecting biodiversity” in this regard.

The right to an environment capable of sustaining human society and the full enjoyment of human rights as defined in the 2007 Malé Declaration on the Human Dimension of Climate Change as “the right to an environment capable of supporting human society and the full enjoyment of human rights.”

Similarly, a ‘healthy environment’ is included in around two-thirds of country constitutions that acknowledge the right^[6]. Other terms, such as the rights to a ‘clean’, ‘safe’, ‘favorable’, ‘wholesome’, or ‘ecologically balanced’ environment, may be employed. The many designations may allude to various types of protection.

For example, the Right to A “Safe” Environment will emphasize environmental protection as a non-harmful environment for humans. This is particularly notable because, according to the World Health Organization (WHO), the environment is responsible for 24 percent of all global fatalities^[7]. On another level, the Right to a “Healthy” Environment frequently refers to the protection of the ecosystem’s health.

Regardless of denomination, the essential content of the Right to a Healthy Environment is largely the same throughout all of these national, regional, and international documents. The basic relationship between environmental conservation and successful human rights preservation lies at the heart of each of these concepts.

Part of this is due to the status of the Right to a Healthy Environment as a “claim right.” Unlike liberty rights, claim rights involve a concrete responsibility on the part of other parties to the right-holder. Several jurisdictions have lately reinforced this uniqueness. Individual rights are linked to a State responsibility in both the Urgenda decision^[8] and the subsequent judgment of the German Federal Constitutional Court^[9].

Indeed, the State is a frequent violator of the Right to a Healthy Environment. Other entities, such as private enterprises, can, nevertheless, be held accountable under the Right to a Healthy Environment. The Right to a Healthy Environment has been criticized for its anthropocentric nature, with the right-holder being largely the individual. The western definition of human rights, which places individuals at the centre of the earth, has undoubtedly inspired the belief that humans have a Right to a Healthy Environment. This viewpoint should be matched with an eco-centric viewpoint that prioritizes nature.

The African Charter on Human and Peoples’ Rights (1981), which recognizes the right of all “peoples” to a healthy environment, is a step in the right direction. Some countries have gone much farther by recognizing natural-rights protections. As a result, Colombia’s Supreme Court acknowledged that the Colombian Amazon might be a subject of rights^[10]. The Whanganui River, the Te Urewera Forest, and Mount Taranaki, all of which are sacred to the Mori people, have been given legal personality in New Zealand.

What are the ramifications of such an acknowledgment?

The Right to a Healthy Environment has procedural and substantive consequences from a legal standpoint. Using national authorities’ implementation of the Right to a Healthy Environment as a model, the majority of States have passed laws specifying procedural and substantive aspects that enable successful implementation of this right.

On the one hand, recognizing a Right to a Healthy Environment frequently entails maintaining procedural rights such as the right to information, the right to participate in environmental decision-making, and the right to access the legal system. The Philippines, for example, has implemented particular environmental lawsuit regulations to aid in the protection of the Right to a Healthy Environment^[11].

The Right to a Healthy Environment has a substantive component in addition to procedural rights. The Right to a Healthy Environment, by definition, preserves the aspects of the natural environment that permit a dignified existence, independent of its particular expression. It encompasses the protection of fundamental human rights such as the right to life, clean water, and food, among others. The French Environmental Code, for example, protects the “right of everyone to breathe air that is not hazardous to their health.^[12]” Similarly, the South African Constitution declares that “everyone has a right: (a) To an environment that is not damaging to their health or well-being.^[13]“

Furthermore, because of this substantive component, national and regional tribunals have been able to impose obligations on States to adequately execute the Right to a Healthy Environment. The Inter-American Court of Human Rights ruled in 2020 that Argentina had infringed the Dhaka Honhat indigenous communities’ Right to a Healthy Environment by failing to take adequate steps to prohibit actions that were injurious to them. As a result, courts have recognized that States may be liable for violations of the Right to a Healthy Environment.

Nonetheless, due to significant constraints, the execution of this right is patchwork. Only regional conventions and soft law instruments acknowledge it at the international level. To put it another way, it has yet to be acknowledged in a worldwide and legally binding agreement analogous to the 1966 international human rights treaties. Major international powers, such as the United States and China, are still unwilling to accept this right, for the time being, thus such a convention would face substantial challenges.

Recognition of the Right to a Healthy Environment at the national level should be accompanied by the introduction of “implementation legislation.” States that acknowledge this right in their constitutions or through regional accords, however, do not necessarily put it into law. The Right to a Healthy Environment will not be able to reach its full potential until it is effectively integrated into national laws and practices. Many States continue to fail to execute their commitments in a way that effectively respects, defends, and realizes the Right to a Healthy Environment.

Controlling the exercise of this right is also a difficult task. No recognized international mechanism has yet to oversee its implementation. An implementation control mechanism at the international level, it may be argued, could cover this void. Based on the Aarhus Convention, this mechanism might take the form of a compliance committee, but its referral should be available not just to States, but also to people and NGOs.

Even better, an international judicial body may be established to ensure that States respect the Right to a Healthy Environment. In the absence of such international institutions, the national judge remains the first line of defense. Internal courts should be the first to ensure that the Right to a Healthy Environment is respected, taking into consideration the extra-territorial impact of a State’s activities, including those occurring outside its borders. In other words, the national judge must guarantee that the State respects not just its residents’ Right to a Healthy Environment, but also the right of all the world’s inhabitants.

Conclusion

Regardless, the data gathered through decades of application is positive. When governments recognize the Right to a Healthy Environment, they generally strengthen their environmental laws and regulations and increase public engagement^[14]. Numerous studies have found that the inclusion of constitutional environmental rights is positively associated with improved environmental performance^[15].

Finally, the passage of the Human Rights Council resolution is a significant first step that has the potential to have far-reaching ramifications for human rights and the environment. If passed by the United Nations General Assembly, this resolution might pave the way for even more global international recognition, and possibly even an international covenant, on the Right to a Healthy Environment.

References

Access to a healthy environment, declared a human right by UN rights council

The human right to a clean and healthy environment: 6 things you need to know

UN Body Adopts Universal Right to Healthy Environment

Landmark UN resolution confirms healthy environment is a human right

What are environmental rights?

Right to a healthy and sustainable environment report

The Right to an Adequate/Healthy Environment

Right to Clean Environment: A basic Human Right

1. Boyd, D., Chapter 2: The Right to a Healthy and Sustainable Environment in Aguila, Y. and Viñuales, J.E., 2019. A Global Pact for the Environment-Legal Foundations. University of Cambridge. ↑
2. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 19 July 2018. ↑
3. ECHR, Öneryildiz Vs Turkey, Application n° 48939/99, judgement of November 30th, 2004. ↑
4. ECHR, Lopez Ostra Vs Spain, Application n° 16798/90, judgement of December 9th, 1994. ↑
5. The text of the draft Pact is available online on the Pact website: https://globalpactenvironment.org  ↑
6. Id. Boyd D., in Aguila, Y. and Viñuales, J.E., 2019. ↑
7. Preventing disease through healthy environments: a global assessment of the burden of disease from environmental risks, WHO Report, 13 September 2018. ↑
8. Urgenda Foundation Vs State of the Netherlands, Supreme Court of the Netherlands (December 20, 2020) ↑
9. BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 ↑
10. Supreme Court of Columbia, Future Generations v. Ministry of the Environment (April 5, 2018) ↑
11. Rules of Procedure for Environmental Cases, Republic of the Philippines Supreme Court Manila, April 13, 2010. ↑
12. French Environmental Code, art. L220-1. ↑
13. Constitution of South Africa (1996), sec. 24 ↑
14. D.R. Boyd. 2012. The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment. Vancouver: University of British Columbia Press. ↑
15. See per instance, C. Jeffords and L. Minkler. 2016. “Do Constitutions Matter? The Effects of Constitutional Environmental Rights Provisions on Environmental Performance,” Kyklos 69(2): 295-334. or C. Jeffords. 2016. “On the Temporal Effects of Static Constitutional Environmental Rights provisions on Access to Improved Sanitation Facilities and Water Sources,” Journal of Human Rights and the Environment 7(1): 74-110. ↑