Environmental Human Rights Series: Critiques

Foreword

This 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 series consists of six articles:

1. Environmental Human Rights Series: Foundation

2. Environmental Human Rights Series: Critiques

3. Environmental Human Rights Series: Judicial Milestones

4. Environmental Human Rights Series: The Urgenda Case

5. Environmental Human Rights Series: The UNGA Resolution

6. Environmental Human Rights Series: Anthropocentrism (and Other Similar Problems)

Critiques

Figure 1: A shot of the Amazon rainforest (Bomtempo, 2021).

The first chapter of the present series described how the right to a healthy environment has been a right in perpetual maturation since its first emergence in the international law debate in the 1970s, though seemingly never ready for official recognition. Arguably, all human rights which find affirmation and recognition in international agreements trace their origin back to the customary recognition that international actors have either a “duty to protect”, a “duty to respect” or a “duty to fulfil” a certain value. This is now also applicable to the international right to a healthy environment. However, compared with other human rights, the process of recognition which has supported the emergence of a “right to a healthy environment” has been slower and more contentious than what could be reasonably expected, considering the global political consciousness which surrounds the subject.

The second chapter will observe some of the main arguments that have been presented against the recognition of the right, which can be considered as a doctrinal impediment. Moving from a policy-led analysis and proceeding to an overview of the moral claims that have found space in the debate, the aim is to display that, despite the haziness, the adaptability of the concept of a “healthy environment“ can prove efficient for its inclusion in the human rights scope.

An Inappropriate Overlap?

Starting from the assumption that a case against the recognition of a human right to a healthy environment is a rather hard one to defend – having regard to the evidence of the urgency concerning climate change as a global phenomenon –, doctrinal contributions providing substantial criticism – as opposed to political contributions, which will be addressed in the following paragraphs – against the emergence of such a right have been even more limited than what one would expect. Among these few voices, however, one of the most diffuse claims concerns the potential elements of confusion that could emerge due to the differences that exist in the environmental law and human rights law ambits. Admittedly, environmental law instruments hardly ever address human rights (Knox, 2020) and the two legal ambits substantially differ in language, scope (Rajan, 2011) and, often, bindingness too. It can be argued, therefore, that after having invested a long time and a significant effort in stabilising the forms and language of environmental law instruments, welcoming a “down on paper” human right to a healthy environment may introduce new elements to a well-established formula, undermining the stability of this instrument. Attempts to link human rights and environmental protection have been referred to as “impractical and unwise” by the United States, arguing that the very characteristics of environmental issues conflict with the human rights’ protection system (Bratspies, 2015).

These perplexities, however, aside from posing the factual discrepancies between environmental law and human rights law, which are certainly understandable, fail to consider that international environmental law, albeit evidently progressed, is far from representing a fully-efficient regulatory mechanism (Lazarus, 2022). Its fragmentation is still evident and it has been suggested that the main area of improvement specifically concerns the lack of a unitary goal, intended as a superior norm that can serve to orientate the different environmental treaties toward a common end (Kim & Mackey, 2014). In this sense, the apprehension for the unity of language and scope in environmental law in the light of an eventual recognition of a human right to a healthy environment is hard to subscribe. Instead, it may be argued that, given the paramount importance of such an achievement (Bratspies, 2015), the entire environmental law system would benefit from more unitarity, as the “right to a healthy environment” would grow to represent the most important and comprehensive goal to achieve (Kim & Bosselman, 2013).

Figure 2: A painting by Alexis Rockman portraying the conflict between industrial progress and environmental protection (Rockman, 2014).

“Rights Talk”

In the last decades, a relatively widespread critique that has been moved against the general growth of human rights has been that the overemphasis on human rights can determine: 1) a polarisation of positions in the political context; 2) an interference with social change, with a fragmentation of collective demands for justice into individual litigation and claims (Rodriguez Garavito, 2017). These considerations have been largely influenced by the provocative book Rights Talk, written and published in the last decade of the 20th century by bioethics law scholar and former United States Ambassador, Mary Ann Glendon. Glendon, indeed, pointed a finger towards the evident proliferation and growth of the international human rights legal system, arguing that human rights constitute a largely individualistic and atomising instrument, which mines political discourse and emphasises individual counter-positioning (Glendon, 1992).

Glendon’s theses have been therefore translated to the specific discourse concerning the recognition of the human right to a healthy environment, which has been referred to as an excellent example of an unnecessary regime overlap, revealing the risk that the ambit of environmental law could be “invaded” by myriad litigation efforts at the national level, which could lead to diverse and conflicting outcomes in each case (Rodriguez Garavìto, 2017). To be fair, this aspect is, indeed, agreeable. One of the defining features of human rights is represented by widespread diffusion and enforceability in domestic courts worldwide, a feature which has served as a reason to apply the human rights paradigm to environmental law, as recognised by the UN General Assembly itself (UNGA, 2009). The number of environmental law claims was a human right to a healthy environment to be officially introduced in the existing international law instruments, would certainly see a massive increase, with environmental and human rights lawyers rising to fill a leading role in the international debate.

Figure 3: Activism has played an important role in social awareness of the climate emergency (Spiske, 2021).

Yet, would any of this pose a realistic threat to the pursuit of the best possible future for international environmental law?

It is certainly true that a sudden and widespread increase in domestic litigation would determine a higher risk of divergent interpretations, but this projection should not be considered a decisive argument in disfavour of the recognition of a human right to a healthy environment, for two major reasons: first of all, the ramification of possible interpretation should not be seen as uncontrollable. Continental human rights judicial organs have played a relevant unifying role in the interpretation of human rights law since their insurgence in the judicial arena and there is no reason to fear that such a role will not be played in the path to the affirmation of a human right to a healthy environment (Knox, 2018). An analogue discourse can be made for international organisations. Secondly, as has been objected to in the first paragraph, a departure from the current state of facts, although potentially chaotic at the start, does not pose a particular threat, considering the fact that litigation in the environmental legal ambit, especially for what concerns loss and damage, is currently alarmingly scarce and ineffective, where compared to the concrete damages created by climate change-related phenomenons. The existence of significant rulings in this ambit, until this point, has relied on the virtuosity and innovativeness of sparse domestic courts, with no evident pattern pointing at a gradually emerging unitarity of interpretation among judicial organs worldwide. In this sense, a spotlight innovation as the recognition of a human right to a healthy environment can be intended as an instrument for consolidation of jurisprudential orientations, rather than a means to fragmentation (Grant, 2015).

Emotive Backlash

A further element of criticism that has found some support in the international debate is one that drives by a clearly moral observation: it has been suggested that formal recognition of a human right to a healthy environment would foster expectations that may not be satisfied by tribunals (Watson, 1999). In a sense, therefore, this critique lies on the will to avoid an emotional backlash and a feeling of disillusionment towards human rights law. Indeed, it is true that, when compared to more clearly delimited human rights, such as the right to be free from slavery, the content of a human right to a healthy environment would require a complex and necessarily participated process – and, definitely, a time span of several years – in order to achieve enforceability (Rodriguez Garavito, 2017). It has been properly noted that the discrepancy between the theory of human rights law and the practical application of the normative layout is wide (Smith, 2021) and that the gap may be even larger with the introduction of a right to a healthy environment.

A correlated aspect – and a correlated perplexity – is the scope of applicability of an eventual right to a healthy environment. The link between environmental protection and human rights would suggest that internationally recognised standards may be enforced against private actors, subjecting them to accountability for violations of norms of international environmental law. If this were true, this would determine an even more revolutionary step. In this sense, the question of whether domestic and international courts are set to efficiently respond to the myriad of claims that may be moved finds an even more solid foundation.

Figure 4: The International Court of Justice.

The Choice between the Policy Arena and Judicial Forums

Whichever the position on the recognition of the human right to a healthy environment, an undeniable achievement would be that of passing the ball from the policy arena to the court of judicial forums, introducing new actors in the challenge to obtain an efficient enforcement system for environmental justice. In these years, policy-making has played the main role, with the double aim of constructing a social conscience of environmental respect and developing a system of treaties and agreements that had a concrete effect on international actors. Despite the effort and the presence of very different actors, including international organisations, institutional authorities, entire social movements and NGOs, the task of combining clarity and attractiveness, bindingness and diffusion, has proven extremely hard. Human rights have been described as “the law’s best response to profound, unthinkable, far-reaching moral transgression” (Sinden, 2007): why would one waive the chance to attempt to respond to the emergencies of climate change in this way (Bratspies, 2015)?

Judicial courts will need time to calibrate the bar and find accordance with the exact scope of the eventual human right, but it is a challenge which has been successfully overcome in the past and one that may be overcome again in the future. As a matter of fact, judicial interpretation of the exact meaning of a human right to a healthy environment would serve as a clarification also for the interpretation of the environmental law obligations contracted by international actors, fostering better policy-making for the future. A change of pace seems more than timely. A human right to a healthy environment could breathe new airflow in the hallways of international courts.

Bibliographical References

Bratspies, R. (2015). Do We Need a Human Right to a Healthy Environment? Santa Clara Journal of International Law, 13(1): 32-69.

Grant, E. (2015). International Human Rights Courts and Environmental human rights: re-imagining adjudicative paradigms. Journal of Human Rights Practice, 6(2):156-176.

Kim, R. E., & Bosselmann, K. (2013). International environmental law in the Anthropocene: Towards a purposive system of multilateral environmental agreements. Transnational Environmental Law, 2, 285–309.

Kim, R. E., & Mackey, B. (2014). International environmental law as a complex adaptive system. International Environmental Agreements. 14, 5–24. https://doi.org/10.1007/s10784-013-9225-2

Knox, J. H. (2018). Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. A/73/188.

Knox, J. H. (2020). Constructing the Human Right to a Healthy Environment. Annual Review of Law and Social Science (16): 79-95.

Lazarus, R. (2022). The Implications of Ecological Injury for Environmental Protection Law The Making of Environmental Law. Second Edition. The University of Chicago Press: 29.

Rajan, S. R. (2011) Classical environmentalism and environmental human rights: an exploration of their ontological origins and differences. Journal of Human Rights and the Environment (2)1: 106-121.

Rodríguez-Garavito, C. (2017) A Human Right to a Healthy Environment? Moral, Legal and Empirical Considerations. In: The Human Right to a Healthy Environment; Cambridge University Press. http://dx.doi.org/10.2139/ssrn.2955357

Sinden, A. (2007). Climate Change and Human Rights, Journal of Land Resources & Environmental Law 27: 260-62.

Smith, R. (2021). International Human Rights Law. Tenth Edition. Oxford University Press: 161-162.

United Nations General Assembly. (2009). Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. A/HRC/10/61.

Watson, J. S. (1999). Theory and Reality in the International Protection of Human Rights. Transnational Publishers.

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