The Human Right to a Healthy Environment: Protecting Life on Earth
Human rights can help overcome the Achilles heel of international environmental law—the absence of effective enforcement mechanisms and the resulting lack of accountability. In the short-term, the goal is universal recognition of the right to a healthy environment through resolutions of the Human Rights Council and the General Assembly. In the medium term, the right should be incorporated into a legally binding global instrument, such as the Global Pact for the Environment first proposed by France or a Third International Covenant. Ultimately, the right should be added to the Universal Declaration of Human Rights.
Scientists estimate there are 100 billion planets in the Milky Way galaxy, and more beyond in the universe. But despite the best efforts of generations of scientific geniuses, there is only one planet that we know supports life: Earth. This beautiful blue-green planet is a miracle, filled with amazing natural wonders.
And yet we take this planet for granted and have inflicted cataclysmic harm on it. We have created a climate emergency, a biodiversity crisis, pervasive pollution, and a surge in emerging infectious diseases of zoonotic origin, exemplified by the terrible COVID-19 pandemic. There are seven million premature deaths every year because of air pollution, hundreds of thousands of children under the age of five. Contaminated water and toxic chemicals kill another 2-3 million people every year.
All human rights ultimately depend on a healthy biosphere and a safe climate. Without functioning ecosystems, which depend on healthy biodiversity, there would be no clean air to breathe, safe water to drink or nutritious food to eat. Among the human rights being threatened and violated by the global environmental crisis are the rights to life, health, food, a healthy environment, water, an adequate standard of living, and culture.
For decades, governments have signed treaties and made pledges to tackle climate change, pollution and the decline of biodiversity, notably in 1992 with the UN Framework Convention on Climate Change and the Convention on Biological Diversity. In retrospect, it’s an embarrassing litany of bold rhetoric, timid action and broken promises.
Since 1992, greenhouse gas emissions have risen more than 60%. In the 2015 Paris Agreement, nations pledged to hold the increase in average global temperatures to 2 degrees while striving to keep the increase to 1.5. Yet we are already at 1.2 and are clearly not on track to meet the Paris targets.
Similarly, none of the nature-saving targets agreed upon by parties to the Biodiversity Convention in 2000 were met by 2010. None of the Aichi biodiversity targets were achieved by 2020.
Scientists’ warnings have never been more dire, or more clear. The IPCC, IPBES, Indigenous peoples, and youth are all calling for rapid, systemic and transformative changes to human society to address the global environmental crisis.
That’s why there is a vital and promising role for human rights. In recent centuries rights have played a role as catalysts for societal transformations including the abolition of slavery, progress towards equality for women and the end of apartheid. Rights are being strategically and successfully employed by Indigenous peoples, LGBTQ+ individuals and persons with disabilities. It’s never simple, easy or quick but there can be no doubt that human rights have sparked positive transformative changes.
Human rights can help overcome the Achilles heel of international environmental law—the absence of effective enforcement mechanisms and the resulting lack of accountability. In 2019 the Supreme Court of the Netherlands, in the Urgenda case, ruled that the Dutch government violated the rights of its citizens (e.g. the right to life) under the European Convention on Human Rights by failing to take sufficiently ambitious action to reduce greenhouse gas emissions. The Court ordered the government to make faster and deeper emissions cuts. The government responded by closing coal plants early, investing billions of dollars in renewables, putting solar panels on the roofs of all schools, lowering speed limits and more.
Environmental law plus human rights equals accountability.
Climate cases based on human rights are springing up all over the world. The Torres Strait Islanders filed a case against Australia with the UN Human Rights Committee, arguing that Australia’s abysmal record on climate change violates their rights to life, health and culture. Greta Thunberg and fifteen other youths have filed a similar case at the UN Committee on the Rights of the Child, asserting that inadequate climate action violates their rights.
Even more powerful though, in the context of the planetary environmental emergency, is the emergence and evolution of the right to live in a safe, clean, healthy and sustainable environment. At the international level this right was first mentioned in the Stockholm Declaration, a political statement that emerged from the first global summit on the environment. Portugal and Spain were the first countries to put this right in their constitutions, in 1976 and 1978 respectively.
Today this right enjoys constitutional protection in more than 100 countries. It is found in the environmental laws of more than 100 countries. The right to a healthy environment first appeared in regional human rights treaties with the 1981 African Charter on Human and People’s Rights, and is now found in regional treaties ratified by more than 130 nations. In total, the right to a healthy environment is recognized in law by more than 80% of UN states (156 out of 193).
What is the right to a healthy environment? It is a bundle of substantive and procedural rights. On the substantive side it includes clean air, safe and sufficient water, healthy and sustainably produced food, non-toxic environments where people can live, work, study and play, healthy ecosystems and biodiversity, and a safe climate. The procedural rights include access to environmental information, public participation in environmental decision making, and access to justice. The interpretation of the right to a healthy environment is guided by key principles including non-discrimination, non-regression, precaution and prevention.
Does it really make a difference? The answer is unequivocally YES. Research demonstrates that the right to a healthy environment has served as a catalyst for stronger environmental laws and policies, increased implementation and enforcement, higher levels of public participation in environmental decision-making and most importantly, improved environmental performance. Research indicates that countries recognizing this right have reduced air pollution faster, reduced greenhouse gas emissions more deeply and provided safe drinking water to a higher share of their citizens.
Here are a few concrete examples from among many around the world.
Slovenia, a leading proponent of the right to a healthy environment, decided to get serious about recycling and composting. The percentage of waste going to landfill fell from 76% to 7% between 2009 and 2017, making Slovenia a global leader in recycling. Slovenia also increased protected natural areas to more than 40% of the country.
Costa Rica is a small middle-income nation with an inspiring story of the power of the right to a healthy environment. Since adding this right to their constitution in 1994, Costa Rica has reversed a decades-long process of deforestation, doubling forest cover from 25% to over 50%. They increased the proportion of protected land in national parks to 28%. They passed laws banning open pit mining and offshore oil and gas development. They generate 98% of their electricity with wind water and sunlight. They use carbon tax revenues to pay Indigenous people and farmers to conserve land. And they plan to be one of the first nations in the world to completely decarbonize their economy.
In France, the R2HE was added to the constitution in 2004 as part of a short but powerful Charter for the Environment. This was a catalyst for the world’s first national law banning fracking, the world’s first national law ending all uses of all bee-killing neonicotinoid pesticides and more recently a law prohibiting French companies from exporting pesticides not approved for use in France. France is one of the first countries in the world to explicitly recognize, in law, that people have a right to breathe clean air.
In Argentina, thanks to the right to a healthy environment, billions of dollars have been invested in restoring the Matanza-Riachuelo watershed and finally respecting the rights of people living in the poorest parts of Buenos Aires.
In Chile, the right to a healthy environment has prompted the beginnings of the clean-up and restoration of a notorious sacrifice zone, Quintero-Puchuncavi.
In Kenya, the right to a healthy environment helped block what would have been a disastrous coal-fired power project in Lamu on the east coast.
In Mexico, the right to a healthy environment was used to block an ill-advised tourism development that would have destroyed a mangrove ecosystem.
In the Philippines, the right to a healthy environment was used to stop logging of old growth forests and spark a massive project to clean up and restore Manila Bay.
A group of Colombian children and youth filed a lawsuit against their government about deforestation, and in 2018, the Supreme Court of Colombia issued a globally important decision that addresses both the climate emergency and the nature crisis. The Court ruled that deforestation in the Colombian portion of the Amazon rainforest violates the right to a healthy environment. The Court ordered the government to meet with the young people and leading scientists to develop a plan to rapidly end deforestation.
Of course, the right to a healthy environment is not a magic wand. Last year, it did not prevent the Supreme Court of Norway from upholding the government’s decision to open new areas of the Arctic Ocean for petroleum exploration. It has not prevented the Bolsonaro government in Brazil from reversing decades of progress in reducing deforestation and industrial pollution. But given all of the evidence, it is clearly a catalyst for positive changes.
Unfortunately, the right to a healthy environment is not yet recognized for billions of people. Thirty-seven countries, including the United States, China, Canada, the United Kingdom, Japan and Australia do not recognize it.
Also disappointing is that the right has never been recognized at the global level. The UN has been debating recognition of the right to a healthy environment since the early 1990s. More than 100 million people have died preventable premature deaths because of environmental causes since those debates began. That’s really an unfathomable statistic.
The good news is that there is unprecedented momentum towards UN recognition of the right to a healthy environment. A group of States led by Costa Rica, Fiji, Finland, the Maldives, Monaco, Morocco, Slovenia and Switzerland is committed to introducing a resolution, possibly in 2021 but in 2022 at the latest. Almost 70 States endorsed a joint statement supporting this action at the Human Rights Council session in March. Last September, over 1,000 civil society organizations wrote to the Human Rights Council demanding urgent action. The UN Secretary General, the High Commissioner for Human Rights, the head of the UN Environment Programme and the head of UNICEF have all called for UN recognition of this right, and 15 UN agencies recently issued a powerful supportive statement.
It has never been needed so badly.
In the short-term, the goal is universal recognition of the right to a healthy environment through resolutions of the Human Rights Council and the General Assembly. In the medium term, the right should be incorporated into a legally binding global instrument, such as the Global Pact for the Environment first proposed by France or a Third International Covenant. Ultimately, the right should be added to the Universal Declaration of Human Rights.
Even though they are not legally binding, UN resolutions do make a difference. In 2010, the UN recognized, for the first time, the right to water. Since then, this right has been added to constitutions, incorporated into laws and policies, influenced court decisions, and most importantly, has sparked greater government action to deliver on the promise. In Canada, a country that once opposed recognition of the right to water, the UN resolution caused a policy breakthrough. Since 2015, the government of Canada has partnered with Indigenous governments to build safe drinking water infrastructure for 98 communities that were suffering under long-term boil water advisories.
States must not only recognize but implement the fundamental human right to live in a safe, clean, healthy and sustainable environment. That means using a rights-based approach to tackling the climate crisis, biodiversity conservation, air pollution and the global water crisis. We must switch from fossil fuels to renewables as quickly as possible. We must respect the rights of Indigenous peoples to the lands, waters, and species that sustain their cultures while protecting 30% of the world’s lands and waters by 2030. We must create a circular economy in which everything humans make and use can be reused, recycled or safely composted.
With COVID-19, humanity is paying a truly terrible price for ignoring scientists’ warnings. We must not make the same mistake again by ignoring climate scientists and ecologists. It is not too late to respond to the global environmental crisis, but time is running out.
If we fail to employ a rights-based approach to protecting the biosphere, future generations will live in an ecologically impoverished world, deprived of nature’s critical contributions to human well-being, ravaged by increasingly frequent pandemics, and riven by deepening environmental injustices.
If we place human rights and nature at the heart of the post-pandemic recovery, humans could attain a just and sustainable future in which people live happy, healthy and fulfilling lives in harmony with nature.