Emergency measure: Making a healthy environment a human right

This formalizes something that already exists in national laws. What difference will UN recognition make?

There are now more than 155 countries where the right to a healthy environment enjoys legal recognition, meaning it’s either in the constitution or environmental laws, or it’s in regional human rights treaties that those countries are parties to. So it has this widespread recognition at the domestic and regional levels, but had never been recognized at a global level until last October. That’s why the Human Rights Council resolution was a historic breakthrough. The idea is that it will act as a catalyst for those countries that have not yet recognized it — Canada, the US, Australia, New Zealand, the UK, China, Japan — to move forward, and also for those countries that recognize it but have more work to do to give it a higher priority.

Back in 1948, nobody thought about putting the right to a healthy environment into the Universal Declaration of Human Rights. But since the 1970s, this idea has found widespread acceptance — and because it’s been around for decades, we can see what a difference it has made. So we know, for example, that countries where the right to a healthy environment is recognized have passed stronger environmental laws and policies. They do a better job of implementing and enforcing those laws and policies, and they have higher levels of public participation in environmental decision-making.

Most importantly, the right to a healthy environment is correlated with better environmental performance. Countries that recognize this right have reduced air pollution and greenhouse gas emissions more quickly, and provided safe drinking water to a higher proportion of their population. There’s a really compelling body of evidence that this makes a difference.

What does this cover that isn’t addressed by other human rights like the right to life, the right to health, the rights of the child?

The right to a healthy environment is so comprehensive in scope that it covers things that other human rights are just not well equipped for. One perfect example is nature. Healthy ecosystems and biodiversity are the foundation of all life on Earth. It’s difficult to argue that these should be protected using conventional human rights approaches, but that’s clearly an integral part of the right to a healthy environment. Think of a problem like air pollution, which causes approximately 7 million premature deaths every year, according to the World Health Organization. From a scientific perspective, and from a human rights perspective, it’s very challenging to link any individual’s respiratory illness, asthma or heart disease to exposure to air pollution because all of these diseases have multiple causes. So the right to health or the right to life are difficult to apply in this context. But with the right to a healthy environment, you don’t have to prove that your personal asthma is caused by that factory down the road. You can just point out that the government has set a standard for air quality, and that it’s not meeting that standard or not taking any action to improve air quality: that’s a violation of my right to a healthy environment.

There’s a very heavily polluted region of South Africa called the Mpumalanga Highveld, with a number of coal mines and coal-fired power plants. In 2019, two citizens groups brought a lawsuit arguing that the government’s inaction and failure to improve air quality in that area violated their constitutional right to a healthy environment, under Article 24 of the South African constitution. In March 2022, the High Court in South Africa agreed with those groups that the government’s failure to act is definitely a violation of that right, and it ordered the government to do a number of things, including enact regulations within 12 months to improve air quality in the Mpumalanga Highveld. That’s a tangible, concrete example of how people can use their right to a healthy environment to hold governments accountable and to improve the quality of life in their communities.

Why are some countries leading on recognizing this right? Is there anything that they all have in common?

If we are going to value human rights, they should be included in constitutions because these are our highest and strongest form of laws. When we look around the globe, we see that almost every constitution in Africa, in Latin America and in Eastern Europe includes the right to a healthy environment. That’s the result of waves of constitutional change: when the Soviet Union fell apart, when military dictatorships ended in Latin America and when colonization ended in Africa, these countries came up with new constitutions, more recently than Canada and the US.

Costa Rica is the most fantastic example. It recognized the right to a healthy environment in 1994, when it had undergone decades of deforestation to the point where only about 25% of the land still had forest cover. Fast forward 30 years, they’ve now got over 50% forest cover. They have used carbon taxes to pay Indigenous people and farmers to reforest and restore their land. They generate 99% of their electricity from renewable sources. Almost 30% of the country is in national parks. They have prohibited activities that are environmentally destructive, like open-pit mining and offshore oil and gas development. Costa Rica is now widely recognized as a global environmental leader, and it has a very aggressive decarbonization plan for 2050. So it’s just a tremendous example of how recognition of this human right can help transform a country in a very positive way.

There’s an acceptance that this is a direction of travel: states can’t do everything at once, resources are limited, there are other social goals. How might this be in conflict or tension with other human rights, and how could this be resolved?

Hypothetically, the right to a healthy environment could be in tension with the right to development — there are many countries around the world where there is definitely a need for economic growth to lift people out of poverty. In reality, there isn’t a conflict because the way to avoid that is through sustainable development. That’s the sweet spot. One really compelling example is the field of renewable energy. We know that over the past decades, the cost of solar and wind and other forms of renewable energy has fallen to the point where the International Energy Agency says in most countries these are the cheapest forms of energy available. That doesn’t mean that we should put wind farms or industrial-sized solar facilities anywhere. In order for those facilities to be sustainable, you need to place them in appropriate positions. Don’t put wind turbines where there’s a large flyway of Bald Eagles or Golden Eagles, don’t put solar installations over the habitats of endangered species. But when you consult with local communities, when you take those environmental considerations into account, you have sustainable development that is beneficial for people and also beneficial for the environment.

What about businesses: does this impose any additional obligations? Human rights is increasingly used as the basis for climate litigation — could this expose companies to a greater risk of legal action?

That’s a complex question. The reality is that we’re living in a climate emergency, and if governments are going to take the steps necessary to protect people’s right to a healthy environment, then there will need to be changes that harm the business interests of certain types of corporations — fossil fuel producers in particular. So yes, if the right to a healthy environment is recognized in national law, either in constitutions or legislation, there is the likelihood that it will be used in litigation to target the fossil fuel industry. In terms of the UN resolution that was adopted by the Human Rights Council in October, it’s not legally binding or enforceable, so there won’t be litigation based on that.

What’s next? Would you like to see this enshrined in human rights treaties, so it takes the force of international law or has greater status?

I think that’s the ultimate goal. The resolution passed by the UN Human Rights Council also invited the General Assembly to consider the matter, so we’re hoping that it could adopt a similar resolution. And I would anticipate that in a matter of years, there will be efforts to have the right to a healthy environment incorporated into a globally binding legal instrument. That’s the logical conclusion.

In the meantime, what’s really important — in light of the climate emergency, the collapse of biodiversity and the pervasive pollution that’s killing millions of people every year — is that we act at the national and regional levels, which can happen much more quickly. So embedding this in constitutions and national environmental laws and, most importantly, giving increased priority to the actions needed to respect, protect and fulfil the right to a healthy environment, whether that’s stronger air quality standards, cleaning up water pollution or conserving biodiversity. All of those things need to be done on an urgent basis and, as we know, the negotiation of global human rights treaties is a long-term project. If you look at the way that human rights have evolved over time, you had the Universal Declaration of Human Rights in 1948, and then an 18-year process leading to the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights. And then additional decades for the negotiation of treaties like the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women.

My next big project is a series of implementation guides that will help governments, businesses and civil society to turn this right from inspiring words into practical steps that will change people’s lives for the better.

What are the greatest barriers to all these things being recognized in national laws and enforced? How might they be overcome?

The greatest barriers are the same powerful interests that have blocked progress for decades on the climate crisis and on protecting nature. The reason that I think we need to address climate change, biodiversity and pollution from a human rights perspective is that we’ve seen how transformative a rights-based approach can be over the course of human history. Whether you look at the abolition of slavery, the emancipation of women, the Indigenous peoples movement, the anti-apartheid movement in South Africa, none of those were instant or easy, but each of them harnessed human rights to bring about transformative changes in society. We’re at a point where we need transformative, systemic changes. That’s what all the leading scientists are telling us. And so my hope is that the right to a healthy environment can fulfil that kind of transformative role.

France is another interesting example. It has one of the oldest constitutions in the world, dating back to the 18^th century, and it finally added the right to a healthy environment in 2004, just 18 years ago. Since then it has become a global leader in environmental protection: the first country in the world to ban the practice of fracking for oil and gas, the first country to take comprehensive measures to deal with the bee-killing neonicotinoid pesticides, one of the first countries in the world to recognize that its citizens have the right to breathe clean air. And also the first wealthy northern country to prohibit the export of pesticides that are not permitted for domestic use because of health and environmental reasons. France co-chairs the High Ambition Coalition for Nature and People with Costa Rica, and it’s also a core member of the Beyond Oil & Gas Alliance. These countries are the leaders in terms of their words, but they’re also backing up those words with action.

No other new human right has gained such widespread constitutional recognition so quickly. Why do you think this one has taken on so fast?

I think it’s because it’s a human right that connects all of us. In a world where we focus on differences of race and colour and religion, the right to a healthy environment is something that really unifies people. Because whether you’re rich or poor, whether you’re black or white, whether you’re Christian or Muslim, we all need clean air to breathe. We all need safe water to drink. We all need a safe, stable and liveable climate in order to continue prospering on this planet. So this appeals to people at a very basic and heartfelt level.

Some people have expressed concern that it’s anthropocentric — too human-focused. But because we are part of nature, not separate from or superior to it, the right to a healthy environment protects both humans and nature, and so that’s another beautiful aspect of it.

But like all human rights, the right to a healthy environment is really just a tool, and tools need people to use them. One of the really gratifying things that’s happened since the Human Rights Council resolution is that people are talking about their right to a healthy environment — in negotiations about the post-2020 global biodiversity framework, in the discussions at the UN Commission on the Status of Women, in the discussions about accelerated action on climate change; and then, at the national level, in the recent court decision in South Africa. People are using their right to a healthy environment all around the world. That’s a really positive and inspiring development at a time when we need, probably more desperately than ever before, positive and inspiring developments.

David R Boyd is an associate professor of law, policy and sustainability at the University of British Columbia. He has been the UN Special Rapporteur on human rights and the environment since August 2018