By Bridget Lewis. This article is part of our August theme, which focuses on the environment and human rights. Read more articles on this theme.
The idea of a human right to an environment of a particular quality has gained traction over recent years with academics and NGOs alike. It has been employed to bolster demands for greater action by governments on environmental issues, including climate change, and is often referred to in terms which suggest its existence, content and applicability are beyond doubt. Yet an examination of human rights law indicates that the enforceability of such a right is far from clear cut, particularly in countries like Australia, which are not part of the major regional human rights regimes.
All persons have the right to a secure, healthy and ecologically sound environment
One of the earliest formulations of the right appeared in the concluding document of the UN Conference on the Human Environment, held in Stockholm in 1972. Principle 1 of the Stockholm Declaration stated that:
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.
The next major step came in 1994, with the publication of the UN Draft Principles on Human Rights and Environment, which proclaimed that “all persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.”
Since then, references to the right have appeared in a range of international instruments, regional treaties and national constitutions, although the definitions of the right vary broadly from one document to the next. The African Charter on Human and Peoples’ Rights states that “All peoples shall have the right to a general satisfactory environment favourable to their development.” The San Salvador Protocol to the American Convention on Human Rights guarantees that “Everyone shall have the right to live in a healthy environment and to have access to basic public services.” The Aarhus Convention, to which 46 European states are parties, provides that:
In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.
In addition to these regional treaties the right has been included in one form or another in a growing number of national constitutions. A recent survey I conducted found that 59 national constitutions guarantee a right to a good environment in some form, while 104 constitutions impose an obligation on governments to protect the environment.
Despite the apparent widespread acceptance of the right, there is no broadly applicable multilateral treaty which guarantees it, and therefore no law which would extend the right to Australia. Further, proposals to have the right declared in international law confront a number of theoretical and practical challenges, meaning that any further development of the law in this area faces a bumpy road at best.
One of the chief criticisms of a proposed right to an environment of a particular quality lies in the difficulty of defining the scope of the right with adequate precision. The brief overview given above demonstrates just some of the variety in existing formulations of the right, and there are many more to be found in the various non-binding international legal instruments and national constitutions. Scholars who have advocated for greater recognition of the right refer variously to a right to a good environment, a decent environment, a secure environment, a clean environment, a healthy environment, a healthful environment or an ecologically balanced environment, to name just a few. Each of these formulations is open to interpretation, leaving the precise scope and content of the proposed right quite unsettled.
The fate of the right to an environment of a particular quality will rest on the will of states and their citizens to acknowledge … the significant role that the environment plays in facilitating the enjoyment of all human rights
The problem of defining the right is linked closely to the question of what the right is intended to achieve. Human rights law already recognises the importance of a healthy environment to the enjoyment of a wide range of our fundamental rights, including the rights to health, food, water and to life itself, as well as the rights of Indigenous communities. Further, there have been cases overseas where human rights tribunals have held that environmental harm amounts to a violation of human rights. The environmental dimensions of existing human rights are reasonably well-defined and understood, and a number of leading scholars have argued that introducing a new right to a good environment which merely restates or duplicates existing protections would be redundant. Proclaiming a new and arguably unnecessary right in this context would risk undermining the existing human rights framework. So presumably the new right is intended to guarantee something beyond that which is already protected by human rights law – that is, a right to a good environment per se, independent other human needs. However, this raises the problem of identifying what the appropriate standards are for a “good environment”, and how to balance that objective against other human rights, including the right to development.
Another definitional problem relates to identifying who the appropriate rights-holders and duty-bearers would be. This is particularly evident when one considers that much of the environmental degradation which is taking place today will impact more severely on future generations, raising the question of whether human rights obligations can be owed to individuals not yet born. Further, environmental damage caused by pollution or global warming is frequently cumulative and trans-boundary in nature, presenting challenges to the traditionally state-centric system of human rights where duties are owed by states towards their citizens or those within their jurisdiction. As well as raising questions about who bears the responsibility for protecting the right to a good environment, there are also significant challenges for enforcing the right, since questions of causation and proof are frequently complex, particularly in the context of environmental harm caused by greenhouse gas emissions.
One significant criticism of the idea of a human right to an environment of a particular quality is that the right inappropriately constructs the environment as something which exists for the benefit of humans, rather than something which of inherent value. It has been argued that this prioritises humans’ interest in the environment above the rights of other species or ecosystems, and perpetuates the attitude which has been at the root of much of the environmental degradation we have seen to date. The counterpoint to this argument comes from human rights purists, who argue that unless a “good environment” is defined by reference to human interests then it cannot properly be called a “human” right. This conceptual difficulty is unlikely to be resolved any time soon, and it highlights the fact that, while human rights and environmental protection are arguably mutually supportive objectives with much common ground to be explored, they nonetheless emerge from very different theoretical foundations.
Ultimately, the fate of the right to an environment of a particular quality will rest on the will of states and their citizens to acknowledge the intrinsic value of the environment to all human beings, and the significant role that the environment plays in facilitating the enjoyment of all human rights. A clearly-defined and practically enforceable right in a multilateral human rights treaty may be a long way off. Howeverthe incremental growth of the right through regional instruments and national constitutions suggests there is potential to explore the relationship between human rights and environmental protection, and for the two disciplines to find ways to support each other in achieving their respective goals.
Bridget Lewis is a Lecturer at the Queensland University of Technology Law School. Her main area of research is international human rights law, with a particular focus on environmental human rights. She is currently completing a doctoral degree on the topic of the human right to a good environment, its status in international human rights law and its implications for climate change migration and adaptation strategies.