Last May, the Nationalist Party launched a public consultation that subsequently led to the presentation of a bill to introduce the “right to the environment” as an enforceable human right in the constitution. The main reason behind it was a need for more responsibility and accountability in the way administrative decisions affecting the environment are taken.
Perhaps the initiative came somewhat late in the day, considering how much of our natural environment and landscape have been obliterated for good and replaced by a concrete jungle.
The United Nations Human Rights Council Resolution 48/13 of October 8, 2021 recognised the right to a clean, healthy and sustainable environment as a human right.
In a recommendation of the year 2022 on human rights and the protection of the environment, the Council of Europe called on its 46 member states to actively consider recognising, at the national level, the right to a clean, healthy and sustainable environment as a human right.
It underlined the increased recognition of some form of the right to a clean, healthy and sustainable environment in international legal instruments (including regional human rights instruments) and national constitutions, legislation and policies.
Although there is no specific right to a healthy environment in either the European Convention on Human Rights or the European Social Charter, both instruments offer important protections with regard to environmental matters.
The Council of Europe’s role in mainstreaming the environmental dimension into human rights is more timely than ever. The Steering Committee for Human Rights has already developed new tools and co-organised high-level events with the Committees of Ministers’ presidencies by bringing key issues to the forefront of discussions.
All human beings depend on the environment in which they live. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Without a healthy environment, we are unable to fulfil our aspirations. We may not have access to even the minimum standards of human dignity.
The number and scope of international and domestic laws, judicial decisions and academic studies on the relationship between human rights and the environment have been growing rapidly. Many States now incorporate the right to a healthy environment into their constitutions.
Climate change and environmental degradation are some of the most pressing threats to humanity’s future. We must step up efforts to ensure that people have access to a clean, healthy and sustainable environment. Having the right to enjoy the environment as a human right would give environmental campaigners more ammunition to challenge ecologically destructive policies and projects. Nobody can take nature, clean air and water, or a stable climate, away from us – at least, not without a fight.
Having the right to enjoy the environment as a human right would give environmental campaigners more ammunition to challenge ecologically destructive policies and projects- Mark Said
It will help people stand up for their right to breathe clean air, to access safe and sufficient water, healthy food, healthy ecosystems and non-toxic environments to live, work, study and play.
In 2019, following a lawsuit by an environmental group, the Netherland’s top court ordered the Dutch government to do more to cut carbon emissions, saying climate change was a direct threat to human rights. More recently, Brazil’s supreme court declared the Paris climate change agreement a human rights treaty, saying the pact should supersede national law.
We are already living in a triple planetary crisis of climate change, nature and biodiversity loss and pollution and waste. We might have national laws designed to limit pollution, protect plants and animals and counter climate change. But those rules are not always fully implemented and when they are violated, citizens and activists often struggle to hold governments and companies accountable.
There will be those who might warn of the danger that a human right to a healthy environment might translate into unrealistic or overly lofty expectations about immediate transformations to fulfil the right. The resulting mismatch between expectation and accomplishment might diminish the significance of the right to a healthy environment and erode confidence in human rights more generally.
There is perhaps no bigger gap between ‘law as it is’ (lex lata) and ‘law as it should be’ (lex ferenda) than the distance between the articulation of human rights in treaties and agreements and their realisation on the ground. We have yet to realise most internationally recognised rights, even in their most rudimentary form, prompting scepticism about creating “new” rights.
Add that concern to the ongoing debate about whether there is a hierarchy among human rights – particularly between the so-called first-generation rights (civil and political), second-generation rights (economic, social and cultural) and third-generation rights (solidarity rights, including the rights to peace, development and a protected environment) – and questions arise about the utility of advocating for environmental protection through a human rights lens.
However, recognition of the human right to a healthy environment would clarify the obligations that States have vis-à-vis environmental protection. By defining the outer boundaries of the State margin of appreciation to make environmental decisions, such a right would cast violations into sharp relief. Affected individuals would have the opportunity to seek redress through the State courts as well as avail themselves of the protection afforded by international tribunals should State-level remedies prove inadequate.
Indeed, invoking human rights is a way to elevate environmental issues above the rank and file of competing societal goals and endow them with an aura of timelessness, absoluteness and universal validity.