By Zhonghua Du
[Zhonghua Du is currently completing Magister Juris (Master in Law) at the University of Oxford,
and her research interests include international environmental law, international law of the sea,
international criminal law and international humanitarian law. LinkedIn: https://www.linkedin.com/in/zhonghua-du-ab4079140/]
In a far-reaching Advisory Opinion in 2017, the Inter-American Court of Human Rights affirmed the “autonomous” nature of the right to a healthy environment and stated that such a right “protects the components of the environment, … as legal interests in themselves”.With the proliferation of environmental lawsuits around the world, it is worth asking whether the existing international environmental and human rights law are sufficient to address the issue of environment and human rights protection, and what value an autonomous internationally recognized right to a healthy environment (“AIRRtHE”) adds to the existing framework. This essay presumes that current international law (lex lata) doesn’t recognize an autonomous right to a healthy environment. Therefore, the argument that asserts the customary nature of AIRRtHE is dismissed, and this essay will address the AIRRtHE as a matter of lex ferenda. This essay will argue, that an AIRRtHE can bridge the gap between positive international law and environmental aspirations, but it falls short of addressing the drawbacks of anthropocentricism, regional bias, and the integrity of human rights system.
- The definition of an AIRRtHE
The definition of AIRRtHE is three-fold as understood by this essay. Firstly, by “autonomous”, AIRRtHE embodies the normative value of environmental rights in and of itself, instead of “greening” the existing human rights through invoking the relationship between the enjoyment of a wide range of human rights and the protection from environmental harm (Knox, 2020, p. 84). Secondly, by “recognized”, AIRRtHE refers to a “formally recognized entitlement to a particular quality of environment” that “states and their citizens could claim through a source of international law that would hold states to account in the international regulatory domain vis-à-vis one another and in relation to their citizens” (Kotzé, 2018, p. 137). And thirdly, by “international”, AIRRtHE posits itself as a universal right, differing from the right to a healthy environment under regional human rights agreements and domestic constitutions.
- The existing international environmental and human rights law framework and the added values of an AIRRtHE
The right to a healthy environment has been recognized by human rights law from a rather early age, explicitly or implicitly. As a pioneer in this field, the African Charter recognized it as an autonomous right as early as 1981: “all peoples shall have the right to a general satisfactory environment favorable to their development”. Following this, the San Salvador Protocol to the American Convention on Human Rights, the Arab Charter on Human Rights, and the ASEAN Human Rights Declaration all provide for such a right. Although the European Convention on Human Rights doesn’t include a separate article on the right to a healthy environment, the European Court of Human Rights (“ECHR”) has managed to develop a jurisprudence to protect environmental rights indirectly through the right to life and the right to respect for private and family life (Kotzé and Daly, 2019, p. 1055).
Even at their best, these instruments are insufficient for environmental protection. Firstly, no global human rights instrument has explicitly endorsed the right to a healthy environment. For the regional human rights instruments, only the African Charter makes the environmental right reviewable by an international body, for the Arab Charter, the ASEAN Declaration and the San Salvador Protocol, the right to a healthy environment is not subject to oversight mechanisms. Secondly, the substance of the environmental right, as interpreted by different treaty bodies, varies. For example, although ECHR recognized the possibility to address environmental concerns in connection with fundamental human rights, in Kyrtatos v. Greece, it dismissed the argument that Article 8 or any other Articles of the Convention were designed to protect the environment, and stated that even if they were, the standard of proof for environmental harm to be detrimental to the rights of individuals is relatively high. On the contrary, different from the environmental implications of other rights, the Advisory Opinion OC-23/17 recognized the right to a healthy environment as an autonomous right. Thirdly, the effectiveness of the international processes is highly questionable. Even for the high-profile case of SERAC v. Nigeria, in which the African Commission identified widespread oil pollution as a violation of the right to live in a healthy environment, little change has happened in the actual environmental conditions endured by communities in oil-producing regions following the ruling (Boyd, 2018, p. 24).
For international environmental law, the overall picture is similar to human rights law. By framing environmental right in “pure anthropocentric developmental and domestic-focused terms”, the Rio Declaration is considered to be a retrogressive step compared to the Stockholm Declaration (Kotzé, 2018, p. 139). No legally binding instrument recognizes the relationship between human rights and climate change concerns, and even if the Paris Agreement does contain an explicit reference, its preambular appearance marks the political skepticism behind it (Rajamani, 2018, p. 244). As Kotzé (2018) correctly pointed out, the “imprecisely formulated international right to a healthy environment only has the status of soft law”, which can only provide non-binding guidance to states.
It is against this context that quite a few international environmental lawyers enthusiastically commended AIRRtHE’s contributions to both international environmental law and human rights law. Such contributions can be summarized in the following three dimensions.
First, morally, an AIRRtHE will elevate the relative importance of environmental concerns compared with the utilitarian concerns of short-term economic growth, which can energize the advocation for the right (Rodríguez-Garavito, 2018, p. 159); it can also reverse the colonial narrative of human rights law because much of the diffusion of the right to a healthy environment was led by countries in the Global South (Knox, 2020, p. 92). Secondly, normatively, an AIRRtHE can overcome the intrinsic defects of international environmental law and human rights law. International environmental law always places its primary focus on transboundary harm and traditionally overlooks environmental harm within the borders, while human rights law is just the opposite, focuses primarily on internal obligations instead of extraterritorial ones (Knox, 2020, p. 89). In this respect, an AIRRtHE can fill the conceptual gap of the two dogmatics. Thirdly, practically, an AIRRtHE, by its universal bindingness, could bring up the possibility of a new effective international compliance and enforcement machinery and provide a more uniform and standardized minimum level of protective obligations of states, a “safety net” (Boyd, 2018, p. 31).
- The lingering paradox of an AIRRtHE
However, an AIRRtHE is never a panacea for all environmental and human rights issues. It is subject to a number of criticisms from both the legal and political perspectives.
First, the argument that because of the ambiguity of a generic AIRRtHE, it cannot give rise to operationalized rights and obligations is relatively easy to rebut. Many fundamental rights are also codified in a rather imprecise and generic manner, and it is precisely the indeterminacy of the language that allows flexible interpretations so as to accommodate new challenges. For example, the broadly defined nature of the right to respect for private and family life under Article 8 of the ECtHR has been utilized by the ECHR under a couple of circumstances to respond to the development in society, including the protection of professional activities against arbitrary interference, prevention of environmental pollution, and protection of personal data. Moreover, the fact that the environmental right has been adjudicated by a crowd of national courts and have positive effects around the world proves that the right to a healthy environment would not be too vague to be implemented.
Secondly, a more trenchant criticism comes from the theory of “Anthropocene”, which exposes the supremacy of human beings as the hegemony over other beings and nature and urges us to look at the human-environment relationship from an eco-centric perspective instead of an anthropocentric perspective (Kotzé, 2014, p. 135). The approach of an AIRRtHE, on the contrary, reinforces anthropocentricism. By seeing the environment as an entitlement of a human being, it still places human at the centre of environmental governance, and it only protects the environment when the negative effects have been such that the human enjoyment of rights has been interfered with (Kotzé and Daly, 2019, p. 1068). It may be argued that the more integrated human rights and environmental protection is, the less important is the distinction between the anthropocentric and the eco-centric approach, however, it is undeniable that up until now, the dominant approach of human rights bodies still emphasizes the adverse effect of environmental pollution on humans, not a general protection of the environment as such; and even if the Court gives some credit to the normative value of autonomous environmental rights “in themselves”, it is hardly operationalizable.
Thirdly, another sharp criticism is the regionally biased effect of the AIRRtHE. The observation made by Handl (1992) that human right to a healthy environment is by its very nature a context-dependent right is still tenable almost thirty years later. The narrative of environmental rights is still largely dominated by the racially and monetarily dominating power in the world, while the disproportionally affected, poor and non-white groups by global environmental deterioration are still striving for social-economic and political empowerment. Subjecting an inherently relative environmental right to a generalized AIRRtHE standard will potentially turn the standard into a completely empty shell, and it may subject the already disadvantaged groups to further discrimination (Handl, 1992, p. 131).
Last but not least, there’s also anxiety that the introduction of an AIRRtHE will have an “atomizing effect”, making the international human rights regime filled with individual litigation and claims even more fragmented (Rodríguez-Garavito, 2018, p. 165). It remains a problem how to reconcile the potentially differentiated standards of the right to a healthy environment in the myriad litigations and jurisprudence at the domestic level even after the enaction of an AIRRtHE.
Environmental protection requires global awareness and systematic behavioural changes, and it cannot be accomplished in an action. An AIRRtHE, if to be embodied in a universally binding instrument, has the potential of bridging the gaps of the existing corpus of international environmental and human rights law, but it leaves many issues unsolved, including the right of the “Mother Earth”, the issue of environmental justice, and the fragmentation of international human rights law. In an era when we are facing “daunting and enduring obstacles in a geopolitical context” even in the negotiation of soft-law instruments (Rodríguez-Garavito, 2018, p. 166), it is highly questionable whether the blueprint of an AIRRtHE will be realized in the near future.