Unbundling the human right to a clean and healthy environment and its role in enhancing grassroots voice and activism.

Discussion Brief No.1, written by Robert Kibugi, Senior Lecturer, Faculty of Law, University of Nairobi.

Thoughts from the Nairobi Conference: Environmental Law from Below: Grassroot and Human Rights Perspectives on the Human Environment Agenda (Stockholm+50)    


1. Introduction

On 27 September 2022, a one-day conference was held at the University of Nairobi, focused on Climate Justice, Grassroots Activism and Human Rights Law. The conference was titled “Environmental Law from Below: Grassroot and Human Rights Perspectives on the Human Environment Agenda (Stockholm+50).” It was organized through a collaboration between The Raoul Wallenberg Institute of Human Rights and Humanitarian Law, China Dialogue Trust, and the Faculty of Law at University of Nairobi. A technical team from the collaborating institutions conceptualized the conference and developed the programme and agenda of the one-day conference. The team ensured that selection of the speakers represented a cross-section of stakeholders. Importantly, the choice of speakers ensured that the voice of scholars and practitioners based in the global south was heard, and a particular emphasis was placed on African scholars. The conference was divided into open and closed, invitation only sessions. The latter were based on the Chatham house rules, to enable participants give their opinions freely. More information and the recording of the first session is available at: https://rwi.lu.se/news/stockholm-50-anniversary-conference-in-nairobi/

This discussion  brief is one of two written outcomes of this conference. The second discussion brief examines the impact of south-south cooperation on environmental rights, climate justice and grassroots activism.

This discussion brief is focused on a key theme of discussion and debate, informed by the keynote address and panel discussions and plenary contributions. The right to a clean and healthy environment has now emerged as a key cog in the development of legal tools to protect, and advance environmental and climate justice. This is because this right, as it is now evolving globally, regionally, and nationally, is providing critical support to the existing civil and political, and social, economic  and cultural rights, and riding on the gains these rights have already made in advancing the quality of human life.

Importantly, as a human right, the entitlement to a clean and healthy environment is core to advancing the welfare and needs of the broad cross-section in any society. This includes the people in most vulnerable situations in society, as well as those people without a voice such as future generations, or whose voice is muted by restrictions to meaningful public participation. This is because, in concert with civil and political rights, the right to a clean and healthy environment has integrated public participation and other civil political rights (e.g., access to information, access to justice, freedom of expression and assembly etc) as key tools for its realization. This of course depends on the culture, as well as political and democratic space within a society.

Nonetheless, the right to a clean and healthy environment continues to evolve globally, regionally and nationally, and further, has become a core part of the legal arsenal available to confront the triple planetary crisis affecting the world – climate disruption, nature and biodiversity loss, pollution, and waste.

2. Legal Nature and Normative Content of the Human Right to a Clean and Healthy Environment

The 1972 Stockholm Declaration, the outcome of that year’s UN Conference on the Human Environment, contrasted environmental problems between developed, and developing countries. For the former, the Declaration pointed to growing evidence of man-made harm resulting from development activities, while for the developing nations (often referred to as the global south) the Declaration noted that most of the environmental problems are caused by under-development. Advancing this farther, the 1992 Rio Declaration, in principle 1, urged that human beings are at the centre of concerns for sustainable development, successfully framing the concept of anthropocentrism. The same principle further argued that human beings are entitled to a healthy and productive life in harmony with nature.

Over time, this endeavour, to place human needs and interests at the heart of concerns for sustainable development, while pursuing harmony with nature has become the perfect storm. Why? This is because while sustainable development aims to secure an outcome that protects the environment, the result is often deficient with economic and social goals prioritized at the expense of environmental goods and services. The consequence is harm to critical environmental goods and services, such as clean air or water, or food supply, such that negative consequences like pollution afflict people. It is not uncommon that the social goals pursued by a development activity are inequitable (both in terms of present and future generations) and therefore the more vulnerable people in society receive the least economic and social gains while suffering the most from the negative environmental impacts.

Consistent with human rights law, States have an obligation to respect, protect and fulfil the human right to a clean environment. The obligation to respect requires States refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect mandates States to protect individuals and groups against human rights abuses. This may include taking measures such enhancing access to impartial legal remedies when human rights violations are alleged. The duty to fulfil is a positive responsibility for the State to facilitate the enjoyment of this basic human right. A clean and healthy environment, on which this human right depends, requires that nature is capable of holistically performing or providing regulating, supporting, provisioning and cultural ecosystem goods and services:[1]

  1. Regulating services are the benefits obtained from the regulation of ecosystem processes such as greenhouse gas (GHG) regulation, clean air, natural hazard regulation, and water purification, pollination and pest control.
  2. Provisioning services refer to goods and physical products obtained from ecosystems such as food, fresh water, fibre, genetic resources and medicines.
  3. Supporting services support the delivery of other services, such as soil formation and supplying habitat for species, and in turn enable ecosystems to continue supplying, regulating and provisioning services.
  4. Cultural or aesthetic services include non-material benefits that people obtain from ecosystems, such as spiritual enrichment, intellectual development, recreation, and aesthetic values.

Although classified into categories for ease of discussion, these ecosystem goods and services are symbiotic, as demonstrated by the role of supporting services above. Additionally, some critical ecosystem goods and services, such as maintaining the quality of air and soil, providing flood and disease control, or pollination (regulating services) are often invisible and therefore mostly taken for granted by human development policies and actions. Yet when they are damaged, the resulting losses can be substantial and difficult to restore.[2] It is these ecosystem services that the human right to a clean and healthy environment seeks to guarantee.

The former UN Special Rapporteur on Human Rights and the Environment, John Knox, has stated that one “firmly established” aspect of the relationship between human rights and the environment is that “environmental degradation can and does adversely affect the enjoyment of a broad range of human rights.”[3] The Special Rapporteur has also argued that in a real sense, all human rights are vulnerable to environmental degradation, in that the full enjoyment of all human rights depends on a supportive environment. However, the Special Rapporteur found some human rights to be more susceptible than others to certain types of environmental harm. This includes (a) the serious threat and impact of illicit traffic in, and improper management and disposal of, hazardous substances and wastes on the rights to life and health; (b) the wide range of negative implications that climate change has on the effective enjoyment of human rights, including the rights to life, health, food, water, housing and self-determination;  and (c) the negative impact resulting from, and exacerbated by environmental degradation, desertification and global climate change on the realization of the right to food, particularly in developing countries due to worsening destitution and poverty.

From the above, it is evident that in addition to being legally aligned to the structure of human rights that depends on positive duties on States, the right to a clean and healthy environment is inseparable from the well-being of the ecosystem. The destruction and harm to the ecosystems from human socio-economic activities not only undermines ability to fulfil this right, but the various other correlative rights as well.

3. The right to a clean and healthy environment nationally, and under international law

The right to a healthy environment first appeared in regional human rights treaties with the 1981 African Charter on Human and People’s Rights, which in article 24, guarantees all peoples of Africa the right to a general satisfactory environment, favourable to their development. According to David Boyd, the current UN Special Rapporteur on Human Rights and the Environment, this right is now found in regional treaties ratified by more than 130 nations. The most recent treaty is the Escazú Agreement adopted in March 2018 applicable to the Latin American and Caribbean regions.[4] The agreement requires each Party to guarantee the right of every person to live in a healthy environment and any other universally recognized human right related to the present Agreement. It came into force in April 2021 and currently has thirteen (13) ratifications.

Overall, the right to a clean and healthy environment is recognized by more than 80% of the United Nations (UN) member states.[5] Specifically, David Boyd reports that this right enjoys constitutional protection in more than 100 countries and is provided for through environmental laws in more than 100 countries.[6]

To buttress this important national-level progress, on 28 July 2022, the UN General Assembly adopted resolution A/RES/76/300: The human right to a clean, healthy, and sustainable environment. Through this resolution, the General Assembly (1) recognized the right to a clean, healthy, and sustainable environment as a human right; and (b) noted that the right to a clean, healthy and sustainable environment is related to other rights and existing international law. Patricia Kameri-Mbote notes that through this recognition, the General Assembly has elevated the right to where it belongs: universal recognition.[7] Resolution A/RES/76/300 was co-sponsored by 117 countries, receiving record support with 161 states voting in favour, 8 abstaining and 0 against. In her keynote remarks, Patricia Kameri-Mbote argues that this record represents universal recognition of the magnitude of the triple planetary crisis – climate change, nature loss and pollution; evidencing that the environmental crisis is one of the greatest concerns of the global community.[8]

4. Recommendations to enhance grassroot activism enabling fulfilment of the right to a clean and healthy environment and grassroots activism

The various ecosystem goods and services protected by the human right to a clean environment impact various aspect of human life. When these ecosystem services diminish in quality, or they lack, negative outcomes such as pollution, degradation, or biodiversity loss. Grassroots communities, including rural communities, indigenous peoples, as well people in vulnerable situations are affected by these negative outcomes, and therefore have a core interest in the fulfilment of this right. There are various tools and pathways through which grassroot actions enhance fulfilment of this human right:

  • Using civil and political rights to enhance grassroots voices. This depends on the general democratic environment in a particular country or local context. Civil and political rights include freedom of peaceful assembly and association, , and the right of freedom of expression and opinion. The role of environmental rights defenders is a good example, as they often organize grassroots voices to speak out about environmental violations, and to demand a change by government or corporations.
  • Active role in environmental assessment. Complementary to rights recognised at the international level, grassroots communities that are most affected by decisions that negatively impact a clean and healthy environment often have a right to be consulted during environmental assessments explicitly recognised in national and subnational legislation. The type of assessments could be a strategic environmental assessment for a policy or law that sets basis for future projects, e.g, mining law or police. It could also be an environmental impact assessment (EIA) for an actual project. There is need to review rules of public consultations to ensure that is meaningful such that the viewpoints given by grassroots communities have an actual impact on the final decisions taken by the authority deciding whether to issue or reject the EIA.
  • Environmental litigation. In many countries in the world that have recognized the right to a clean environment, it is also legally permitted to bring legal action to enforce the right. This could be based on a constitutional or statutory provision, or both. In some instances, the rules of standing have evolved to enable any person to file suit even without a personal interest. Civil society organizations play a key role in enabling grassroot communities file and prosecute public interest environmental law actions. However, environmental litigation is triggered by a rule of law deficit resulting from failure by governments to respect rules or applying the rules sub-optimally. Thus, while an important tool, environmental litigation to enforce the right to a clean and healthy environment is not desirable as a first-line action to enforce the right. States should be urged to honour environmental rule of law as a default position.

There is no debate that humanity needs a clean and healthy environment, to fulfil other components of life. Ecosystem goods and services that enable fulfilment of this right serve a multiple of functions including regulation of the climate. They also support, directly, the livelihoods of many grassroots communities engaged in farming, pastoralism, and other similar economic activities. Thus, the now global effort to enhancing fulfilment of this right is critical but it must enhance accountability by states to demonstrate how, within national contexts, this right and its benefits are being enabled, guided by the principle of subsidiarity that gives the grassroots a priority voice in environmental decision making.


[1] FAO, Mainstreaming ecosystem services and biodiversity into agricultural production and management in East Africa: Technical Guidance Document, FAO and CBD, 4

[2] FAO, Ecosystem Services and Biodiversity. Online: https://www.fao.org/ecosystem-services-biodiversity/background/regulating-services/en/

[3] Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, A/HRC/22/43, para. 34.

[4] Formally, it is knowns as the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean.

[5] David Boyd, The Human Right to a Healthy Environment: Protecting Life on Earth. Online: https://www.pathway2022declaration.org/article/the-human-right-to-a-healthy-environment-protecting-life-on-earth/

[6] David Boyd, Good Practices in Implementing the Right to a Healthy Environment – 2020. See online: http://srenvironment.org/report/good-practices-in-implementing-the-right-to-a-healthy-environment-2020

[7] Patricia Kameri-Mbote, Keynote remarks, Hybrid conference on Environmental Law from Below: Grassroot and Human Rights Perspectives on the Human Environment Agenda (Stockholm+50) Nairobi, Kenya and online, on 27 September 2022.

[8] Patricia Kameri-Mbote, Keynote remarks, Hybrid conference on Environmental Law from Below: Grassroot and Human Rights Perspectives on the Human Environment Agenda (Stockholm+50) Nairobi, Kenya and online, on 27 September 2022.

 

Featured image: Xavier Smet

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