WEBINAR: Law at the Intersection of Human Rights and the Environment

Contributed by Maria Antonia Tigre

On April 21, 2020, the Global Network for the Study of Human Rights and the Environment (GNHRE) and the Ecological Law and Governance Association (ELGA) hosted a joint webinar on Law at the Intersection of Human Rights and the Environment. The webinar was the second in a year-long series held by GNHRE (see the first one here).

After an introduction to the speakers and GNHRE, Erin Daly, the Director of GNHRE, opened the floor to the panelists.

John Knox, Former Special Rapporteur on Human Rights and the Environment, UN Office of the High Commissioner on Human Rights (2015-2018), and Henry C. Lauerman Professor of International Law at Wake Forest University, North Carolina (USA), provided a background to human rights and a healthy environment. Noting the two different pathways to human rights and a healthy environment, he reinforced the advantages of a special recognition of a human right to a healthy environment in addition to the movement of “greening” other human rights. The recognition process has been most successful at the domestic level, with over 100 constitutions having adopted the human right to a healthy environment and referring, in one way or another, to specific health of the environment. Additionally, several regional agreements have recognized the human right to a healthy environment. The movement shows widespread adoption of the concept worldwide.

Yet, surprisingly, the United Nations has not recognized the right in a treaty. Instead, the United Nations, as well as other national, regional, and international courts, have moved forward with a “greening” process of other human rights. Following this movement, the Office of the High Commissioner of the United Nations created a mandate to study human rights and a healthy environment. In addition to mapping human rights affected by environmental damage, Prof. Knox, as the first Special Rapporteur, grew increasingly aware of the threats faced by environmental human rights defenders, who strive to protect and promote human rights related to the environment. Prof. Knox issued a series of reports to the United Nations, which culminated in the Framework Principles on Human Rights and the Environment in 2018, which establish obligations that States should take into account in setting standards for the protection of human rights and the environment, especially for vulnerable people.

David Boyd, who is currently the Special Rapporteur on Human Rights and the Environment, UNOHCHR (2018-current), followed in Prof. Knox’s footsteps and spoke on The Substantive Elements of the Right to a Healthy Environment. The two special rapporteurs jointly called on the United Nations to formally recognize the human right to a safe, clean, healthy, and sustainable environment in 2018. A resolution at the Human Rights Council is supposed to be proposed in September 2020 by a coalition of countries, which could then be replicated at the United Nations General Assembly, similarly as has been done with the right to water a decade ago.

Prof. Boyd clarified the three areas in which he is now working as special rapporteur: recognizing the universal right to a healthy environment, accelerating its implementation, and defining its substantive content. He recently published a report on Good practices on the right to a safe, clean, healthy and sustainable environment, which identified the recognition of the right in 156 States and provided a strong basis to push forward on some form of UN recognition of the right (over 80% of UN States). He specifically noted that the majority of non-recognition is from small island states, which may lack the capacity for such recognition rather than oppose it, in addition to major polluting countries such as China, the US, Canada, Australia, New Zealand. In clarifying the substantive content of the right to a healthy environment, Prof. Boyd has identified six core aspects of the right: the right to breathe clean air, a safe climate, clean water and adequate sanitation, healthy ecosystem, non-toxic environments, and healthy and sustainably produced food. Prof. Boyd has already produced reports on clean air and safe climate and will soon release reports on the remaining areas. He explained that he is currently working on the healthy ecosystems report, which primarily focuses on how, through human activities that invade wildlife ecosystems, including deforestation, we are raising the risk of global pandemics such as COVID-19. These reports establish clear and concrete actions that States should follow to adequately protect the right to a healthy environment within these specific contexts. The procedural rights, which were also clarified by Prof. Knox, are relatively uncontroversial at this point, albeit difficult to achieve in practice

Sumudu Atapattu, Director of Research Centers and Senior Lecturer at UW Law School (USA), followed, speaking on Climate Displacement, Refugees and Human Rights. Prof. Atapattu talked about challenges and developments on the links between climate change and human rights, and how rights and justice frameworks can be applied in this area. The New York Declaration for Refugees and Migrants recognizes the links between climate change and displacement. Sea level rise and decreased food supplies put additional pressure on climate migration, in a crisis that is still hard to scale but that we are already seeing the effects of including in the United States. Estimates of climate migration vary between 20-30 million by 2050 and could be as high as 1.5 billion and tens of millions of others may be internally displaced or not be able to move at all due to poverty and other limitations on their mobility.

The legal landscape represents an additional challenge. Climate refugees are currently not recognized in international law, representing a gap in the legal framework, even as a recent decision by the Human Rights Committee acknowledged that international refugee law is applicable in the context of climate change and disaster displacement. Prof. Atapattu called for the recognition of human rights of climate migrants, and their right of entry based on international cooperation and collective responsibility of the international community, the principle of solidarity and dignity rights, among others.

Finally, Dina Lupin Townsend, research consultant and visiting researcher at the University of Witwatersrand, Johannesburg (South Africa), author of Human Dignity and the Adjudication of Environmental Rights (Edward Elgar, June 2020), provided a critical perspective on human rights and the environment. Dr. Townsend talked about a current debate in South Africa on whether the lockdown is a proper response to COVID-19, as it also induces poverty-related diseases and deaths in that specific context. COVID-19 highlights the balance between rights and how rights can be pitched against one another. On the other hand, the responses to the pandemic also emphasize the need to adopt similar approaches to climate change. Environmentalists are calling for some type of environmental lockdown to address climate change, which may be necessary to secure our human right to a healthy environment.

Dr. Townsend contrasted a substantive freedom approach with a justice approach, arguing in favor of the latter. A substantive freedom approach to free speech would mean both a negative liberty and positive right, i.e., consultation processes, securing access to the internet, and increased participation in public processes. A justice approach recognizes that we speak to change the world, even though it is mostly in small ways. For some to be able to speak, others have to be quiet, as some voices are loud and powerful. For example, indigenous peoples need to be able to talk and be heard without being disturbed by powerful industries. A justice approach calls for sometimes reducing the rights of some to increase the rights of others. These should take into consideration historical methods and prior privileges in justice for all approaches.

With near 250 participants, the webinar received a series of questions, which led to further fascinating discussions on the state of human rights and the environment in the current climate. The Q&A was moderated by Maria Antonia Tigre, Director for Latin America at GNHRE. A sample of the questions and excerpts from the panelists’ answers follow:

Q: States take different approaches in recognition of a human right to a healthy environment. Would a universal right be flexible enough to accommodate these pre-existing obligations or set the bar at a more ambitious level? What is the added value of global recognition of the right to a healthy environment if compared to the second pathway of greening existing human rights? Would it have added value when balanced against other State rights such as the right to sovereignty?

Prof. Knox pointed out that the recognition would not override what already exists in national constitutions and laws. Still, it could provide a more substantial content for countries which have yet to recognize it. International recognition would provide a basis for further dissemination. Greening of human rights, as important as that is, does not elevate it to the condition of a fundamental human right. Prof. Boyd added that it validates the right in a way that the patchwork of human rights doesn’t do. Besides, the right to a healthy environment may be more effective in protecting nature than greening human rights does. For example, the recent advisory opinion by the Inter-American Court of Human Rights highlights the rights of nature, including rivers and forests, within a right to a healthy environment (see a recent commentary on a contentious case by the Court recognizing this right here).

Q: How should we assess displacement due to progressive and less quantifiable phenomena or anthropogenic activities, such as deforestation of the Amazon rainforest?

Prof. Atapattu noted that most displacement would be internal, but few countries have the resources to guarantee the rights of displaced people, including the relocation of communities.

As such, using the justice framework would be fairer than using a human rights framework, which would place an unfair burden on countries such as Bangladesh. A practical approach to addressing this situation is needed. Recognizing the legal status of these people would be the first step, whether the displacement is internal or across borders.

Q: View on the rights of nature in the context of environmental justice? Would it be possible to include the rights of nature in the mandate of the special rapporteur?

Prof. Boyd argued that, for the Human Rights Council, the rights of nature would be on the frontier, but there are ways in which these things are compatible. Several countries are talking about the rights of nature as legally enforceable rights and interpreting human rights as including the rights of nature (see recent decisions in Colombia and the Inter-American Court). These decisions show how human rights to the environment and rights of nature are bridging, and how these issues could be harmoniously intertwined.

Q: Can the notion of core obligations used by the Committee of Economic Social and Cultural Rights assist in the exercise of balancing rights and ensuring that the most vulnerable and disadvantaged are prioritized?

Dr. Townsend replied that there is an approach to human rights that is minimalist and focuses on a core number of rights that everyone could enjoy without difficulty. However, these are not enough, and more positive rights should also be added to core rights. Otherwise, we will not get very far in moving forward the environmental rights program.

Q: What does public participation meanwhile we are facing a global pandemic? Have additional good practices emerged among responses to the pandemic, or threats to good practices mentioned?

Prof. Boyd warned that one of the real dangers of COVID-19, including in the United States and Brazil, is the use of the pandemic as an excuse to lower environmental protection or to greenlight destructive behavior. Prof. Knox noted that Brazil is verging on a crime against humanity against indigenous peoples in its treatment of the Amazon rainforest. Protecting human rights generally, including rights to participation and transparency, is imperative right now. The danger of the current pandemic is that it is harder to find out what is happening and take action against it. However, both Special Rapporteurs stressed, the pandemic cannot be an excuse to violate human rights. While technical changes and postponing activities could happen, more significant violations need to be called out.

Prof. Boyd also warned about Canada using COVID-19 as a smokescreen for the rollback of environmental regulations, which is happening in the United States as well. However, the gross environmental injustice that is highlighted by the pandemic is that several communities lack the essential resources to protect themselves. For example, how can a person protect themselves if they don’t have access to soap and clean water? How can those who live in densely populated areas practice physical distancing? There is, hopefully, an opportunity to take advantage of the global pandemic and finally acknowledge what is at the root of this: illegal human activities such as wildlife trade and deforestation are increasing the risk of global pandemics. COVID-19 is not a unique situation so there is a continuing need to address these drivers and take action. Otherwise, we will increase the frequency and severity of these problems in the future.

Q: What do you see as the biggest obstacle for the implementation and enforcement of environmental rights? How to break the trust deficit of some governments and promote local implementation when it doesn’t reflect international narratives?

Prof. Boyd clarified that there are two systematic obstacles to implementation: weak rule of law and inadequate financial resources allocated to environmental protection. Worldwide, there are far greater needs for environmental protection than what governments are investing. These represent the same type of obstacles faced by other human rights. Prof. Knox added an additional challenge: the significant money to be made through the exploitation of natural resources, leading to corruption and efforts to undermine improvements to the rule of law and environmental protection.

Prof. Daly ended the webinar by thanking the panelists and participants and inviting a continued discussion on this subject online.

By Dina Lupin