In 2012, David Boyd released a book titled “The Environmental Rights Revolution” (UBC Press) in which he argues, “from Argentina to the Philippines, something remarkable is happening … a new human right is blossoming…” But is a new human right blossoming? Can we claim, as Boyd does, that we are in the throes of an environmental rights revolution?
Boyd finds that 147 of the 193 member countries of the United Nations now include explicit references to environmental rights or responsibilities. Section 45 of the Spanish Constitution, for example, states “Everyone has the right to enjoy an environment suitable for the development of the person.” Section 24 of the South African Constitution states, “Everyone has a right to an environment that is not harmful to their health or well-being.” The Honduras constitution provides “The State shall maintain a satisfactory environment for the protection of everyone’s health.” Of the 92 constitutions that include substantive environmental rights, only 22 refer to an ecologically balanced environment. In his analysis of the words used to describe the environment right, Boyd finds a common phrase is “fit or adequate for human development or well-being”.
At the regional level, the African Charter includes in article 24 the right of all peoples to “a generally satisfactory environment favourable to their development.” The San Salvador Protocol to the American Convention includes a right “to live in a healthy environment and to have access to basic public services” in article 11.1. In Europe, the Aarhus Convention stipulates that its objective is “to contribute to the protection of the right of every person … to live in an environment adequate to his or her health and well-being.” The Arab Charter on Human Rights also refers to the right “to a healthy environment”. None of these texts include a right to the environment per se, but all secure a right to health or public services or due process or development in so far as these are impacted by the state of the environment.
What these texts reveal is that while there has been a proliferation of environmental rights provisions in both domestic and regional law, very few of these provisions include a right to the protection of the environment except in so far as it is necessary for securing health or development. Environmental rights, then, are primarily extended or particular rights to health or development. While this is an important and laudable evolution in human rights law, possibly one that is revolutionary, this is not an environmental revolution.
You might be thinking “So what?” After all, a human rights approach to environmental matters is likely one that centers around human needs, and rights to a healthy environment or sustainable development are good for the environment (certainly better than nothing, you might argue) even if environmental goods are obtained obliquely. Where, you might be wondering, is my revolutionary spirit?
The trouble, as I see it, is that we seem to be engaged in a process of limiting the kinds of interests (and rights) we recognise humans as having in the environment. In theory, we recognise the importance of the environment to securing a vast range, if not all, of our legal rights. In the case concerning the Gabčikovo-Nagymaros project, Judge Weeramantry found in his separate opinion, “… damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.” In practice, however, our legally protectable interests in the environment are very few. While the importance of the environment to the realisation of all rights is a sentiment often expressed, courts and administrative decision-makers almost only recognise an environmental interest in the rights to property, due process, health and life. In the case of indigenous groups, courts have also upheld cultural and religious interests in the environment, although these are often converted into property rights. Even Weeramantry, when he got down to it, listed only the right to health, the right to life itself and (somewhat more ambiguously) a right to development as rights impacted by environmental degradation. Environmental rights, that are really rights to health or development, entrench the idea that our relationship to the environment is either one of control or existential dependence.
One of the important impacts of this limited recognition of human interests in the environment is that courts frequently only recognise litigants as having a legal interest in their immediate environment. The limited immediacy of our interests is both spatial (the environment in which our daily lives unfold and occur – our bodies, our homes, neighbourhoods, workplaces, possibly extending to the towns or cities in which we reside) and temporal (we can neither claim interests in historical environmental harms or future ones – our interests are limited to that which is present or imminent). We have common interests in the global environment as a species, but as individuals the law’s recognition of our interests decreases as we walk further and further away from our own front doors. Our environmental interest, on this account, amounts to little more than ‘NIMBYism’.
It is this limited approach that has informed the Human Rights Committee’s decisions in cases like Länsman et al v Finland (1994) where it found that the Sami’s cultural rights are only infringed when the environment is damaged to the point of jeopardizing their survival. It is also this limited approach that informs the European Court of Human Rights judgments in Hatton and Kyrtatos in which the Court effectively limits the Article 8 right (which protects privacy and the home) to a right to the value in our property.
The environmental revolution that we need is one that recognises our substantial, complex and interconnected interests in the environment – interests that extend beyond our immediate environment and beyond our mere survival. Rights to environmental health and development are part of this, but they should not be treated as the full extent of our environmental rights. The environmental revolution is still to come.