Abstract

Excerpted From: Deepa Badrinarayana, To Have and to Be: an International Human Right to Clean, Healthy, and Sustainable Environment, 48 William and Mary Environmental Law and Policy Review 55 (Fall, 2023) (242 Footnotes) (Full Document)

In July 2022, the United Nations General Assembly passed Resolution 76/300 (“the Resolution”)--affirming a human right to clean, healthy, and sustainable environment (“environmental human rights”). The Resolution essentially affirms a linkage between environmental human rights and “other rights and existing international law,” and “calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices,” to achieve environmental human rights. On its face, the Resolution is impressive. Not only because of its near unanimous passage but also because the Resolution restores a human rights framework to the international response to environmental problems, thereby collapsing the artificial separation between people and their environment and ecology. Nevertheless, the question remains whether the Resolution has any real implications for international environmental law, not only because General Assembly resolutions are per se non-binding, but also given the broader limits of implementing human rights under international law. This Article offers a glass half-full perspective on the Resolution, with the caveat that the glass could rapidly become empty unless the right is internalized into domestic legal systems and international agreements that directly or indirectly impact environmental human rights.

Specifically, this Article asserts that the Resolution is a net positive development for two reasons: 1) the historical importance of contemporary human rights, notably the Universal Declaration of Human Rights (“UDHR”), in framing the normative discourse on international law as a “universal,” rather than “sovereign,” subject matter, and 2) its potential to return international environmental discourse to a human rights-based approach initially taken in the 1970s, which is especially important as environmental problems increasingly impose transboundary environmental harms on established human rights. This Article further proposes that the efficacy of the Resolution rests on the ability of nations to not only fully implement multilateral environmental agreements under the principles of international environmental law, but also to cohesively and systematically review from a lens of human rights the defragmented approach to treaty negotiations that at once promote and negate efforts to meaningfully address environmental problems, as in the case of international trade agreements.

Further, the Article asserts that the efficacy of environmental human rights suffers the same limitation as human rights enforcement in international law and the limits of international governance structures. These limitations can be acutely felt in the case of transboundary environmental harms that impact human rights, because unlike traditional human rights cases, the remedies lie outside the purview of domestic law. Thus, in addition to reviewing the normative compatibility of existing international treaties, this Article further suggests that meaningful next steps should include the creation of systematic governance systems--including judicial mechanisms--to address cases of transboundary environmental human rights wrongs. The Article presents the arguments in three additional parts, including a conclusion.

Part I briefly describes the general status of U.N. General Assembly resolutions, and discusses the background to the Resolution on environmental human rights. It reviews the international law implications of the Resolution, specifically as a soft law instrument that does not create hard binding obligations.

Part II sets out arguments for the potential of the Resolution to have meaningful impact, based on the dual reasons of general human rights history and the specific need to revert to a human rights-based approach to international environmental lawmaking. Regarding the first reason, although there are numerous theories on human rights, from natural rights to contemporary iterations, from an international law perspective, the UDHR provides the normative foundation to create accountability systems aimed at strengthening the rule of law that transcend sovereign prerogatives. While the operationalization of human rights has been fraught with legitimacy concerns, stemming especially from the perceived hypocrisy of developed nations advocating human rights to developing nations, many of whom the former colonized, the importance of human rights as a normative matter nevertheless remains critical to address systemic problems at all levels of governance and government. Further, the language of human rights has been influential in articulating legal wrongs in various contexts and in negotiating formal and informal agreements, be it the treatment of prisoners of war or domestic prisoners. In other words, human rights provide historically important norms and language meant to transcend constructs such as state sovereignty, even state action, particularly when they perpetrate systemic injustice. Contemporary environmental challenges, notably climate change, threaten to unleash large scale and systemic challenges to established human rights like the right to life and property, but the current structure of international environmental law rooted in principles of national sovereignty is falling short on responsiveness. Current environmental problems warrant the more universal norm of human rights that could help formulate a more legitimate and just response to climate change.

The discussion of the second reason focuses on the potential implications of reverting to rights-based environmental norms. The first comprehensive international document on environmental protection, the Stockholm Declaration on the Human Environment (“Stockholm Declaration”), articulated the linkage between human rights and environmental conditions. However, the apparently insurmountable differences between developed and developing nations resulted in the gradual erosion of an environmental human rights norm in exchange for development rights. Beginning with Earth Summit through the Johannesburg Conference, the emphasis shifted from environmental rights to development rights, which replaced the notion of environmental rights with the technical idea of sustainable development. Indeed, in a postcolonial and post-Cold War period the shift seemed inevitable given the economic challenges of many newly independent nations. Economic liberalization took precedence over environmental human rights, with developing nations staking out an equitable right to unregulated and unfettered industrialization. An ad hoc approach to global environmental problems with a keen eye on developmental and sovereign rights became the norm, and efforts toward a comprehensive international environmental regime fell into the background. However, an increase in human rights claims in the domestic context, particularly regarding climate change, which in turn resulted in the Resolution, is a call for reconsidering environmental problems from a human rights perspective.

Part III examines meaningful next steps reviewing international treaties from the lens of environmental human rights norms. Like Dr. Jekyll and Mr. Hyde, international law is inherently flawed. While some of the dominant principles of international law such as state sovereignty are critical to protect human rights and to pursue collective and individual interest, the same principles also obfuscate efforts for accountability. The case of climate change is emerging as a key illustration of this problem. Indeed, the Resolution is a reflection of the growing consensus among nations of the inextricable link between environmental conditions, such as a relatively stable climate, and fundamental human rights that has resulted in the recognition of environmental human rights as a distinct right. Yet, the recognition of an environmental human right no more guarantees appropriate remedy than the recognition of the existence of a global environmental problem. The recognition of an environmental human right is implicitly a recognition of the need to reframe and rethink the normative structures undergirding international environmental law. Efforts in this direction have started modestly with the Paris Agreement.

However, much needs to be done, especially regarding trade agreements that structurally foster resource exploitation even as international environmental and human rights agreements trail behind. For instance, segregating trade and environment for administrative efficiency does not justify a similar fragmented approach for normative purposes. Trading principles and practices that cause direct or indirect transboundary environmental human rights violations should be subject to discipline, preferably of a multilateral nature, but arguably of a unilateral nature as well, where warranted. The Resolution supports such an approach by recognizing a right to safe environmental conditions generally. Hence, not just sustainable development, but environmental human rights should be a basis for decision-making and negotiations in the international context. The rights norm is also as compelling as, if not more than, trade theories supported by market access and comparative advantage, given their inviolability to all human beings due to their universality. The trade regime, however, is one example. Others include the bulk of multilateral and bilateral investment treaties that directly or indirectly catalyze activities that engender environmental human rights violations and require careful review and reconsideration. Similarly, the precept of state sovereignty requires nuanced restructuring that reflects principles of state responsibility to uphold human rights.

Further, the problem of climate change highlights the need for better accountability and redress mechanisms for transboundary environmental human rights harms. As low-lying island and poor, vulnerable nations face tremendous threats to human rights from climate change, there is no clear redress mechanism in place. Ongoing efforts to establish loss and damage mechanisms are important steps forward. However, the governing principles remain ambiguous. Further, while important, traditional legal casting of loss and damage in terms of compensation may prove grossly inadequate. For people who stand to lose their entire nation and all property and other rights associated with it, voluntary and arbitrary monetary compensation would be grossly insufficient. What is needed is a redress mechanism that is driven by the norm of human rights protection. Thus, the need of the hour is to either enforce an injunction on activities affecting transboundary environmental human rights or specific performance terms that would restore conditions towards safeguarding human rights in a transboundary context.

There are, no doubt, immense practical limitations and challenges to ambitious advancements from norm to practice. However, unless even incremental efforts are made to translate the normative ambition of the Resolution into effective action, it is merely one more right acquired by the international community, rather than the instrument of normative change that it resolves to become.

[. . .]

To have rights is important. To be a society that genuinely respects the complex and diffuse set of rights, however, remains elusive. The Resolution presents an important opportunity to shape international environmental law to motivate societies to protect and promote environmental human rights. At least one reason for this situation is the pressing inequality among nations, indeed even within nations, that has prevailed globally for centuries. In the international arena, the history of colonization has left an indelible mark on the legitimacy of international law, indeed the rule of law itself. Like the proverbial tossing of the baby with the bath-water, state engagement with international law remains tenuous with developed and developing countries approaching it from different experiences, ambitions, and viewpoints. Straddling these positions is the U.N. Charter's lofty dream of a world in which “we the peoples of the world, will cooperatively establish peace and security.” Much progress, of course, has been made. However, even as urgent environmental problems such as climate change raise existential problems, we must reckon with the problem of economic inequality among nations that the international legal order has failed to meaningfully engage with. It is equally clear that as the tussle continues among nations, people across the board stand to lose the very rights they have fought hard for over centuries.

With the shift towards unregulated development, the urge to have more material goods has increased dramatically. However, the current sweep of environmental challenges raises the important question of whether such a shift has benefited people at large. While many people globally have witnessed better living circumstances as a result of economic development, the flip side is also equally true. Disparity recognized as a problem in the Rio Declaration, for instance, has impacted people and their ability to enjoy well-established human rights, both in developed and developing nations. The diminution of human rights is not always redressable because of various challenges, including jurisdictional challenges. The Resolution has thrown the gauntlet, challenging us to become a society where the right to clean, healthy, and sustainable environmental conditions will be pursued. That cannot be achieved under the current policy focus. The Resolution holds the promise to shape and change these policies by creating obligations erga omnes that could infuse international law with the normative core of environmental human rights.

Professor of Law, Chapman University Dale E. Fowler School of Law.