As the world increasingly grapples with numerous environmental problems, so are the demands for the legal recognition of a human right to a healthy environment. Among the initial policy deliberations to this effect was the Ksentini Report which examined various international human rights instruments, legislation and practices on the environment across the world. The report noted that international environmental regulation has gained global recognition which has enabled the shift from environmental law to the right to a healthy and decent environment. The report further contains a Draft Declaration on Human Rights and the Environment which, in greater detail, attempts to comprehensively frame the right to a healthy environment.
Although the idea of a globally recognized and legally binding right to a healthy environment remains contentious, it is welcome because it will, according to some scholars, provide “new tools for civil society to hold governments accountable for ensuring access to the right”. The United Nations (UN) Special Rapporteur on Human Rights and the Environment suggests that this development will be crucial to “promote the nexus between human rights and environmental protection”. Nevertheless, some impediments exist, which, if not addressed, might make this process arduous.
The first hindrance relates to harmonising the dual ideological perceptions of the environment, namely; anthropocentrism — valuing nature because of material or physical benefits it can provide for humans and ecocentrism — valuing nature for its own sake. By professing that all the natural resources of the earth are “to be safeguarded for the benefit of present and future generations…”, the Stockholm Declaration asserted the notion that human benefit is the primary reason for respecting the environment; a view that Rodriguez categorised as the “right to environment”. Conversely, the eco-centric approach, aptly characterised as the “right of environment”, is according to the same author premised on the notion that “the environment possesses rights derived from its own intrinsic value, separate and distinct from human use of the environment.” This school of thought resonates with Keller’s deep ecology worldview which emphasizes “the values that inhere objectively in nature independently of human wants, needs or desires.” Synchronising these seemingly incompatible outlooks is a foreseeable obstacle that will need to be resolved as efforts to recognize a legal right to a healthy environment take shape. Scholars like Kiss and Shelton recognize that whereas human existence is intrinsically anthropocentric, humans are “an interlinked and interdependent” part of the natural world. This calls for the crafting of a right which incorporates both the anthropocentric and eco-centric concerns. Accordingly, Rodriguez roots for the construction of an “expansive right environment” which connects anthropocentric human rights with the rights of the environment. How this plays out in the framing and ultimate recognition a right to healthy environment remains an area of interest. Will humans suppress their inherent survival instinct and design a right that is subject to the right of nature? Who will speak for nature? Whereas it can be argued that the human survival instinct would be best served by recognising that humans depend on the viability of the natural world, these are some of the questions that will surround this process and if they are not addressed, the legal recognition of the right to a healthy environment will remain contested.
For any right to be enforceable, it’s crucial that it is articulated with sufficient specificity to enable grant of appropriate remedies. It has been noted that the right to a healthy environment is difficult to litigate and enforce partly because of its multidimensional content and difficulty with definition. The right is itself vague and described using different formulations including; a general satisfactory environment, an environment of a quality that permits a life of dignity and well-being, a healthy environment, and a balanced environment. Other references include pure and decent environment, adequate environment, safe and clean environment, et cetera. This is problematic because each formulation can attract various interpretations which leaves the precise scope and content of the proposed right unclear. The vagueness is exacerbated by that fact that there is no specific legally-binding treaty provision for the right which in itself demonstrates a failure to build a global consensus on the link between human rights and the environment. Apple argues that a poorly defined right can result in “judicial confusion” and misconceptions as to its parameters which will consequently stifle attempts to enforce it. The attendant difficulty in litigating such an obscure right means it is difficult to establish justiciable standards and this suffocates the development of its jurisprudence. It is however note-worthy that currently, most environmental-based legal claims have been enforced using for example, civil and political rights. In one case, the applicant relied on the “right to respect for the home and private life” to compel the authorities to address the health risks posed by an unlicensed waste plant established in the community which was releasing gas and unpleasant smells. Whereas this is expedient, it is insufficient and does not discount the need for a clear and enforceable right. Until the scope, content and terminology of this right is clarified, it remains mysterious and this will frustrate efforts for its legal recognition at the global level.
It is also critical that the right to a healthy environment needs to be anchored within the existing global human rights which have a range of established principles. One of such principles is universality which simply means that human rights must be the same everywhere and for everyone. Be that as it may, universality poses a challenge to the efforts for the global legal acknowledgment of the right to a healthy environment because of varied contexts across the world. This could explain why over the years, the legal recognition of environment matters has progressed more at the national and regional levels. Ordinarily, unlike the universal approach, the national and regional method enables a context specific understanding and application of the right. The different regional and State frameworks can also be a rich source of content for framing an international right in this regard. However, it could equally stifle attempts at getting a global compromise. The various conceptions and varied relations to human rights on the environment are hard to codify in a legal definition. Additionally, the geographical jurisdiction of this approach is limited to only a specific country or region, yet most environmental issues like climate change and ozone depletion cross borders. To this end, the approach becomes an obstacle because it denies the right the much-needed worldwide appeal which obstructs the on-going efforts of legally recognising it internationally.
Another hindrance could be is what I can describe as the rights fatigue. The post-World War II era thrust human rights to the fore of the global agenda leading to the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. However, experience shows that it has been generally challenging to gain consensus on human rights globally. The UDHR process was marred with ideological rifts on prioritization of civil and political rights, and economic, social and cultural rights which led to two separate Covenants; the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966 to cater for the opposing interests. McClymonds notes that even the Stockholm Declaration had pockets of resistance on the principles contained therein and some members like the Soviet Union and other Eastern European nations were absent. Because of reasons like State sovereignty, building consensus globally is a tough task and similar issues will arise on environmental rights. For example, how will the highly industrialized developed countries, who contribute to high carbon emissions view the right to a healthy environment? What of the least developed countries whose communities rely heavily on nature for their survival? Such “selfish” interests will arise and need to be addressed if this recognition is to be achieved.
Additionally, even with established rights, several unresolved issues persist. For example, Bratspies observes that there is still a glaring discrepancy in the realisation of existing human rights as articulated in various instruments. Basically, the full attainment of the various civil, political, economic, social and cultural rights that have existed for over seven decades is still far-fetched. This raises concerns as to whether it is necessary to generate a new human right. It is also prudent to examine if the global community has appetite to add another right to the existing batch. If it is low, then this will be an obstacle the advocates for the right to a healthy environment will have to contend with.
Lastly, the proponents of this move will also have to deal with the fact that as an area of law, environmental law is still relatively new. It is has minimal roots in most jurisdictions or legal systems; its norms are still developing and any attempts at premature codification could frustrate its additional growth. Whereas Coyle and Morrow trace the idea the idea of environmental rights to their roots in the political philosophy of the seventeenth century, the simple fact that various descriptions are used in the contemporary world to define the right is a classic example that attests to the immaturity of the right. Fundamentally, this means that while it is important to legally recognize this right globally, it should not be rushed. Instead, it is crucial to leave most of its norms to evolve and organically grow with time. The hastened codification efforts will be obstructed by the lack of elaborate content on the right which will strain the on-going efforts to legally recognize the right worldwide.
Demonstrably, the contemporary world is bedevilled with a host of environmental issues including pollution, climate change and degradation all of which necessitate an overarching enforceable right. However, the process is going to be riddled with complications ranging from varied ideological perceptions and fatigue to vagueness and other problems that even existing rights still face. This does not imply that the process will fail. These obstacles are the birth pangs that the advocates will have to manage before they can deliver a legally and universally recognized right to a healthy environment.