The Southern Origins of the Right to a Healthy Environment

While the earliest reference to the link between human rights and the environment in an international legal instrument was Principle 1 of the 1972 Stockholm Declaration,Footnote ⁸ the right to a healthy environment achieved widespread recognition in subsequent decades in national legal systems, particularly those of the Global South. More than 150 member states of the United Nations, primarily in the Global South, have incorporated the right to a healthy environment in national constitutions and legislation and ratified regional treaties that recognize this right.Footnote ⁹ Over one thousand specialized environmental courts and tribunals at the national and subnational level currently enforce and interpret this right, such as the National Green Tribunal in India and the Environmental and Land Courts and National Environmental Tribunal in Kenya.Footnote ¹⁰ One explanation for the Global South's embrace of the right to a healthy environment is its disproportionate exposure to environmental and human rights abuses from extractive and polluting industries that benefit Northern states, transnational corporations, and national elites. A second explanation, discussed in more detail below, is the influence on national laws and policies of traditional and Indigenous laws, ethics, and world views that regard humans as an integral part of nature.Footnote ¹¹

Despite the absence of the right to a healthy environment in global human rights treaties, several regional human rights instruments have recognized this right for decades. For example, the African Charter on Human and Peoples’ Rights stipulates that “all peoples shall have the right to a general satisfactory environment favourable to their development.”Footnote ¹² The 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador) provides that “[e]veryone shall have the right to live in a healthy environment.”Footnote ¹³ In addition, the right to a healthy environment appears in the Protocol to the African Charter on the Rights of Women in Africa, adopted by the African Union in 2003,Footnote ¹⁴ the 2004 Arab Charter on Human Rights,Footnote ¹⁵ and the 2012 Human Rights Declaration of the Association of Southeast Asian Nations.Footnote ¹⁶ By contrast, efforts to incorporate the right to a healthy environment in global human rights instruments have until recently faced formidable Northern resistance.Footnote ¹⁷

Interpreting the Right to a Healthy Environment: Lessons from the Global South

National and regional tribunals in the Global South have clarified the meaning of the right to a healthy environment and have addressed many of the objections leveled at human rights-based approaches to environmental protection.Footnote ¹⁸

Indigenous peoples and other marginalized communities have often emphasized the impacts of environmental degradation on collective human rights (such as cultural integrity and self-determination) and on future generations. Critics of human rights-based approaches to environmental protection have argued that international human rights law's emphasis on individual rights may be at odds with these communitarian and intergenerational notions of justice. However, the jurisprudence of the African and Inter-American human rights systems has consistently protected collective human rights, particularly the rights of Indigenous and tribal peoples to their lands and territories, and has recognized the rights of future generations.Footnote ¹⁹

For example, in Social and Economic Rights Action Centre (SERAC) v. Nigeria, the African Commission on Human and Peoples’ Rights concluded that the exploitation of oil resources in the Niger Delta violated the collective rights of the Ogoni people to a healthy environment.Footnote ²⁰ The recognition that human beings are not isolated, autonomous individuals but social beings deeply connected to their communities and integrated into their natural environments is one of the unique contributions of the African Charter to the evolving corpus of human rights law. This is evidenced by its framing of the right to a satisfactory environment as the right of peoples.Footnote ²¹ Similarly, in Lhaka Honhat Association v. Argentina, the Inter-American Court of Human Rights (IACtHR) concluded that Argentina violated Indigenous groups’ collective rights, including the right to a healthy environment, by allowing the encroachment of private parties on Indigenous communal lands though livestock farming, installation of fences, and illegal logging.Footnote ²² Finally, the IACtHR's 2017 advisory opinion on the environment and human rights emphasized the vulnerability of various social groups to environmental damage, including “indigenous peoples, children, people living in extreme poverty, minorities, and people with disabilities,” and the obligation of states to protect these groups “based on the principle of equality and non-discrimination.”Footnote ²³ It also recognized that the right to a healthy environment “has both individual and also collective connotations,” including the rights of future generations.Footnote ²⁴

A second critique of human rights-based approaches to environmental protection is that they are inherently anthropocentric and may therefore reinforce the separation between humans and nature derived from Western philosophy that promotes the reckless exploitation of nature. However, Indigenous epistemologies at odds with extractive models of development have been integrated, at least in part, into national law, such as the recognition of the legal personality of nature in Bolivia, Ecuador, Colombia, and New Zealand.Footnote ²⁵ Applying these innovations to the American Convention on Human Rights, the IACtHR's 2017 advisory opinion explained that the right to a healthy environment “protects the components of the environment . . . not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights, such as health, life, or personal integrity, but because of their importance to the other living organisms with which we share the planet that also merit protection in their own right.”Footnote ²⁶ This breathtakingly non-anthropocentric interpretation of the right to healthy environment bodes well for the legal protection of human and non-human life. Scholars have argued that principles of African environmental ethics, such as the South African concept of ubuntu, have likewise influenced interpretations of the African Charter.Footnote ²⁷

A third critique of human rights-based approaches to environmental protection is that human rights law fails to hold powerful Northern states accountable for the transboundary or extraterritorial harms that result from their activities, such as loss and damage caused by climate change. While the Committee on Economic Social and Cultural Rights has interpreted the International Covenant on Economic, Social, and Cultural Rights to impose obligations on states to refrain from violating the rights to food, water, and health in other states,Footnote ²⁸ most human rights treaties impose obligations only toward persons in the territory of a state or subject to the state's jurisdiction. However, international tribunals are increasingly construing “jurisdiction” broadly. For example, in its 2017 advisory opinion, the IACtHR concluded that a state has jurisdiction over persons outside its territory whose rights are violated by activities over which such state exercises effective control.Footnote ²⁹

In other words, the IACtHR has apparently recognized what John Knox calls diagonal human rights—rights held by individuals against foreign governments for the transboundary consequences of activities under their effective control.Footnote ³⁰ This interpretation of jurisdiction has significant implications for climate litigation in the Inter-American system, and may influence and embolden the International Court of Justice as it prepares a response to the UN General Assembly's request for an advisory opinion on the obligations of states with respect to climate change.Footnote ³¹

A fourth critique of human rights-based approaches to environmental protection is that they are reactive rather than preventive—that they come into play after the harm has occurred and do not encourage a forward-looking approach to environmental protection. The African and Inter-American human rights tribunals have responded to this concern by interpreting the right to a healthy environment to include the duty to prevent significant environmental harm. For example, in SERAC v. Nigeria, the African Commission explained that Article 24 of the African Charter requires states to exercise due diligence to prevent pollution and ecological degradation through various means, including “permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities.”Footnote ³² Similarly, the IACtHR's 2017 advisory opinion emphasized the duty of states to exercise due diligence to prevent significant damage to the environment within and outside their territories, and enumerated steps that states might take to fulfill that duty, including regulating and monitoring the activities of public and private entities, requiring environmental impact assessments, preparing contingency plans to respond to environmental emergencies and disasters, and mitigating environmental damage.Footnote ³³

A final critique of human rights-based approaches to environmental protection is that they may perpetuate the silos in international law that relegate human rights and the environment to tribunals with “soft” enforcement mechanisms and fail to challenge the economic law instruments with “hard” enforcement mechanisms. The environmental jurisprudence of Africa's international courts offers valuable lessons on how economic tribunals might interpret the law in holistic ways that overcome this fragmentation. Although the East African Court of Justice, the Court of Justice of the Economic Community of West African States, and the Southern African Community Development Tribunal were initially designed to interpret trade agreements without explicit jurisdiction over human rights and environmental matters, these tribunals have by statute or judicial interpretation asserted jurisdiction over significant human rights and environmental cases.Footnote ³⁴ For example, in Africa Network for Animal Welfare v. Attorney General of the United Republic of Tanzania, the East African Court of Justice prohibited the government of Tanzania from constructing a road through the Serengeti National Park.Footnote ³⁵ In Socio-Economic Rights and Accountability Project v. Nigeria, the Court of Justice of the Economic Community of West African States concluded that the government of Nigeria had violated the right to a healthy environment under Article 24 of the African Charter through its failure to protect human rights and the environment in the Niger Delta, and required the state to provide reparations to the victims of these collective human rights violations in the form of environmental restoration.Footnote ³⁶ By “seeing the environment as an integral part of the international legal framework rather than treating the environment as a specialized or self-contained regime disconnected from the rest of international law,”Footnote ³⁷ these African tribunals are modeling the jurisprudential flexibility necessary to break down the silos of international law and enforce the right to a healthy environment.