In 2022, the United Nations General Assembly recognized the human right to a ‘clean, healthy, and sustainable environment’. Before the General Assembly resolution expressly recognized this right, other sources of law already obligated nearly all states to protect it. Thus, in determining what the right to a healthy environment (R2HE) entails within international human rights law, national and regional law is a useful source of guidance.
Across jurisdictions, a handful of principles have come to define the R2HE. These principles include the environmental minimum, sustainable development, and intergenerational equity. The environmental minimum obligates duty-bearers to guarantee a base level of environmental protection. Sustainable development requires the harmonization of ‘economic growth, social inclusion and environmental protection’. Intergenerational equity means that the current generation’s actions cannot compromise future generations’ ability to benefit from the environment.
While these principles have helped expand the scope of environmental legal protection in some respects, they have served as a limiting factor in others. Consider, for instance, a fourth principle that recurs in R2HE jurisprudence: ecocentrism. As explained by the Supreme Court of Colombia, this concept is rooted in the recognition that the environment and the life forms that comprise it have meaning in and of themselves. Accordingly, in some jurisdictions, the R2HE requires environmental protection beyond the extent to which it is necessary for humans.
There is a tension between the ecocentrist reading of the R2HE and the aforementioned three principles. For one, courts read the environmental minimum solely in reference to the satisfaction of another human right, such as human life, well-being or dignity. Similarly, interpretations of intergenerational equity tend to focus on the well-being of future human generations. For instance, in Waweru v Republic, the High Court of Kenya explained intergenerational equity as the notion that natural resources must be “maintained or enhanced for the benefit of future generations” (emphasis added). These anthropocentric understandings undercut the notion that the environment is intrinsically important.
Sustainable development likewise stands at odds with ecocentrism. Not only does it suffer from rhetorical shortcomings like the other principles, but the idea of sustainable development may very well be an oxymoron that only serves to conceal problematic economic practices. Leonardo Figueroa Helland writes, for example, that ‘the dominant environmental governance approach is the neoliberal “green economy” that reinscribes the power of market-based, state-centric, and technoscientific actors, institutions, and paradigms to solve the crises that they themselves created’. By justifying the green economy, sustainable development permits the continued sacrifice of the environment for the pursuit of material wealth. Therefore, this principle also undermines ecocentrism.
Admittedly, the practicability of having human rights law accommodate a purely ecocentric perspective is unclear, which might explain these deficiencies. As a legal regime that is, by definition, centred on the rights of humans, it may be difficult for human rights law to act as a tool for holistically protecting the environment. Nor is a full embrace of environmental principles by human rights law necessary: other bodies of law, such as domestic and international environmental law, can perhaps more comprehensively address the rights of nature. Nevertheless, the current scope of environmental protection provided by human rights law appears too narrow to adequately safeguard even human interests, partly because it affirms the view of human life as superior to non-human life.
As a result, the recognition of the international R2HE should be seen as an opportunity to refine its contours. To move towards an ecocentric perspective, interpreters could begin by challenging the anthropocentric rhetoric that has, up until now, determined the content of human rights law. For instance, stakeholders could expand the scope of the environmental minimum and intergenerational equity principle to require protection that is not solely defined with reference to human beings. To do this, they could heed the example of the Inter-American Court of Human Rights, which sees the R2HE as protecting nature, even when there is no evidence that such protection is necessary to avoid harm to humans. Alternatively, authorities determining the threshold guaranteed by the environmental minimum could increase the level of protection offered by looking past human survival to other needs, such as indigenous peoples’ cultural, spiritual and social rights. The principle of sustainable development could similarly shift to reflect a higher degree of ecocentrism. For example, it could recognize the impracticality of maintaining current levels of economic growth while defending the environment and, instead, champion a societal model centred away from endless production and consumption. These suggestions demonstrate how the R2HE could better protect nature if ecocentrism were to become a guiding principle for interpreting the right to a healthy environment internationally.
Want to learn more?
- Read: The UK Bill of Rights: Changes to Human Rights Protection may Impact Climate Change Litigation
- Read: What’s next in Climate Litigation before the European Court of Human Rights: Duarte Agostinho and Others v Portugal and 32 other States
- Read: The Paris Agreement as a Human Rights Treaty: PSB et al. v Brazil
- Read: Another ‘Green Reading’ of Article 8 of the ECHR in Pavolv & Ors v Russia
- Read: Appraising the Limitations of Linking Climate Reparations to Human Rights
- Listen: Christina Voigt on ecocide