The Irish Government has since referred the Citizens’ Assembly’s Report to an Oireachtas (parliamentary) committee for consideration. This route, from Citizens’ Assembly to parliamentary committee, is the same route that was taken by the ultimately successful proposal to repeal by referendum Ireland’s restrictive constitutional ban on abortion in 2018.

The Citizens’ Assembly’s rationale for a constitutional response to the biodiversity crisis was that it would help to ensure that nature is sufficiently protected to enable it to continue to supply – both now and in the future – the vital eco-system services which provide the food, water, air, and climate upon which people depend for survival. As such, the Assembly has recommended that a number of substantive and procedural environmental human rights and rights of nature be included in the Irish Constitution (Bunreacht na hÉireann).

In terms of human rights: rights to a healthy environment, a stable climate, access to information on the environment, public participation in environmental decision making, and access to justice in environmental matters, have all been proposed. The Report also recommended that the rights to a healthy environment and a stable climate be ascribed to future (as well as present) generations. On the rights of nature, the Citizens’ Assembly has said that nature should be regarded as a holder of legal rights in a manner similar to companies, and that its rights should include: the right to exist, to flourish and perpetuate, to be restored if degraded, not to be polluted or harmed, and to be a party in litigation and administrative decision-making where its rights are (likely to be) impacted.

As it stands, the Irish Constitution does not contain any express environmental human rights, let alone rights of nature, and the Supreme Court has previously rejected arguments that the Constitution protects a derived right to a healthy environment (overruling a decision of the High Court to this effect). Thus, if the constitutional amendments proposed by the Citizens’ Assembly are put to a referendum and approved by the people, it would represent a major change for the Irish Constitution, which is primarily a charter of civil and political rights.

Furthermore, express constitutional environmental rights and rights of nature could prove to be powerful tools for citizens seeking to rely on the courts to hold the State to account for its (lack of) response to the climate and biodiversity emergencies. Indeed, litigants have already enjoyed some success in ‘Climate Case Ireland’, in which the Supreme Court quashed an insufficiently detailed greenhouse gas emissions reduction plan – albeit on administrative, rather than constitutional law, grounds. If armed with the arsenal of rights suggested by the Assembly, litigants could achieve a great deal more success as the courts would likely be emboldened by the democratic imprimatur such rights would have following their adoption via referendum.

However, there is as of yet no guarantee from the Government that a referendum will be held on the constitutional amendment recommendations of the Citizens’ Assembly. In 2014, a similarly radical recommendation to enshrine justiciable social and economic rights in the Irish Constitution made by another deliberative citizens’ forum – the ‘Convention on the Constitution’ – was not acted upon by the Government. There is also opposition to the current proposals from powerful lobby groups, such as the Irish Farmers’ Association which is concerned about possible impacts on farmers’ property rights. It therefore remains to be seen whether the ecological vision of a greener Irish Constitution, articulated by the Citizens’ Assembly on Biodiversity Loss, will come to be realised.

Want to learn more?

• Read: Ecocentrism and the Right to a Healthy Environment: To What Extent Can Human Rights Protect Non-Human Life?
• 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

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

Several indigenous populations have been inhabiting India’s forests for generations. Their ways of life are intertwined with the forest ecosystems and some of them depend almost exclusively on forest resources for subsistence. The Forest Rights Act, 2006 (FRA) recognises the traditional rights of Scheduled Tribes (ST) and Other Traditional Forest Dwellers (OTFD) over the forests they inhabit. The FRA incorporates a participatory forest conservation model, recognising forest dwellers as important stakeholders.

Before allowing any use of forest land for non-forest purposes, State Governments have to obtain permission from the Central Government, according to Section 2 of the FCA. To make the latter consistent with the FRA, a set of rules had made it mandatory – in the process of seeking clearances – to obtain consent from the Gram Sabhas (village assemblies) of villages falling within the land to be utilised. However, changes to the rules in 2022 dispensed with this requirement. The Amendment Bill further relaxes the protections by changing the very definition of forest land. In its Godavarman judgment, the Indian Supreme Court had stated that the word ‘forest’ had to be understood in terms of its dictionary meaning, which meant that the FCA had to apply, as well as to notified forests, to all lands recorded as forests by the government, irrespective of ownership. The Amendment Bill, however, limits the application of the FCA to notified forests and only to those lands which have been recorded as forests on or after 25 October 1980, thereby excluding a significant proportion of forests recorded earlier than the cut-off date. This alteration will enable developers seeking to exploit forest land falling outside of this narrow definition, to bypass the clearance process entirely, leaving forest dwellers in the lurch.

Further, the Amendment Bill specifies a list of land categories as exceptions to the definition of ‘forest’. These include forest land situated within a distance of 100 km along international borders and land meant to be used for construction of “security related infrastructure” or “defence related projects”. These vague terms have excessively wide purviews, and can easily be used as excuses by the government to clear forests and evict their inhabitants. Border-adjoining forested areas in the North Eastern states, which are home to numerous tribes, are rendered particularly vulnerable.

Another important change put forth by the Amendment Bill concerns the list of exceptions to activities covered under ‘non-forest purpose’ in the Explanation to Section 2 of the FCA. The addition of silvicultural (forest management) operations to the list is intended to promote reafforestation efforts in forest areas. The FCA originally mandated that compensatory afforestation, to be carried out by developers intending to divert forest land, had to be carried out on non-forest or degraded forest land of at least equal area. The Amendment Bill, however following in the footsteps of the 2022 rules, will now pave the way for such afforestation on forest land too. This raises fears of monocultural plantations replacing old-growth forest ecosystems, on whose produce forest dwelling communities have traditionally depended. India’s compensatory afforestation campaign was already controversial owing to FRA violations and procedural irregularities in multiple states. The new regime will further worsen the situation.

Other exemptions provided by the Amendment Bill include the establishment of zoos, safaris and eco-tourism facilities. Aside from the fallacy of considering such activities as being relevant to forest conservation, these provisions signify the government’s readiness to prioritise business interests over forest rights. Lastly, the Amendment Bill also grants an undue degree of discretion to the Central Government by empowering it to specify any “like purpose” as an exception. In Orissa Mining Corporation v. Ministry of Environment and Forest, the Supreme Court had acknowledged communitarian participation as an indispensable element of forest conservation. It had also observed that the right to life of forest dwelling communities depended on their right to forests. Through its disregard for the interests of forest dwelling communities, the Amendment Bill militates against these principles.

Want to learn more?

Read: Eviction of forest-dwellers in Jammu and Kashmir: Procedural haemorrhage and rights violation

Read: The Dilution of Environment Impact Assessment Norms in India

Listen: When Human Rights Are Not Enough: Defending the Rights of Nature (with Mari Margil)

Listen: Seeking Environmental Justice: Coal, Campaigns and Climate Change (with Nick Stump)

Context

The capital city of Zambia’s Central Province, Kabwe, was founded in 1902 after lead and zinc deposits were “discovered” by white settlers. Kabwe is a shortening of Kabwe-ka Mukuba, which translates to “stone of ore or the place of smelting”.

The Kabwe lead mine has changed hands over its history. A colonial British company opened the lead mine in 1904, then Anglo American, a British multinational, ran it from 1925 for nearly fifty years, after which it was nationalised by the Zambian government. In 1994 the mine was decommissioned, and its assets were sold to private investors. The rehabilitation process to deal with lead poisoning in Kabwe has been stagnant.

Pollution experts have sadly described Kabwe as “the world’s most toxic town”. Lead pollution from Kabwe mine has severely poisoned the surrounding environment and many of its people. A 2019 Human Rights Watch report notes, “more than six million tons of mining waste are out in the open” and blowing dust spreads this waste to surrounding residential areas.

Legal arguments

This recent history can be analysed through the prism of Principle 2 of the Stockholm Declaration: the environment “must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.”

Principle 6 of the Stockholm Declaration further directs that the “discharge of toxic substances or other substances as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems.”

We argue, in accordance with the Stockholm principles, that the Zambian government is required to protect the environment, and should ask the polluter to clean the environment. Recent comparative authority of this principle being invoked comes from KM & 9 others v Attorney General & 7 others, in which Kenya’s Environment and Land Court ruled that inhabitants of Owino-Uhuru village should have their environment cleaned up.

The International Covenant of Economic, Social and Cultural Rights, to which Zambia is a signatory, both offers for the “healthy development of the child” and the “improvement of all aspects of the environment and industrial hygiene”. In the influential Ogoni case, these international rights were mentioned in the same breath as regional rights to enjoy the best attainable state of physical and mental health, and to a general satisfactory environment favourable to development, found in article 16 of the African Charter.

Zambian law too provides for “the right to a clean, safe and healthy environment” in section 4 of the Environment Management Act, 2011. It could be argued, therefore, that the state’s failure to clean up Kabwe mine brings to light the frailties of the Mines and Mineral Development Act 2015 in regards to closure and environmental liability.

The preceding has adopted a state-centric approach. However, in the light of inaction by government, other avenues might provide more immediate redress. A private law claim, based on toxic tort grounds, has very recently been filed against Anglo-American’s South African subsidiary in Johannesburg. Anglo American’s human rights policy states: “Where we have caused or contributed to adverse human rights impacts we will contribute to their remediation as appropriate.” The case will undoubtedly be one to watch.

Conclusion

Vedanta illustrates effective collaboration between British and Zambian lawyers in opening the door to greater international accountability for multinationals operating on the Copperbelt. Concerned citizens should take strength from this case. If black lives really matter, should not states and multinationals, which have operated or currently operate in Kabwe, think more closely about their historic responsibilities? Black History Month is an apposite time to reflect.

The Irish 2015 Climate Action and Low Carbon Development Act (‘2015 Act’) obliges the government to adopt a climate mitigation plan to pursue and achieve the objective of transitioning to a low-carbon climate-resilient and environmental sustainable economy by 2050 (this is the national transition objective, ‘NTO’). The organization Friends of the Irish Environment(‘FIE’) argued that the plan adopted in 2017 (‘Plan’) did not meet the requirements of the 2015 Act. The organisation further contended that the Plan failed to adequately vindicate the fundamental right to life, the right to bodily integrity and the right to an environment consistent with human dignity, which are said to be guaranteed explicitly (the first two rights) and implicitly (the third right) under the Irish Constitution and the ECHR. As can be expected in climate change legislation, the government in turn raised issues on the principle of separation of powers, procedural standing and the extent of (implicit) human rights.

The Supreme Court quashed the Plan because of a lack of legality and not the breach of fundamental rights. The 2015 Act requires the Plan to specify the proposed manner to achieve the NTO and elaborate on the necessary policy measures. The purpose of that requirement is transparency. The plan should allow any reasonable and interested member of the public to assess its effectiveness and appropriateness. It may legitimately be less detailed in the years closer to 2050 than in the short term, yet a reasonable level of detail throughout must nevertheless be achieved. The Court held that the Plan fell a long way short of that requirement as it left too much to further study.

An annulment, thus, was in line with the separation of powers. When the law requires a government plan to be formulated in a certain way, the question of compliance with legislation is a matter of law, not policy.

The legality test itself sufficed for annulment. Nevertheless, the Court, briefly, addressed the rights-based arguments, as Chief Justice J. Clarke acknowledged that issues of standing and human rights could well arise in any future challenge to a new plan. The Court concluded that FIE, as a corporate entity that does not itself enjoy the right to life or to bodily integrity, did not have standing to maintain the rights-based arguments. Furthermore, no standing needed to be allowed as refusing standing would not make the enforcement of important rights impossible or excessively difficult for the persons supporting the organization. The Court did not rule out that fundamental rights and obligations could play a role in climate change litigation, but postponed a ruling on the matter to an ‘appropriate’ case (i.e. brought by a natural person). However, the Court also considered that a right to a healthy environment is either superfluous, if it does not exceed the rights to life and physical integrity, or excessively vague and ill-defined, if it does have an independent meaning. For this reason, the Court ruled out that such a right could be derived from the Constitution. Thus, the success of future similar Irish cases will depend on the chosen rights (right to life or physical integrity, not to a healthy environment) and the capacity of the claimants (natural persons, not legal entities).

Both the Dutch Urgenda-ruling and this Irish case highlight the fact that there exists no ECtHR ruling (yet) on the application of the ECHR to the problem of climate change. Although the Irish Supreme Court did not elaborate further on this issue, the importance of such a ruling is clear. It is apparent that not every court is equally willing to take the lead itself in the absence thereof, as the Supreme Council did in its Urgenda-ruling. Such an ECtHR ruling could delineate the right to a healthy environment, which would remedy the unacceptable vagueness, s raised by the Irish Supreme Court.