Will Ireland Constitutionalise Environmental Human Rights and the Rights of Nature as a Response to the Biodiversity Crisis?

by | Aug 10, 2023

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About Jamie McLoughlin

Jamie McLoughlin graduated from the Oxford BCL degree with distinction in 2018 and is currently carrying out an Irish Research Council funded PhD at University College Dublin’s Sutherland School of Law on the topic of a socio-ecological analysis of the human right to life.

Earlier this year, a Citizens’ Assembly in Ireland tasked with examining biodiversity loss made a number of far-reaching constitutional amendment recommendations. The Assembly’s Report proposed that a referendum be held on extending constitutional protection to a series of environmental human rights and rights of nature. This occurred against a backdrop of mounting evidence of alarming ecological degradation in Ireland, with, for example, more than half of native plant species in decline, many bird and insect species at risk of extinction, and 85% of protected habitats regarded as being in an ‘unfavourable’ condition.

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.

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