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The human right that benefits nature

The history behind one of Costa Rica’s most important environmental commitments reads something like a legal fairytale. It started nearly 30 years ago, with a young boy who wanted to stop the pollution in his neighborhood and ended with a constitutional reform. The impacts of the boy’s efforts are still causing ripples to the present day.

It began in 1992, by a stream weaving through a small town near the capital, San José. Without a proper waste management system, locals would throw their garbage into the stream, causing waste to pile up at its banks. Frustrated about the situation, then 10-year-old Carlos Roberto Mejía Chacón, with help from his family, filed an appeal with Costa Rica’s constitutional chamber against the local municipality. Allowing the river to be used as a garbage dump, he argued, violated the human right to life, which requires adequate living conditions and protected, clean waterways.

The chamber sided with Chacón a year later and ordered the municipality to clear up the garbage and start managing residents’ waste properly. But it also came to a much deeper recognition. A clean and healthy environment is a very basis of human life, as are balanced ecosystems, biodiversity, and other elements of nature on which people depend, the judges reasoned. Just like food, work, housing and education, an all-round healthy environment should be considered a human right.

In a worsening global environmental crisis, some legal scholars have argued that the right to a healthy environment acts as a crucial legal pathway to protect the natural world

This remarkable conclusion not only set a new legal standard for courts around the country, but also spurred the decision to carve the human right to a healthy environment into Costa Rica’s legal DNA during a constitutional reform in 1994, recalls lawyer Patricia Madrigal Cordero, who was involved in the legislative process at the time. Since then, the constitutional right has helped guide many of Costa Rica’s widely praised – although far from perfect – environmental policies and reverberated through the country’s landscape and culture. «I think Costa Rica would be different if we didn’t establish that relationship between human rights and the environment,» Cordero says. 

The human right to a healthy environment – encompassing clean and balanced ecosystems, rich biodiversity and a stable climate – recognises that nature is a keystone of a dignified human existence, in line with a wealth of scientific evidence linking human welfare and the natural worldPeople depend on thriving ecosystems that clean water and airyield seafood and pollinators, and soak up greenhouse gases. Recognising this link legally can greatly strengthen human rights.

But equally important, Cordero notes, is that the right provides a powerful basis to protect nature itself. In a worsening global environmental crisis, some legal scholars have argued that the right to a healthy environment acts as a crucial legal pathway to protecting the natural world, both by encouraging governments to pass stronger environmental laws and allowing courts to hold violators accountable. Especially when installed into constitutions, such rights are taken seriously by many judicial systems and become hard to undo, creating an enduring force counteracting the interests against protecting nature.  

The right has created a powerful bulwark against a rising tide of environmental destruction in many countries, such as Costa Rica, Colombia and South Africa

But although there is clear scientific consensus on the benefits of nature to people, the evolution of nature as a human right has been remarkably patchy around the world. Today, many Latin American countries forging ahead while Europe and North America lag somewhat behind.

Since the right’s first mention in the Stockholm Declaration in 1972 – a result of the first major environmental conference – some 110 countries have constitutionally recognised it. While its impact varies across the globe, it has created a powerful bulwark against a rising tide of environmental destruction in many countries, such as Costa Rica, Colombia and South Africa, as more nations look set to follow suit soon.

Of course, recognising the right «is not a magic wand we can use to solve all of our challenges», says environmental lawyer David Boyd, who is appointed as a special rapporteur on human rights and the environment at the United Nations. «It’s a catalyst for better actions.»

Indeed, some of Boyd’s research has found that countries with the right to a healthy environment – or other environmental mandates – in their constitutions tend to have stronger environmental policies in general. They’re also more likely to score better on metrics of sustainable development, according to studies by economist Chris Jeffords of Indiana University of Pennsylvania. That said, Jeffords cautions that it’s tricky to parse out cause and effect – are the rights themselves are leading to these benefits, or are environmentally progressive countries simply more likely to adopt such rights?

A large number of countries in Latin America have adopted the right, whereas countries in Europe and North America have been slower (Credit: Getty Images)

In Costa Rica, the answer seems to be a bit of both. Although a programme of environmental policies and legislation began long before 1994 in the country, environmental protections have grown more robust since the constitutional right was formally introduced, says Cordero, who served as vice minister of Costa Rica’s environment and energy ministry from 2014 to 2018. In addition to sourcing 98% of its energy from renewable sources, Costa Rica has protected a quarter of its land as national parks or reserves and reforested vast swaths of once-degraded land.

Over the years, the country’s constitutional chamber has heard hundreds of cases involving the right, often finding violations, Cordero says. It has ruled that killing endangered green sea turtles is unconstitutional, as well as felling the mountain almond tree, which is used by the critically endangered great green macaw – effectively outlawing both practices. The country’s moratoria on oil exploration and open-pit mining also trace back to lawsuits over the right to a healthy environment, Cordero adds. 

A trump card in courts

Similar cases have played out across many other Latin American countries which have embraced the right, such as Colombia, Argentina, Peru and Ecuador, says César Rodríguez-Garavito, an international human rights and environmental law expert at New York University.

If you can show that a fundamental right is at stake, you can basically fast-track the case in courts – César Rodríguez-Garavito

There, Rodríguez-Garavito says that such laws have also shaped the way journalists frame environmental issues – as something people have a right to, rather than just one policy consideration – and have empowered social justice movements to mobilise the public, which in itself can deter potential violators. In courts, human rights act like trump cards, generating more powerful legal arguments over other considerations, like economic freedom. And in some jurisdictions, such as Colombia, «if you can show that a fundamental right is at stake, you can basically fast-track the case in courts. So that’s made for much speedier decisions,» he adds.

Some lawyers argue that the human right to a healthy environment has made it easier to protect ecosystems such as the Amazon Rainforest (Credit: Getty Images)

At the very least, the right to a healthy environment has helped slow down processes of habitat destruction, Rodríguez-Garavito argues – particularly during the 2000s’ commodity boom, which pushed the price of metals to unprecedented heights, producing a near-unsurmountable pressure to open up rainforests and other delicate ecosystems to mining.

«Had there not been strong constitutional protection – both environmental rights and indigenous people’s rights – I’m ready to bet that those ecosystems would have been basically wiped out,» says Rodríguez-Garavito. Of course, this doesn’t mean that nature is sufficiently protected in South America – deforestation continues and the region remains the deadliest for environmental activists. Like with other human rights, «there’s an implementation gap», he notes.

That gap also exists in South Africa, where the right is nestled within its famously progressive 1996 constitution. But the country remains starkly unequal, has some of the world’s most polluted air and many communities are suffering from respiratory diseases. Unless people go to court, «you’re not going to see that right being met», says Pooven Moodley, a human rights lawyer at Natural Justice, a non-profit working with local communities across Africa to provide legal support on environmental justice issues. While so far not many communities have gone to court over that right, it’s starting to happen more and more, he says. «It’s absolutely key, because it’s something we can refer to, something we can [use to] challenge other laws or practices – whether it’s by governments or private sectors.»

In the Pacific island of Fiji, which adopted the right in 2013, the law has yet to be used in courts, perhaps because people – particularly politically marginalised groups – are still unaware of their rights or can’t afford the expensive legal process, says Kiji Vukikumoala, a lawyer who coordinates Fiji’s Environmental Law Association. But her organisation has seen a recent surge of interest from communities looking to take such matters to court, she says. «As the impacts increase… I think it will result in a lot more of our citizens thinking deeply about challenging a lot of these issues and the lack of implementation or enforcement by government.»

Refining the right

So far, the right has probably had the most impact in Latin America and other countries of the Global South, including India and the Philippines, where courts have tended to be more proactive than governments in redressing environmental damage, Rodríguez-Garavito says.

Europe, on the other hand, has been slower off the mark. In the handful of European countries that have embraced the concept, it seems to be less impactful in courts, perhaps because their environmental policies are generally stronger, says Laurence Gay, a human rights law expert of the French National Center for Scientific Research at Aix-Marseille University.

In Slovenia, for instance – a country with abundant greenery and extensive recycling programs – the right may have influenced some of the country’s environmental policies. But its main effect has been shaping the country’s mentality towards nature, as evidenced by its education system, which includes extensive curricula on sustainability, says ambassador Sabina Stadler Repnik, permanent representative to the UN in Geneva. «The educational part of this right, I think, is more important [and where] we can achieve more in the longer term than just going to courts and litigating for years and years.»

And in some European countries when such rights were first adopted, many judges initially debated whether constitutional environmental rights were mere political manifestos, Gay says. But increasingly, «judges in more and more countries tend to reject such positions and to recognise the binding effects [of the right]».

In Slovenia, a key outcome of adopting the right has been renewing the country’s commitment to sustainability

For instance, in a high-profile climate lawsuit in Norway, environmental groups argued that allowing oil drilling in the Arctic was unconstitutional. The Supreme Court ruled that the state did in fact have an obligation to protect citizens from environmental harm. However, the court ruled that drilling permits still didn’t infringe on the right, in part because the state shouldn’t be responsible for emissions from oil it exports. 

France, however, has taken a step further. The «duty of vigilance» law, introduced in 2017, holds companies responsible for preventing human rights or environment violations throughout their whole supply chains, explains Sebastién Mabile, an environmental lawyer with the Paris-based legal services firm Seattle Avocats.

Evidently, the right to a healthy environment requires a few extra ingredients to work well, not least the will to enforce it and judicial systems that are free of political influence. Human rights are most effective when they’re coupled with other constitutional rights and laws that make it easier for people to go to court and get information on their rights, Jeffords adds.

And environmental protection has to go hand in hand with other human rights, Moodley adds, pointing towards governments that have evicted indigenous communities out of protected areas in the name of conservation. Yet when used properly, such as in Latin America, constitutional rights can protect human rights as well as nature – and without hampering economic development; Costa Rica is considered an upper-middle-income country, relying on electronics, software, and ecotourism as its major exports.

More countries are considering adopting the right to a healthy environment soon, either in their constitutions or general legislation, including Algeria, The Gambia, Chile, Canada and Scotland. But some of the world’s richest – like the UK, United States, China and Japan – have yet to officially consider it. Meanwhile, Boyd still advocates for recognition at the UN level, which could compel more countries to recognise and strengthen it and create ways of holding countries accountable on the international stage.

It is often said that human rights have their roots in wrongs. The UN Declaration on Human Rights in 1948 emerged out of the ashes of World War Two. Back then, its authors couldn’t foresee a global environmental crisis, nor a wealth of scientific research demonstrating nature’s importance to human wellbeing. But such documents are arguably meant to evolve forwards and adapt to new threats to the people they govern. «If we continue down the path we’re on, then we’re in deep trouble from a human rights perspective,» Boyd says. «If we don’t step up and actually take the actions that we know are necessary and feasible to protect and restore this beautiful planet of ours.»

Contenido publicado en BBC

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