On the 28th July 2022, the United Nations General Assembly officially declared that States, international organizations, business enterprises and other relevant stakeholders have to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices (…) to ensure a clean, healthy and sustainable environment for all (UN Resolution A/76/L.75, 26th July 2022). The approved resolution has been claimed as a historical passage to reiterate that climate change and any action against ecosystems are attacks against Planet Earth and therefore against us, putting the future of humanity at risk. Why giving such importance to a statement that has no binding value in itself for the UN Member States? The promoters believe that its contents will have a domino effect on national and local policymakers encouraging them to include a targeted reference in constitutional texts and in other legal acts or treaties.
“This resolution sends a message that nobody can take nature, clean air and water, or a stable climate away from us – at least, not without a fight”, Inger Andersen, Executive Director of the UN Environmental Programme
Inger Andersen, Executive Director of the UN Environmental Programme (UNEP) agrees on this point: “This resolution sends a message that nobody can take nature, clean air and water, or a stable climate away from us – at least, not without a fight”. The Executive Director, in particular, refers to what she defines the Triple Planetary Crisis, notably: climate change, nature & biodiversity loss, and pollution & waste. These are the main externalities that could have disastrous social, economic and environmental consequences. At international level, many legal systems have been transposing these principles for recent decades, as a result of increased environmental awareness. In April 2022, the UN Human Rights Council anticipated the General Assembly statement to recognize the right to a safe, clean, healthy and sustainable environment while New York State has recently approved a constitutional amendment to provide citizens’ right to a ‘healthful environment’. Latin American and the Caribbean countries are moving on the same line. In Europe, a similar principle was expressed in 2019 by Netherland’s top court which imposed the national Government a drastic reduction of climate-changing emissions on the assumption that it threatens human rights.
But can all this have a concrete effect? Will new laws actually be enacted to protect the environment? If so, will they be applied in practice? As a matter of law, from now on anyone who violates the Environment may be considered guilty of violating a human right, with greater protection on the judicial front, hopefully. According to a recent study, more than 100 constitutions have included worldwide the concept of ‘healthy environment’ as a fundamental right, which could matter also to improve the Nature’s state of health. Actually, this ‘new entry’ in the Human Rights universe is having the advantage of linking human well-being to Nature preservation. In order to be ‘health’, the environment needs to be rich in biodiversity benefiting from clean air and waters. However, as pointed out by David Boyd, environmental lawyer working for the United Nations, “(this right) is not a magic wand we can use to solve all of our challenges; it is a catalyst for better actions”.
As shown in the existing cases, the application of this new rule in each individual legal system varies in effectiveness. The commitment to protect the right to a healthy environment, in fact, needs for additional elements to achieve the expected results. First of all, a flexible legal system able to adapt quickly to changes and integrations is required, without being hampered by external influences. Thus, the apparatus of constitutional and ordinary laws should be reconsidered to facilitate citizens the very understanding of their rights, as recently reaffirmed by Chris Jeffords, economist at the Indiana University of Pennsylvania. Moreover, further human rights should be boosted together with environmental protection, notably pushing the economic growth and fostering the indigenous community’s conservation.
Therefore, beyond the recognition of the right to a ‘healthy environment’, already applied in some modern constitutions since the late 1970s, what seems fundamental is to seize the opportunity offered by the recent UN resolution to implement more effective legal protection mechanisms to the protection of human and natural dignity. Many remain in fact the international law matters to be solved considering that most of the environmental issues and disasters involve different actors and produce many victims at the same time, being generated by various causes that go beyond conventional borders of individual States. ***
Sources: UN Environmental Programme (UNEP), BBC, Cambridge University Press.
By Maurice Abbati