By: Luca Mattei
In recent decades scientists have proved that humankind is entering the Anthropocene: a new geological era where the effects of human activities and pollution will push the environment towards a collapse of its ecological equilibrium. The growing concerns about this shift, have been recently reflected in the Resolution 48/13 of the UN Human Rights Council (HRC), which acknowledges a close link between ‘environmental degradation and climate change’ to human subsistence.
To sum up, this UN HRC Resolution recognizes ‘the right to a healthy environment’ as a full-fledged human right. This development has been welcomed by human rights experts. Notably, the UN High Commissioner for Human Rights Michelle Bachelet expressed satisfaction, mentioning that:
‘Bold action is now required to ensure this resolution on the right to a healthy environment serves as a springboard to push for transformative economic, social and environmental policies that will protect people and nature’.
Indeed, this is a historical development, but also a topic for scholarly debates. In fact, the catastrophic consequences of the deterioration of the global ecosystem are leading experts to question the ‘state of the art’ of the international legal structure. More precisely, does international law play a role on the ongoing environmental crisis? In this paper, I will argue that the ‘right to a healthy environment’ does not break with the traditional thought and structure of international law; rather it provides an additional perspective to it.
The birth of the ‘homo economicus’
International law does not engage thoroughly on the protection of the environment. It is significant how even in landmarking environmental treaties – such as the Rio Declaration and the UN Declaration on the Rights of Indigenous Peoples – the main focus is on economic expansion and land exploitation rather than protection of nature. For scholar Anne Grear, this approach is coherent with the Western cultural myth of ‘rational human subject’ and the construct deriving from such ideology.
According to this reconstruction, since the famous pronouncement of René Descartes, cogito ergo sum, the idea that above all there is human rationality has been thriving throughout Europe. However, Grear claims that this narrative is exclusionary at its roots, as only a precise kind of rationality is endorsed: behind the illusion of objective rationality lies a design that promotes certain hierarchies. This includes a specific kind of relationship between humankind and nature.
Indeed, analysing national contexts, most countries in the world address the conservation of the environment in their legal systems; however, the same becomes more uncertain in the international setting. For instance, this is visible within the 8 Millennium Sustainable Goals (MDGs): out of the eight points enshrined in this agenda, only the seventh is about ‘environmental sustainability’ and among the four targets within the latter ‘only two were genuinely about environmental conditions’.
The idea that humankind can bend ‘nature’ as it pleases has been further promoted through the rise of international corporations, which can escape both territorial and legal boundaries. In the past, these associations of interest were subservient to the goals of the Western elite, aiming to exploit developing countries, their ‘nature’ and resources. However, as suggested by Grear, corporations have now become so prominent that they have managed to emancipate themselves and become a sort of ‘homo economicus’ based on legal fiction. This is the pinnacle of what is meant to be 'rational' according to the Western legacy, but, paradoxically, this is detrimental even to their former creators. Like a golem without its master: international corporations can now continue their mission of exploiting the Earth and its resources with hardly any restraints.
The environment as a ‘grundnorm’
Today, this tradition in international law is being challenged. New international treaties and standards are leading countries in adopting sustainable approaches in their development policies. for a contribution to this shift comes from human rights law: in the landmarking Urgenda Case, the Dutch Supreme Court stated that ‘the government had to cut its greenhouse gas emissions by at least 25% by the end of 2020, respectful of commitments made in the Paris Agreements’.
Interestingly, the court stated that this decision was made in compliance with the European Convention on Human Rights (ECHR). Similarly, the Inter-American Court of Human Rights has recognized the importance of environmental protection, as nature is inevitably intertwined with relevant ‘human rights’, such as the ‘right to food’.
This seems consistent with scholars Kim and Bosselman’s position, which suggests that ecological integrity should be understood as a conditio sine qua non – or grundnorm – of international law, as the equilibrium of the ecosystem is necessary for the subsistence of humankind. Hence, the call for a sort of ‘international constitutionalism’ which should be capable to work within the decentralized system of the international community:
‘Where there is a regulatory gap, this grundnorm fills the void. Where there is already a treaty obligation, it reinforces and clarifies treaty obligations in light of the planetary boundaries framework.’
Whereas the proposal of Kim and Bosselman is undoubtedly bold, it is undeniable that big progress has been made in this sense. The Urgenda Case itself is proof that, perhaps, a decentralized environment protection system is not impossible. Nonetheless, ‘the right to a healthy environment’ is not such a radical innovation.
The challenge of ‘climate change’ is arguably one of the main reasons why ‘green movements’ have gained momentum in the last decades. Because of this threat, the wild exploitation of the Earth – based on traditional ‘human subject rationality’ – is starting to increasingly sound irrational. Still, the response of the international community continues to be mainly human-centric and tied to human rights law.
Therefore, what we are witnessing with the UN Resolution 48/13 is a ‘greening’ of pre-existing human rights. The traditional foundation of international law is unchallenged. However, while humanity remains the main yardstick to assess the protection of nature, this new approach, could represent a gradual path towards a more comprehensive protection of the environment and human survival in the context of ‘climate change’.