The Global Pact for the Environment: A critical evaluation
Provided by Strauss Daly Attorneys
By Gemma-Kate Bishop
Topics Energy & Environmental Law
03 Jan 2019
A critical evaluation of the Global Pact for the Environment is undertaken with reference to the historical development of human rights and their link to the development of environmental rights; other initiatives to develop a comprehensive global treaty and motivation for the inclusion of distinctive environmental law principles and rights which should be included in the Global Pact.
The environment and environmental protection have only relatively recently become a matter of international concern. As such, the development of an internationally recognised environmental right has been a topic of much interest and debate: should there be a right to a healthy environment? Should we codify such a right or let regional courts and nations bear the burden of environmental protection? What is evident, however, is that the international community as a whole have failed to protect the environment from substantial harm. Perhaps this fact alone is enough reason to argue in favour of the adoption of a draft Global Pact for the Environment (hereinafter referred to as the Pact). Given the current state of environmental devastation it is hard to accept a draft proposal for international environmental protection with open arms. Meanwhile, Boyle asks why we should link environmental protection with Human Rights in the first place. The question which we attempt to address herein, and which Boyle argues against, is the ability of the Pact to deal with fundamental problems by not merely window dress our existing knowledge. In opposition to Boyle, Baker asserts that the development of environmental rights would establish an arena in which environmental rights could be protected through the involvement in the enforcement of environmental obligations.
II THREE GENERATIONS
Human rights has evolved significantly over the years from Greek philosophers’ conceptions on natural rights to the political and social theories of Thomas Hobbes’ Leviathan and John Locke’s Social Contract. These first generation human rights focused on civil and political rights, where the main characteristic of the right was the autonomy of citizens to exercise their civil and political freedoms. Thereafter, human rights evolved to recognise socio-economic rights which are so-called second generation rights such as the right to work, education or freedom of association. Human rights thus far had generally revolved around individual rights and dealt with how people should be treated by their governments and by its institutions. Third generation rights on the other hand, such as a right to development or a right to the environment, are collective in nature. Also dubbed group or solidarity rights, they have international relevance and application, as opposed to both first and second generational rights which apply to the national arena.
III HUMAN RIGHTS AND THE ENVIRONMENT TODAY
While no comprehensive agreement currently exists for the protection of the environment internationally, certain regional legally binging agreements exist. Both the African Charter on Human and Peoples Rights (hereinafter referred to as the African Charter) and the Additional Protocol to the American Convention on Human Rights make reference to the right to a healthy environment. Article 24 of the African Charter states that, ‘All peoples shall have the right to a general and satisfactory environment favourable to their development.’ This is a general right afforded to all peoples. Article 11 of the Additional Protocol to the American Convention on Human Rights maintains that, “everyone shall have the right to live in a healthy environment and to have access to basic public services and that, “States […] shall promote the protection, preservation, and improvement of the environment.”
Moreover, the European Convention on Human Rights (hereinafter referred to as the European Convention) and the European Social Charter, which do not contain a blatant right to a healthy environment, have been interpreted by the European Court of Human Rights (hereinafter referred to as European Court) as indeed including the responsibility to protect the environment. In fact, most of the jurisprudence dealing with the interpretation of civil and political rights in an environmental context arise out of the European Court. Moreover, the majority of the environmental case law in the European Court revolves around Article 8 to the European Convention which holds that “everyone has the right to respect for his private and family life, his home and his correspondence.” The first case which held the European Convention included an environmental right was López Ostra v Spain. The case saw the European Convention establish that Article 8 of the European Convention was capable of violation by a government act or omission. It ruled that the Spain’s failure to provide the López family with information of the environmental risks associated with a neighbouring Tannery was a violation of the family’s right to respect for their private and family life, their home and their correspondence. Moreover, and in confirmation of the aforementioned decision, in Guerra v Italy the European Convention once again established that the state had failed to inform the claimants about the pollution risks associated with a factory. Accordingly, they too were found in breach of Article 8 of the European Convention.
The development of the Pact could not have come at a better time as the Inter-American Court of Human Rights, on application from the Republic of Colombia for an advisory opinion, recently issued a monumental opinion which affirms the right to a healthy environment as being essential to humanity. Moreover the Court emphasised not only the role that states have in protecting the right on behalf of its own citizens, but to all people, including those outside of its exclusive jurisdiction.
IV FROM AARHUS TO PARIS
The rights intrinsically linked to healthy environment encompass both substantive and procedural rights. As such, and due to the strong correlation between the two, both will be discussed hereunder. Procedural rights are more easily capable of, and traditionally have resulted in, specific enforceable obligations against member states. Substantive rights, however, are harder to enforce. In fact, international treaties are often criticised for failing to impose enforceable obligations and/or consequences for non-compliance therewith. This status quo cannot remain the same.
The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (hereinafter referred to as the Aarhus Convention) provides Europeans with the guarantee of procedural rights in the environmental context. The Aarhus Compliance Committee, in applying the provisions of the Aarhus Convention, has successfully upheld administrative rights relating to the protection of the environment. As such, the substantive right to the environment is protected through the application of the Aarhus Convention.
The application of the Aarhus Convention to administrative decisions is evidence that when these principles are applied in the environmental context, the potential exists to foster essential elements of good governance such as transparency and accountability. They also provide individuals and organisations with the ability to actively participate in the often impenetrable workings of international institutions. Moreover, these procedural challenges raise a deeper question as they illuminate the ethical path chosen by decision-makers whilst engaged in the process.
V GAPS IN THE DRAFT GLOBAL PACT FOR THE ENVIRONMENT
The Pact is a much needed component of international human rights law. That being said, there are certain gaps in the draft Pact which need to be addressed. In addition to the preamble, the Pact would benefit from founding principles. Statements of principle are often criticised by academics such as Boyle, for being ineffective, because they are couched in language which aims to encourage without offending any particular interest group. That being said, they would be a welcome addition to the Pact in setting out the general principles and objectives the global it aims to address. Much like section 2 of the National Environmental Management Act 107 of 1998, the principles would apply to everyone with a duty to take care of the environment and would operate alongside all other appropriate and relevant considerations, including the State’s responsibility to respect, protect, promote and fulfill the substantial and procedural rights contained within the Pact.
Lessons learnt from case law have made it essential to hold states accountable for their actions as well as those of their legal persons; for the state’s failure to adequately regulate it’s legal persons’ actions. The question is whether states will be found liable for the actions of their natural and juristic persons in other countries as transnational companies are often the cause of significant environmental harm. This is often experienced by third world countries, such as those in Africa which is rich in natural resources. In order to effectively protect human rights, the Pact cannot focus centrally around state liability alone as this is not sufficient. The report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises found that there was a significant correlation between environmental harms and human rights injustices by transnational companies. Often the countries in which the aforementioned harm occurs do not have the legal and administrative resources or power to hold these private actors accountable. As Rebecca Bratspies maintains, “what is needed is an international legal framework that can directly bind private actors and hold them accountable for protecting human rights and the environment.” The question the becomes, how can we put in place mechanisms to hold non-state actors liable for the harm they inflict upon the environment?
While acknowledging that states and private actors have a duty to protect the environment in Article 2 thereof, the Pact proposes weak compliance and enforcement provisions. Article 7, dealing with environmental damages, merely asserts that, “The necessary measures shall be taken to ensure an adequate remediation of environmental damages.” First, what are so-called ‘necessary measures,’ what is ‘adequate remediation’ and what constitutes ‘environmental damages?’ Each of these concepts is capable of varied interpretation. Upon a reading of Articles 2, 7 and 14, I believe an argument in favour of private actors being liable for their environmental actions in foreign countries is arguable. There is, however, too much ambiguity for the reverse to be argued. In order to remedy the ambiguity of the Pact, definitions will have to be drafted which would aid in the interpretation thereof.
Moreover, it is necessary for the Pact to explicitly place the burden on states to ensure that both state and non-state actors are first held accountable for any harm that they inflict to the global commons, and secondly, made to remediate any harm they might have inflicted, as far as practicably possible, to the status quo ante. Article 14, dealing with the role of non-state actors and subnational entities, fails in this regard as it merely requires states to encourage their non-state actors and subnational entities. This is insufficient.
Notably, holding states or non-state actors accountable becomes a challenge in the climate change context as it is difficult to hold one party accountable for this global epidemic. Boyle’s solution to this obstacle is a global solution. He avers that a right to a decent environment must be imbued “within the corpus and institutional structures of economic, social and cultural rights” and that in terms of that framework, the policies of individual states could be stress-tested against their global impact on human rights and the environment.
John Knox, the first United Nations Special Rapporteur on Human Rights and the Environment from 2012 to 2018 has been advancing the drive to establish an international resolution that protects the right to a safe, clean, healthy and sustainable environment. His Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment presents sixteen framework principles on human rights and the environment.
What is interesting is that the UN General Assembly (the Assembly) adopted resolution 72/277 entitled “Towards a Global Pact for the Environment” on 10 May 2018, less than 4 months after the Knox’s aforementioned report. The content of both the Pact and Knox’s proposed framework are somewhat different despite the fact that Knox, after extensive research on the matter, presents framework principles on human rights and the environment, addresses the human right to a healthy environment and looks forward to the next steps in the evolving relationship between human rights and the environment. Moreover, while the list of experts involved in drafting the Pact is impressive, John Knox is not one of them. Knox argues that a resolution by the UN General Assembly would be an easier and faster means of adopting a right to a healthy environment than the Pact.
The value Knox’s report provides is that it creates an essential link between human rights and the environment, which is arguably missing from the Pact. Perhaps, conversely, this is exactly the reason why the Pact fails to address the link between the two. Whatever the intention of the drafters thereof, and without traversing all of the 16 principles, the lessons garnered from Knox’s work are valuable and must be given due recognition.
The framework principles do not create new obligations but rather reflect the application of existing human rights obligations in the environmental arena based on his extensive experience and research in the field. Knox’s framework principles include the procedural rights also included in the Pact. That notwithstanding, and in addition to the rights the Pact aims to protect, the framework principles further require states to provide a safe environment in which legal persons can work on environmental or human rights issues without threats of intimidation and violence; respect and protect freedom of association and peaceful assembly in relation to environmental matters. As mentioned herein above, assassinations, violence and unnecessary force used against environmental activists are on the increase globally. This is presumably the reason why Knox didn’t leave the issue to be regulated by standing human rights agreements, which already govern the rights to life, freedom of expression, of assembly and association, and specifically established a framework principle thereon.
The Framework principles further require states to provide effective remedies and the enforcement thereof as ineffectual remediation and enforcement is an issue which the international community currently grapples with. The framework principles further require states to promote equality and prohibit discrimination. Once again, these are human rights which are recognised in international human rights instruments but which Knox believes must be recorded as a specific environmental framework principle.
What is missing from both the Pact and the Report of the Special Rapporteur as well as most human rights instruments, however, are typically second generation rights which are closely related to the right to a healthful environment such as the stand-alone rights to decent food, sanitation and water. Over and above that, an argument can be made in favour of the inclusion of the right to health care and to the protection of property.
The right to food is protected, usually within the framework of the right to life, in article 25 of the Universal Declaration of Human Rights, article 11 of the International Covenant on Economic Social and Cultural Rights, articles 24 and 27 of the Convention on the Rights of the Child, and article 11 of the American Declaration on the Rights and Duties of Man. The time has come for the recognition of a stand-alone right to food, providing the beneficiaries thereof with freedom from hunger as well as access to safe and nutritious food. With the increase in the often-unregulated field of cheap genetically modification of food, especially in the third world, this is an essential right that must be protected.
In 2010, the United Nations General Assembly recognised the human right to water and sanitation. The Resolution calls upon States and international organisations alike to assist, particularly developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights further established a complaint mechanism providing complainants with the opportunity to file formal complaints on violations of the right to water and sanitation, amongst other rights. That notwithstanding, my argument herein is that the Pact, as an internationally binding instrument, should entrench all such rights together.
This is particularly relevant in the third world and African context as many of these countries lack access to these basic resources which are products of a healthy environment. The Pact should, therefore, place the burden on the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
VI AN AFRICAN EXAMPLE
Colonisation has complicated matters further. Of the many impacts that colonisation had on African countries, one was the impact that the colonisers had on the natural resources of the land they occupied. This often resulted in the colonisers gaining significant benefit from the resource and local communities seeing little to none of the benefit thereof. What’s more, African states are often susceptible to naivety and fall for smoke screens created by international corporations eager to exploit their natural resources.
In post-colonial third world countries, such as South Africa, where there are various existing environmental injustices, we seem unable to turn the tides. Wealthy first-world transnational companies have the ability to foster relationships with greedy politicians, often resulting in processes being influenced and irregular and often unlawful decisions being made. One such example is that of Xolobeni in the Eastern Cape of South Africa. This is a longstanding matter which has been criticised in the past for the fact that not all interested and affected parties were consulted. It has come to the attention of the public that certain influential members of the local community, such as the chief and local business leaders, are being paid by the mining company, and therefore trying to sway public opinion in favour of mining. To make matters worse, recent public participation processes have been wrongfully influenced , peaceful protesters treated with unnecessary force and the previous leader of the Amadiba Crisis Community assassinated. This incident is not endemic to South Africa. Approximately 200 people were murdered internationally in 2017 for protecting the environment. Twenty-four Latin American and Caribbean nations recently signed the Latin American and Caribbean countries declaration on Principle 10, a pact on environmental rights that will compel states to investigate and punish those accused of murdering environmental activists.
VII WEIGHING UP THE PACT
Despite Boyle’s skepticism, the Pact would provide the environment with legitimacy; human rights are regarded as rights that cannot be infringed upon or abrogated. As it stands, the Universal Declaration of Human Rights is established customary international law or jus cogens. One must question whether the regional treaties and extensive case law on the right to a healthful environment is sufficient, clear and applied well enough to warrant the right to a healthy environment being adopted as a source of international law under article 38 of the International Court of Justice Treaty. Due to possible inconsistencies in judicial decisions, as well as the difference between different states’ environmental legislation it must follow that the best possible path forward for the environment is the codification of the right to a healthful, safe clean environment.
Although states comply imperfectly with human rights law, recognition of the right to a healthy environment would give universal clarification to the obligations that states have with regard to the environment. It would also provide a means to promote the rule of law and hold states accountable for what would otherwise not be considered an injustice. Moreover, it would provide a mechanism upon which to garner compliance as more pressure could be exerted onto states. This would, hopefully, encourage states to implement comprehensive national environmental legislation as well as better compliance and enforcement strategies.
The skepticism which arises out of the argument that we, as an international community, have yet to realise a number of fundamental rights and therefore should not create any new rights is defeatist and bears little weight when compared with the potential benefit thereof.
Attempting to reconcile the differing opinions of states, the UN is faced with a challenging task, making it even harder to draft effective global treaties. Principle 21 of the Stockholm Declaration is an example and remains widely criticised for allowing countries to exploit their natural resources as long as their actions did not affect any countries beyond their own borders. Principle 2 of the Rio Declaration furthered the principle by making provision for economic development. The elephant in the room is whether these principles endorse freedom of action (which developing states would argue in favour of), or environmental responsibility (which developed states would support)? The necessary conclusion is that environmental concerns risk being discarded in the name of compromise. Perhaps this is a call yet another indication that there is a desperate need for an international human right to the environment which would safeguard the environment (for the benefit of developed states) despite the third world need for development. Even so, the Stockholm Declaration held that the natural environment is “essential to his well-being and to the enjoyment of basic human rights-even the right to life itself.”
Whilst the recognition of basic human rights has become a defining characteristic of a contemporaneous legitimate state, and despite the relative worldwide adoption of various human rights treaties, human rights abuses continue unabated.
In addition thereto and despite certain views that the Paris Agreement was a relative failure, of great importance was the ability of the international community to reach a compromise on binding measurable commitments to reduce carbon dioxide emissions. This is a sign of hope for the future of international environmental law.
A healthy environment is the foundation to human rights. This was established in the International Court of Justice in 1997 in its judgment regarding Gabcikovo-Nagymaros Project, particularly through Justice Weeremantry. The very first of its kind in recognising environmental rights to a great extent, Weeremantry held that environmental protection is a “sine qua non for numerous human rights” and further that, “damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.” Even so, the International Court of Justice failed to treat sustainable development as a fundamental adjudicatory norm. The Pulp Mills case between Argentina and Uruguay saw the International Court of Justice once again failing to recognise sustainable development as a principle in international common law. While international jurisprudence attempts to interpret the intersection of human rights and the environment, the most seasoned Justice’s have the ability to get it wrong. This is an indication of a dire need for an international covenant which would guide and inform the international community in the application of this rapidly evolving and increasingly important area of law.
The drafting of an instrument such as the Pact is no small feat, especially when considering the diverging opinions of the participatory representatives. The question remains: how do we as an international community, built on the sovereign independence and equality of states, best deal with environmental challenges which affect the global commons in light of the varying goals and perspectives of respective states, especially in light of the US’s recent about turn on globalism? The competing interests of States have the potential to fraught the progression of a legal instrument and result in the window-dressing Boyle refers to. Lytton states that, “the international community must strike a balance between those who seek to codify nature’s rights as a constructive state, and those who desire unchecked anthropocentrism; both positions are at the extremities of the philosophical and legal spectrum.” If academic opinions are this short-sighted then perhaps we need to ask how bad the environmental devastation needs to get before the international community agrees to such an instrument such as the Pact.
Environmental degradation, illustrated most aptly by the example of climate change, is not confined to the anthropocentric jurisdiction of any particular state. It is a global problem which must, accordingly, be addressed in the same way. Similarly, ecosystems and species do not adhere to fictional sovereign state boundaries. What’s more, the fractious application of differing states’ imperatives and national environmental legislation often result in inconsistencies in the treatment of an environmental resource and tensions between states who share the resource. The beneficiary of the most harm therefrom is often the environment. Quite simply, a global problem requires a global solution.
Certain academics are in agreement with Boyle’s scepticism and argue that agreements such as the Pact only bind state parties to the agreement; offer little to no substantive obligations and no recourse in the event of a violation. The link between human rights abuses and environmental harm is inescapable and it is therefore time that they can no longer be viewed in isolation. The rapid increase in the incidence of international case law dealing with environmental and human rights challenges is evidence thereof. As such, international courts are employing creative interpretations of typically human rights tools in the remediation of environmental matters.
Access to food, water and sanitation are human rights which are essential for life and dignity, also the foundation for achieving a wealth of other human rights, including the right to health and the right to development. The Pact should also consequently, provide for the protection of those substantive rights by placing a burden on states to, in addition, provide access to procedural rights as well as ensure adequate remediation and enforcement of those rights. Furthermore, the Pact has the potential to assist Parties thereto in holding private individuals and corporations liable for the harm that they cause in a foreign jurisdiction.
While there are clear gaps in the Pact, it nonetheless remains a ground-breaking development in adopting and acknowledging both second and third generation human rights as well as advancing international environmental law to the extent that the right becomes codified and no longer a right that is merely concerned with the impact on the individual and not necessarily the environment. As Knox asserts, it is impossible to resist an idea whose time has come. Whether the Pact is well received or not, the time has come for the international recognition of the right to a decent environment.
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