By Katarina Zimmer
More than 100 constitutions across the world have adopted a human right to a healthy environment, often serving as a powerful tool to protect the natural world.
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.
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
The Global South has led the way in adopting the human right to a healthy environment (Credit: Katarina Zimmer/BBC)
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
But equally important, Cordero notes, is that the right provides a powerful basis to protect nature itself. In a worsening global environmental crisis,
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 are 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 –
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
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
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
A trump card in courts
Similar cases have played out across many other Latin American countries which have embraced the right,
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 –
That gap also exists in South Africa, where the
South Africa has adopted the right, yet there remains an "implementation gap", with persistent environmental issues such as pollution (Credit: Alamy)
In the Pacific island of Fiji,
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
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 (Credit: Getty Images)
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
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 – things that not all 110 countries with the right enjoy. 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
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
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Related to SDG 13: Climate action