By Rosemary Mwanza, PhD Candidate
Introduction
In the course of my doctoral research, I have often reflected on why the ideal embodied in human rights norms and the present reality always seem so far apart. In dealing specifically with the right to a healthy environment, I have felt that ascendant human rights norms may fail to produce the desired outcomes because they are construed too narrowly, ignoring some of their potentially transformative qualities. Even though most national legal systems worldwide recognise a right to a healthy environment,[1] they do not follow a uniform template in formulating it. In this blog post, I share some preliminary thoughts on how thinking through the prism of the concept of an ‘environmental grundnorm’ could help bring to light the multiple qualities of the right to a healthy environment.
The meaning of an environmental grundnorm
An environmental grundnorm is a fundamental principle that embodies a unifying objective for environmental law.[2] Proponents of an environmental grundnorm distinguish their use of the term ‘grundnorm’ (with a small letter ‘g’) from Kelsen’s notion of a Grundnorm. Kelsen understood a Grundnorm as a basic norm or abstract idea whose validity is based on explicit or implicit consent by members of society and from which law’s normativity derives.[3] By contrast, proponents of the environmental grundnorm concept describe it as an ‘epistemological premise.’[4] Such a premise originates from and reflects society’s collective awareness of the seriousness of the ongoing environmental breakdown witnessed globally and the need to reconfigure the relationship between humans and the environment.[5]
In terms of its substantive content, an environmental grundnorm embodies an ethical principle that prescribes the good that environmental law and governance should aim to attain. Proponents identify the ethical component of an environmental grundnorm using various phrases, including the notions of ecological integrity, ecological sustainability, and sustainability.[6] Proponents contemplate three specific roles for an environmental grundnorm to serve in environmental law and governance. First, it sets ecological limits to social and economic development as a necessary response for protecting the Earth System.[7] Second, it is an overriding standard for evaluating the validity of existing laws and guiding the development of new ones.[8] Third, it ‘binds governmental power in the same sense as the rule of law’[9] and serves as an overriding adjudicatory norm to unify jurisprudence.[10]
Is the right to a healthy environment an environmental grundnorm?
This section briefly explores whether the right to a healthy environment bears the attributes of an environmental grundnorm highlighted above.
Is the right to a healthy environment an epistemological premise?
An epistemological premise refers to a knowledge system produced by experience and reason. Based on this definition, the right to a healthy environment is an epistemological premise because it reflects an incremental appreciation of the challenging nature of contemporary environmental challenges and the response needed to tackle them by many communities around the world. While modern-day environmental thought has a long history, ideas on the necessity of a standalone right to a healthy environment emerged in the 1960s, congealing with the adoption of the Stockholm Declaration on the Human Environment in 1972.[11] Principle 1 of the Stockholm Declaration is believed to be the first attempt to craft a standalone environmental right. It states that:
‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the environment for present and future generations.’[12]
Another early example suggesting congealment of thought on the seriousness of environmental degradation as a global problem is the 1972 Report by the Club of Rome that drew attention to the dangers of pollution on the natural system and human wellbeing.[13] The Stockholm Declaration and ensuing legal developments have been shaped largely by the increased awareness of the impacts of human activities on the integrity of ecological processes and human health.
Other legal developments have also been shaped by increased awareness of the limits of present law to regulate the harmful conduct of humans in relation to the environment. In the context of national law, the constitutionalisation of the right to a healthy environment may be attributable to many factors.[14] Nonetheless, a reasonable observation is that the constitutionalisation of the right in many national constitutions is driven by an appreciation of the seriousness of contemporary environmental problems and the limitations of existing legal and institutional frameworks to tackle them effectively.[15] A similar frame of consciousness informs the ongoing advocacy for a right to a healthy environment as an international law norm. The recent adoption of the Resolution on the Human Right to a Safe, Clean, Healthy and Sustainable Environment by the United Nations reflects a diffuse and collective awareness of the consequences of environmental damage on people’s wellbeing and the urgent need to tackle them.
Does the right to a healthy environment embody an overriding ethical principle?
Human rights embody ethical principles in the form of overriding normative goals or objectives for State policies and laws. The right to a healthy environment commits State policies and laws to a specific objective: to protect human wellbeing from the adverse consequences of environmental damage. In so doing, it not only foregrounds the protection of human wellbeing from environmental harm as an ethical imperative for a responsive State but also as an ethical underpinning for environmental law and governance.[16] The right to a healthy environment dictates that environmental law and policy should respond to human vulnerability to environmental harm by, among other measures, limiting or eliminating social and economic activities that pose or produce adverse effects on human wellbeing.
The limit-imposing effect of the right to a healthy environment mirrors the argument proffered by proponents of an environmental grundnorm that such a norm commits international and national law to respect ecological limits as an ethical imperative. Some developments on the right to a healthy environment affirm its ability to serve as a basis that states could rely on to justify limiting social and economic activities in the interest of protecting human and environmental wellbeing. For example, some legal systems include responsibilities on individuals and governments to care for nature as a component of the right to a healthy environment.[17] A similar approach is the practice by which courts interpret the right as a legal justification for limiting economic activities that pose serious and potentially irreversible risks to the environment.[18] These developments suggest that the right to a healthy environment is already steering environmental law and policy towards the ethical imperative it embodies.
Does the right to a healthy environment play a role in environmental governance?
Environmental governance presupposes the existence of rules, practices, policies, and institutions that shape how humans interact with the environment.[19] Within this setting, opportunities for violations of law and abuse of power abound. The right to a healthy environment can offer a normative response to such challenges as a source of obligations that can be asserted directly against the State. This functionality is possible in legal systems where the right is formulated in justiciable terms. The Kenyan and South African Constitutions are illustrative of this version. They include a formal declaration that citizens are entitled to the right to a healthy environment[20] coupled with provisions for judicial enforcement of the right.[21] Other legal systems have opted for a contrajudicative approach by recognising the right as a directive principle of state policy. Such a right is not amenable to judicial enforcement. In other words, non-justiciability of constitutional directive principles means that they do not generate obligations and correlative entitlements that are subject to judicial enforcement.[22] The Nigerian Constitution is a case in point. The relevant provision directs the State to protect and improve the environment and safeguard Nigeria’s water, air and land, forest and wildlife,[23] without language to suggest the creation of obligations amenable to judicial enforcement.
Importantly, the non-justiciability of the right does not disable its relevance as a basis for sound environmental governance. A right to a healthy environment that is framed as a directive principle of State policy can offer a clear and easily accessible guideline to ensure that the protection of human wellbeing is not relegated behind other considerations within the context of environmental governance.[24] Centralising the protection of human wellbeing as an imperative for environmental governance can potentially impact a wide range of administrative functions. First, a right to a healthy environment framed as a directive principle of State policy could inform the scope and content of environmental regulations developed by administrators. Second, such a right can steer the enforcement of environmental law in a manner that is responsive to the imperative to protect human wellbeing. Third, a non-justiciable right could potentially influence the substantive content of decisions of judicial and quasi-judicial dispute settling bodies.
Can the right to a healthy environment underpin the development of environmental law?
The right to a healthy environment possesses the ability to guide the development and reform of environmental law. This ability derives from the operation of the doctrine of positive obligations and the notion of constitutional rights as values. The doctrine of positive obligations mandates the State to take positive measures to fulfil human rights. One such measure is the development of laws to give effect to human rights. The obligation to develop laws may be in the form of an explicit mandate imposed by the constitution. An example can be found in Article 21 of the Constitution of Kenya. In the absence of an explicit mandate to develop effectuating laws, such an obligation arises by implication.[25]
In some legal systems, the right to a healthy environment takes the form of a constitutional value. A constitutional value ‘is a measure of good’ that guides the interpretation, application and enforcement of the constitution and all the other laws that derive from it.[26] The Kenyan Constitution provides a clear example of the expectation that the right to a healthy environment would underpin the development of law. Article 10 lists human rights as national values, and principles of governance bind all State organs, State officers, public officers and all persons whenever any of them carries out the following functions: ‘applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.’[27] On the understanding of the right to a healthy environment as a value, claims may be raised against the legislator, courts and administrators for failing to develop sufficiently protective laws to effectuate all human rights in the bill of rights, one of which is the right to a healthy environment.[28] The example is illustrative of a case in which the normative influence of the right to a healthy environment on other laws is not limited to its role as a standard of review of the constitutionality of legislation and regulatory action. As a constitutional value, the right to a healthy environment can potentially impact rules, regulations and principles developed by the legislature, administrator and the courts.
Conclusion
In this blog post, I have offered preliminary reflections on how thinking about the right to a healthy environment through the prism of the concept of an environmental grundnorm can bring to light the qualities of the right more holistically. The qualities of the right identified in this blog post are not found in all national constitutions in which the right is recognised. Nonetheless, the short analysis can serve as a starting point to guide further thinking on how States may harness the full transformative potential of the right to a healthy environment as formulated in respective constitutional texts. Moreover, such an understanding could potentially inform how the right is construed and applied as an international law norm.
ENDNOTES
[1] David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press 2011). For an up-to-date map of countries that recognise a right to a healthy environment, see, Enviro Rights Map at https://envirorightsmap.org/.
[2] Rakhyun E. Kim and Klaus Bosselmann, ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’ (2013) 2 Transnational Environmental Law 285, 288-292. Rakhyun E. Kim and Klaus Bosselmann, ‘Operationalizing Sustainable Development: Ecological Integrity as a Gundnorm of International Law’ (2015) 24 Review of European, Comparative & International Environmental Law 194. Klaus Bosselmann, ‘A Normative Approach to Environmental Governance: Sustainability at the Apex of Environmental Law’ in Douglas Fisher (ed), Research Handbook on Fundamental Concepts of Environmental Law (Edward Elgar 2016) 37-40.
[3] Kim and Bosselmann, Ibid. (International Environmental Law in the Anthropocene).
[4] Ibid.
[5] Kim and Bosselmann, ‘International Environmental Law in the Anthropocene, (n 2) 288-292.
[6] Kim and Bosselmann, Operationalising Sustainable Development, (n 2) 205. Peter Bridgewater, Rakhyun E. Kim and Klaus Bosselmann, ‘Ecological Integrity: A Relevant Concept for International Environmental Law in the Anthropocene?’ (2014) 25 Yearbook of International Environmental Law 61.
[7] Klaus Bosselmann, ‘The Framework of Ecological Law’ (2020) 50 Environmental Policy and Law 479, 483.
[8] Kim and Bosselmann, ‘Operationalizing Sustainable Development, (n 2).
[9] Bosselmann, The Framework of Ecological Law, (n 7), 482.
[10] Bosselmann, A Normative Approach to Environmental Governance, (n 2) 37-40.
[11] Stephen J. Turner, ‘A Brief History of Environmental Rights and the Development of Standards’ in Dinah L. Shelton and others (eds), Environmental Rights: The Development of Standards (2019) 1, 4.
[12] Declaration of the United Nations Conference on the Human Environment, Preamble U.N. Doc. A/CONF.48/14 (1972).
[13] Dennis Meadows and others, The Limits of Growth (Potomac Associates Books 1972) 175-183.
[14] Chris Jeffords and Joshua C. Gellers, ‘Constitutionalizing Environmental Rights: A Practical Guide’ (2017) 9 Journal of Human Rights Practice 136, 137-139. Boyd, (n 1) 4-8.
[15] Boyd, (n 1) 9-12.
[16] Rosemary Mwanza, ‘Harnessing the Transformative Potential of the Constitutional Human Right to a Clean and Healthy Environment in the Context of Corporate Environmental Damage in Kenya: A Critical Perspective’ (2019) 10 Journal of Human Rights and the Environment 215.
[17] Boyd, (n 1), 53-57. Boyd’s study on global constitutions found 29 constitutions that include a substantive right to a healthy environment and responsibilities of care.
[18] Rosemary Mwanza, ‘The Relationship Between the Principle of Sustainable Development and the Human Right to a Clean and Healthy Environment in Kenya’s Legal Context: An Appraisal’ (2020) 22 Environmental Law Review 184, 194-197.
[19] Mahfuzul Haque, ‘Environmental Governance’ in Ali Farazmand (ed), Global Encyclopedia of Public Administration, Public Policy, and Governance (Springer 2018) 1707.
[20] Constitution of South Africa (1996), Section 24. Constitution of Kenya (2010), Article 42.
[21] Constitution of South Africa (1996), Section 38. Constitution of Kenya (2010), Article 70.
[22] See for example, Abdulkadir Bolaji Abdulkadir, ‘The Right to a Healthful Environment in Nigeria: A Review of Alternative Pathways to Environmental Justice in Nigeria’ (2014) 3 Afe Babalola University: Journal of Sustainable Development Law and Policy 118, 122-125.
[23] Constitution of the Federal Republic of Nigeria 1999, Section 20.
[24] Boyd, (n 1) chapter 5-10. Lael K. Weis, ‘Environmental Constitutionalism: Aspiration or Transformation?’ (2018) 16 International Journal of Constitutional Law 836, 860-866.
[25] Hugh Breakey, ‘Positive Duties and Human Rights: Challenges, Opportunities and Conceptual Necessities’ (2015) 63 Political Studies 1198.
[26] Francois Venter, ‘Utilizing Constitutional Values in Constitutional Comparison’ (2001) 4 Potchefstroom Electronic Law Journal 33, 35.
[27] Constitution of Kenya , Article 10 (2) (b).
[28] Mattias Kumm, ‘Who’s Afraid of the Total Constitution?’ in Agustín J Menéndez and Erik O Eriksen (eds), Arguing Fundamental Rights (Springer 2006) 113.