David Boyd: The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment

The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment

Dr. David R. Boyd

CNDH/CEC

Mexico City

September 26, 2012

What is the right to a healthy environment?

• Substantive and procedural components• Substantive elements include clean air, safe

water, a non-toxic environment, and healthy ecosystems

• Procedural elements include access to information, participation in environmental decision-making, and access to justice (both judicial and non-judicial mechanisms)

Stockholm Declaration (1972)

Principle 1Man 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 well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

International Agreements

• San Salvador Protocol to the American Convention on Human Rights

• African Charter on Human and Peoples’ Rights• Aarhus Convention on Access to Information,

Public Participation in Decision-making, and Access to Justice in Environmental Matters

• Arab Charter on Human Rights

Constitutions of the Countries of the World

The Spread of Constitutional Protection for the Environment

Laggards: Canada and the USA

CANADAPetition on right to a healthy environment to Canada’s Commissioner for the Environment and Sustainable Development in 2006Government response implicitly denied existence of right to healthy environment

UNITED STATESCase before the Inter-American Commission on Human RightsHighly polluted community in LouisianaUS denied existence of right to healthy environmentUS argued even if customary international law, not applicable to USA

Leaders: Ecuador and Bolivia recognize the Rights of NatureConstitution of Ecuador (2009)

Chapter Seven: Rights of NatureArticle 71. Nature or Pacha Mama, where life plays and performs, is entitled to full respect, existence, and the maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes. Any person, community, or nation may require the public authority to comply with the rights of nature. The principles enshrined in the Constitution will be used to apply and interpret these rights, as appropriate. The State will encourage individuals, legal persons, and collective entities to protect nature and promote respect for all the elements that form an ecosystem.

Benefits of Constitutional Environmental Rights

• Spur stronger environmental laws and policies• Enhance implementation and enforcement of laws• Prioritize resources for environmental management• Empower citizens and communities to participate in decision-

making• Prevent discrimination against vulnerable communities• Provide remedies for violations of rights• Increase government and corporate accountability• Improve environmental performance

Potential Drawbacks

Too vague to be usefulWill be interpreted as absolute, trumping other rightsMay lead to flood of litigationTransfers power from elected legislators to unelected judges

Redundant because of existing human rights and/or environmental lawsNot enforceableMay be ineffectiveAnthropocentric—fails to recognize the rights of Nature

Research on Actual Outcomes

• 92 nations with explicit right to a healthy environment in their Constitution

• Focus on– Strengthening of environmental laws– Judicial enforcement of right to a healthy

environment– Environmental performance– Factors that influence the impact of the right

From Constitution to Environmental Outcome: A Simplified Causal Sequence

South African Example I

• 1996 Constitution recognizes “right to an environment that is not harmful to their health or well-being”

• Many laws passed in effort to fulfill this right– National Environment Management Act (1998)– Air Quality Act (2004)– Biodiversity Act (2004)– National Water Act (1998)– Local Government Municipal Structures Act (1998)– Local Government Municipal Systems Act (2000)– Promotion of Access to Information Act (2000)– Promotion of Administration of Justice Act (2000)

South African Example II

• 1996 Constitution recognizes the right to water• Water Services Act of 1997

– 3(1) Everyone has a right of access to basic water supply and basic sanitation.

– (2) Every water services institution must take reasonable measures to realize these rights.

– (3) Every water services authority must, in its water services development plan, provide for measures to realize these rights…

• National Water Act (1998)• Major investments in drinking water infrastructure

Global Summary

From Constitution to Environmental Outcome: A Simplified Causal Sequence II

Global Summary

Beatriz Mendoza (Argentina)

Beatriz Mendoza Case

• Lawsuit filed in 2004 against national, state, and municipal governments asserting that the industrial pollution of the Matanza-Riachuelo watershed violated right to a healthy environment

• Supreme Court of Argentina ordered government and industry to file extensive environmental information in 2006

• Ordered government to draft a cleanup and restoration plan in 2007

• Issued final decision in 2008

Beatriz Mendoza Decision

• Inspections of all polluting enterprises, creation and implementation of wastewater treatment plans, all on a strict schedule;

• Closure of all illegal dumps; redevelopment of landfills; and cleanup of the riverbanks;

• Improvement of the drinking water, sewage treatment, and storm-water discharge systems in the river basin;

• Development of a regional environmental health plan, including contingencies for possible emergencies;

• Supervision, by the federal Auditor General, of the budget allocation for implementation of the restoration plan;

Beatriz Mendoza Implementation

• New multi-level watershed management agency (ACUMAR)• $2 billion in financing secured from World Bank for

infrastructure to comply with court order• Number of environmental enforcement officers increased

from three to 250• As of mid-2011, progress includes provision of clean drinking

water to one million people, a new sewage treatment system serving half a million people, 167 polluting companies closed, 134 garbage dumps closed, and the creation of 139 sampling points for monitoring water, air, and soil quality

• Politicians responsible for overseeing implementation have been fined for slow progress

Empirical Evidence About Environmental Outcomes

• Per capita ecological footprints• Environmental performance rankings

– OECD nations– Large, wealthy industrialized nations

• Progress in reducing air pollution• Progress in reducing greenhouse gas

emissions

Constitutions and Ecological Footprints: Global Comparison

Constitutions and Ecological Footprints: Regional Comparison

OECD Comparison

Conference Board of Canada Comparison

Trends in Air Pollution and Greenhouse Gas Emissions

Nations with constitutional requirements for environmental protection experienced:

Faster decline in NOX emissions (1980-2010) Ten times deeper cuts in countries with constitutional

environmental provisions

Faster decline in SO2 emissions (1980-2010) Average reductions of 85% in countries with constitutional

environmental provisions vs. 53% in countries without Faster decline in GHG emissions (1990-2010)

Average decrease of 7.8% in countries with constitutional environmental provisions vs. increase of 2.4% in countries without

Factors Affecting the Influence of the Right to a Healthy Environment• Social, economic, and political conditions

– Commitment to enforcing laws– Availability of resources for implementation

• Rule of law• Clarity of specific constitutional provisions• Strength of civil society• Access to justice• Judicial responsiveness

Conclusions Rapid diffusion of

constitutional environmental protection

Significant influence on environmental legislation and court decisions

Constitutional environmental provisions are linked to superior environmental performance

Mexican Constitution

Article 4.

All persons are entitled to a healthy environment for their development and welfare. The State shall guarantee the respect for this right. A person who causes environmental damage and impairment shall be liable pursuant to law.

All persons are entitled to sufficient, healthy, acceptable and affordable water access, availability and sanitation. The State shall guarantee this right and define the basis, support and forms of equitable and sustainable access and use of water resources, establishing the participation of the Federal, state and municipal governments and citizens to achieve these ends.

State Constitutions in Mexico• Yucatan State Constitution• ARTICLE 86. The State, in its function to regulate society, shall undertake

within its jurisdiction as necessary to ensure the solidarity of associated elements and ensure their equitable participation in the welfare arising from society itself.

• The State, through its Public Powers, shall guarantee the respect of the right of all individuals to enjoy an ecologically balanced environment and the protection of the ecosystems that make up Yucatan’s natural heritage, based on the following principles:

• I. Residents of the State are entitled to live in a health environment providing them a dignified life and to make rational use of the State’s natural resources to attain sustainable development pursuant to the respective law;

Environmental Law• General Ecological Balance and Environmental Protection Act• ARTICLE 1. This Law governs the provisions of the Political Constitution of

the United Mexican States with respect to the preservation and restoration of the ecological balance and environmental protection in national territory and the zones under Mexican sovereignty and jurisdiction. The provisions hereof are public policy and in the social interest, intended to foster sustainable development and establish the basis for:

• I. Guaranteeing the right of all persons to live in an adequate environment for their development, health and welfare.

• Art. 15(12) All persons are entitled to enjoy an adequate environment for their development, health and welfare. The authorities shall take measures to guarantee this right, pursuant to this and other laws.

Access to Justice

• Mexico has lagged behind other Latin American nations in providing access to judicial remedies for violations of the right to a healthy environment (OECD, 2005)– Ironic given that Mexico is birthplace of amparo

• Countries such as Argentina, Brazil, Colombia, and Costa Rica have introduced procedures that allow expedited, inexpensive, and effective access to the courts

Constitutional reforms of 2011

• Reforms should result in substantial improvements in access to justice where right to a healthy environment or right to water have been violated

• Amendments broaden and strengthen the protection of human rights

• Amendments make the writ of amparo more accessible and more flexible

Environmental Progress in Mexico

• Since 1990, significant progress in providing access to safe drinking water and adequate sanitation

• substantial improvements in air quality (SO2, Nox, PM)

• increased levels of protection for ecosystems– National Commission on Protected Areas reports

adding 8 million hectares between 2001 and 2010

Ongoing Environmental Challenges

• World Health Organization estimates that 85,700 deaths annually in Mexico are attributable to environmental hazards, as well as 16% of the overall burden of disease

• Millions still lack access to safe drinking water and sanitation• Children in Mexico City are suffering neurological and

respiratory damage due to air pollution, especially children of lower socioeconomic status

• Mexico ranked 84th out of 132 nations in the World Economic Forum’s Environmental Performance Index (2012)

-Costa Rica 5th, Colombia 27th, Brazil 30th -Canada 37th, USA 49th

Violence against defenders of the right to a healthy environment

• Fabiola Osorio Bernáldez, member of the civil organization "Guerreros Verdes” was killed on May 31, 2012

• Javier Torres Cruz, a defender of the forests of the Sierra de Petatlán, was killed on April 19, 2011

• Ernesto Rábago Martinez, a member of Haciendo Camino, was working for the indigenous communities of the Sierra Tarahumara, was allegedly killed in the city of Chihuahua on March 2, 2010

• Mariano Abarca Roblero, a member of the Red Mexicana de Afectados por la Mineria (REMA) was reportedly murdered outside his home in Chicomuselo on November 27, 2009

Conclusions II

• Amended Mexican Constitution is stronger and the rights to a healthy environment and water are enforceable

• Implementation is the key

• Collaborate with other Latin American nations to develop best practices

• Judicial responsiveness?– Education programs

• Defend the defenders