THE RIGHT TO A HEALTHY ENVIRONMENT

For a brief period of time, we had living with us Dr Emily Barritt. The following bio is from her staff page at King’s:

Emily Barritt is Lecturer in Tort Law and the Co-Director of the Transnational Law Institute. Her research focuses on environmental democracy, access to justice, public participation, stewardship and climate change adjudication. She teaches on the undergraduate Tort and Environmental Law modules and runs a special model on Courts and Social Change at HMP Belmarsh. Emily is a member of the Climate Law and Governance Hub at KCL and a Centre Fellow at the Centre of Environment, Energy and Natural Resource Governance, University of Cambridge. Emily has also been a faculty member of the Law School’s Global League Summer School, co-teaching a course on Climate Change, Justice and Courts with Melanie Murcott of the University of Pretoria and was a Visiting Lecturer at the Centre for Transnational Legal Studies in 2018. Before being appointed, Emily was a Lecturer in Law at Corpus Christi College, University of Oxford, lecturing on the undergraduate environmental law module and giving tutorials on Constitutional Law and EU Law. She undertook her PhD research at KCL and after that a post-doc at the University of Cambridge where she worked on a United Nations Environment Programme project developing legal options for marine biodiversity protection in areas beyond national jurisdiction. 

 

She knows her stuff about Environmental Law. Her latest publication in “The Global Network for Human Right and the Environment” entitled Theme and Variations: The Aarhus Convention and Escazú Agreement was published on 13^th August 2021.

 

She has filled a gap in my rather extensive lack of knowledge about law and environmental matters. Over a number of years there have been various proceedings of substance which I have previously ignored. We have not seen or heard from Emily for a while and I was wondering how she was getting on. I did a quick internet search to see if there was any news on line and was directed to her page on the King’s website. Given the current concentration on environmental issues, I had a look at her latest listed publication and was directed to the article mentioned above, which in turn directed me to a number of other documents.

 

To begin with, the 1992 Rio Declaration contained in Annex I in the Report of the United Nations Conference on Environment and Development held in Rio de Janeiro between the 3^rd and 14^th June 1992.

Principle 1 States that “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”

Further on we have:

Principle 10

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Principle 11

States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.

 

Moving on we have the Aarhus Agreement of 1998 which was a Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters held in Aarhus, Denmark, 25 June 1998, which came into force on 30 October 2001. This agreement was signed not only by the European Union, but by the United Kingdom of Great Britain and Northern Ireland on that day and ratified on the 23 February 2005 some seven years later. The declaration made by the United Kingdom and subsequently ratified is as follows:

 

“The United Kingdom understands the references in article 1 and the seventh preambular paragraph of this Convention to the 'right' of every person 'to live in an environment adequate to his or her health and well-being' to express an aspiration which motivated the negotiation of this Convention and which is shared fully by the United Kingdom. The legal rights which each Party undertakes to guarantee under article 1 are limited to the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention."

 

We then have the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean Adopted at Escazú, Costa Rica, on 4 March 2018 Opening for signature at United Nations Headquarters in New York on 27 September 2018 and which came into force on the 22 April 2021.

 

In her introduction to the article by Emily Barritt, she states:

Introduction

In responding to the call of Principle 10 of the 1992 Rio Declaration, two regional environmental agreements have emerged. The first, the Aarhus Convention (‘the Convention’), negotiated under the auspices of the UN Economic Commission for Europe, entered into force on 30 October 2001. The second, The Escazú Agreement (‘the Agreement’) was developed in and for Latin American and the Caribbean and entered into force more recently, on 22 April 2021. Unsurprisingly, given their shared origins in Principle 10, the two agreements exhibit a number of similarities. Each establishes a trio of procedural environmental rights – (1) access to environmental information, (2) public participation and (3) access to justice in environmental matters. Through these rights, each agreement establishes the conditions for citizens to contribute to the protection of the environment. Additionally, both ensure that environmental non-governmental organisations (NGOs) can access procedural rights to further environmental protection goals, and both empower the public to access an independent compliance mechanism. However, the differences in legal culture and socio-political context, as well as the different historical moment in which each were conceived and drafted, means that the two elaborations of Principle 10 are quite different. These differences draw attention to the evolution of legal ideas and the importance of regional expression of global concepts.

A new kind of environmental agreement

When the Aarhus Convention entered into force it was endorsed as a ‘new kind of environmental agreement’ because it was the first environmental law treaty to provide citizens with rights that were directly enforceable as against the relevant Contracting Parties. Thus, the Aarhus Convention was both a human rights instrument and an environmental agreement. However, the Convention continues to hold its human rights status at arm’s length – not fully realising the right to a healthy environment, simply gesturing towards its existence somewhere outside of the text. By contrast, the Escazú Agreement is more explicitly a human rights agreement. It is unabashed in its acknowledgement of the substantive right to a healthy environment; it recognises the importance of social context in making its procedural rights usable and makes provision for special protection for environmental rights defenders. Indeed, before negotiations officially began Latin America was already emerging as a world leader in the promotion and protection of environmental rights. As a result, the Escazú Agreement presents an even more visionary approach to Principle 10 whilst building on the foundations of the Aarhus Convention. In what follows, the distinctive vision of Principle 10 that is elaborated in the Escazú Agreement will be discussed.

If you wish to read the rest of the article you will find it at: https://gnhre.org/community/theme-and-variations-the-aarhus-convention-and-escazu-agreement/

The long and short of it is that since 1992 the human right to a healthy environment and that States must enact effective environmental legislation, has been effectively ignored for nearly 30 years. The United Kingdom’s earnest words on ratifying the Aarhus Agreement in 2005 are as hollow now, as when they were first appended with the signature to the agreement in 1998.

Is it any wonder that the likes of Greta Thunberg express derision and anger at the lack of progress in the last 30 years of promises? She was born in 2003 by which time the Rio Declaration had been in existence for eleven years and the Aarhus Agreement for five.

I do not lay claim to any particular environmental activist credentials, quite the contrary, I am hardly a good example; however, the fact that the United Nations, in effect the world, recognises as a human right, the right to a healthy environment, places a duty of care on each of us to ensure that right.  It is particularly incumbent upon the state to enact effective legislation to enforce that right. Failure to do so is a breach of the duty of care.

If that is the case, then all those tenants in inadequate housing that we have been shown on newscasts, suffering from infestations of vermin, damp, and any number of other problems making their homes uninhabitable or at least an unhealthy environment, should not only bring action against their landlords, but join in the suit their local authorities and the minister of state for housing for breach of duty of care to ensure the human right to a healthy environment. The courts could then make such order forcing the necessary repairs and compensation. I believe that would apply in every state which is a signatory to the various agreements and which professes to adhere to the rule of law.  

Indeed the breach of this duty of care could be applied to a number of situations around the world, where people’s lives are adversely affected by a government’s or local administration’s lack of attention.

Environment is not just a matter of global warming and pollution; it is equally related to health and housing. What is the point of having a planet survive for longer if it means people live in bad housing, miserable conditions and lack of human rights for longer? It’s fine having clean air, clean and clear water, resilient forests and oceans, but if you live in a shit hole and/or are deprived of basic freedoms, so what?  

My thanks to Dr Emily Barritt for bringing these matters to my attention. I will consult with her whether my legal argument has any merit.