Do We Need an International Instrument for the Recognition of the Right to a Healthy Environment?

3.1 Right to a healthy environment at national level

At the time of the Stockholm declaration in 1972, there were no national constitutions that recognised the right to a healthy environment. 20 There has been a significant shift toward the constitutional recognition of the importance of environmental protection over the last few decades. 21 Portugal was the first country to adopt a right to a healthy environment in its Constitution. 22 Many countries amended their constitutions to include provisions regarding environmental protection in the constitutions. For example, the French Constitution 23 was modified in 2005 to add a Charter for the Environment which states that everyone has the right to live in a balanced environment that respects health. 24

Currently, over 100 national constitutions around the world guarantee a right to a healthy environment or impose a duty on the state to prevent harm to the environment. 25 For example, the Constitution of South Africa provides that ‘everyone has a right to an environment that is not harmful to their health or well-being’. 26 This right to a healthy environment has been inserted under the Bill of Rights. However, the Constitution of the Republic of the Philippines (‘Constitution of the Philippines’) recognises the right to the environment under the ‘Declaration of Principles and State Policies’ which provides that ‘the state shall protect and advance the right of the people to a balanced and healthful ecology in accord with rhythm and harmony with nature’. 27 Some national constitutions contain procedural environmental rights such as the right to information and the right to participate in decision-making on environmental matters. 28 Many countries enacted special legislation that articulates the right to a healthy environment. For example, Bhutan enacted the National Environment Protection Act 2007 which states that ‘[a] person has the fundamental rights to a safe and healthy environment with equal and corresponding duty to protect and promote the environmental wellbeing of the country’. 29

The recognition of the right to a healthy environment in national constitutions has provided a basis for the enactment of stronger environmental laws, regulations and policies. Not less than 80 countries passed stronger environmental legislation in direct response to the insertion of the right to a healthy environment into their domestic constitutions. 30

3.2 Right to a healthy environment at regional level

There are few regional agreements that explicitly recognised the right to a healthy environment. For example, Art 24 of the African Charter on Human and people’s Rights 1981(also known as Banjul Charter) states that ‘[a]ll peoples shall have the right to a general satisfactory environment favorable to their development’. 31 The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights 1988 (‘Protocol of San Salvador’) provides that ‘everyone shall have the right to live in a healthy environment and to have access to basic public services’. 32 Moreover, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 (‘Aarhus Convention’) 33 which has been prepared under the auspices of the United Nations Economic Commission for Europe (‘UNECE’) establishes some rights of the individuals and their associations regarding the environment. The core objective of the Aarhus Convention as stipulated in Art 1 is to ‘contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’.

Although an explicit right to a healthy environment in the Convention for the Protection of Human Rights and Fundamental Freedoms 34 (‘European Convention on Human Rights’) can not be found, other human rights that are acknowledged in the convention have been used to provide remedies in case of environmental harm. Lopez Ostra V Spain 35 was the first case where the European Court of Human Rights found a breach of the European Convention on Human Rights as a result of environmental harm. The fact of the case was that due to malfunction, a plant located in Lorca, released gas fumes and contaminations which caused health problems to many local people including the applicant’s daughter. The applicant contended that there was a violation of the right to respect for private and family life under art 8 of the European Convention on Human Rights. The European Court of Human Rights stated that there had been a violation of the right to respect for private and family life under art 8 due to illegal operation of a waste plant. 36

In Tatar v Romania, the European Court of Human Rights unanimously held that there has been a violation of the right to respect for private and family life under art 8 of the European Convention on Human Rights because the Romanian authorities failed to protect the right of the applicants to enjoy a ‘healthy and protected environment’. 37 Recently, in Duarte Agostinho and Others v. Portugal and Others, 38 the Portuguese applicants, ages 8–21, complain, inter alia, of the failure by 33 Contracting States to comply with their undertakings, in the context of the 2015 Paris Agreement on Climate Change, to keep the increase in global average temperature well below 2° C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5° C above those same levels. They argue that heat waves and forest fires interfere with their right to life and harm their physical and mental wellbeing. The Court gave notice of the application to the defending governments and put questions to the parties under various articles including Art 1 (jurisdiction of States), Art 2 (right to life) and Art 8 (right to private and family life and home) to the Convention. The application is pending.

Given the ratification of regional instruments, national constitutions and domestic legislations, over 150 countries across the world have recognised the right to a healthy environment. 39 However, there is no international instrument recognising the right to a healthy environment as an independent substantive human right.

4.1 Addressing gaps at national level

There is a large gap in many countries between the legal recognition for the right to a healthy environment and the implementation of measures for the effective protection and promotion of this right. 48 Some national constitutions contain environmental concern as an objective which is to be addressed by the state, rather than as a justiciable right of the individual. 49

For example, art 18A of the Constitution of the People’s Republic of Bangladesh (‘Bangladesh Constitution’) does state that [t]he State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the present and future citizens’. 50 Art 18A was inserted in the Bangladesh Constitution in 2011. This falls within the chapter of ‘Fundamental Principles of State Policy’. 51 According to art 8 of the Bangladesh Constitution, the fundamental principles of state policy are not ‘judicially enforceable’. This gives environmental concern a lower status than the other rights outlined in the Bangladesh Constitution as justiciable rights. The Spanish Constitution contains a personal right to the environment, however, it falls within the ‘Principles Governing Economic and Social Policy’. 52 As a result, environmental concerns enjoy a lower position than the core political and civil rights in the Spanish Constitution. 53 Moreover, there are some countries such as Canada, the United States of America, China, North Korea and Cambodia that have not yet formally recognised this right to a healthy environment through the national constitution. 54 There are some countries that expressed support for this right through non-binding international declarations. 55

To fill the gaps existing at the national level for the effective protection and promotion of this right, this right should be recognised through a global instrument. Moreover, the international recognition of the right to a healthy environment could complement national constitutional norms and jurisprudence. 56 Furthermore, recognition of this right by an international instrument could increase the positive effects that national constitutional environmental rights have generated. Those positive effects include stronger environmental legislation, greater governmental accountability regarding environmental policy, greater citizen participation in environmental decision making and improved environmental action. 57

4.2 Addressing gaps at regional level

There are some regional agreements or declarations that recognise the right to a healthy environment. However, there is a lack of strong institutional machinery or monitoring procedures in some regional systems. For example, although the Arab Charter on Human Rights 2004 recognises the right to a healthy environment as an element of the right to an adequate standard of living which guarantees well-being and a decent life, 58 it does not have a strong institution or monitoring procedure. 59 Likewise, Human Rights Declaration 2012 60 adopted by the Association of Southeast Asian Nations (‘ASEAN’), which recognises a ‘right to a safe, clean and sustainable environment’ as a part of the right to an adequate standard of living, does not have a strong institution or monitoring procedure.

The strong institutional mechanisms or monitoring procedures are required for effective protection and promotion of the right to a healthy environment. The gap regarding institutional machinery in the regional system could be filled by the adoption of an international instrument recognising this right which will have a strong institutional mechanism. Moreover, recognition of this right by an international instrument would complement and strengthen the norms and jurisprudence that have been developed over the past few decades at the regional level.

4.3 Defining the content of the right to a healthy environment

Different regional agreements and national constitutions have stated this right to a healthy environment in different ways. For example, the African Charter on Human and people’s Rights 1981 stated ‘the right to a general satisfactory environment favorable to their development’. On the other hand, the Constitution of South Africa stated the ‘right to an environment that is not harmful to their health or well-being’. The content of the right to a healthy environment has been discussed and debated over the last few decades at regional and national levels. The content of this right is not certain. 61 Several states may be unwilling to recognise this right if its content is uncertain. The content of this right should be certain to make this right effective. It is important to build uniform guidelines for the interpretation of this right.

Moreover, the precautionary principle, the principle of intergenerational equity, aesthetic protection should be recognised as unique aspects of the right to a healthy environment. 62 The principle of intergenerational equity postulates that the present generation is the beneficiary of natural resources and the environment as well as the trustee of the same for the future generations. The inclusion of interests of future generations in the right to a healthy environment would give this right a unique role in international human rights law. 63 This unique role of the right to a healthy environment will go beyond the environmental protections achieved through existing human rights.

The inclusion of aesthetic protection in the right to a healthy environment would protect the intangible values inherent in natural environments. 64 The aesthetic protection as a part of the right to a healthy environment would preserve that which makes life worth living. 65 Moreover, the inclusion of aesthetic values in the right to the environment could indirectly encourage an eventual recognition of the rights of nature itself. 66

The precautionary principle posits that scientific uncertainty should not be used as a cause for suspending measures to prevent environmental degradation where there are risks of damage. 67 > Principle 15 of the Rio Declaration on Environment and Development 1992 states that the ‘precautionary approach shall be widely applied’ by countries according to their capabilities to protect the environment. 68 The precautionary principle would contain both substantive and interpretive elements as a part of the right to a healthy environment. 69 It would prescribe how claims with regard to environmental violations should be settled. Moreover, as a component of the right to a healthy environment, it would provide a definite standard for measuring the state’s efforts to protect environmental human rights. 70

There should be a global instrument defining the unique content of the right to a healthy environment. That international instrument should also recognise the precautionary principle, the principle of intergenerational equity and aesthetic protection as unique components of the right to a healthy environment.

4.4 Enhancing the implementation and enforcement of environmental laws

The recognition of the right to a healthy environment in national constitutions has increased the importance of environmental protection. 71 Moreover, the constitutional recognition of this right has enabled government agencies, individual, civil society organizations, communities and judiciary to contribute to the better implementation and enforcement of environmental laws. One study shows that nations with constitutional right to a healthy environment have experienced faster progress in reducing emissions of nitrogen oxides, sulphur dioxide and greenhouse gases than the nations with no constitutional provisions related to environmental protection. 72 At international level, compliance systems need to be strengthened to improve the effective implementation of international environmental agreements. 73 The implementation of multilateral environmental agreements remains problematic. 74

Despite various international environmental agreements, environmental degradation is continuing globally. Climate change is one of the greatest challenges of the 21st century. The global emissions of greenhouse gases continue to rise increasing the adverse impacts of climate change despite the Paris Agreement, which is the latest international treaty on climate change. 75 Now it is affecting every country in the world. It is affecting people, communities and the ecosystem. It is now disrupting economies of countries. Due to climate change, weather pattern around the world is changing. 76 Adverse impacts of climate change include drought, desertification, rising of sea level, reduced water availability, increased salinization, and ice melting. Due to the adverse effects of climate change, millions of people are being forced to leave their places of residence. 77 Many people are under threat of displacement in the near future. 78 Addressing climate change is a challenging task. To address climate change, it is essential for all states and non –state actors to work together and to take action on a cooperative basis.

Similarly, a large number of species are under the threat of extinction despite the Convention on Biological Diversity. 79 The main causes of the loss of biodiversity include climate change and environmental pollution. 80 The loss of biodiversity around the world has grave consequences for humans. 81 Moreover, environmental hazards increase the risk of disease globally. 82

Taking into consideration the multiple environmental challenges facing the world, the international recognition of the right to a healthy environment would be very timely. If the right to a healthy environment is recognised by an international instrument, this international recognition of this right could enhance the implementation and enforcement of international environmental agreements. This recognition would improve global efforts for environmental protection.

4.5 Creating level playing field

Globally the current environmental crisis shows that economic and social considerations often take priority over environmental concerns. 83 At national level, the constitutional right to a healthy environment aims to seek a better balancing of competing interests. It does not aim to unilaterally trump economic and social considerations. 84 The government policymakers, national agencies and domestic courts make numerous decisions with environmental consequences. The constitutional protection of the right to a healthy environment acts as a guiding criterion in decision making. It also acts as a standard for interpretation. Accordingly, constitutionalizing the right to a healthy environment creates a level playing field with other economic and social rights at the national level. 85

Similarly, the right to a healthy environment should be incorporated in a global instrument to create a level playing field at international level in order to ensure better balancing of competing interests. Other human rights including economic and social rights have been incorporated in globally recognised human rights instruments such as ICESCR. Due to the lack of international recognition, environmental interests are regarded as inferior to other interests. 86 The international recognition of the right to a healthy environment could ensure balance in various administrative and judicial decisions by acting as a guiding criterion in decision making.

4.6 Addressing global or trans-boundary environmental challenges

The general principle applicable to human rights is that states must fulfil their human rights obligations within their territory. The ICCPR, the European Convention on Human Rights, the American Convention on Human Rights and the Convention on the Rights of the Child limit some of their protections to individuals subject to or within the jurisdiction of the State. Art 2 of the ICCPR states that each state party undertakes to ensure the rights recognized in the ICCPR to all individuals ‘within its territory and subject to its jurisdiction’. However, the ICESCR does not contain such territoriality principle. 87 Rather, it provides an explicit basis for extraterritorial obligations as it encourages international assistance and co-operation as stipulated in art 2(1). The extraterritorial obligations of states require states to refrain from interfering with the enjoyment of human rights in other countries. Moreover, states need to take measures to prevent third parties subject to its jurisdiction from interfering with the enjoyment of human rights in other countries.

Many environmental challenges including climate change, the loss of biodiversity, marine pollution, long-range air pollution and plastic pollution have global or trans-boundary dimensions. 88 The Framework Principles on Human Rights and the Environment proposed by the former United Nations Special Rapporteur includes a principle on states cooperation to prevent global and trans-boundary environmental harm. 89 Principle 13 states that ‘[s]tates should cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy trans-boundary and global environmental harm that interferes with the full enjoyment of human rights’. Activities undertaken completely within the territory of one country can have devastating impacts on the neighbouring countries or global common areas. States should refrain from engaging in activities that would cause trans-boundary environmental harm. States need to comply with their human rights obligations with regard to the environment in the context of other international legal frameworks, for instance, agreements for economic cooperation and international finance mechanisms. 90 They should ensure that agreements with respect to international trade and investment support, the ability of States to respect, protect and fulfil human rights and to ensure a healthy and sustainable environment. Moreover, international financial institutions and national organization for international assistance and development should adopt and implement social and environmental safeguards that are consistent with human rights obligations, inter alia, by ‘(a) requiring the environmental and social assessment of every proposed project and programme; (b) providing for effective public participation; (c) providing for effective procedures to enable those who may be harmed to pursue remedies; (d) requiring legal and institutional protections against environmental and social risks; and (e) including specific protections for indigenous peoples and those in vulnerable situations’. 91

The extraterritorial dimension of state action is recognised in international environmental law. However, the constitutional recognition of the right to a healthy environment requires the states concerned to ensure a healthy environment for the individuals and groups within its territory. The constitutional right to a healthy environment does not have an extraterritorial dimension. The domestic laws seem powerless to address the problems of trans-boundary environmental harm. Environmental problems do not respect political boundaries. 92 Sometimes governments of nation states lack the political will to respond to many environmental challenges.

Actually, the right to a healthy environment cannot assume its appropriate role without the extraterritorial obligations as the legal basis for guaranteeing universal protection of all individuals and communities. For this reason, this right should be incorporated into an international instrument that will have an extraterritorial dimension.

5.1 Including in the area of the economic, social and cultural rights

If the right to a healthy environment is recognised by a second optional protocol to the ICESCR, this right will fall within the category of the economic, social and cultural rights. Economic, social and cultural rights are the freedoms and entitlements that persons and communities need to live a life with dignity. 97 These rights include the rights to food, health, education, housing, work, cultural identity, social security and more.

Many national constitutions adopted this right to a healthy environment into the chapter of economic, social and cultural rights. For example, the Belgian Constituent Assembly included the right to the protection of a healthy environment in the category of economic, social and cultural rights under the Belgian Constitution. 98 The Constitution of the Philippines recognises the right to the environment under the ‘Declaration of Principles and State Policies’ which are economic, social and cultural in nature. 99 In Minors Oposa v Secretary of the Department of Environment and Natural Resorces, 100 where the petitioners who were children brought an action through their legal guardians to have all timber license agreements cancelled, the Supreme Court of the Philippines stated that although the right to a balanced and healthful ecology is to be found in the Constitution of the Philippines under the ‘Declaration of Principles and State Policies’, it does not mean that it is less important than any rights enumerated in the ‘Bill of Rights’.

Moreover, few regional instruments also incorporated this right under the chapter of economic, social and cultural rights. For example, the ASEAN Human Rights Declaration incorporated the right to a healthy environment under the ‘Economic, Social and Cultural Rights’. 101 The Protocol of San Salvador also incorporated the right to a healthy environment in the category of economic, social and cultural rights. 102 The Inter-American Court of Human Rights opined that the right to a healthy environment should be regarded to be incorporated among the economic, social and cultural rights protected by the American Convention on Human Rights. 103 The inclusion of this right to a healthy environment in the area of economic and social rights would create a level playing field to ensure better balancing of the competing interests.

One may argue that the incorporation of the right to a healthy environment within the ICESCR by a second optional protocol would create conflict with the existing right to development as set forth in the art 1 of the ICESCR. However, the principle of sustainable development provides a probable link between the right to development and the right to a healthy environment. 104 Principle 3 of the Rio Declaration on Environment and Development 1992 states that ‘[t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations’. Moreover, environmental protection is one of the three pillars of sustainable development. 105 The rest are economic development and social security. Moreover, the Draft Principles on Human Rights and the Environment 1994 have also recognised sustainable development as a link between the right to development and the right to a healthy and ecologically balanced environment. 106 Thus, sustainable development could remove any conflict creating a bridge between the right to development and the right to a healthy environment.

5.2 Reporting mechanism for the right to a healthy environment

All States Parties to the ICESCR have obligation to submit reports to the Secretary-General of the United Nations on the measures which have been adopted by the States Parties for the implementation of the rights outlined in the ICESCR. 107 The Secretary-General transmits copies of the report to the United Nations Economic and Social Council (‘ECOSOC’) for consideration. The ECOSOC can transmit the reports to the Commission on Human Rights for recommendations. 108 Moreover, as per art 21 of the ICESCR, the ECOSOC can submit to the United Nations General Assembly reports with recommendations and a summary of the information received from the state parties on measures taken in achieving observance of the rights outlined in the ICESCR. The Committee on Economic, Social and Cultural Rights, which is a body of independent experts, was established under ECOSOC Resolution 1985/17 of 28 May 1985 to do the monitoring functions of the ECOSOC in Part IV of the ICESCR. 109 The Committee examines each report submitted by the States Parties

If the right to a healthy environment is recognised under the ICESCR by adding a second optional protocol to the ICESCR, the reporting mechanism already established under the ICESCR can be utilised for reporting with respect to the right to a healthy environment. The States Parties will be under obligation to submit reports regularly on measures taken by them for the implementation of the right to a healthy environment. Moreover, reports could be submitted by the ECOSOC to the United Nations General Assembly with recommendations for the implementation of the right to a healthy environment. The Committee on Economic, Social and Cultural Rights would be able to monitor the implementation of the right to a healthy environment by states parties.

Moreover, since the Secretary-General can transmit copies of the reports to the specialised agencies of the United Nations under art 16 of the ICESCR, the United Nations Environment Programme (‘UNEP’) that is the leading global environmental authority 110 within the United Nations system will be able to monitor the implementation of the right to a healthy environment.

5.3 Complaints mechanism for the right to a healthy environment

If the right to a healthy environment is recognised by adding a second optional protocol to the ICESCR, individuals of any state party will be able to communicate any violation of their right to a healthy environment to the Committee on Economic, Social and Cultural Rights.

Unlike the ICCPR, there was no complaints mechanism under the ICESCR at the time of its adoption. Later on, complaints mechanism has been established for the economic, social and cultural rights by the Optional Protocol to the ICESCR. Art 1 of the Optional Protocol to the ICESCR gives the Committee on Economic, Social and Cultural Rights competence to receive and consider communications from individuals of any state parties claiming to be victims of a violation of any rights under the ICESCR. According to art 2 of the Optional Protocol to the ICESCR, communications could be submitted by or on behalf of any individuals or group of individuals claiming that any of their economic, social and cultural rights have been violated. According to art 5, after receiving a communication from any individuals or group of individuals, the Committee on Economic, Social and Cultural Rights may transmit to the concerned state party a request that the State Party take necessary interim measures to avoid probable irremediable damage to the victim or victims of the alleged violations. Moreover, the Committee on Economic, Social and Cultural Rights is empowered to bring any communication submitted to it confidentially to the attention of the concerned state party. According to art 13, the concerned state party is under obligation to take proper measures to ensure the protection of the individuals under its jurisdiction from any form of ill-treatment or intimidation as a consequence of making communication to the Committee.

If the right to a healthy environment is recognised by a new international treaty, new complaints mechanisms will be required. A new committee or organisation will be required to receive and consider the complaints against violations of the right to a healthy environment. Establishing a new committee or organization could be time-consuming and costly. On the other hand, if the right to a healthy environment is recognised by a second optional protocol to the ICESCR, the individuals or groups of a State Party will get the opportunity to make communication to the Committee on Economic, Social and Cultural Rights in case of violation of their right to a healthy environment. The Committee on Economic, Social and Cultural Rights will be able to bring the matter to the attention of the concerned state party. The Committee will be able to make request to the concerned state party to take necessary interim measures in exceptional circumstances to avoid possible environmental harm. The concerned state party will have to take appropriate protection measures to ensure that the individuals or groups of individuals are not subjected to any form of ill-treatment or threats due to making communication to Committee on Economic, Social and Cultural Rights regarding any violation of the right to a healthy environment. The complaints mechanisms established Optional Protocol to the ICESCR could be an important forum for dealing with alleged violations of the right to a healthy environment. 111

5.4 Inquiry procedure for the right to a healthy environment

According to art 11 of the Optional Protocol to the ICESCR, if the Committee on Economic, Social and Cultural Rights receives reliable information indicating serious violations by a state party of any of the rights set forth in the ICESCR, the Committee shall invite the concerned state party to collaborate in the examination of the information and to submit its observations regarding the concerned information. The Committee on Economic, Social and Cultural Rights can undertake inquiries taking into consideration any observations that may have been submitted by the concerned state party and any other reliable information available to it. The Committee may designate one or more of its members to conduct confidentially an inquiry and to report immediately to the Committee.

If the right to a healthy environment is recognised by a second optional protocol to the ICESCR, the inquiry procedure outlined in the art 11 of the Optional Protocol to the ICESCR can be applied for that right. After receiving communications indicating a grave violation of the right to a healthy environment, the Committee on Economic, Social and Cultural Rights will be able to designate one or more of its members to conduct inquiries and to report immediately to the Committee. On the other hand, if the right to a healthy environment is recognised by a new international treaty, a new inquiry procedure will be required to be established. A new committee for the inquiry will have to be established. It may be time-consuming and costly.

5.5 Complaints mechanism for cross-border environmental issue

There is scope for inter-state communications in the Optional Protocol to the ICESCR. The complaints mechanism for inter-state environmental issues set forth in the art 10 of the Optional Protocol to the ICESCR can also be applied for right to a healthy environment if that right is recognised by a second optional protocol to the ICESCR. According to art 10, if a state party considers that another state party is not fulfilling its obligations under the ICESCR, it may directly make written communication to bring the matter to the attention of that state party. The state party can also notify the Committee on Economic, Social and Cultural Rights of the matter. However, before making the written communications, the state party has to make a declaration recognising the competence of the Committee on Economic, Social and Cultural Rights to receive and consider inter-state communications. If the matter remains unsettled to the satisfaction of both parties, either party can refer the matter to the Committee on Economic, Social and Cultural Rights.

If the right to a healthy environment is adopted under the ICESCR, any state party to the second optional protocol will be able to make written communication to another state party concerning any cross-border environmental harm. The state party will get an opportunity to inform the Committee on Economic, Social and Cultural Rights of the cross-border environmental issues.

5.6 Scope for the inclusion of procedural environmental rights

The procedural environmental rights i.e. right to information, right to participate in decision-making and access to justice could be included in the proposed second optional protocol to ICESCR. The procedural environmental rights promote transparency and accountability that constitute the foundation of environmental governance. 112 Moreover, procedural rights enable individuals and communities to contribute actively to the protection of the environment. 113 However, procedural environmental rights alone could not guarantee environmental protection. The procedural environment rights mainly complement the substantive right to a healthy environment. Principle 10 of the Rio Declaration on Environment and Development 1992 states that

[a]t the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities,...and the opportunity to participate in decision-making processes. . . Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. 114

The outcome document of the United Nations Conference on Sustainable Development (Rio+20)-‘The Future We Want’ 115 re-confirmed Principle 10 of the Rio Declaration on Environment and Development and highlighted its importance at the regional level. However, procedural rights i.e. access to information, participation and access to justice in environmental matters are currently operative mainly in Europe through the Aarhus Convention. 116 The provisions of the Aarhus Convention are detailed and supported by complex institutional machinery. 117 Like the Aarhus Convention, the Escazú Agreement 118 which has not yet in force, contains provisions on access to information, participation and access to justice in environmental matters in the Latin America and the Caribbean.

Inclusion of these procedural environmental rights in a global human rights instrument i.e. the second optional protocol to ICESCR would complement the implementation of the substantive right to a healthy environment. Moreover, the provisions on monitoring, inquiry and complaints mechanism within the ICESCR system could also be applied for these procedural rights.

5.7 Avoiding inchoate adoption of a human rights approach

Any international instrument that would not contain provisions on monitoring, implementation, compliance and dispute resolution would be weak. The reason is that the mere inclusion of the right to a healthy environment in an international instrument without further provisions would be ‘an inchoate insertion of a human rights approach’. 119 Accordingly, the adoption of a resolution only for the recognition of the right to a healthy environment will not be an appropriate option.

In 2017, the Government of France presented a global pact for the environment which stated that ‘every person has the right to live in an ecologically sound environment adequate or their health’. 120 In 2018, the negotiation process for a global pact for the environment was formally initiated under the auspices of the United Nations General Assembly. 121 However, the Draft Global Pact for the Environment 122 (‘Draft Global Pact’) does not provide a compliant procedure to address complaints of rights. It does not contain any provisions on reporting requirements. Although the Draft Global Pact proposes the establishment of a Committee of Independent Experts to monitor implementation of the pact, however, it is unclear who should be appointed to the Committee of Independent Experts and by whom. 123 Moreover, although the Draft Global Pact contains provisions with regard to procedural environmental rights 124 i.e. access to information, public participation and access to justice, the lack of detail in that instrument would leave the implementation of these procedural rights as well as the substantive right to a healthy environment exclusively to the discretion of States Parties. Accordingly, if the Draft Global Pact for the Environment is adopted formally, it would be just a mere inclusion of ‘the right to live in an ecologically sound environment’ in a global instrument.

On the other hand, the ICESCR system has reporting, inquiry and complaint procedures. It has strong institutional machinery. Therefore, the inclusion of the right to a healthy environment in a second optional protocol to the ICESCR would not be an inchoate adoption of a human rights approach. Ultimately, a second optional protocol to the ICESCR would be the best option for the recognition of the right to a healthy environment.