Human Rights and Responsibilities Towards the Earth System

1 Introduction

A look back at the trajectory of the past fifth years (1972–2022) shows that international environmental law (IEL) has ignored its overarching objective to protect the global environment. Such a claim may be surprising given the plethora of multilateral environmental agreements (MEAs) 1 covering the atmosphere, oceans, biodiversity and many other environmental areas. The underlying assumption may be that the various areas of the global environment can only be dealt with one-at-a-time, but will cumulatively contribute to the protection of the Earth as a whole. Have they done it? It posits some fundamental questions: Is the fragmented case-by-case approach of IEL mere reflection of historical and political processes? It is appropriate for addressing global environmental issues? Or is it fundamentally flawed as it overlooks ecological interrelationships?

This article aims at closing the gap between ecological complexities and legal representations. Rather than following state-centred perspectives on how the Earth system can be protected, an Earth system perspective should guide states in their deliberations. The Earth is an ecological system formed by a large variety of sub-systems (atmosphere, hydrosphere, geosphere, biosphere as well as social and economic systems etc.) which interact by exchange of matter, energy and information. 2 >. The integrity of the Earth’s ecological system is a pre-condition for the continuation, or sustainability, of all life-forms, including human life, and hence the overarching concern of IEL. 3 . The concern for the integrity of the Earth’s ecological system has, in fact, been expressed in many of the MEAs such as the 2015 Paris Agreement 4 as well as other international instruments, including the 1982 World Charter for Nature 5 , the 1992 Rio Declaration on Environment and Development 6 ., Agenda 21 7 , the Earth Charter 8 ., the 2012 Rio+20 outcome document The Future We Want 9 .

In the following, we will first trace references to Nature and Earth in the development of MEAs. One development here has been an increased recognition of an interconnected “Earth”. Another trend is the increased recognition of a fundamental human right to a decent environment which can be conceived as the rights-approach towards safeguarding the Earth.

The key thesis is that the rights-based approach has limitations and needs to be complemented by responsibilities. All human beings and their institutions of governance such as States have responsibilities towards the Earth. Such calibration of responsibilities is not motivated by human-centred or state-centred concerns, but by the larger concerns for the integrity of the Earth system. It is, by definition, driven by non-anthropocentric ethics. In law, such responsibilities can be captured by the concept of Earth trusteeship. 10 .

2 Adopting an Earth system perspective

Many global and regional environmental issues, especially in the post-UNCHE period, have been sought to be addressed through the instrumentality of international law. This is not a new development. The management of shared natural resources, such as waters or fisheries, can be traced back to the beginnings of international law itself. 11 Typically, states enter MEAs as a matter of foreseeable mutual benefit.

The ‘modern era’ of IEL began in the early 1970’s. The realization of the global nature of environmental problems created a new challenge to the treaty-making process. How can global responsibilities be reconciled with national interests? Can ‘mutual benefits’ of environmental protection really be assumed in a world of competing national economies? The 1972 UNCHE took an optimistic view. The preamble to the 1972 Stockholm Declaration proclaimed a fundamental interrelatedness between humans and nature:

“Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth \dots  Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights-even the right to life itself.” 12

The first of its operating principles states that the humans bear “a solemn responsibility to protect the environment for present and future generations” (Principle 1). All the following 25 principles specify the various responsibilities that humans and States have towards the “human environment”.

Ten years later, the United Nations General Assembly (UNGA) adopted the World Charter for Nature. This Charter proclaimed that “man is part of nature” and “convinced that every form of life is unique, warranting respect regardless of its worth to man”. 13 The first three principles state: “Nature shall be respected and its essential processes shall not be impaired” (1), “the genetic viability of the Earth shall not be compromised” (2) and “all areas of the Earth, both land and sea, shall be subject to these principles of conservation” (3).

Fifteen years later, the Brundtland Report (1987) observed in its opening statement that the sight of our planet from space may have “>a greater impact on thought than did the Copernican revolution of the 16 ^th century” as this allowed us to “see and study the Earth as an organism whose health depends on the health of all its parts”. 14

Remarkably, these early reports and IEL instruments highlighted the wholeness and vulnerability of the Earth, the interconnectedness and intrinsic value of all life forms, and a basic duty of caring for the Earth.

Twenty years later, the 1992 Rio Summit adopted five global environmental instruments (two treaties on climate change and biodiversity; three soft instruments on Agenda 21, forestry principles and the Rio Declaration). It declared the “Earth’s climate” and “biological diversity” as common concerns of humankind. However, it reaffirmed the sovereign rights of States to exploit their own resources according to the rules they set domestically. In this way, any global responsibility appeared as derivative, secondary to the domestic responsibilities and subject to a negotiated consensus between States. Thus, until today, environmental treaties have always focussed on specific fragments of the Earth and shaped by whatever consensus was achievable at the time. Further, States in their sovereignty decide whether or not they want to become signatories and, if so, to what extent they implement international obligations into national law. Despite the Brundtland Report’s assertion “From One Earth to One World”, States have hardly aimed for narrowing the gap. 15

Fifty years after Stockholm, it is only too obvious that IEL has failed us. Some “trees” have been saved, but the “forests” are disappearing. 16 The reason is that States have kept their proclaimed responsibilities toward the Earth abstract, non-committal and not binding. What may be less obvious is that this carelessness is not just a lack of political will, but a repercussion of habitual state sovereignty and arguably nurtured by legal positivism. States and their representatives, some more than others, have used sovereignty as a shield against global action and legal scholars, some more than others, have taken Realpolitik for granted.

The biggest stumbling block has been the political resistance against “new kinds of institutional arrangements and novel procedures of decision-making, on both national and international levels”. The person who wrote this was Maurice Strong, initiator and Secretary-General of the 1972 Stockholm conference. A year after Stockholm, he observed that the State’s “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction” 17 is “a far more revolutionary matter than has yet been generally acknowledged or comprehended.” 18 Principle 21 reappeared as Principle 2 in the Rio Declaration of the 1992 Earth Summit 19 despite the opposition of its Secretary-General Maurice Strong.

As a positive, the “no harm” rule as expressed in the 1972 (Stockholm) and the 1992 (Rio) Declarations has become a principle of customary international law whereby a State is duty-bound to prevent environmental harm to other States. 20 >. The negative is, that it does not include “areas beyond national jurisdiction” known as the global commons. 21 . and scientifically captured as the Earth system. States may have an obligation to not cause harm other States, but individually or collectively they are under no obligation to not harm the Earth system. An obligation erga omnes to safeguard the Earth does not exist. It may be emerging though 22 . considering the many initiatives, declarations and agreements that have since been produced by civil society, professional bodies and international organizations. A critical step forward was the adoption of the Earth Charter.

Maurice Strong himself was instrumental for the Earth Charter that the 1987 Brundtland Report had called for. 23 It was, however, rejected by the States during the 1992 Earth Summit. As a cross-cultural, cross-religions consensus of global values, the Earth Charter was eventually adopted in 2000 and gained recognition among governmental agencies, several States, UNESCO, IUCN, and other global organizations. 24 >. Its central principles are reflected in two parts: Respect and Care for the Community of Life (Part I) and Ecological Integrity (Part II).

Both principles directly address what IEL was and is in urgent need of, i.e., an overall objective and obligation to protect the integrity of the Earth’s ecological system. Its ethical core is our belonging to the “community of life” rather than long-standing Western anthropocentrism that has shaped traditional, ineffectiveness of IEL. The Earth is not an assembly of natural resources for human consumption, but a living whole that humans are part of and need to respect.

The credibility of the Earth Charter stems from its completion of “unfinished business” that States were left with in their response to the 1987 Brundtland Report. The Report’s key message was to define social and economic development within the limits of the Earth’s life-supporting capacity and accept that we cannot grow forever on a finite planet. Instead, States took sustainable development as a policy of an unspecified balancing of environmental, social and economic concerns 25 and consistent with business-as-usual ignored the fundamental importance of ecological sustainability. The Earth Charter’s principles 1 and 2 aim at rectifying this (deliberate?) ignorance.

Ecological integrity was also referred to in the 1992 Rio Declaration. 26 Its Preamble recognized “the integral and interdependent nature of the Earth, our home” and Principle 7 postulates that “States shall co-operate in a spirit of global partnership to conserve, protect and restore health and integrity of the Earth’s ecosystem”. The overarching concern for the protection and restoration of the integrity of Earth’s ecological systems is expressed in more than 25 global agreements - from the 1982 World Charter for Nature right through to the 2015 Paris Climate Agreement. This gives ecological integrity fundamental importance, at least, potentially and akin to the grundnorm character of human rights. 27 Conceptually and institutionally, this requires States to act as trustees. 28 It is the only way to ensure that the State exercises sovereignty to the benefit and in the interest of its citizens.

Recent developments have made the concept of trusteeship a stronger prospect than during the time between the 1992 Rio Summit and the 2012 Rio+20 Summit. One has been the emergence of a human right to a healthy environment. The other development is the increased recognition of human responsibilities.

3 The human rights approach to safeguarding Earth

The first time that human rights with respect to the environment reached global recognition was at the 1972 Stockholm Conference. Principle 1 of the Stockholm Declaration stated, “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 well-being”. 29

The 1992 Rio Declaration, however, softened the language of the 1972 Declaration. The word ‘right’ was removed and replaced by the notion that “human beings are entitled to a healthy and productive life in harmony with nature.” International conferences on sustainable development in Johannesburg in 2002 and Rio de Janeiro in 2012 also failed to recognise this a fundamental human right to a healthy environment. 30 Meanwhile, the UN Commission on Human Rights adopted a resolution entitled, “human rights and the environment as part of sustainable development.” 31 The Resolution called upon States to “take all necessary measures to protect the legitimate exercise of everyone’s human rights when promoting environmental protection and sustainable development.” 32

The first Convention to recognize the importance of environmental rights, albeit limited to climate change, was the 2015 Paris Agreement. Its preamble states:

“Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity”. 33

The impact of environmental rights on climate litigation in many countries has been significant. A prime example of this is within the German case of Neubauer, et al. v. Germany. 34 The claimants alleged that the Federal Climate Protection Act, which set targeted a 55% reduction of GHG’s by 2030, was insufficient for meeting Germany’s obligations under the Paris Agreement and violated their human rights as protected by Germany’s constitution. The Federal Constitutional Court struck down parts of the Act as incompatible with fundamental rights. The Court found that Article 20a of the Basic Law not only obliges the legislature to protect the climate and aim towards achieving climate neutrality, but “also concerns how environmental burdens are spread out between different generations”. The Court further stated that “the fundamental rights - as intertemporal guarantees of freedom - afford protection against the greenhouse gas reduction burdens imposed by Art. 20a of the Basic Law being unilaterally offloaded onto the future”.

In a similar case, Shrestha v. Office of the Prime Minister et al., 35 the Nepalese Supreme Court found that climate change was impairing the plaintiff’s constitutional right to a dignified life, and a clean and healthy environment. Moreover, action was needed to ensure climate justice, both intra- and intergenerationally. Thus, it ordered the Government to pass and implement new climate law to align with its international obligations.

Or in Colombia, where the Constitutional Court ordered the Government to ensure an adequate enjoyment of the rights to water, life, dignity, and human and environmental health for the inhabitants of the small Colombian town of San Anterito. 36 The Court went as far as amplifying States’ duties to provide these human rights where climate change had decreased natural water reservoirs.

There is also continuing development concerning the status of climate crisis refugees. In I.L. v. Italian Ministry of the Interior and Attorney General, the Court of Appeal found that humanitarian protection of migrants must be granted when the situation in the country of origin did not guarantee the right to life and that environmental and climate degradation was to be included in this assessment. 37

In 2016, the UN Human Rights Committee recognised climate change as a serious threat to the right of life for present and future generations in Teitiota v New Zealand concerning his status as a climate refugee. 38 These and many other cases highlight the importance of human rights with regard to climate change and the environmental degradation.

The UN Human Rights Council has been particularly active to promote the right to a healthy environment. Following earlier reports 39 , the Human Rights Council adopted resolution 48/13 for “the human right to a clean, healthy and sustainable environment” in October 2021 40 . and referred it to the UN General Assembly for consideration in 2022.

Yet, rights-based approaches have their limitations. A predominant critique surrounding environmental human rights is that a rights-based approach perpetuates an anthropocentric viewpoint 41 and that arguably this approach is a part of the problem rather than a solution for it.

Anthropocentrism is based on the premise that human beings are the central or most important element of existence. It interprets the world purely in terms of instrumental values and experiences. The Universal Declaration of Human Rights is predicated by the non-instrumental or intrinsic value of a human being, but is only concerned with inter-human relationships, not relationships beyond humans. In this way it presupposes the anthropocentric stance that finds only instrumental values in the existence and well-being of the natural world. This is not to say human rights are not an important with respect environmental protection, but human rights were created as a means to protect humans, not to protect the integrity of ecological systems.

By creating environmental laws to protect the environment, based on the view that humans are dependent on the environment and therefore deserve a right to the environment, it puts humans needs at the center of any discussion. It requires that the state of the natural world is determined by the needs of humanity, not the needs of all living beings. Reinforcing the idea that the environment exists only for human benefit and has no intrinsic worth. 42 Historically, human rights have been created to protect citizens against the state, in other words to protect humans from each other. They contain no provision to stop humans from exploiting non-humans and fundamentally changing the conditions of life, as long as human rights are not impinged on, we are free to destroy the environment and all life around us.” 43

We see this tension, for example, in Principle 2 of John Knox’s Framework Principles on Human Rights and the Environment where it states:

“the obligation to protect human rights from environmental harm does not require the cessation of all activities that may cause any environmental degradation. States have discretion to strike a balance between environmental protection and other issues of societal importance, such as economic development and the rights of others.”⁴²

This illustrates that even in more advanced environmental human rights jurisprudence, the law tends to reinforce the view of human superiority and exclusiveness.

Across the world we see this play out to the detriment of the environment in every culture and society. Burning fossil fuels, deforestation and the use of plastic and chemical fertilizers, for example, are all known to degrade the environment, yet they remain in the majority perfectly legal. Human gains, specifically economic, outweigh the impact on the environment. The challenge being, we now know these practices have triggered climate change, soil erosion, poor air quality and undrinkable water, which in turn impedes on human rights.

If we continue to create laws that put the needs of human rights above and beyond the needs of nature, we risk destroying the very integrity of the Earth’s ecological system that we depend upon. Even our most basic ‘right to life’ and ‘right to food and shelter’ depends on sustaining the integrity of ecological systems at local, regional and global levels.

4 Responsibilities for safeguarding the Earth

A more coherent approach is needed. One that reflects the many ways humans are linked with the natural environment and the need for preserving the integrity of ecological systems that humans are inextricably part of. This will require a shift that goes beyond simple claims to human rights and instead integrates the notions of responsibility, guardianship and trusteeship into the design and interpretation of laws. Although our political and legal institutions seemingly lost sight of this, we have the opportunity now to weave it back into the legal framework.

A first step is to recognize human responsibilities next to human rights. In 1996, the InterAction Council with a membership of twenty-six former prime ministers and heads of government adopted the Draft Universal Declaration of Human Responsibilities. Its introduction states:

The draft Universal Declaration proclaimed a common standard for all peoples and all nations and sought the reconciliation of human rights with human responsibilities. 45 It was intended to complement the Universal Declaration of Human Rights and to ensure that “when rights and responsibilities are balanced, then freedom is enhanced and a better world can be created.” 46 Many countries, particularly in Asia, supported the draft Declaration, responding positively to the reconciliation of responsibilities with human rights.

However, most Western countries expressed concern that the draft Declaration undermined the Universal Declaration of Human Rights. Likewise, human rights activists cautioned it could weaken the safeguarding of human rights. There were also fears tyrant regimes would use the concept of human responsibilities to halt the advancement of human rights. While the InterAction Council had aimed for having the Responsibilities Declaration adopted by the UN General Assembly, in the end their efforts did not receive sufficient support. The Council’s steering committee maintained that its original motivation was based on the notion that human rights and human responsibilities were complimentary, however it acknowledged that, “it will take years before the moral appeal of the document will be accepted by the multitude of the people around the worlds.” 47

In 2000, when the Earth Charter was launched, it contrasted the previous agreements and declarations drafted by states. It became unique in that the consultation process included scientists, scholars, religious leaders, political leaders and thousands from civil society. The result was the most inclusive and participatory process ever associated with the creation of an international declaration and the world’s first international legal document exclusively drafted by civil society. 48

Based on a Declaration of fundamental ethical principles for “building a just, sustainable and peaceful global society,” the Charter ambitiously seeks to “inspire in all peoples a sense of global interdependence and shared responsibility for the well-being of the human family, the greater community of life, and future generations.” It challenges the global community to embrace a new global ethic based on responsibilities rather than rights. Notably, it defines respect and care for the community of life, not just human life, as fundamental to all law and governance. 49

Following the launch, the goal was to have it endorsed by the 2002 Johannesburg Earth Summit. It was included in the first draft of the Johannesburg Charter. Following opposition from the United States and other countries, however, the call for endorsing the Earth Charter was not included in the final version. 50 . As a consequence, the Earth Charter Initiative took a new direction and rather than continuing to make presentations to international government bodies, the focus shifted to building support amongst civil society. By early 2003, the Charter had been translated into 27 languages. More than 2,000 civil society organizations, 1,000 government agencies, and a number of businesses endorsed its principles. Fifty-four countries have since formed Earth Charter national committees. 51 Ever since, the main importance of the Earth Charter has been in its educational functions leading to further international declarations and draft conventions.

Among the draft conventions that were influenced by Earth Charter is the Global Pact for the Environment. In 2017 the Draft Global Pact was launched by a network of more than 150 international environmental lawyers across the globe. The initiative seeks to conclude a legally binding international instrument under the guidance of the United Nations. If enacted, the Pact would be the first international agreement to include rights and responsibilities towards the global environment. Yet, in its present wording the Pact lacks ambition and clarity. As Louis Kotzé and Duncan French suggested, the Draft is “seeking to tick a lot of boxes, much of what it suggests simply restates many generally accepted environmental law norms and it doesn’t feel nearly as radical as it could have been, or as it should be.” 52 It also leans too heavily to traditional rights thinking. Article 1 states: “Every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment.” 53 , at Article 1. Less ambitiously, Article 2 reads: “Every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem. 54

Defined in this way, environmental rights and duties remain somewhat disconnected and also anthropocentric.

By contrast, the 2018 Hague Principles 55 >. aim for reconciling both and for defining them in their social as well as ecological context. Following the framework of the Earth Charter, the Hague Principles conceive rights and responsibilities from the belonging of humans to the ‘community of life’ and ‘Earth community’. The Hague Principles define responsibilities for the Earth (1), for the community of life (2) and for human rights (3). They are designed around the need for trusteeship responsibilities that both, people and States have for human rights and for the Earth.

The ongoing efforts towards negotiating a Global Pact for the Environment (Global Pact, 2018) provide an opportunity to include these three principles and make them legally binding. The current draft text includes important references to “the Earth’s community of life” and “the balance and integrity of Earth’s ecosystem” (Preamble) and the State’s duty to take care of “conservation, protection and restoration of the integrity of the Earth’s ecosystem” (Article 2). These notions are reflective of Earth Charter principles, the Hague Principles and of an Earth system approach to international environmental law. However, the text needs further strengthening, as mentioned, to fully accommodate the Earth system approach and associated Earth trusteeship responsibilities. 56

The magnitude of the issues we are facing in times of dramatic climate change and global pandemics is truly immense. As yet, we are far from addressing the various dimensions of the global ecological crisis including its socio-economic impacts and threats to human survival. The scale and complexity of our problems has, quite obviously, pushed solutions beyond the grasp of current governance mechanisms.

We need integrated responses that are framed by the reality of Earth as a single ecological system and our common home demanding to live within planetary boundaries. The responses needed, therefore, are those of responsibility for the Earth. As noted in the Earth Charter:

“To realize these aspirations, we must decide to live with a sense of universal responsibility, identifying ourselves with the whole Earth community as well as our local communities. We are at once citizens of different nations and of one world in which the local and global are linked. Everyone shares responsibility for the present and future well-being of the human family and the larger living world.”

One way of institutionalising Earth trusteeship responsibilities at international level is to “repurpose the UN Trusteeship Council”. The UN Trusteeship Council suspended operation in the early 1990s, but continues to exist on paper. It was created to encourage respect for human rights and fundamental freedoms by administering the transition to self-determination to colonies and territories occupied under World War I, and others which were detached from nations defeated at the end of World War II. 57 These colonies and territories were then placed under the trusteeship of the UN. However, now that its original decolonisation missions concluded more than 25 years ago, 58 this unused council could gladly be giving new prospects.

Article 85 of the UN Charter reads:

“The functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly.

While this article does not explicitly allude to “the global commons,” “the global environment,” “the Earth,” or, anything related to environmental and geological entities, it also does not refer to the physical trust territories to decolonise that existed in 1945. The use of the term ‘areas’ –instead of ‘territories’–allows it to broaden itself to an entirely new scope of imagination. It is a field of possibilities that UN Secretary-General António Guterres suggested in his 2021 report Our Common Agenda that the UNTC be repurposed to an inter-governmental body for intergenerational issues. He invited States to: “[C]onsider making the Council available as a multi-stakeholder body to tackle emerging challenges and, especially, to serve as a deliberative forum to act on behalf of succeeding generations. Among other tasks, it could issue advice and guidance with respect to long-term governance of the global commons, delivery of global public goods and managing global public risks”. 59

Madeleine Albright, former US secretary of state, and Ibrahim Gambari, former Nigerian foreign minister, expressed their support in this way: 60 .

“[W]e support Guterres’s suggestion to repurpose the UN Trusteeship Council. But effectively delivering global public goods and managing global public risks will require authorities that go beyond the reconfigured body’s proposed ‘advice and guidance’ role.”

Indeed, a repurposed UN Trusteeship Council requires more than advice and guidance. 61 The newly established High-Level Advisory Board on Effective Multilateralism 62 > needs to closely examine the concept of trusteeship and provide the UN Trusteeship Council with a role that meets the expectations of the Hague Principles.

5 Conclusion

The main driver for transformative changes as they were sketched here has been the dramatically increased deterioration of the atmosphere (climate change), the hydrosphere (oceans, freshwater systems), the lithosphere (soils) and the biosphere (biodiversity loss). All four spheres are interrelated and hence require a genuine focus on the Earth System. 63 >. Climate change, for example, is closely connected with ocean acidification and biodiversity loss and none of these problems can ever be solved in isolation from the others. Most recently, the global pandemic has reminded us that nature is in charge, not governments merely exercising crisis management. Now more than ever before States need to acknowledge the urgency of an Earth System approach to decision-making and define the associated obligations accordingly. 64

Stockholm + 50 and a Summit of the Future in 2023 offer yet other opportunities to focus on the Earth, but we are running out of time. We are destroying Earth, our home, arguably because all talk about caring for the Earth has remained empty.

Enforceable responsibilities would change this. Legally, stewardship means trusteeship. A trustee acts to the benefit of those who cannot speak for themselves and is accountable to them. Trusteeship responsibilities of States are not new as the (now defunct) trusteeship system under Articles 75-91 of the UN Charter demonstrates and could be administered through a World Environmental Agency or a UN Earth Trusteeship Council. 65 Earth trusteeship would be institutionalized through a process of constitutionalizing environmental law at national and international levels. 66 What matters now is a commitment, best expressed in the Stockholm+50 Declaration, to a legally binding Global Pact that follows an Earth system approach, 66 includes Earth trusteeship and hence more appropriately should be named Global Pact for Earth.