By Madison Hanrahan
On Friday, March 26, the Institute for Global Understanding (IGU) hosted a panel titled “New Directions in Human Rights and the Environment” during its biennial symposium. This panel, hosted by IGU Director Professor Randall Abate, included a variety of speakers who contributed their voices to shed light on the human rights dimensions of environmental changes. Moderated by Professor James. R. May of Widener University, Delaware Law School, the panel was an intriguing and insightful presentation of human rights issues around the world that have been critically impacted by environmental challenges such as having access to clean drinking water, maintaining cultural traditions, and confronting gender-based issues. The panel addressed the following overarching question: Do human rights include the right to a healthy environment?
Dr. Joshua Gellers, a LEED Green Associate and Associate Professor in the Department of Political Science and Public Administration at the University of North Florida, discussed rights-based approaches to environmental protection. He reported on the status of rights to the environment and rights to nature, including their utility in the courts and in practical application. Incorporating environmental rights when considering new environmental legislation will result in smaller ecological footprints, greater environmental performance, better access to improved water and sanitation services, and reduced carbon emissions. Dr. Gellers highlighted the issue that there is no precedent of judges validating the rights of nature, which is a barrier to implementation of protections for these rights. He stated, “We do not have a discussion from an empirical standpoint about the actual concrete impacts once judges have actually validated the rights of nature in their jurisprudence.”
Dr. Marijana Mladenov then presented her research on recent jurisprudence of the European Convention on Human Rights. Dr. Mladenov is Assistant Professor at the Faculty of Law for Commerce and Judiciary at the University Business Academy in Novi Sad, Serbia. She focused her presentation on access to safe drinking water and sanitation. Dr. Mladenov contended that access to these resources is a human right under the General Comment 15 (2002) of the Committee on Economic, Social, and Cultural Rights as the European Court of Human Rights (ECtHR) has developed case law and established the minimum standards relating to the right to safe drinking water and sanitation using two interpretation techniques: the “living instrument” doctrine and the “practical and effective” doctrine. Dr. Mladenov cited Articles 3 and 8 of the ECtHR as the linchpin for determining which countries are obligated to provide safe drinking water and sanitation to their entire populations. Article 8 states that everyone has the right to respect for his private and family life and correspondence, and that there should be no interference by a public authority with the exercise of this right. Article 3 states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Dr. Mladenov condensed her argument into three categories: lack of access to water and proper sanitation in detention, water as a public good, and discrimination. Dr. Mladenov noted that one in three people worldwide do not have access to clean drinking water, while two out of five people do not have a basic hand washing facility with soap and water. To close her presentation, she lamented the importance of ensuring equal access to safe drinking water with an explanation as to the significance of safe drinking water during the COVID-19 pandemic. Since potable water for hygiene and an adequate and safe sanitation system are the basis of prevention, it is of great importance that Human Rights instruments establish precise standards regarding access to safe water and sanitation.
Dr. Maria Antonia Tigre, the Director of Latin America for the Global Network for the Study of Human Rights and the Environment, followed with her presentation on the COVID-19 pandemic in Latin America. She focused her lecture on the proposed right to a healthy environment by referencing the 2019 United Nations General Assembly (UNGA) resolution 73/333, which called for the adoption of a political declaration to strengthen international environmental law, reinforcing the protection of the environment. There used to be no precedent for upholding human rights in the context of environmental changes, but the case Indigenous Communities Members of the Lhaka Honhat Association v. Argentina revolutionized this idea on February 6, 2020. The case emerged as Argentina engaged in illegal logging activities near Indigenous groups without first consulting these groups. Lhaka Honhat won the case, and, as a result, the Argentinian court required Argentina to guarantee public services as a restitution measure to ensure the rights to a healthy environment, food, water, and protected cultural identity; for the state to develop an emergency plan addressing water and food shortages and to develop an action plan with a schedule of the implementation of adequate resources; and for the state to conduct a study on the measures needed to protect the water sources and control the deforestation with experts on Indigenous viewpoints and with the court’s approval. This groundbreaking case has set a precedent for other cases to expand on a right to water during the pandemic in regard to other states developing similar jurisprudence around the right to clean water and sanitation. As Dr. Tigre noted, “The ruling marks a significant milestone in the struggle of the Indigenous Peoples for the recognition of their rights.” The aforementioned case thus illustrates the importance of a right to a healthy environment, particularly for underrepresented communities. The right to a healthy environment is also highly relevant for the current pandemic. Dr. Tigre said, “History could repeat itself and there could be another virus coming from … the Amazon rainforest. Because of this disregard for nature that we are constantly experiencing … it was always important, but I think COVID-19 really highlighted how important it is that we protect resources.”
Lastly, Dr. Lina Muñoz-Avila, a Colombian lawyer who is a legal advisor for the Ministry of Environment and Sustainable Development of Colombia and a consultant to the United Nations Economic Commission for Latin America and the Caribbean (ECLAC), presented on the role of women environmental defenders in Latin America. She discussed the dangers that women environmental defenders face in Latin America, particularly in Colombia and in Brazil, as their advocacy challenges their respective countries’ power structures based on class privileges and gender discrimination. Between 2009 and 2014, 404 women defenders were threatened or killed in Latin America, with the highest death rates of environmental defenders in the mining and energy sectors. Climate change and human rights are especially important to women because women are more likely than men to be poor, earn lower incomes, and be employed in informal jobs with low protection mechanisms in terms of maternity, disability, or illness. With regard to the unique contributions that women offer their environments, Dr. Muñoz-Avila explained, “Women represent an orientation towards quality of life, care, generosity, and motherhood that environmental management precisely requires in these aspects in the relationship with human nature.” As a result, women’s voices in human rights and the environment are significant to the conversation of climate change and its disproportionate impact on marginalized populations. Dr. Muñoz-Avila offered six ways that people can help protect women environmental defenders: define environmental defender; strengthen the judiciary’s capabilities; invest in active authorities to combat impunity, including defenders in the construction of provisions, policies, and regulations that establish their protection measures for making the dangers visible; integrate different approaches such as gender and ethics; and ratify and implement the Escazú Agreement. The presentation emphasized environmental defenders’ importance in the protection of the sustainability of ecosystems and their resources.
“In rule of law systems that lack the express right to a healthy environment, like those countries within the European system, environmental rights and the idea of the linkage between human rights and a healthy environment is still there, and you can find it lurking in all sorts of other rights that are recognized expressly in the rights to life.” — Distinguished Professor James R. May of Widener University Delaware Law School