Canadian environmental lawyer and author of Unnatural Law: Rethinking Canadian Environmental Law and Policy gave the keynote address at the Commission for Environmental Cooperation/Mexico's National Human Rights Commission seminar on Human Rights and Access to Environmental Justice seminar in Mexico City on September 26.
Another Day, Another Default Judgment Against Gabe Whitley
David Boyd: The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment
1. The Environmental Rights Revolution:
Constitutions, Human Rights, and the Environment
Dr. David R. Boyd
CNDH/CEC
Mexico City
September 26, 2012
2. 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)
3. Stockholm Declaration (1972)
Principle 1
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, and he bears a solemn
responsibility to protect and improve the
environment for present and future
generations.
4. 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
7. The Spread of Constitutional
Protection for the Environment
10. Laggards: Canada and the USA
CANADA UNITED STATES
Petition on right to a healthy Case before the Inter-
environment to Canada’s American Commission on
Commissioner for the Human Rights
Environment and Highly polluted community
Sustainable Development in in Louisiana
2006
US denied existence of right
Government response to healthy environment
implicitly denied existence of
right to healthy environment US argued even if customary
international law, not
applicable to USA
11. Leaders: Ecuador and Bolivia
recognize the Rights of Nature
Constitution of Ecuador (2009)
Chapter Seven: Rights of Nature
Article 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.
12. 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
13. Potential Drawbacks
Too vague to be useful Redundant because of
Will be interpreted as existing human rights
absolute, trumping and/or environmental
other rights laws
May lead to flood of Not enforceable
litigation May be ineffective
Transfers power from Anthropocentric—fails
elected legislators to to recognize the rights of
unelected judges Nature
14. 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
15. From Constitution to Environmental Outcome:
A Simplified Causal Sequence
Constitution
|
Legislation
|
Regulations
|
Administrative agencies
|
Policies/Prac tices/Procedures/Programs/Decisions
|
Implementation
|
Changes in societal behaviors (individuals, businesses, NGOs, governments, etc.)
|
Environmental outcomes
16. 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)
17. 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
19. From Constitution to Environmental Outcome:
A Simplified Causal Sequence II
Lawsuit alleging violation of right to healthy environment
|
Court decision
|
Implementation of court order
|
Changes in societal behaviors (Individuals, businesses, NGOs, governments, etc.)
|
Environmental outcomes
22. 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
23. 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;
24. 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
25. 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
28. OECD Comparison
Average Ranking of OECD Nations
25
21.8
20
15
12.2
10
5
0
With Envt in Con Without Envt in Con
29. Conference Board of Canada Comparison
Average Environmental Ranking of Nations
14
12.6
12
10
8
6.5
6
4
2
0
With Envt in Con Without Envt in Con
30. 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
31. 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
32. Conclusions
Rapid diffusion of
constitutional environmental
protection
Significant influence on
environmental legislation
and court decisions
Constitutional
environmental provisions
are linked to superior
environmental performance
33. 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.
34. 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;
35. 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.
36. 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
37. 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
38. 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
39. 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
40. 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
• nez, 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
•
a (REMA) was reportedly murdered
outside his home in Chicomuselo on November 27, 2009
41. Conclusions II
• Amended Mexican • Collaborate with other
Constitution is stronger Latin American nations
and the rights to a to develop best
healthy environment practices
and water are • Judicial responsiveness?
enforceable – Education programs
• Implementation is the • Defend the defenders
key
Hinweis der Redaktion
Rights recognize our most cherished values and express our moral identity as a peopleThree essential characteristics of all rights:Universally held by all human beingsMoral, i.e. exists regardless of legal recognitionEssential to human dignity and quality of lifeRights evolve over time, often in response to wrongs.Rights impose obligations on government to respect, protect, and fulfill the rightRespect: government actions cannot violate rightProtect: government must prevent third parties from violating rightsFulfill: government must take positive steps to ensure that rights are fulfilledEnforceable through legal system if violated
First written reference to need for a legally recognized right to a healthy environment was in Rachel Carson’s Silent SpringEnvironmental rights and responsibilities part of indigenous law for many centuries.
Mexico ratified San Salvador Protocol in 1996Inter-American Commission on Human RightsInter-American Court on Human RightsAfrican Commission on Human RightsAfrican Court on Human RightsEuropean Court of Human RightsNot yet established for Caribbean or Middle East regionsNon-binding declarationse.g. Charter of Civil Society for the Caribbean Community
YES: 177 nationsNO: 16 nations: Canada, Afghanistan, Australia, Brunei Darussalam, Cambodia, China, Japan, Kuwait, Laos, Lebanon, Malaysia, Myanmar, New Zealand, North Korea, Oman, and the United States.
Total 147 out of 1932010: Dominican Republic, Kenya2011: Bangladesh, Jamaica, Morocco, South Sudan2012: Iceland, Somalia, Zambia? Tunisia
Now the R2HE has gained wider global recognition than any other economic, social, or cultural rightBy comparison, the right to water is only found in approximately 20 national constitutions
Bolivia enacted a law called the Law on the Rights of Mother EarthEcuador court ruled in favor of the Vilcabamba RiverEarlier this month, New Zealand recognized the legal rights of the Whanganui River
Over ten million new connectionsNelson Mandela describes as one of South Africa’s most important developments
16 out of 18 Latin American and Caribbean nations with constitutional environmental rights have modified legislation to focus on the right to a healthy environmentTwo exceptions are Guyana (poorest) and Jamaica (rights added in 2011)
In Latin America, 13 out of 18 nations with constitutional environmental rights have seen supreme or constitutional court decisions enforcing this right3 uncertain: Guyana, Honduras, Nicaragua (because court decisions not available online)2 no high court jurisprudence: Mexico, Jamaica (right not recognized until 2011)
Comprehensive court order requiring cleanup of historical pollution, dramatic decrease in current pollution, and prevention of future ecological degradation
Article 4. Everyone has the right to a healthy environment for their development and welfare. The State shall ensure respect for this right. Environmental deterioration and damage generate responsibility/liability for those who cause it in terms of the provisions of the law. Everyone has the right to access and provision of water and sanitation for personal and household consumption in a form that is sufficient, safe, acceptable and affordable. The State shall guarantee this right and the law will define the bases, supports and arrangements for access and equitable and sustainable use of water resources, establishing the participation of the Federation, the states and municipalities, and the participation of citizens to achieving these ends.
31 states and one federal district (Mexico City), each with its own constitutionconstitucion politica del estado de oaxaca, Art 12, 1999…Toda persona dentro del Territorio del Estado, tiene derecho a vivir en un medio ambiente adecuado para su desarrollo, salud y bienestar. Sonora--No
Art. 15(12) Toda persona tiene derecho a disfrutar de un ambiente adecuado para su desarrollo, salud y bienestar. Las autoridades en los términos de esta y otras leyes, tomarán las medidas para garantizar ese derecho;
Citizens unable to bring amparo cases for environmental damage despite constitutional rightsOECD commented in 2005 that Mexican citizens have very limited access to courts for resolving environmental problemsBrazil: Ministerio Publico is an independent branch of government whose role is to defend collective rights, including the right to a healthy environment. Established via constitutional reforms of 1988 and has contributed to dramatic increase in enforcement of environmental laws and protection of environmental rights in Brazil (e.g. Cubatao)Colombia: Constitutional Court must hear case within ten days if health or life is jeopardizedCosta Rica: Constitutional Court employs lawyers whose job is to turn ordinary forms of correspondence from citizens into legal petitions and then represent the interests of those citizens
Pro personae principle—when in doubt authorities (including judges) must adopt the interpretation most favorable towards protecting the individual and their rights
1990 85% safe drinking water, 2010 96% safe drinking water (WHO/UNICEF JMP 2012)1990 72% improved sanitation, 2010 96% improved sanitationhttp://www.calidadaire.df.gob.mx/calidadaire/index.php?opcion=2&opcioninfoproductos=26Includes 26 new UN biosphere reserves and 125 RAMSAR wetlands plus islands in the Sea of Cortez and Monarch Butterfly sanctuaries
Lilian Calderón-Garcidueñas1,2* and RicardoTorres-Jardón. 2012. Air Pollution, Socioeconomic status, and children’s cognition in megacities: The Mexico City Scenario. Frontiers in Psychology. Volume 3, Article 217: 1-2
From Inter-American Commission on Human Rights Defenders report (2012)States are obligated to take reasonable measures to prevent the threats, assaults and harassment of human rights defenders; conduct serious investigations of the facts brought to their attention; and, where appropriate, punish those responsible and adequately redress the victim Effective enforcement of the environmental protection measures in relation to private parties, particularly extractive companies and industries, is essential to avoid the State’s international responsibility for violating the human rights of the communities affected by activities detrimental to the environment
Strong economic growth, though high inequality persistsMexico’s per capita GDP grew an average of 5.97%/year from 1990 to 2010 compared to 4.17% in the USA and 4.35 in Canada (International Monetary Fund, data tables)