David Boyd: The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment

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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.

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  • 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)
  • David Boyd: The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment

    1. 1. The Environmental Rights Revolution:Constitutions, Human Rights, and the Environment Dr. David R. Boyd CNDH/CEC Mexico City September 26, 2012
    2. 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. 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. 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
    5. 5. Constitutions of the Countries of the World
    6. 6. The Spread of ConstitutionalProtection for the Environment
    7. 7. Laggards: Canada and the USACANADA UNITED STATESPetition on right to a healthy Case before the Inter-environment to Canada’s American Commission onCommissioner for the Human RightsEnvironment and Highly polluted communitySustainable Development in in Louisiana2006 US denied existence of rightGovernment response to healthy environmentimplicitly denied existence ofright to healthy environment US argued even if customary international law, not applicable to USA
    8. 8. Leaders: Ecuador and Boliviarecognize the Rights of NatureConstitution 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.
    9. 9. 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
    10. 10. Potential DrawbacksToo vague to be useful Redundant because ofWill be interpreted as existing human rightsabsolute, trumping and/or environmentalother rights lawsMay lead to flood of Not enforceablelitigation May be ineffectiveTransfers power from Anthropocentric—failselected legislators to to recognize the rights ofunelected judges Nature
    11. 11. 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
    12. 12. 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
    13. 13. 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)
    14. 14. 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
    15. 15. Global Summary
    16. 16. 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
    17. 17. Global Summary
    18. 18. Beatriz Mendoza (Argentina)
    19. 19. 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
    20. 20. 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;
    21. 21. 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
    22. 22. 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
    23. 23. Constitutions and Ecological Footprints: Global Comparison
    24. 24. Constitutions and EcologicalFootprints: Regional Comparison
    25. 25. OECD Comparison Average Ranking of OECD Nations25 21.82015 12.210 5 0 With Envt in Con Without Envt in Con
    26. 26. Conference Board of Canada Comparison Average Environmental Ranking of Nations14 12.61210 8 6.5 6 4 2 0 With Envt in Con Without Envt in Con
    27. 27. 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
    28. 28. Factors Affecting the Influence ofthe 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
    29. 29. Conclusions Rapid diffusion of constitutional environmental protection Significant influence on environmental legislation and court decisions Constitutional environmental provisions are linked to superior environmental performance
    30. 30. Mexican ConstitutionArticle 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.
    31. 31. 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;
    32. 32. 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.
    33. 33. 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
    34. 34. 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
    35. 35. 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
    36. 36. 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
    37. 37. 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
    38. 38. 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

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