Right to a healthy environment plays ‘key role’ in safeguarding climate

I first heard of David R Boyd as the Optimistic Environmentalist, a book I was gifted by my father at a particularly low point where I needed to hear from someone who was honest about the environmental crises the world faces but sought to celebrate the victories along the way too. 

That optimism seems to have remained intact during Boyd’s six years as the UN’s special rapporteur on human rights and the environment, and may be part of the reason that there is more to celebrate.

When he took over the role in 2018, 154 states recognised, in law, the right to a healthy environment. That number has grown, with recent adoptees including Antigua and Barbuda, Belize, Grenada and Saint Lucia (via ratification of the Escazú Agreement) and Monaco.

Boyd’s home country was the final tick on his checklist. “I'm happy to say Canada was the 161st, so that's a point of progress,” he tells The Wave in his characteristically affable manner.

Landmark resolution

In 2022, the UN General Assembly went a step further, passing a landmark resolution recognising it as a universal right, leading a few more nations to do so domestically.

Boyd, one of those diligently working on the subject behind the scenes, says there was a lot of scepticism initially about the ability of five small states - Costa Rica, the Maldives, Morocco, Slovenia, and Switzerland - to get such a resolution passed at the UN. “I just talked to everybody over a period of years and years. I have had states tell me ‘Consistent advocacy by you and civil society and others changed our position, took us from opposition to kind of neutral to supportive’, and some of those countries even became champions.”

He also attributes the shift to growing awareness of the world’s environmental crises. “There are so many issues that divide us, whether it's geopolitics or the pandemic or race or religion, and the right to have a healthy environment was one of those rare issues where most people saw it as a unifying force. It was really quite exciting to be part of something that went against the grain in terms of global global change.”

With 161 countries now on board, that leaves about 32 states that do not recognise the right in the law. Boyd stresses that more than half of those are small island developing states, for which it isn’t a priority while they are dealing with more pressing public problems, and has offered to help. “I said: Look, I'm willing to work on a pro bono basis with any of you that are interested in taking the next step from supporting this at the UN to actually incorporating it in your domestic legal systems. And I've had good conversations with Samoa and Vanuatu and a couple of others about moving forward domestically.” 

The final holdouts will prove more tricky, with China, India, Japan and Russia the thorniest problems; all abstained from the UN vote.

'The world has moved'

But Boyd remains optimistic, at least about the UK and US. “Over time, in both of those cases, their position has already softened substantially. In the United States, we're seeing the adoption of the right to a healthy environment in state constitutions. New York added the right to its constitution a couple of years ago and there are similar proposals in California and several other American states.”

Within the UK, the Scottish government has committed to including the right to a healthy environment in its emerging Human Rights (Scotland) Bill, putting pressure on the rest of the country to follow suit. 

Ireland is also considering a nationwide referendum on the subject. 

“The world has moved,” says Boyd. “Just as there are leaders, the laggards will inevitably in the next ten or so years catch up with the rest.”

As Boyd finished his term at the end of April, handing over to his successor Astrid Puentes Riaño (who previously won a landmark case in Peru), the title of the role changed to ‘Special rapporteur on the human right to a clean, healthy and sustainable environment’. Riaño is holding her own inquiry into how well the right is being implemented.

With most of the world now seemingly on board, Boyd would love to see the right to a healthy environment added to the Universal Declaration of Human Rights. “I think that'd be a really cool and symbolic next step. The Universal Declaration hasn't been amended ever, since [it was agreed in] 1948, so that suggests that it's challenging. But I think if there's any human rights that urgently needs to be added to it, it would be this one in the face of a global climate and environmental emergency.”

But declaring a right and making it mean something are two different things.

Subsequent attempts by the UN Human Rights Council, for example, to crystallise high-level political statements into something more tangible have proved problematic.

Boyd believes the distinction between soft and hard law is becoming increasingly blurred. “Technically, it's true to say that a UN General Assembly resolution is not legally binding upon parties. But I had a great conversation a couple of years ago with a Supreme Court judge from Brazil, and he said: ‘Look, in our world, we actually are more likely to reference soft law than hard law’. The example he gave was the 1972 Stockholm Declaration, which is the single most cited international environmental instrument by the Supreme Court of Brazil, more so than any legally binding treaty that Brazil has ratified.

“And since the adoption of the General Assembly resolution… we've seen courts in various places referencing [it], not saying it's legally binding, but saying that it should be a very strong influence in the way courts approach their interpretation of the right to a healthy environment, which from my vantage point is fantastic.”

"There will be extreme pressure brought to bear by civil society on the Council of Europe member states to adopt this additional protocol"

Political discussions around amending the European Convention on Human Rights to recognise the right to a clean, healthy and sustainable environment are now ongoing. That would make a significant difference both at European level and to the 14 members of the Council of Europe, which include the UK, Germany, Iceland and Switzerland, that do not explicitly recognise the right to a healthy environment in domestic law. 

And it would be enforceable by the European Court of Human Rights, following in the footsteps of its more progressive peer the Inter-American Court of Human Rights which already recognises that “the right to a healthy environment, unlike other rights, protects the components of the environment, such as forests, rivers and seas”. 

Following a ‘historic’ leaders summit in Reykjavik last year, the Council of Europe signed a fairly positive declaration on this topic, and the parliamentary assembly has been working on a more concrete proposal. The Wave understands that that is close to being done.

Boyd says the Council of Europe must bow to the weight of history, noting that all its member states voted in favor of the UN resolution, and it clearly wants to portray itself as an environmental and human rights leader. “There is no doubt in my mind that there will be extreme pressure brought to bear by civil society on the Council of Europe member states to adopt this additional protocol,” says Boyd. “How can they possibly politically resist that?” 

He adds that he has recently had good conversations with some states, including Slovenia, Portugal, Germany, Luxembourg and others that have so far been quiet in the process, which are now willing to champion the idea.

There has also been a growing global recognition that climate change should fit squarely under the environmental umbrella.

Last March, Hawaii’s courts rejected a biomass project’s bid to operate, saying that public bodies must balance technical, economic, environmental and cultural considerations in their decision-making. Their ruling recognised a human right to a stable climate - the first time this had happened in the US. Later in the summer, a Montana judge ruled that a group of young people had “a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life support system”, although the state is currently appealing this decision. 

The Inter-American Court of Human Rights is also developing an advisory opinion which it has dubbed ‘The climate emergency and human rights’.

This was a point Boyd made forcefully in a user’s guide on the right to a healthy environment, published in April. “The right to a healthy environment has a potentially key role to play in addressing the climate crisis because it includes a safe climate,” it says, alongside clean air, healthy ecosystems and biodiversity, safe and sufficient water, healthy and sustainable food and a non-toxic environment. 

Boyd accepts that other human rights have been used to address environmental challenges. Last month, for example, I wrote about how the Indian Supreme Court has expanded the concept of the right to life to include the "adverse effects of climate change", noting that “without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised”. 

And when the European Court of Human Rights recently accepted a claim brought by a group of Swiss women - its first ruling in a climate case - it did so based on a violation of their right to privacy and family life. 

But Boyd says these other rights are “incapable of adequately protecting” all the different elements necessary.

For example, because there is no right to a healthy environment in the European Convention, the European Court of Human Rights has repeatedly stated that “no right to nature preservation” is included among the rights and freedoms guaranteed by the convention. 

Multi-decadal effort

Interestingly, some experts said the recent European Court ruling would have a “seismic impact” on ongoing discussions on amending the European Convention.

“I've had some people say we should be campaigning for a right to a safe climate,” says Boyd. “Honestly, that's a crazy idea, because you're starting at basically zero. And we already have this multi-decadal effort on the right to a healthy environment, which surely includes the right to a safe climate.”

The right to a healthy environment is not the only thing that occupied Boyd during his six years at the UN; he has been a vocal admonisher of big business over its role in attacking the biosphere and rising inequality, and his report on secretive investor-state dispute settlement mechanisms pulled no punches on how they undercut action on climate change. But even being called “a lot of names" by prominent people in the field of international arbitration does not appear to have phased him. “I actually think it's terrific because they don't have a single thing to say about the case I made… they're just resorting to attacking the messenger.”

Although his term is ending, Boyd sees it as a role for life and says he will keep answering the knocks on his door until his last breath. But he’s also planning to make more time for hiking and kayaking in the beautiful neighbourhood of British Columbia where he lives.

It’s hard not to come away from the conversation with a renewed sense of hope about the direction things are taking. “I continue to work at being optimistic is the most honest way to put it,” says Boyd. "It is incredibly difficult given everything going on in our world, but it is also, I believe, vitally important. I honestly believe that hope is as important to human wellbeing as oxygen; we just have to have it.”