Human Rights and the Environment: Interview with UN Special Rapporteur David R. Boyd

Human Rights and the Environment: Interview with UN Special Rapporteur David R. Boyd

. 11 min read

David R. Boyd is the United Nations Special Rapporteur on human rights and the environment and an associate professor of law, policy, and sustainability at the University of British Columbia. He served as a special advisor on sustainability for former Canadian Prime Minister Paul Martin and was also the executive director of Ecojustice.

As the Special Rapporteur on human rights and the environment, you've called for individual countries and the UN to formally recognize the right to a healthy and sustainable environment. So far, 156 out of 193 UN member states have recognized this right domestically. What are the benefits of establishing the right to a healthy and sustainable environment at the international level, rather than just domestically?

The benefit of establishing human rights at the international level is that it establishes a universal norm, which is a basic element of human rights. This right to live in a healthy and sustainable environment applies to everyone, everywhere. That is a catalyst for significant changes at the domestic or national level. If you look [at] what happened in the last decade after the UN, for the first time, in 2010, recognized the human rights to water and sanitation, we've seen a whole bunch of countries take those rights and incorporate them in their constitutions, like Costa Rica, Fiji, Mexico, Slovenia, and Tunisia. That's really important because constitutions are the highest and strongest law of a nation.

We’ve seen a bunch of other countries, such as France, take the right to water and put it in legislation, and most importantly of all, we've seen many countries put a greater priority on implementing the rights to water and sanitation. For example, in Canada, where I'm from, in the last five or six years, our government has spent literally billions of dollars providing access to safe drinking water and proper sanitation for remote Indigenous communities. During the COVID-19 pandemic, we saw countries all over the world–based on the rights to water and sanitation–pass rules that prevented utility companies from cutting off customers for non-payment because of the importance of water and sanitation to surviving the horrible pandemic.

If and when we see recognition of the right to a healthy and sustainable environment, I think it'll be a similar catalyst for the remaining countries that haven't yet recognized it nationally for them to do so, and for all of the countries that have recognized it, to strengthen the implementation of it.

You've published several articles and reports calling for the UN to recognize this right to a healthy and sustainable environment. In your opinion, why hasn't the UN formally recognized this right yet? And what do you anticipate the next steps will be to generate support for a resolution?

We are really right on the goal line right now. We're closer than we've ever been. I think that the Human Rights Council is going to move forward, as early as September of this year, to pass that pioneering resolution. As to why it hasn't passed in the past... that's a really vexing question. It's unusual for a right to have such widespread recognition at the national level and not to be recognized at the global level.

Is there one particular reason? I think it's that the human rights community, generally speaking, was slow to recognize how closely connected environmental degradation is with a whole range of human rights. Since my predecessor John Knox was appointed in 2012, he did an absolutely fantastic job of facilitating a much closer understanding of those linkages between human rights and the environment, so I've been really fortunate to be building on his legacy.

What would you say is the reason for why some countries have already domestically incorporated this right into their constitutions, while others have not?

That's a harder question because we're looking at 193 member states, each of whom have very distinctive legal systems when it comes to creating new constitutions or amending existing constitutions. It was [the 1972 Stockholm Declaration] that emerged from the first global eco-summit [that] did have an indirect reference to the right to live in a healthy environment. That was a catalyst for countries like Portugal in 1976, Spain in 1978, [and] Peru in 1979 to start that process of national incorporation of the right to healthy environment. But for some countries like Canada, the United States, and Denmark that don't yet recognize this right in their domestic legal systems, it's very difficult to change the constitution, to get amendments.

There have been three waves of constitutional renewal. One of those was the end of colonial governments in Africa. Another one was the democratization of Latin America, and then the third was the breakup of the Soviet Union and the emergence of new democratic constitutions in Eastern Europe. In those three areas–Africa, Latin America, and Eastern Europe–pretty much every constitution now includes the right to healthy environment. It's been other areas that have been lagging behind.

You mentioned the statistic earlier of 156 out of 193 [member states], so that leaves 37 countries. The majority of those 37 countries, surprisingly, are small island developing states–countries that really take the global environmental crisis and the climate emergency very seriously but have not yet recognized the right to a healthy environment in their domestic legal systems, not because they don't agree with it, but simply because they haven't had the capacity to make those types of constitutional or legislative changes.

How would the right to healthy and sustainable environment be enforced? How can states and other institutions like the UN hold abusers accountable?

There's two main aspects of that question. There's domestic enforcement, and then there's international enforcement. At the domestic level, what we've seen in countries that do recognize the right to a healthy environment is that it's a catalyst for strengthening of environmental laws and policies, for improved implementation and enforcement of those policies, for increased levels of public participation.

And most importantly, there's now really compelling scientific evidence that recognition of the right to a healthy environment leads to better environmental outcomes. Countries reduce air pollution faster, reduce greenhouse gas emissions more quickly, increase access to safe drinking water more quickly. In my research, I did some statistical analysis that was very basic and found a correlation between the recognition of the right to a healthy environment and better environmental performance. Since that was published, American economists have done much more sophisticated statistical analysis and concluded there's a causal relationship between recognition of the right to a healthy environment and better environmental performance. That's really encouraging.

At the domestic level, it has those effects, and you would expect that (because human rights establish obligations that states are compelled to implement, in terms of respecting, protecting, and fulfilling human rights). The great thing about international recognition of human rights is not only serving as a catalyst for national action, but also the fact that there are these international processes and institutions that can review the performance of states. For example, you have regional human rights bodies like the African Commission and the African Court on Human Rights, the Inter-American Commission and the Inter-American Court, [and] the European Court of Human Rights. Increasingly, those bodies–not surprisingly, because of the global crisis that we're in–are being called upon to deal with environmental cases.

There's a cross-pollination between the domestic systems and the international system. For example, the Inter-American Court of Human Rights issued an advisory opinion on human rights and the environment in 2017, which was very strong and has had a knock-on effect in courts in Colombia, Mexico, Costa Rica, Brazil, and so forth. You also have the UN institutions. There's the Universal Periodic Review process which the Human Rights Council conducts, which looks at the entire breadth of human rights performance of individual states on a rolling basis, and then you have the UN treaty bodies. And increasingly, we're seeing environmental cases coming to the treaty body.

Two years ago, the [UN] Human Rights Committee decided a really precedent-setting case about pesticide poisoning in Paraguay, concluding that Paraguay’s failure to adequately regulate pesticides and enforce those regulations violated the right to life. You also had a climate change case before the Human Rights Committee. You have a really interesting climate change case brought by Greta Thunberg and 15 other young people from all over the world that's currently before the UN Committee on the Rights of the Child, alleging that five states violated a number of rights, including the rights to life, the right to health, and some cultural rights under the Convention on the Rights of the Child.

There are all these different accountability mechanisms available through international human rights law and national human rights law, which I think is critically important because what we've witnessed over the past three decades is that international environmental law like the Convention on Biological Diversity [and] the Framework Convention on Climate Change are kind of paper tigers because they lack enforcement mechanisms. So, states really haven't lived up to their commitments under those two critical environmental treaties. By combining international human rights with international environmental law, human rights transforms, or breathes life into these paper tigers in a way that previously just wasn't possible.

To what extent do you think that the right to a healthy and sustainable environment can mitigate the impacts of climate change? What other technical or societal efforts outside of litigation must be implemented to prevent climate change before warming becomes unstoppable?

The right to a healthy and sustainable environment should be a catalyst for stronger action on all three pillars of climate action. Mitigation–which involves dramatically reducing emissions by 50 or 60 percent by 2030–is an enormous challenge. We're already seeing human rights being used as a catalyst for those types of changes, in Germany, for example, through litigation.

But, ideally, litigation should be a last resort. States should take their obligations seriously, and a growing number of states are. We need to reduce greenhouse gas emissions, [and] we need to protect carbon sinks. Those are the two aspects of mitigation.

We have to do more on adaptation. In my journeys prior to the pandemic as Special Rapporteur, I went to Fiji and Norway, and those were life-changing experiences because I witnessed firsthand in Fiji the impacts of Tropical Cyclone Winston, which devastated that country. I also visited a village called Vunidogoloa, which is one of the first communities in the world that literally had to be relocated because of climate change.

Similarly, in Norway, I spent a few days north of the Arctic Circle with Sámi Indigenous people, whose culture and livelihood is based on reindeer herding and climate change. The disruptive impact of climate change on their culture and lifestyle is because, in the winter in Northern Norway, north of the Arctic Circle, they're now getting rain and warm temperatures, which results in ice forming on the ground, and reindeer simply haven't evolved. They can use their hooves to scrape away snow, but they can't scrape away ice. The Sámi have to now go out, which they've never had to do before in the wintertime, and find these reindeer, which are all over the landscape, and feed them, which they've never had to do.

The climate emergency is happening now: the wildfires burning in western United States, the insane heatwave that we had in Canada two weeks ago. We need to, in particular, help these small island developing states and low-income countries with adaptation to the impacts of climate change.

The third pillar that the right to healthy environment can also be a catalyst for is called loss and damages. That's recognizing that despite all of our best efforts on mitigation and adaptation, there are still severe losses being inflicted on these small island states and these low-income countries, and they need compensation from wealthy countries to repair the damage and to make their lives whole.

That's one area where there's just been a complete political failure. Not a single dollar has changed hands under loss and damages since the Climate Convention was negotiated in 1992. And yet, the small island states are putting forward these really progressive proposals about an international air passenger levy or international shipping levy, which could raise literally tens of billions of dollars to assist them in responding to the climate emergency.

Under this right, how can we ensure that western countries like the US or the UK are held accountable for environmental abuses perpetrated in developing countries? For example, could the US be held accountable for exporting plastic waste?

I'm not sure that we can put all of the weight on the shoulders of the right to a healthy and sustainable environment, but again, I do think it is a catalyst for change. In terms of some of these extraterritorial obligations–the obligations that the wealthy states have not to cause harm in other countries–we're starting to see countries that do recognize the right to a healthy and sustainable environment bringing in legislation that holds domestic corporations responsible for human rights and environmental due diligence, not just within their home state, but within all of the countries in which they operate. That type of legislation, which was pioneered by France and is now being considered by the entire European Union, [is] a really important part of the puzzle.

Just recently, we had the decision from a Dutch court in the Hague holding Royal Dutch Shell responsible for violating human rights by failing to reduce its corporate emissions. Royal Dutch Shell is a huge company with operations all around the world, so there we have human rights being used to compel, and in this case the Dutch court said that Royal Dutch Shell has a legal obligation, to reduce its emissions 45 percent by 2030. If that type of reduction was achieved by all of the major oil and gas and fossil fuel corporations, we would be well on our way to actually meeting the Paris Agreement targets.

You've previously written about how countries can recognize the rights of nature itself. For example, Bolivia's Law of the Rights of Mother Earth establishes that nature has its own fundamental rights. Could you expand on what granting nature its own rights would look like, both in theory and in practice?

This is an issue that doesn't fall under my mandate as Special Rapporteur, but something I've looked at wearing my academic hat. It's an idea that has actually been around in Indigenous legal systems for thousands of years. [It’s] this kind of reciprocity between humans and the rest of the natural world–that we have responsibilities towards nature, and once we fulfill those responsibilities, we have certain rights that come along with that.

Probably the most important breakthrough in terms of legal recognition of the rights of nature was Ecuador's constitution in 2008 recognizing the rights of Pachamama, or Mother Earth. That was followed by legislation in Bolivia. There's now about a dozen countries around the world where either legislation or court decisions have recognized the rights of nature, and [that includes] Ecuador, Bolivia, Uganda, India, Bangladesh, Mexico, [and] Colombia. One of the most interesting cases is New Zealand because New Zealand is a wealthy, industrialized nation, but they've passed two laws that recognize the rights of specific ecosystems–in one case a river, in one case an area that was formerly a national park.

These rights of nature legal developments have both a legal implication and a cultural implication. In some ways, it may actually be the cultural implication that’s more important in the long run. The legal implication is that these different laws, constitutions, etcetera, establish, in some cases, specific guardians to look after the rights of nature. In other cases, such as in Bolivia and Ecuador, they allow any person to advance the rights of nature. The idea is that, in a legal sense, instead of treating nature like property, we treat it as a rights-bearing entity. That should, in theory, overcome the fact that decisions have been made for the last several hundred years, particularly in industrialized countries, that are destructive to nature.

The cultural side is that western industrialized countries have really looked at nonhuman species and the rest of the natural world as basically a basket of resources that was put on Earth for humans to exploit, and the cultural aspect of recognizing the rights of nature is really quite profound. It says nature is not just a basket of commodities for humans to exploit, but rather a community of life to which humans are incredibly fortunate to belong. People never reflect on the fact [that] this is the only planet in the universe, despite trillions spent on the space program, that we know supports life.

Human beings, we now know, through advanced scientific research, shared DNA–the basic building block of life–with every other form of life on the planet. When you actually rethink and reimagine our relationship with nature through that lens, you come out at a very different place. Culturally, that has huge potential for transformation.

Young spoke with Dr. Boyd on July 16, 2021. This interview has been lightly edited for length and clarity.

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