Environmental rights

In order to have a broad understanding of environmental rights, it is important to have a look at the different actors and global regulations which influence environmental and, therefore, human rights.

Summary for children:

Countries use international law to agree, between themselves, to respect certain rules for the protection of both the environment and of people. These agreements often lack concrete outcomes and there is still no enforceable international human right to a healthy environment. Progress, however, is increasing and there are greater demands for better efficiency and effectiveness. Many different entities use environmental rights in their fight for the protection of humans and the environment. These rights can be implemented by nations, and can also be overseen by international organisations such as the UN. Indeed, long before international law existed, environmental justice has been a major concern for many communities around the world. The fight for environmental justice aims to bring fairness and justice to struggles where poor and vulnerable communities are often left behind. More globally, the fight for the protection of the environment and people together is rooted in diverse philosophies and cultures. Sometimes nature holds a very sacred place, such as amongst many Latin American communities, in branches of Indian spirituality and for most indigenous populations around the world.

International Environmental Law (IEL)

International environmental law (IEL) has various goals, the main two being the protection of the environment and of human beings. IEL encompasses many issues related to the environment, such as air and water pollution, overfishing and global warming. International environmental law is a branch of international law, as well as a form of internationalisation of environmental law as it is known at a national level. This crucial development of IEL as a branch of international law occurred not long ago, in the mid-twentieth century. As the United Nations declares: “Violations of environmental law undermine the achievement of all dimensions of sustainable development and environmental sustainability.” (United Nations and the Rule of Law, 2020)  

The weaknesses of the international legal framework regarding the protection of both children and the environment can be understood by analysing IEL and its distance, not from only children, but from people themselves.

There are numerous different sources of international environmental law, including treaties, customary law and general principles of law (as found in Article 38 of International Court of Justice (ICJ) statute), with international judicial decisions being particularly influential. With the development of IEL, treaties and customary law have proved to be the most effective sources. International legal treaties are also effective because, just like with business contracts, states need to comply with their obligations according to Article 26 of the Vienna Convention which enshrines the legal principle Pacta Sunt Servanda.


A treaty is a formal agreement between two or more states. Today, treaties are the main source of international law (and therefore of IEL as well). The emergence of bilateral, and more recently multilateral, treaties which have made it possible for many countries to unite in agreement on matters of global concern, such as commerce, defence, space, human rights and the environment.

Recent decades have shown a proliferation of Multilateral Environmental Agreements (MEAs). MEAs are treaties between two or more states pertaining to environmental matters. They have been seen as the best way to deal with the fact that environmental law has to adapt to both a rapidly changing climate and the breakneck evolution of technology and societies (BRUNEE Jutta, 2016). Some MEAs are the result of Conferences between states where the priorities of upcoming or ongoing treaties are discussed and agreed (or disagreed) upon. Some of the most  important treaties regarding the environment are:

  • The Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973: “It provides a framework to control international trade on endangered species. It provides protection to more than 30,000 species of animals and plants, whether they are traded as live specimen, fur coats or dried herbs.”
  • The Montreal Protocol, 1987: “It established a target to reduce and eventually eliminate the production and consumption of substances that cause ozone layer depletion. According to it the countries have to set a target to phase out the ozone depleting substances. However, it provides a special provision for the developing countries. It recognises the fact that the developing countries have hardly had contributed to the problem, so they have 10 years delay period in phasing out the production and consumption of ozone depleting chemicals.”
  • The Rio Convention, 1992: “The main aim of this convention was to alleviate poverty, prevent local environmental degradation and protect the robustness and integrity of the biosphere.”
  • The UN Framework on Climate Change, 1994: The first international environmental treaty developed to address the problem of climate change. The convention is an ‘institutional framework agreement’ where countries acknowledge the existence of climate change as a problem and a threat, and commit to cooperative action. It sets out principles for action and general goals, leaving more specific, and detailed action for future agreements, protocols and amendments. 
  • The Kyoto Protocol, 1997: “Under this protocol, which emerged from UNFCCC, an agreement was made between nations to mandate country-by-country reductions in greenhouse-gas emissions.” (Sunanda Swain, 2019)
  • The Paris Agreement, 2015: “[its] aim is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius” (UNFCCC, 2020). Landmark environmental treaty focused on specific commitments from all major emitting countries to reduce their pollution levels. 

The United Nations plays an essential role in the elaboration of some of these key treaties thanks to the UN Framework on Climate Change. Indeed, The United Nations Framework Convention on Climate Change (UNFCCC) is at the origin of both the Kyoto Protocol and the Paris Agreement.

The UNFCCC is an international treaty which was negotiated at the United Nations Conference on Environment and Development (UNCED), also known as Earth Summit. It was the first treaty to address the problem of climate change. The aim of treaty is to “stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” The UNFCCC works as an ‘institutional framework agreement’ where countries acknowledge the existence of climate change as a problem and threat and commit to cooperative action. The UNFCCC itself set no binding limits on greenhouse gas emissions for countries and has no enforcement mechanisms. In 1997 the Kyoto Protocol was concluded which then established legally binding obligations for the reduction of greenhouse gas emissions.

More recently, the Paris Agreement proved to be a landmark environmental treaty adopted by 195 countries.

About he Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child (CRC) did much to enshrine child rights internationally. It did not do enough, however, to envisage children’s environmental rights; for example there is no right to a healthy environment in the CRC. Nonetheless, the CRC does recognise key environmental issues in two of its articles:

  • Article 24 on the right of the child to the enjoyment of the highest attainable standard of health explains that: “states Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: […] to combat disease and malnutrition […] taking into consideration the dangers and risks of environmental pollution.”
  • And Article 29 on the aims of education emphasizes that the right to education must include: “[…] the development of respect for the natural environment.”

In addition, other CRC articles which are closely linked with the environment make it possible for decision-makers to adopt environmental policies that consider children as well as their environmental rights. The UN Special Rapporteur (SR) on Human Rights and the Environment stated firmly that  “the human rights obligations of states in relation to the environment apply with particular force to the rights of children, who are especially at risk from environmental harm and often unable to protect their own rights” (United Nations, 2018).  The SR’s statement is not unimportant, but it does not translate into any tangible right or protection for the people it concerns. The SR went on to highlight 3 major state obligations. Firstly, the obligation to protect children from environmental harm. Secondly, the obligation in relation to the business sector. And thirdly, the obligation in relation to education, public awareness, access to information, participation in environmental decision-making and to remedies from harm (Committee on the Rights of Child, 2016) .  

Customary International  Law

Even with the proliferation of international treaties, customary law remains important. Customary law is an unwritten rule which binds states in most circumstances and is established through the repetition of a behaviour between states. Customary international law refers to: “international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. Customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation” (Legal information institute, 2020). These practices are then unwritten rules which are generally adhered to by states unless they disassociate themselves from them. These rules can be, universal, international, regional, or even bilateral. Customary law is especially important when treaties do not apply or do not exist on the matter. 

What constitutes the basis of customary international environmental law has largely remained the same over the decades: the duty to prevent transboundary harm and states’ ensuing procedural obligations (BRUNEE Jutta, 2016). To simplify, transboundary harm is damage inflicted by one state on another state. This ‘duty to prevent’ can be further understood by the fact that one state should not act in a way that threatens another state’s rights. For a state, this principle involves the responsibility to act carefully within its own state borders as well as the duty to not take decisions or actions which will negatively affect other states. For this reason, the duty to prevent transboundary harm is present in many MEAs and was also affirmed by the ICJ as being applicable in environmental contexts (ICJ, Legality of the Threat or Use of Nuclear Weapons, 1997) with the principle of the Prohibition of Transboundary Environmental Harm (JERVA Marte, 2014). 

Judicial decisions

One major international decision which established an important and early principle of IEL was the arbitration Trail Smelter Arbitration case of 1938 and 1941 (United States v Canada). This arbitration established the “polluter pays principle”, meaning that a state emitting pollution which causes harm to another must pay a remedy for said damage.

In the Pulp Mills case of 2010  (Argentina v Uruguay), the ICJ had to give an interpretation of a treaty between Argentina and Uruguay and it took this opportunity to develop both the notion of due diligence and an environmental impact assessment duty (HYDER Joseph.P, 2020). Due diligence is based on a state’s responsibility resulting from damage inflicted on another state and is a corollary principle of the duty to prevent transboundary harm: “due diligence has required States to take preventive action in relation to foreseeable harm, that is, when they possess scientific evidence that significant transboundary damage is likely” (ILA Study Group on Due Diligence in International Law, 2014) 

Often, MEAs are not subject to interpretation at an international level, because of the absence of binding dispute settlement clauses as well as the increasing preference for informal non-compliance procedures. In short, this means that states sometimes agree to manage disagreements resulting from MEAs extra-judicially (such as through settlements outside of court).

What about children?

As might be noticed, IEL and international law often focus on states – not on people – nor on children. This is part of the contemporary challenge that international law is facing – will individuals be a central and independent concern of international law, or will they be its external actors?

The reason why children have not been part of international law for a long time, and still fail to be properly included in environmental laws and perspectives, is because individuals are not traditionally the subject of international law. International law commentators regularly cite the first subject of international law as the state itself. At the outset of international law’s existence, the individual was central, but the doctrine of the XIX Century and its approach to sovereignty overshadowed people. Today, people are not independent subjects of international law, but more precisely, are ‘subject of contracts’ between states.

In light of the notable absence of children in much of IEL, Humanium and our partner the Children’s Environmental Rights Initiative (CERI) recommend that states take the following urgent actions:

  • Recognise the right to a healthy environment;
  • Protect and support child environmental rights defenders;
  • Embed children’s rights into environmental decision-making and action, including with respect to the private sector;
  • Support the development of universal standards pertaining to children’s environmental rights, such as the adoption of a General Comment by the UN Committee on the Rights of the Child;
  • Sign the Intergovernmental Declaration on Children, Youth and Climate Action and implement its commitments;
  • Incorporate children’s rights and the environment in reporting to Human Rights Treaty Bodies;
  • Ensure a just and green recovery from COVID-19, and take urgent steps to prevent future pandemics.

Is IEL effective?

The most effective form of IEL is that which establishes a treaty whose violation would engage state responsibility, or include consequences, in order to deter states from contravening the treaty agreement. It is thus possible to conclude that IEL is both effective and efficient because international law is increasingly resembling what we understand to be contracts (meaning it is more and more binding).  

Nonetheless, IEL is still highly criticized for its lack of effectiveness. Firstly, certain binding treaties are insufficiently adhered to, making them inapplicable since they do not translate into reality. Secondly, few treaties lead to a transposition of international law within national laws, thus affecting relations between states more than environments and societies within countries. Thirdly, IEL is comprised of many treaties which have vague and abstract objectives, rather than specific ones; this is partly due to the fact that efforts of experts, civil societies, NGOs, commentators, or even the UN are often not translated into international law or policy but simply act as guidelines. As is the case with the CRC, IEL is an ideal to work towards and engages thousands of actors, actively striving everyday to make it real.  

IEL is thus confronted by many challenges which still need to be addressed; one being ensuring that treaties achieve their objectives and go further than the paper they are written on. Hallmarks of effectiveness that may concretely result from treaties include; ensuring the protection of the environment, the respect of the rules and standards established by the treaty, the change in human behaviour, a transposition at different levels (national, regional and local for instance), the impact of treaty measures through implementation of follow-up action (EL AJJOURI Mounir, 2020). The sincere incorporation of an environmentally-friendly perspective not only in major international environmental treaties, but in other industries and walks of life, is a further contemporary challenge of great importance. This was highlighted by Article 4 of the Rio Declaration of 1992. 

EU Environmental Law

The EU is party to many MEAs and other treaties. Beyond this, the EU also has its own regional system of environmental law. The main principles of EU environmental law are: the precautionary principle, the prevention principle, the rectification at source principle and the polluter pays principle (as mentioned above). The EU Act 2018 also explicitly incorporates questions of sustainable development (House of Parliament, 2018). 

Concerning children and the environment, the EU framework shares defects with IEL in general. Although not unimportant, EU environmental law will not be detailed in this article since it only concerns 1 region and 27 countries (out of around 195). Although EU environmental law has fewer issues with effectiveness because of its elaborate mechanisms, it still faces political contention and stagnation regarding certain policies which can be seen as too liberal.

Environmental Rights and Justice

Environmental Rights

“Environmental rights mean any proclamation of a human right to environmental conditions of a specified quality” (UN Environment, 2020). Environmental rights can be understood as human rights with a link to the environment. They exist at national levels when incorporated in state’s constitutions or legislation. They are also enshrined in UN mechanisms of sustainable development.

Environmental and human rights are closely intertwined; they concern a healthy, clean, and safe environment which is dependent upon the respect of human rights. For instance, the right to a healthy environment is present in more than 100 constitutions. There is, however, no enforceable international human right to a healthy environment. 

Children’s environmental rights include those in national legislations and constitutions. This is only true, however, if these rights are being applied in courts and protect children on a daily basis. Amongst national environmental rights, although children are often not explicitly mentioned, they are nonetheless protected by these rights. To further understand such rights it is sometimes necessary to interrogate regional law. Finally, international law can protect children’s rights when the rights afforded by treaties are precise enough to be upheld in courts and used by judges (this being valid for constitutions). Otherwise, rights can fall into the category of merely being “principles” which are guidelines, but offer no enforceable protection

Environmental rights can be both rights, and tools, used by civil societies to claim changes in their national legislations. The fight for the protection of the environment and people utilises environment rights and involves many different actors including: states, NGOs, civil societies, children and human rights defenders. According to the UN, three people a week are killed in their fight to protect environmental rights, with many more being harassed, intimidated and criminalized for their essential work (UN Environment, 2020).

The UN acts on environmental rights both through its Sustainable Development Goals (SDGs) and diverse UN mechanisms which often involve NGOs who participate, for example, in the elaboration of resolutions by the UN Special Rapporteur on Human Rights and the Environment. Due to these mechanisms it is considered that NGOs and legal experts act as influential sources of IEL (UN Development Programme, 2014). 

Furthermore, the Conference of the Parties is the supreme body of the UNFCCC where countries meet every year to assess progress, adopt decision and consider further action. State representatives directly negotiate the decisions, but non-state groups can officially participate as observers. Observers, including youth organizations have the chance to express their opinions to state representatives through ‘youth briefings.’ Youth briefings offer the opportunity for youth delegates to get direct access to high-level representatives such as the Executive Secretary of the UNFCCC and the chairs of negotiating bodies. Each briefing lasts around 30 minutes and young people are able to ask open questions. 

  • The United Nations Commission on Sustainable Development (UN CSD) recognizes youth as a major civil society group. During the sessions of the UN CSD, young people are able to deliver opening statements as part of the general debate and are part of an interactive discussion between major groups and governments. 
  • The United Nations Environment Programme (UNEP) since 2007 has been holding ministerial roundtables, which provide a space for constructive dialogue between government delegates and civil society representatives, including young people. 
  • The Convention on Biological Diversity allows civil society representatives, including youth, to make interventions when recognized by the Chair of the Plenary or a Working Group

The UN report Environmental Rule of Law envisages a new perspective of analysis of effectiveness of environmental law and policies. It analyses which countries possess, or lack, proper institutions to implement environmental law. It also describes legal systems around the world as being efficient regarding the protection of the environment, such as those having special environmental courts for instance (UN Environment, 2019). 

Environmental rights are probably the space where children’s rights and the environment are most efficient. The fact that civil society can claim environmental rights raises, in turn, the question of environmental justice. Firstly, it is important to understand that challenges of environmental justice do not necessarily have judicial solutions. Environmental justice, rather, highlights that protection of environmental and human rights is a source of conflict where stakeholders often have to compromise or balance the environment with human conduct, thoughts, habits or customs. Such tension between environmental and human interests affects every society and group of people on the planet.

Environmental Justice

Environmental justice is defined by the United States’ Environmental Protection Agency (USEPA) as: “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies”. Other definitions are also applicable, though, since there is no recognised international definition of environmental justice. In the absence of a national body regulating environmental justice, each population or group of people can choose to define environmental justice themselves, imbuing the term with significance as a tool for socio-environmental change.

To understand environmental justice, it is necessary to think of the environment not only as beautiful landscapes and ‘green’ expanses of nature, but more about the strict definition of an environment being “the surroundings or conditions in which a person lives”.

For many people, the technicalities of environmental rights are their lived everyday realities and challenges. These may be related to air pollution because of an oil drill site, water pollution from the use of chemicals, and to others living in low-income housing near a floodplain (Earthbeat, 2020). There is a clear objective in environmental justice to try to establish a balance, as environmental issues disproportionately impact those with the least resources.

Major priorities of environmental justice include “reducing environmental, health, economic and racial disparities.”

The origins of environmental justice are diverse and are different in every country, and some movements in the U.S. and India are particularly well known. In the U.S., it is possible to trace the environmental justice movement at least back to the 1960s during the Memphis Sanitation Strike, where people protested against unsafe working conditions, as well as to the 1980s in Warren County, North Carolina, where protesters challenged the disposal of toxic waste in a landfill near a predominantly black, low-income community. The momentum of the environmental justice movement ignited much-needed conversations around the unequal burden of environmental harms that racialized communities did, and continue to, bear. 

Equally, in the Bengal peasant revolt of 1859-63 in India where people fought against indigo plantations, early roots and concepts of environmental justice can be seen. More recently ongoing social movements continue to fight against big industries (ROY Brototi, 2019). Many other populations – indigenous peoples in particular – are also engaged in long struggles for the protection of their environments and the communities that rely upon them.

Coronavirus and children

The way that Coronavirus has impacted the world clearly reveals that the pandemic is a major case of environmental justice, since poor people and those living in bad housing conditions are affected by the virus with great disproportion. As a study on the City of New York showed, people living in more affluent and spacious housing, around Manhattan for instance, are less affected by the virus than people living in crowded buildings and neighbourhoods where physical distancing can be simply impossible.

Children worldwide have been, and will continue to be, hugely affected by Coronavirus even though according to some experts they are statistically less infected by the virus itself. Indeed, children are highly dependent on the proper functioning of institutions and government administrations during crises in order to be provided with the right food as well as a clean and healthy environment. The pandemic is thus a clear and unprecedented example which demonstrates that children in poor communities unjustly struggle more, suffer more, and are at greater risk than others. This will have disastrous consequences in children’s lives if swift and decisive action is not taken (World Economic Forum, 2020).Humanium is engaged in the fight to protect children from the effect of Coronavirus, both through its campaign on Rwanda focused in helping children access basic necessities,  and within a joint-NGO Working Group on Child Rights and the Environment, which works alongside the UN to advocate for the full incorporation of children in environmental and human right protection mechanisms and facilitated the delivery of hand sanitizers to 50, 000 families in India amidst the pandemic.

The Philosophy of Ecology

Rights, and laws, find their roots in popular community philosophies. Famed thinkers around the world are only the tip of the iceberg when it comes to the philosophy of nature.

Nature is present throughout philosophy and literature without necessarily having a link with the environmental matters we know today. In western culture nature was not always seen as something to protect, but was nonetheless an object of much fascination and contemplation. In the western culture, different philosophical steps have formed what is now known as ‘environmentalism’  (VAN REETH Adèle, 2018).

The thinking of Ralph Waldo Emerson, amongst other, was influential for many environmental thinkers. For Emerson, nature is the expression of a divine creation where there is no place for egoism. According to his thoughts, humanity is of more concern than nature. He does not, however, engage with nature in an ecological way as he does not say that nature should be protected or that people should fight for its preservation (DALSUET Anne, 2010). Emmerson inspired Henry David Thoreau to engage more radically with the concept of nature. According to him, nature can only be experienced. Thoreau thinks that Man needs to experience nature, where something truer will be found, something more essential. He does not envisage it as a dissociated experience from the city way of life but an essential part of it. He does not, then, oppose nature and culture; he is a symbol of the beginning of a real engagement towards nature in western culture. 

It is with a figure such as Aldo Leopold that the idea of protection, ethics and responsibility towards nature emerges in the west. He elaborated a novel notion of engagement. For him, human beings are part of a larger community that does not only involve humans but all animals and plants. He developed a new form of patriotism where the protection of nature is included, against the destruction of forests and the killing of animals. Humanity is a part of a large community, and as a member of this community must contribute to its balance and  protection. Viewed as a pillar to the concept of ‘Land ethic’, Leopold is a major figure in nature preservation.

In Indian culture, nature holds a special and sacred place. Harmony with nature is an essential part of Indian culture, with the respect and protection of nature present in traditional practices, religion and rituals. In addition, Mother Earth is considered to be a universal phenomenon in many indigenous cultures (DR. NAIR, S.M).

Furthermore, indigenous communities are those who preserve important knowledge of their ecosystems, Sitakant Mahapatra said: “They still look upon life as a gift to be celebrated; and this ancient Earth as one to be praised, worshipped and also celebrated. They are the ones to whom the earth is not something to be used, not a possession or an object for exploitation but a living entity, an object of reverence, and the relationship is one of sacred trust and loving intimacy. [….]The sacred soil of ancestors into which one is born is thus a part of one’s fundamental psychic experience of life and is a part of its spiritual dimension. The earth, the land, the village enter into and are secure in racial memory and it is only an ethical imperative to worship the Earth goddess, the Mother Earth.” (DR. NAIR, S.M). 

The Isopanishad (ancient scriptural text), more than 2000 years old, states: “This universe is the creation of the Supreme Power meant for the benefit of all his creation. Each individual life-form must, therefore, learn to enjoy its benefits by forming a part of the system in close relation with other species. Let not anyone species encroach upon the other’s rights”.

Emperor Ashoka (Twenty-two centuries ago) explained that it was the duty of a king to protect wildlife and trees. Very old edicts were inscribed on rocks and iron pillars to prohibit destruction of forests as well as the killing of some species of animals.

All of this leads us to what we know today as environmental rights which continue to be developed and implemented around the world. 

Written by Adrian Lakrichi
Last updated on June 24, 2020


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