Element
Healthy Biodiversity and Ecosystems
R2HE includes healthy biodiversity and ecosystems among its substantive elements. This internationally recognized right encompasses the entitlement of individuals and communities to live in a balanced environment that supports diverse and thriving ecosystems. It necessitates safeguarding and preserving ecological diversity, ensuring the resilience and well-being of ecosystems and promoting the sustainability of natural habitats for present and future generations. Additionally, this right entails the protection of various species, habitats and ecological processes essential to the maintenance of a healthy and functional environment.
Element
Non-toxic Environments
R2HE includes protection against toxic environments among its substantive elements, and recognizes the entitlement of individuals and communities to live in environments free from harmful pollutants, toxins and hazardous substances. The right provides that governments and businesses should apply a human rights approach to regulations, legislation, policies and actions related to the production, import, sale, use, release and disposal of substances that may harm the environment or human health. Toxic pollution may include contamination of the land, air and/or water.
Element
Pollution
R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element
Procedural Elements / Components
R2HE encompasses and guarantees a range of core procedural rights. Corresponding obligations include the duty to: (i) ensure access to environmental information, (ii) enable public participation in environmental decision-making, (iii) guarantee access to justice and effective remedies, and (iv) mandate the execution of Environmental Impact Assessments prior to the commencement of potentially impactful operations or activities.
Element
Safe and Sufficient Water
R2HE includes access to safe and sufficient water among its substantive elements. This internationally recognized right provides that every person must have affordable access to a supply of safe water in quantities adequate for essential personal and domestic uses, including drinking, sanitation, washing of clothes, food preparation and personal and household hygiene. When water is polluted, contaminated or overexploited, the right to adequate quantities of safe water is jeopardized.
Strategy
Connecting R2HE to the rights of nature (RoN)
Recognizing that R2HE includes protections for nature and the “rights of nature” in virtue of its intrinsic value, not solely because it holds instrumental value for human use. This strategy makes full achievement of R2HE dependent on the recognition and defense of nature’s rights.
Strategy
Emphasizing international developments
Referencing or examining recent international legal developments related to R2HE in order to support the protection of R2HE. International developments may include emerging case law, policy evolution, state practice, regional agreements or international treaties, among others. Commonly referenced international developments include, for example, the Paris Agreement and the UN Resolutions on R2HE.
Strategy
Emphasizing the obligation to cooperate internationally or nationally
Underscoring the need for governments, sub-governments and other actors to coordinate, cooperate and commonly work toward effective protection of R2HE. This strategy may emphasize the need for cooperation at the domestic level, international level or both, and can entail varying levels of specificity.
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Focusing on youth
Emphasizing the disproportionate and inequitable vulnerability of young people, children and/or future generations to climate change, biodiversity loss and environmental degradation. This emphasis is often articulated through the principles of Intergenerational Equity and Sustainable Development, which generally provide that governments and other entities must ensure the basic needs and rights of future generations when making decisions that bear on the environment. Additionally, the principles suggest that all individuals have a responsibility to care for future generations by limiting environmental degradation and consumption in the present.
Strategy
Invoking the political significance of the R2HE
Recognizing R2HE’s political weight and implications may entail emphasizing the linkage between – and/or mutual reinforcement of – R2HE and other democratic values. These common imperatives include public participation, access to justice and equity in environmental decision-making. Additionally, this strategy involves invoking R2HE to guide the formation and enforcement of public policy.
Strategy
Reinforcing the status of the R2HE as a fundamental and independent human right
Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Strategy
Using amicus curiae briefs advance the R2HE conceptually
Submitting amicus curiae – documents written by third parties interested in the case who are neither the plaintiffs nor the defendants, and who wish to submit arguments to the Court – in order to bolster and advance arguments supporting and in defense of R2HE. Amicus curiae may relate to a case’s facts, context and/or the arguments presented.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Strategy
Using an established international body of law to support R2HE
Relying on well-established international treaties, norms and principles in making arguments advancing and protecting R2HE. Commonly cited international bodies of law include UN Reports, jurisprudence from international and/or regional courts, General Comments by UN bodies, Declarations and more.
Strategy
Utilizing a variety of legal arguments
Asserting numerous and diverse legal claims arising out of different bodies of law to increase the likelihood that at least one of the plaintiff’s arguments will succeed before the court. This could take the form, for instance, of a plaintiff bringing both an administrative challenge and a challenge based on the violation of their fundamental rights.
Good Practices
Expansive reading of the scope and content of R2HE
An expansive definition of R2HE refers to the broad and inclusive nature or interpretation of a particular concept, document, principle or legal provision related to R2HE. Legal definitions of the complex R2HE and associated concepts often lack specificity as applied to real-world circumstances, leading many courts to ‘fill in the gaps’ by situating the right within wider contextual frameworks of law, policy and science. As the triple planetary crisis of climate change, biodiversity loss and pollution intensifies, courts are increasingly reading the scope and content of R2HE broadly to address a growing variety and number of environmental harms. By providing inclusive and robust definitions of guarantees associated with the right – for example, by confirming R2HE ensures a safe climate, protects biodiversity and/or entails a duty to regulate – courts can help to ensure and further the right’s protections and utility.
Good Practices
Methods for ensuring baseline protections
Courts have employed various strategies, mechanisms and approaches to establish fundamental environmental safeguards, minimum standards and/or quality levels which are necessary to guarantee R2HE. These approaches aim to ensure a basic level of protection for individuals, communities and/or the environment. Further, courts have developed various methods to assess the appropriateness of government and corporate action relative to the baseline environmental standards. These methods can vary widely in form and across jurisdictions, but may take the form of a presumption in favor of the environment, the examination of long-term consequences or the application of environmental principles like that of non-regression.
Good Practices
Providing remedies
Provision of remedies is the process by which courts, after finding that a legal right has been violated or harmed, offer or provide a resolution or solution to address the harm or injustice suffered by the aggrieved party. Appropriate and effective judicial remedies play a key role in ensuring that R2HE materially protects individuals and all aspects of the environment. Remedies can vary widely in number, specificity, urgency and stringency, and those variations bear closely on whether a given remedy adequately redresses the original harm. Frequent remedies include protection and restoration measures, compensation and the creation of compliance or implementation mechanisms.
Collective Rights
R2HE is both an individual and collective right. Collective rights are rights that are granted or recognized to groups of people rather than to individuals. These rights are based on the idea that certain groups, such as minorities, indigenous communities, or cultural or linguistic groups, have specific needs, interests, and identities that deserve protection and promotion.
Ecocentrism
Sometimes called ‘biocentrism,’ this philosophical perspective recognizes the intrinsic value of all living organisms and the natural world. In contrast to anthropocentrism, which prioritizes human interests above all other forms of life, the ecocentric view values all living beings as equal and meriting moral consideration, regardless of their utility to humans. This framework places special emphasis on the interconnectedness of all living beings, ecosystems and naturally occurring cycles.
Precautionary Principle
This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.
Prevention Principle
This environmental law principle provides that states and other actors must take meaningful steps to avoid environmental harms before they occur. In other words, if there is a tangible risk of environmental harm that is imminent and demands an emergency response, authorities are obliged to implement the necessary measures before damage is caused to the environment.
Restitution
Involves the process of actively and deliberately rehabilitating or repairing ecosystems, habitats, or natural areas that have been degraded, damaged, or altered by human activities or natural disasters. The primary aim of environmental restoration is to bring back the ecological functions, biodiversity, and overall health of an ecosystem to a condition as close as possible to its original or natural state.
Restoration
The broader concept of making amends or compensating for environmental harm caused by human actions. It involves acknowledging responsibility for the damage and taking actions to repair, mitigate, or compensate for the adverse impacts. The primary goal of environmental restitution is to address the environmental damage by compensating affected ecosystems, communities, or resources for the harm done.
Rights of Nature
The concept of "rights of nature" is centered on the idea that natural entities, such as ecosystems, rivers, forests, or other natural elements, should possess legal rights just like humans do. This perspective suggests that nature itself should have intrinsic rights to exist, thrive, and evolve, independent of its usefulness to humans.
Sustainable Development
This concept provides that states should pursue measures that allow present generations to meet their essential needs without compromising the ability of future generations to do the same. Moreover, it recognizes the need for states to work towards their economic development while also ensuring the realization and protection of fundamental human rights. In some jurisdictions, sustainable development is regarded as a guiding principle, while in others, it is treated as a right with binding consequences.
Tutela / Constitutional Protection Action
A legal mechanism found primarily in Latin American countries, designed to protect fundamental constitutional rights. It allows individuals to seek immediate judicial protection when they believe their rights have been violated or are under imminent threat.
