For one step further in international environmental protection

por The Winners
Article writer by Antonio Fernando Prestes Garnero, Lawyer and Master of Law

The fundamental problem with regard to human rights today, writes Bobbio in his exquisite “The Age of Rights”, is not about justifying them, nevertheless is about effectively protecting them. The environment, in this line of contemplation, is widely justified as a right of mankind, thus understood as a natural right, valid at any time and invocable at every opportunity, open to all and, for such reasons, not dependent on any normative prediction.

Its ownership, moreover, is diffuse, since it is about a right that belongs to everyone, whilst not belonging to anyone. Moreover, it is recognized that practically all contemporary legal systems expressly consecrate the right to a protected and balanced environment, which also makes it a fundamental right, given that it is made positive in modern constitutions and, at the same time, a human right.

This term affects fundamental rights that fall under the category of public international law (provided, as an example, in international treaties or declarations).

In reason of this wide recognition, the initial manifestations of international environmental law appear on the international stage, especially after World War II, a complex of legal norms that are the sources of environmental rights and duties for the subjects of public international law – States, international organizations and, in a contemporary view, also the private entities. 

Thus, in 1972 the United Nations Declaration on the Human Environment, known as the Stockholm Declaration, was adopted under the auspices of the aforementioned United Nations, whose conference is considered by many to be the first major international event for the definition of the international system of environmental protection.

The first principle of the Stockholm Declaration was a pioneer in directly linking environmental protection with human rights, as it declared the fundamental right to freedom, equality and adequate living conditions, in a quality environment that allows men to lead a decent life and enjoy well-being.

Subsequently, mention is made of the ECO-92, held in Rio de Janeiro in 1992, at the end of which was adopted the Rio de Janeiro Declaration on Environment and Development, which prescribed 27 principles that represent contemporary objectives in the field of environmental protection.

Mention is also made of the United Nations Conference on Sustainable Development, known as Rio+20, which worked mainly on the relationship between environmental protection and sustainable development.

Therefore, the international texts – and Brazil is part of the main international environmental ins- truments concluded in the United Nations system – make clear the priority that States should confer to the protection of the environment, corollary of the right to life.

At the domestic level, as already written, modern constitutions have also enshrined the right to the environment as a fundamental right, which, in the Brazilian case, is verified by the content of article 225 of the Magna Carta of 1988. 

Notwithstanding the broad theoretical and normative jusZtification, comes precisely the problem already pointed out by Bobbio, which is the Achilles tendon of the environmental issue at the international level and the main point of discomfort for States, as it concerns the inevitable concessions – called by some even by the outdated concept of relativization of State sovereignty – which must be performed by them in order to give effect to the fundamental right to the environment. 

In other words, the time has come for the international concert of nations – mindful for the healthy future of their people – to meet again to take a definitive step towards the realization of international environmental protection, which is in common use of all mankind. Therefore, in the words of our own Major Law, it is imposed on the main subjects of public international law, the “duty to defend and preserve the environment for present and future generations”.

However, it is sufficiently clear that the effective international protection currently in force is too timid. As the right to the environment is a fundamental right – a third generation one in the well-known doctrinal classification – there is no reason for it to be given a different standard of protection from that intended for civil and political rights, as an example, under penalty of heavily injuring the principle of isonomy.

In line with the attestation of the best doctrine, despite the doctrinal classification of human rights into generations, there is no talking of any hierarchy between them, since they all have the same characteristics of universality, indivisibility, inexhaustibility, interdependence and interrelationship.

Indeed, it is sufficient to suppose life without the environment for the aforementioned interdependence between both human rights to stand out with meridian clarity. Thus, recognizing the right to the environment as a human right, as such it must be treated and protected.

Unfortunately, it is inevitable to conclude that the environment suffers from the acute syndrome of inadequate protection of human rights. Perhaps even the most striking example in the entire catalog of human rights of the disproportion between the discourse of States in the celebration of its essentiality and the effective international system put in place for its defense. 

With effect, the main international instruments on the environment – including the above-mentioned Stockholm Declaration and the Rio de Janeiro Declaration – are only within the scope of what internationalist doctrine identifies as flexible or soft law, which are basically norms that aim to guide future conduct of States by imposing, at most, in the case of non-compliance, only sanctions that are not legal but, above all, have a moral nature.

In summary, it is to say that the main treaties of international environmental law have so far generated only recommendations for States Parties, rather than real obligations of positive law – which should have been created as every binding treaty in the international scene – revealing itself as absolutely unacceptable in view of the current phase of development of the international human rights system, in which a fourth generation is already conceived in the lesson of Paulo Bonavides, which would be the consequence of the globalization process of fundamental rights.

Nor the models of international treaties most often used by States Parties to care for the environment prove themselves to be appropriate for their intended purpose.

In fact, the so-called umbrella treaties or framework treaties, both of which are prominent in the international environmental law scenario, are limited to establishing abstract legal foundations for a given agreement, that is, they set general guidelines on certain environmental issues, however, not regulating them, which is consigned to be carried out later on by means of a new agreement.

But this technique, while it is the maximum commitment that can be drawn from States at the given historical moment, it is slow and inadequate and therefore is not worthy of applauses. Stated by other means, it is possible and necessary to go further in terms of efficiency and effectiveness of the right to the environment.

It is worth remembering that the above-mentioned framework convention technique was used by the UN in New York in 1992 when the Framework Convention on Climate Change was adopted, which was regulated by the 1998 Kyoto Protocol.

More than two decades have passed and there is no denying of the inadequacy of these conventions as in regard of the fulfillment of the objectives outlined therein – to the detriment of the environment and of all humanity – which are largely dependent on the willingness of each State Party and its internal politics at a given historical phase.

For all these exposed reasons, it is imperious, considering the essentiality of the matter, to restructure the issue internationally, with the creation of a fruitful environment and the establishment of a multilateral international treaty specific to environmental protection, binding to the States Parties, of hard law, which will integrate and complement the leading human rights documents of the world, such as the 1948 Universal Declaration of Human Rights.

However, if in the global system of human rights have been created, since 1966, with the New York Covenants, the mechanisms for the protection of first and second generation human rights enshrined in the Universal Declaration of 1948 – namely, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, respectively – it is in honor of the principles of equality and reasonableness that the environment, by positioning itself among the most proclaimed human rights of the so-called third generation, should receive identical protection.

Moreover, it is promising, as Valério Mazzuoli recalls, that on an hodiernal basis, in regional human rights bodies, namely in the inter-American and European systems, the supranational courts charged with enforcing regional conventions – in this case, the InterAmerican Court of Human Rights and the European Court of Human Rights, guardians, respectively, of the American Convention of 1969 and the European Convention of Human Rights of 1950 – have been protecting, through their decisions, the environment, albeit indirectly, as when alleging the violation of a first generation human right (e.g. life, intimacy, etc.) in connection with a particular environmental issue, expressly providing protection to the former, although protection also effectively affects, via reflexive means, the latter.

This new trend of “ricocheting” protection, as the celebrated internationalist teaches, has been termed as “greening” in regional human rights systems. 

Exemplarily, in the Awas Tingni Mayagna (Sumo) Indigenous Community v. Nicaragua case, the Inter-American Court ruled in 2001 that Nicaragua infringed the American Convention in regard to the right to private property and judicial protection – both rights of first generation – ordering the aforementioned State to demarcate the lands of the Awas Tingni community, in which the deforestation of the region was avoided, thus, consecutively, protecting the environment, a third generation human right.

Also the European Court, notably in the case of López Ostra v. Spain, in 1994, based on the rights to the physical integrity and the inviolability of the home and private life, resolved an environmental issue concerning pollutants from a waste treatment plant in the Spanish city of Lorca (Murcia), based on the right of individual victims to live in an environment that provides a healthy quality of life.

This occurs because neither the American Convention on Human Rights nor the European Convention on Human Rights has positive environmental rights in their texts, which makes it necessary to use this indirect or reflexive protection technique, without which the environment would be afar from any mechanism of protection of regional systems.

Hence the reason for revisiting the issue at the level of public international law, in order to extend the contentious jurisdiction of the courts of regional systems, either through new protocols or amendments to their texts, or even as outlined above, through a specific and detailed international treaty on environmental matters which in turn – and why not consider? – could create in its midst a permanent supranational court, with effective jurisdictional function and binding decisions, dedicated to the most sensitive environmental causes on the planet. 

If the subject is among the most important ones, and this is what all modern legal systems proclaim, considerations such as these must be put into consideration by political agents and legal operators in order to achieve an effective advance in this fundamental theme for life in general society.

References (all of the originally used ones are in Portuguese; the translation can be found below in italic font, being merely for understanding purposes, not necessarily being found in the English language): MAZZUOLI, Valério de Oliveira. Curso de Direito Internacional Público. 3ª ed. Rio de Janeiro: Forense, 2019. BONAVIDES, Paulo. Curso de direito constitucional. 10ª ed. São Paulo: Malheiros, 2000. BOBBIO, Norberto. A era dos direitos. Trad. Carlos Nelson Coutinho. Rio de Janeiro: Elsevier, 2004. MAZZUOLI, Valério de Oliveira. Public International Law Course. 3rd edition. Rio de Janeiro: Forense, 2019. BONAVIDES, Paulo. Constitutional Law Course. 10th edition. São Paulo: Malheiros, 2000. BOBBIO, Norberto. The Age of Rights. Translated by Carlos Nelson Coutinho. Rio de Janeiro: Elsevier, 2004.

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