In the powerful words of the global environmental icon, Professor Wangari Maathai, ‘[t]here comes a time when humanity is called to shift to a new level of consciousness so that she stops threatening its life-support system.’ The twin resolutions by the UN Human Rights Council (resolution 48/13, adopted on 8 October 2021) and the UN General Assembly (UNGA) (resolution 76/300, adopted on 28 July 2022) that recognised the universal right of everyone, everywhere, to live in a clean, healthy, and sustainable environment evidenced a growing global consciousness regarding our planet. The landmark resolutions, historic in themselves, were also a new ‘high-water mark’ in international understanding and affirmation of the close inter-relationship between the enjoyment of human rights and the effective protection of the environment and climate. While this growing recognition that the environment is central to humanity’s survival should provide sufficient grounds to drive us to protect it with everything we have, in reality, we still have a long road ahead to turn these lofty ideals into practical laws and policies for effective environmental protection.
One tried and tested method for securing improved environmental outcomes is by strengthening the protection and access to decision-making processes of the committed environmental human rights defenders (EHRDs) who strive, often at great personal costs, to safeguard the environment. According to the UN Special Rapporteur on human rights and the environment’s Framework Principles on Human Rights and the Environment, such procedural environmental rights, which are essential for environmental democracy and a consensual component of the right to a healthy environment, include, free access to information, meaningful participation in decision-making, and access to effective remedies in environmental matters.
While more than 80% of the UN Member States have established legal recognition of the right to a healthy and sustainable environment, including more that 100 States at constitutional level, there remain implementation gaps, which can be filled through regional level agreements, as well as international monitoring efforts. The Aarhus Convention, which entered into force in Europe in 2001 was the first regional treaty to guarantee these aforementioned rights, demonstrating the benefits of such legally binding intergovernmental agreements for the promotion of environmental democracy. In 2018, Latin America followed suit with the adoption of the Escazú Agreement, which entered into force in 2021, and guarantees the right to live in a healthy environment, as well as the rights to participate, and access information and justice with regards to environmental matters. Notably, it explicitly provides for protection measures of those working to protect the environment (i.e., environmental human rights defenders). In the words of Special Rapporteur David Boyd during an HRC52 side event, ‘Aarhus raised the floor on access to environmental information,’ while Escazú ‘promises to do the same’ and raises the bar with its ‘precedent setting provision’ on EHRDs; further, ‘both of these agreements are also critically important because they empower people to realise their right to a clean, healthy, and sustainable environment.’
The next piece of the puzzle for the promotion of environmental democracy would logically be Africa, where environmental protections already exist at the regional and national level, but where procedural environmental rights and on-the-ground implementation of the right to a healthy environment could only serve to strengthen the realisation of the right across the continent.
Against this backdrop, a side event to the 52nd session of the Human Rights Council took place on 8 March to share information on the push for an environmental democracy convention in Africa, share lessons learnt from Latin American and European experiences, and generate broader support for environmental democracy on the continent. The event, co-sponsored by the Permanent Missions of the Kingdom of Morocco and Uruguay to the United Nations in Geneva, Green Advocates, Katiba Institute, and the Universal Rights Group, had panellists including: David Boyd, UN Special Rapporteur on human rights and the environment; representatives of Permanent Missions; and civil society.
The current status of environmental rights in Africa
According to Dr. Boyd, the African continent has been at the forefront globally in recognising the right to a clean and healthy environment. The African Charter on Human and People’s Rights, for instance, was the first regional human rights treaty of its kind in the world to recognise the right to a clean and healthy environment (Article 24), and the Special Rapporteur also highlighted how the Charter’s Maputo Protocol recognises specifically recognises women’s rights to a healthy environment and sustainable development. Dr. Boyd further underscored the fact that a higher proportion of African nations recognise the R2HE in their constitutions, legislation, or as parties to a regional treaty than any other region on the planet.
For example, Kenya has included the R2HE in article 42 of its constitution, and established dedicated mechanisms for pursuing effective remedies in case the right is violated (articles 69 and 70). Notably, it has given standing to individuals and NGOs to bring lawsuits based on the violation of the R2HE or other environmental laws (contrary to many other countries – see previous blog on German constitutional court decision for example). Other good practices in Africa include, for example, South Africa, which has enacted the National Environmental Management Act No. 57 of 2003 on protected areas that guarantees the right to public participation and access to information before any private land is declared a protected environment.
Moreover, from the recent UN resolutions recognising R2HE, it is clear that African States overwhelmingly supported its passage and adoption – no African State voted against either resolution, and all 13 African States at the HRC voted in favour of the resolution, while 35 supported the GA resolution -, further underlining Africa’s collective commitment towards actualising this right for her people.
While there has been an increase in the legal understanding and recognition of the importance of a human rights based approach to environmental protection across Africa, implementation and enforcement has not always been as robust. This has largely stemmed from numerous challenges that have prevented it from realising its full potential, including lack of political goodwill, jurisdictional battles between different levels of government, weak institutions and capacity deficiencies, insufficient public awareness on the right, and corruption. Ultimately, however, this entails that despite having been at the forefront of legislative progress, many African States have not fully lived up to their aspirations to effectively respect, protect and fulfil the right to a clean and healthy environment for their people, and according to the Special Rapporteur, that the on the ground enjoyment of the right ‘remains elusive for too many Africans – air pollution, lack of access to safe drinking water and sanitation, food insecurity, exposure to toxic substances, and the increasing impacts of the climate emergency affect hundreds of millions of people’ on the continent.
Recognising the need to strengthen environmental democracy in Africa, a multi-stakeholder movement of more than 40 African and global civil society partners have come together to spearhead the ‘Advancing Environmental Rights Africa Initiative’ (ERA) with the goal of building momentum for the negotiation and ratification of a legally binding agreement on environmental rights in Africa. The initiative recognises that environmental rights are integral tools for ensuring inclusion of African communities in environmental and development decisions that will transform the continent in the coming decades. It is further based on the understanding that binding regional intergovernmental agreements can help States more fully realise the right to a healthy environment by facilitating mutual accountability and by strengthening avenues for EHRDs and local communities to claim their rights. Leveraging the success and learnings from the ratification of the regional agreement on procedural environmental rights in Latin America and the Caribbean region dubbed the Escazú agreement, the ERA initiative aims to build a multi-stakeholder movement of civil society organisations, governmental and multilateral institutions to foster political support and outline steps for such a pan-African environmental rights treaty.
Advancing environmental democracy in Africa – an overview
A preliminary assessment by ERA members, aimed at investigating the feasibility and pathway options for improving the recognition and effective implementation of environmental rights in Africa, found overwhelming support for a legally binding agreement during case study interviews and focus group discussions in the four countries examined. It also revealed common barriers in implementation of environmental rights across selected countries (e.g., weak political will and/or capacity to reform environmental laws and policies, and limited community involvement in environmental decision making), and an upcoming assessment of six additional African States will provide further insight.
Based on its previous experience coordinating and supporting the passage and ratification of Escazú Agreement – notably by successfully advocating for the first-of-its-kind environmental defender provisions -, the Alliance for Land, Indigenous and Environmental Defenders (ALLIED), which is a support and protection network of global and local civil society organisations has committed to supporting the ERA initiative.
Moving forward, their core team will work on finalising a specific regional action plan for implementation, including by: mapping potential government champions and institutions that could act as a formal coordinating body, as well as other organisations and stakeholders who should be targeted for engagement;; leading development of regionally specific communication and advocacy strategies and; tracking activities, stakeholders and forums and events that are relevant for the initiative.
The time is now to improve environmental rights in Africa
The growing momentum among African States and civil society actors around the need to uphold and safeguard environmental rights presents itself as an important opportunity to showcase how environmental rights are integral to efforts to safeguard against the triple planetary crisis while realising the vision and moral imperatives of a just transition. Africa is considered as the next frontier for development, but is simultaneously subject to an intensified push for it to shift towards the green economy. The ERA and its vision of environmental democracy will be critical in negotiating the difficult balancing act between realisation of the right to a healthy environment and the right to development.
There are a multitude of potential benefits to the ERA. Special Rapporteur David Boyd argued that it could: raise the profile of environmental issues, strengthening public awareness and contributing to environmental education, which would increase support to EHRDs, many of whom do not even identify themselves as HRDs or EHRDs; promote much needed policy reform and coherence, as well as legal reforms; and enable sharing of good practices (as with Aarhus). As stated by Ms. Zeïnabou Baby and Ms. Emily Kinama, such an environmental treaty could further help alleviate other pressing environmental needs in the region by increasing public participation in environmental decision-making, eliminating legal gaps, and increasing access to justice in environmental matters.
On the other hand, the ratification of the ERA is fraught with significant challenges. Notable obstacles include: lack of institutional capabilities and resources such as financial, human, and technological capacities; lack of public concern/understanding of environmental rights leading to limited community involvement in environmental decision-making; and weak political will to ensure environmental rights are accessible to citizens. We can, however, draw strength from the fact that African nations have already made progress in putting in place procedures to enforce constitutionally protected rights (e.g., through constitutional recognition and creation of enforcement agencies), something which was lacking in Latin American nations, who were nevertheless able to achieve the entry into force of Escazú.
While the path towards the realisation of an environmental rights agreement in Africa may not always be smooth sailing (when has any intergovernmental negotiation been?), now is the time to galvanise support, in the words of the Special Rapporteur, this is a movement ‘by Africans for Africans to develop a legally binding framework for environmental democracy that strengthens the ability of all environmental defenders that are striving to make Africa a more just and sustainable place where all people can enjoy – in real life and not just on paper – the right to a clean, healthy, and sustainable environment’, while also ensuring a just transition and improving economic prosperity.
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