Professor Lynda M. Collins
Faculty of Law, University of Ottawa
57 Louis Pasteur St.
Ottawa, ON K1N 6N5
lcollins@uottawa.ca
October 22, 2015
Dear Special Rapporteur Knox,
Re: Input for Report to the Human Rights Council
I write in answer to your request for input for your upcoming report to the Human
Rights Council. Unfortunately time does not permit a more thorough treatment of these
issues, and I apologize for the brevity of these submissions but hope that they may be of
some assistance to you. I have three proposals for your consideration:
1. The United Nations should recognize an independent “right to a healthy
environment” through a General Assembly resolution, as it has done with
respect to the right to water and sanitation. (see Lynda Collins, “The United
Nations, Human Rights and the Environment” in Louis J Kotzé and Anna Grear,
eds, Research Handbook on Human Rights and the Environment (Cheltenham,
UK: Edward Elgar, 2015);
2. The right to a healthy environment should be understood as encompassing a
duty of non-regression in environmental standards, ie today’s levels of
protection should be seen as a “floor” which can be improved upon but not
degraded. (See Michel Prieur and Gonzalo Sozzo, eds, La non régression en
droit de l’environnement (Brussells: Bruylant, 2013); Michel Prieur, “Nonregression in environmental law” (2012) 5:2 IUCN Commissions SAPIENS,
online: http://sapiens.revues.org/1405); and
3. Greater efforts are needed to educate the global judiciary about the concept of
environmental human rights and the important role to be played by judges in
protecting such rights.
With respect to judicial education, I would propose that there is an urgent need for
knowledge transfer between courts with expertise and experience in the adjudication of
environmental human rights and those (notably in the Common Law world) that have
yet to recognize this concept.
As you know, at the 2002 Global Judges Symposium, a gathering of senior judges from
around the world developed The Johannesburg Principles on the Role of Law and
Sustainable Development, recognizing
… that the Judiciary, well informed of the rapidly expanding boundaries of
environmental law and aware of its role and responsibilities in promoting the
implementation, development and enforcement of laws, regulations and
international agreements relating to sustainable development, plays a critical
role in the enhancement of the public interest in a healthy and secure
environment.1
In the years before and since Johannesburg, some courts around the world have made
great advances in protecting human health and the environment through progressive
interpretations of relevant statutory and constitutional provisions.
In India, for example, the Supreme Court ordered the City of Delhi to convert its huge
fleet of diesel buses to compressed natural gas to ameliorate air quality and reduce
pollution-related mortality and morbidity.2 In Argentina and the Philippines, courts
have imposed detailed, ongoing and ambitious remedies resulting in massive
remediation efforts that cleaned up two of the most polluted watersheds in those
nations.3 Nigeria’s Federal High Court has declared that the right to life enshrined in
that country’s constitution “inevitably” includes the right to a “clean, poison-free,
healthy environment.” 4
In June of 2015, a Dutch court ordered the state to reduce greenhouse gas emissions by
a minimum of 25% by 2020, based on Dutch constitutional and tort duties owed by the
1
See
http://www.unep.org/Documents.Multilingual/Default.asp?ArticleID=3115&DocumentID=259
(last visited September 26, 2015).
2
Urvashi Narain and Ruth Greenspan Bell, Who Changed Delhi’s Air? The Roles of the Court
and the Executive in Environmental Policymaking (Washington, DC: Resources for the Future,
2005).
3
See Mendoza Beatriz Silva et al vs. State of Argentina et al on damages (damages resulting
from environmental pollution of Matanza/Riachuelo river) (2008) File M 1569 XL,
https://www.escr-net.org/docs/i/1469150 (last visited September 25, 2015); Manila v
Concerned Residents of Manila Bay (2008) GR Nos 171947-48,
http://sc.judiciary.gov.ph/jurisprudence/2011/february2011/171947-48.htm (last visited
September 25, 2015).
4
Gbemre v. Shell Petroleum Development Co. Nigeria Ltd. et al., Order of the Federal High
Court of Nigeria in the Benin Judicial Division Holden at Court Benin City, November 14,
2005. See Kaniye S.A. Ebeku, “Constitutional Right to a Healthy Environment and Human
Rights Approaches to Environmental Protection in Nigeria: Gbemre v. Shell Revisited”
(2008)Vol. 16:3 RECIEL 312.
2
government to its citizenry.5 Most recently, the High Court of Pakistan ordered the
Pakistani government to implement its national climate change policy, noting that the
threat posed by climate change calls for judicial “protection of fundamental rights of the
citizens of Pakistan, in particular, the vulnerable and weak segments of the society who
are unable to approach this Court.”6 In summary, some courts around the world –
notably in the Global South – have made great strides in recognizing an effectuating
environmental human rights.
However, inconsistencies and contradictions in judges’ perceptions of their “role and
responsibilities” with respect to environmental human rights are apparent at all court
levels, particularly in the developed common law world (eg Canada, the UK, the US,
Australia and New Zealand). Within the Federal Court of Canada alone, for example,
one can find both a cutting-edge application of the precautionary principle with respect
to conservation of an Aboriginal right to fish,7 and a decision declining to require the
federal government to even attempt compliance with a statutory requirement to curb
greenhouse gas emissions in accordance with the Kyoto Protocol.8 Other common law
jurisdictions in the developed world have similarly failed to recognize and enforce
environmental human rights.
While academics and policy-makers have habitually tended to think of judicial
knowledge transfer as flowing from the developed to the developing world, in my view
common law judges in the developed world have much to learn from their counterparts
in the Global South who have produced an impressive jurisprudence of environmental
human rights. A global meeting of judges on this topic, with a program for continuing
engagement and education, is in order.
Finally, on behalf of the global community of citizens, scholars and advocates, thank
you so much for your work as Special Rapporteur. If you have any questions or require
any further information, please do not hesitate to contact me at 001-613-562-5800, ex.
2913 or via e-mail at lcollins@uottawa.ca.
Sincerely,
5
Urgenda v The Netherlands (2015) C/09/456689 / HA ZA 13-1396 (English translation),
http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196 (last visited
September 25, 2015).
6
See Ashgar Leghari v Pakistan, http://edigest.elaw.org/pk_Leghari (last visited September 28,
2015).
7
Haida Nation v Canada (Fisheries and Oceans), 2015 FC 290.
8
Friends of the Earth v Canada, 2008 FC 1183, leave to appeal to the SCC denied, 2010
CanLII 14720 (SCC).
3
Lynda M. Collins
Associate Professor, Centre for Environmental Law & Global Sustainability
4