Author: Legal Advisor Redžib Skomorac
On 28th July 2022, the General Assembly of the United Nations adopted the Resolution on the recognition of the human right to a clean, healthy and sustainable environment (A/76/L.75) (hereinafter: the Resolution), according to which, for the first time, at the level of the United Nations, explicit recognition of human right to live in a clean, healthy and sustainable environment took place.
Specifically, this Resolution:
- recognises the human right to a clean, healthy and sustainable environment;
- notes that the right to a clean, healthy and sustainable environment is linked to other rights and existing international law;
- confirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of multilateral environmental agreements in accordance with the principles of international environmental law;
- calls on States, international organisations, business enterprises and other relevant stakeholders to adopt policies, improve international cooperation, strengthen capacity building and continue to share good practices to increase efforts to ensure a clean, healthy and sustainable environment for all.
The Resolution was also welcomed by the UN special rapporteur for human rights and the environment, David R. Boyd, who believes that this is a significant step forward at a time when we are facing an environmental crisis. He reminded that a healthy and quality life depends on healthy air, safe drinking water, sustainable food, unpolluted environment, safe climate, preserved and healthy biodiversity and ecosystem. It is the universal recognition of the right to live in a clean, healthy and sustainable environment that encompasses all the listed elements.
States are now encouraged to take measures, enact or strengthen constitutions, laws and policies, which will recognise or strengthen the right to a healthy environment, as well as to take legal and other measures at the regional or supranational level.
However, the Resolution as such does not represent an international legal obligation, but an expression of political commitment, and may lead to the strengthening of laws, regulations and policies in this area, or further strengthening and positioning of the universal right to a healthy environment.
Namely, when evaluating the actual effect of this Resolution, it is important to note that, in the context of Bosnia and Herzegovina, and the Republika Srpska, as one of the two BiH entities, the explicit right to a healthy environment is guaranteed by Article 35 of the Constitution of the Republika Srpska. In comparative legal systems, this same right is guaranteed by Article 74 of the Constitution of the Republic of Serbia, Article 23 of the Constitution of Montenegro, and Article 69 of the Constitution of the Republic of Croatia, etc.
In the Federation of BiH, Brcko District of BiH, as well as in the State Constitution itself, this right is not explicitly stated, but, in the last resort, using the technique of a simple legal analogy, it can be concluded that it derives from the guaranteed right to life. This is all the more so, since the Constitution of Bosnia and Herzegovina in the preamble guarantees the supranational application of several international sources of law, which sources prevail over the application of national laws, so these can always be referred to in the sense of the obligation of the public authorities to ensure the right to a “healthy environment”.
This right thus becomes imperative for the effective enjoyment of all other civil rights, on the territory of a state, since most rights are mainly exercised and manifested in the physical space, or – the environment.
Otherwise, in a somewhat less practical context, but cognitively crucial, the context of legal theory, the construction “healthy environment” can be labeled as archaism and, for the purposes of legal scholasticism and practical application, perhaps an insufficiently clear concept that increasingly represents an abstract evaluation. As a result, it is the subject of an arbitrary judgment of a value, which is therefore often qualified as populist altruism. However, this unpopular qualification must not be accepted.
Therefore, in this moment of civilisational achievements and, hopefully, a globally anticipated political awakening, caused by climate and humanitarian crises in society, it is necessary to break down the mentioned concept into simple factors, if possible, and, in a practical and legal sense, to give clear frameworks what is a healthy environment. Where does it begin and where does it end? What is its health, its purity, sustainability, and where do we fit? That is if these frameworks can really exist detached from us. Otherwise, if, for the purposes of the opposite thesis, we at least briefly accept that the environment is an isolated entity, isn’t it then hypocritical to talk about these rights and their protection, as long as “we” are only the main harmers of its health?
In this regard, rights regarding the environment and the nature (flora, fauna and fungi) should be collectively de-anthropocentrivised and de-conceptualized. They need to be de-relativized and de-mystified, and then we will have a clearer, but also stronger, basis for the public guarantee of the enjoyment and protection of rights that are linked to a healthy environment, that is, which derive from it and depend on it. Thus, these rights, reserved for eternal declarative guarantee and some future new world, will be more contemporary, i.e. exact and enforceable.
However, firstly, here it is necessary to try to overcome and avoid a perceived paradox. And that is to try to avoid that even the greatest efforts to protect the human environment remain accompanied by a general tendency to distance the environment itself (as object), from humans (as subject) – where they have a dual role, as its sole consumer and guardian. But perhaps that is the point, and such duality will lead us to an inevitable, and hopefully timely, collective social catharsis.
Because of this paradox, it is justified to ask whether the solution perhaps lies in the application of the still insufficiently researched concept of Rights of Future Generations, or in the application of the concept of Rights of Nature. Or the solution lies in the evolution of the concept of Human Rights into a new concept – the Rights of the Humanity.
Regardless of the chosen matrix, it is clear that the right to a healthy environment can only arise from an environment that is healthy, the condition of which must not be further degraded, with the obligation to improve it, and this premise is the only prerequisite that matters – regardless of whether the environment itself is the subject or the object of such right. As such, this right must then be natural law (ius naturale), and only then derived from constitutions, legislation, conventions or resolutions. However, the right to a healthy environment, although undeniably universal, still awaits a process of implementation in national frameworks, i.e. its strengthening where it is already foreseen, and with that certainly also the process of its transformation.
However, regardless of all the above, the adoption of the Resolution is an absolutely significant move, and one could add, the final desired epilogue of the collective efforts of humanity in advocating a better, more coherent and sustainable relationship with its environment on the global stage. Therefore, the potential scope of legal theory, challenges and technical obstacles in practice cannot serve as excuses for the impossibility of effective protection of the environment and its health. On the contrary, the realisation of the right to a healthy environment, recognised as a universal right, must be an incentive to promptly and proactively protect this universal value – for which we have no alternative.
The Resolution should be a catalyst for constructive criticism of all past harmful policies and anthropogenic activities, and certainly a revision of current policies and activities, as well as those that are planned, not only by all structures of power and authorities, but also by the owners of large capital according to the principle of due diligence, but also of each of us.
Due to the acute climate situation, the only sustainable approach of humans to their environment is the holistic one, and this Resolution should serve as a leverage for joint efforts directed towards that goal, as well as creating a clearer framework for a more mature, fairer and climate-friendly legal doctrine and practice globally.
We expect the same, so to speak, political maturity and soberness from Bosnia and Herzegovina, as one of the full-fledged signatories of this Resolution, and all competent structures in BiH to revise those public policies and regulations that are evidently, or potentially, in conflict with values recognised by this Resolution.
At the same time, and regarding the fact that the air, rivers and climate, as elements of the environment, which the Resolution protects, do not know artificial borders, as a result of which its health, purity and sustainability depend on all internal and cross-border anthropogenic influences, from all the regional countries, as well as from countries on a global level, we expect more sincere cooperation regarding the achievement of climate justice, because harmonised and mutual protection of the environment is its only possible protection.