National Taskforce for Human Rights: leadership report

Annex D: Explanatory Note on Right to a Healthy Environment

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1. The high-level policy objective served by the right to a healthy environment

1.1 Becoming a global leader in environmental rights

More than 100 countries in the world have already included a human right to a healthy environment in their constitutions, as this right encapsulates existing international human rights obligations to protect against environmental harm.^[9]

The recognition of a human right to a healthy environment "has proved to have real advantages" in other countries:

• it "raises awareness that human rights norms require protection of the environment and highlights that environmental protection is on the same level of importance as other human interests that are fundamental to human dignity, equality and freedom"
• it "has raised the profile and importance of environmental protection and provided a basis for the enactment of stronger environmental laws"
• "When applied by the judiciary, it has helped to provide a safety net to protect against gaps in statutory laws and created opportunities for better access to justice."^[10]

Recognising the inter-dependence between its international human rights obligations and international environmental law obligations serves two purposes. On the one hand, a safe, clean and heathy environment is necessary for the fulfilment of the human rights to life, to the highest attainable standard of physical and mental health, to an adequate standard of living including the rights to food and to housing, to safe drinking water and sanitation, to participate in cultural life and to the right to development itself. On the other hand, the exercise of such human rights as the right to a healthy environment, to freedom of expression and association, to education, information, participation and effective remedies are vital to the protection of the environment.^[11]

That said, Scotland could be the first country among common law jurisdictions to recognise the human right to a healthy environment (although currently Canada and the US are also taking steps in that direction).

More significantly, Scotland could become a global leader in environmental rights by taking an innovative approach to prevent the shortcomings in implementation and enforcement experienced in other countries. First of all, these constitutions do not recognise the full legal content of existing human rights obligations to protect against environmental harm as clarified in the 2018 UN Framework Principles on Human Rights and the Environment. In addition, Scotland could be a global human rights leader by:

• taking a participatory and implementation-focused approach to the human right to a healthy environment, through an ambitious and inclusive capacity-building programme;
• ensuring access to justice and every-day accountability for the human right to a healthy environment based on the UN Framework Principles;
• pioneering the environmental dimensions of the human rights of the child;^[12] and
• capitalising on the work already done on climate justice to address inter-linked substantive dimensions of the human right to a healthy environment (including biodiversity, that has come centre stage in the context of the COVID-19 global pandemic).

The combination of the participatory approach to legal recognition and the focus on building capacities for implementation can provide real opportunities for different public bodies, civil society, business and others to identify together what can make this right a reality in Scotland.

The UN Environment Programme has already identified several international opportunities for Scotland to share its leading approaches to the human right to a healthy environment globally. Hosting the UN Climate Change Conference of Parties (COP26) in Glasgow is also a great opportunity to showcase Scotland's pioneering approach.

1.2 Policy coherence and co-benefits for a fair green recovery

The recognition of a human right to a healthy environment can also provide benefits in terms of policy coherence and reflect other human rights developments in Scotland, particularly through transformative partnerships and place/community-based approaches.

It supports joined-up thinking across public bodies with a view to delivering co-benefits across a variety of public policy objectives, notably:

• The incorporation of the Convention on the Rights of the Child in Scotland, which supports prioritising environmental concerns that are essential for protecting children's right to mental and physical development as the 'best interests of the child' and ensuring that balancing exercises between environmental and other public policy objectives take a long-term perspective that allows for protecting children's rights. Specific references to children in the provision recognising a human right to a healthy environment serve to emphasise children's particular vulnerability to environmental degradation, which should not be considered an exception. Rather, it should be considered part of the general right to a healthy environment.^[13]
• Through the specific standards of protection required under the international human rights of the child, environmental protection can also better protect also other parts of the population that may be particularly vulnerable to environmental degradation,^[14] thereby contributing to Scotland's national public health priorities "places and communities" and its agenda on health and equality.
• The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 targets to reduce Scotland's emissions of all greenhouse gases to net-zero by 2045 at the latest, while ensuring climate justice and a just transition, can be supported in taking an environmentally holistic and human rights-based approach.
• UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021: incorporation of EU environmental law principles into the Scottish legal system can be mutually supportive with the recognition of the human right to a healthy environment.
• The Scottish land reform, including its Land Rights and Responsibility Statement, both provide lessons learnt and approaches for the recognition of the human right to a healthy environment, and a critical area for the implementation of this right.

On the whole, the right to a healthy environment contributes to decision-making in the light of the indivisibility of human rights and the SDGs.

Finally, the recognition of a human right to a healthy environment can contribute to Scotland's green recovery, maximising learning and awareness accrued during the COVID-19 pandemic.^[15] The recognition of the human right to a healthy environment can thus support the planning for post-COVID-19 recovery to "build back better" and not return to business as usual, as called for by the UN Secretary-General. The recognition of a human right to a healthy environment can contribute to prioritise environmental protection over unsustainable development approaches as part of Scotland's efforts to explore the human rights-based approach and the fair transition to net zero.^[16]

2. The proposed policy key features of a human right to a healthy environment

In order to fully recognise recommendation 2 on the human right to a healthy environment it is suggested the following key policy features will be important to consider in bill development and will need to be integrated into the wider framework:

1. As referenced in the preamble to the Aarhus Convention, Recommendation 2 recognises that the adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself.

2. Recommendation 2 is intended to clarify that everyone has a right to a healthy environment and should benefit from healthy ecosystems that sustain human health, well-being and children's development and enable their full potential. [NOTE: the intention of this is to emphasise the importance of ecosystems for everyone's human health, in the light of the most recent global scientific reviews;^[17] to emphasise the importance of the human right to health for the protection and realization of the rights of the child,^[18] which would be a first internationally;^[19] and to point to medium to long timeframes to be taken into account to avoid negative impacts from environmental harm on children as they become adults.^[20]]

3. It will be important to recognise, through this Recommendation, that the human right to a healthy environment has both procedural and substantive components, in an operative (as opposed to purely aspirational) way:

3.1 Indicating that the substantive component of the right includes inter-dependent environmental features "which include clean air, a safe climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems" [NOTE: this could be a globally innovative feature as it would incorporate in domestic legislation for the first time the international formulation elaborated by the UN Special Rapporteur on Human Rights and the Environment David Boyd.^[21]]

3.2 Indicating that the procedural entitlements comprise: access to environmental information, public participation in environmental decision-making, environmental and socio-cultural assessments, and access to justice in environmental matters and effective remedies, in accordance with the Aarhus Convention and the UN Framework Principles on Human Rights and the Environment.

4. A key policy objective of this Recommendation is to ensure relevant authorities pursue the full implementation of this right, prioritising the best interests of the child, in progressively advancing the conservation, sustainable use and restoration of the environment, in accordance with the principles of precaution, prevention, integration, polluter pays, and remediation at source.

[NOTE: This links international obligations on non-discrimination with the protection of the environment, based on a solid international evidence base whereby also in highly developed states, environmental disease is clearly linked to poverty and social inequalities. This is confirmed in the evidence base collected by the Taskforce. The UN Framework Principles on Human Rights and the Environment point to heightened obligations to protect the right to a healthy environment for those in particularly vulnerable situations. Non-discrimination is also one of the fundamental principles of the UNCRC (Article 2), so it is important to take measures to make the environment of the child safe, for example, by providing adequate housing and play facilities.^[22] This would also integrate the highest standards of protection for the rights of the child as a way to raise the bar in the protection of the environment to the benefit of all; and it clarifies that the international and EU environmental principles (contained in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 are complementary to the human right to a healthy environment.]

5. A further key policy objective of Recommendation 2 is also to ensure that relevant authorities protect everyone from current and emerging environmental degradation, to avoid unjustified, foreseeable negative impact on human life, health, well-being or children's development, including by ensuring treatment and accountability for loss.^[23]

The following definitions could assist in interpreting these proposed policy features.

Environment the environment should be understood broadly. Based on the definition of "environmental information" under the Aarhus Convention (Art. 2.3), the environment should be understood as comprising "air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements."

In considering the protection of the right to a healthy environment, the following considerations should be taken into account (as per Art. 2.3 of the Aarhus Convention):

• Factors, such as substances, energy, noise and radiation, and activities or measures, affecting or likely to affect the elements of the environment;
• The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures affecting or likely to affect the elements of the environment.

Ecosystems according to the Convention on Biological Diversity (Art. 2), these are defined as "a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit."

Well-being is an all-encompassing term referring to physical and mental health,^[24] as well as all other aspects of life that can be negatively affected by environmental degradation. Children's well-being refers to health, education, leisure and all other aspects of the child's life which can be affected (for example the family life of the child can be disrupted by the loss of home due to a landslide or an explosion of an industrial site). It is important, therefore, to have a broader term than health.^[25]

Children's development is addressed under Article 6 of the UN Convention on the Rights of the Child: 'Every child has the right to life. Governments must do all they can to ensure that children survive and develop to their full potential.'

Conservation, sustainable use and restoration can be defined in accordance with the Convention on Biological Diversity as follows:

• Conservation includes both "the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties" and the "conservation of components of biological diversity outside their natural habitats" (CBD Art. 2).
• Sustainable use "the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations" (CBD Art 2).
• Restoration rehabilitation and restoration of degraded ecosystems and promotion of the recovery of threatened species (CBD Art. 8), with the involvement of relevant stakeholders and for job creation and as contributions to climate change mitigation and adaptation, socio-economic development and food security (CBD Decision XI/16, 2012).

Children's best interests is a principle in accordance with Article 3(1) of the Convention on the Rights of the Child: 'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

Precaution according to the UN Framework Principles on Human Rights and the Environment, substantive environmental standards (that should be non-discriminatory and non-retrogressive) should take into account the best available science but the lack of full scientific certainty should not be used to justify postponing effective and proportionate measures to prevent environmental harm, especially when there are threats of serious or irreversible damage.

The reference to precaution and other general principles of international environmental law, as well as in EU principles of environmental law referred in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 serves to clarify that the human right to a healthy environment contributes to implement environmental principles, and more generally that environmental governance should reflect the human right to a healthy environment.

Current and emerging environmental degradation according to the World Health Organisation, current threats are air pollution, water, sanitation and vector-borne diseases, while emerging are chemicals^[26] , electronic waste and climate change.^[27] To the above list another important threat is the loss of biodiversity, which fits both categories.^[28]

Treatment of environmental disease will, possibly, require the most initiative on behalf of the Scottish government. It should be pointed out that the protection of children from diseases will also have a positive effect on other members of the population with particular vulnerabilities. The state may wish to consider plans and programmes for healthcare, such as:

i) Special training of doctors to recognise environmental factors and be able to treat them. For example, the detection of persistent organic pollutants (POPs) causing diabetes; and

ii) Special health treatment units, which could be part of the general hospitals.

Specifically regarding children's rights, it can do so by relying on the criteria of Article 24 UNCRC, as a starting point.^[29] Environmental degradation affects all aspects of the child's life and therefore a wide range of their rights. It is important to have a starting point of human rights provisions to make a practically feasible change to begin with, which can be further developed in due course.^[30]

For this reason, there is a need for monitoring of specific levels of certain substances, for example mercury, persistent organic pollutants, for each developmental stage of the child (this can also be part of the preventative measures). For most substances the levels provided by international organisations are for the general public. It is not apparently clear whether they are safe for children.^[31]

Treatment of environmental disease in children will fulfil Scotland's obligation under the UNCRC – especially Articles 24 (the right to health) and 6 (survival and development), the latter being one of the fundamental principles of the interpretation of the Convention. Moreover, it will fulfil a number of Sustainable Development Goals (SDG), including but not limited to, SDG 3 'Good Health and well-being'.^[32]

Accountability for loss can take the form of judicial redress when all other remedies are exhausted (in accordance with the Aarhus Convention). Mechanisms of less costly redress must be provided, for example mediation, restorative justice.

Healthy ecosystem "is one that is sustainable – that is, it has the ability to maintain its structure (organization) and function (vigor) over time in the face of external stress (resilience)." (drawn from academic literature suggested by UN Special Rapporteur David Boyd: Robert Costanza and Michael Mageau, "What is a healthy ecosystem?" Aquatic Ecology 33: 105–115, 1999).

3. The evidence base

All Our Rights In Law: A report to the National Taskforce on Human Rights Leadership on views and concerns from the wider public

"It was very notable that many of the views and concerns raised around [the right to a healthy environment] were from children and young people."

'All Our Rights in Law': Conversation with children and young people hosted by Together (Scottish Alliance for Children's Rights) – January 2021

"There's a significant mental health impact related to the environment e.g climate change – climate anxiety, it feels like everything is hopeless. If there is proper action taken by Scottish Government, it would offer some great reassurance and hope to young people."

"The government should take every possible measure to make sure it's not unnecessarily damaging the environment or allowing other groups or people to do so."

"The government should also encourage people to make responsible decisions which are less damaging for the environment."

"Most laws get forgotten as there are so many of them. Politicians also forget that they exist. Need to remind them that we're entitled to what is in these laws."

Participants also spoke of the importance of:

• the new human rights law supporting active travel and ending investment in fossil fuels, and helping people access clean water, food and a clean and healthy environment everywhere so that people are healthier and they can do their jobs better;
• decision makers listening to children and young people's views about the environment and taking these into account; and
• mechanisms and supportive structures helping children and young people claim their rights.

Reports of the three roundtables on the right to a healthy environment (including contributions from the former and current UN Special Rapporteurs on Human Rights and the Environment, as well as former Special Rapporteur on Toxics and Human Rights; and case studies from the Scottish Land Commission, Public Health Scotland, SEPA and SNH).

• Baskut Tuncak, former UN Special Rapporteur on Toxics underscored that the UNCRC is important in supporting the recognition and protection of all the elements of a right to a healthy environment, benefitting other groups of rights-holders. He therefore noted that, being in the process of incorporating the UNCRC, Scotland has an opportunity to do "something ground-breaking" and tangible on children's right and the environment. He also noted that it is important to consider the environment as widely as possible, and that enhanced access to justice can reinforce prevention of environmental degradation.
• UN Special Rapporteur on Human Rights and the Environment Professor David Boyd, emphasised that the right to a healthy environment can catalyse the rapid, systemic and transformative change that is needed to address multiple global environmental crises. He noted he was impressed with proposed key features including both the substantive and procedural components of the human right to a healthy environment. He underscored the need to formalise concrete opportunities for children to participate in decision-making and accountability processes.
• SEPA and SNH case studies illustrate existing good practices in bringing together public bodies, businesses and community representatives who want to make a positive difference to place and in engaging with those who would/could not normally access consultation process. They emphasised multiple benefits (health, education, anti-social behaviour, economic prospects, isolation, natural flood management, disability, biodiversity) arising from relying on existing natural features ("do what nature would do").

Scottish Land Commission's note for further discussion: Right to a Healthy Environment/Land Reform (2020) expresses "strong support [for] an ambitious approach in which such a right helps unlock action to realise progressive improvements to a healthy environment. This would reflect Scotland's leadership approach in both environment and human rights, and complement the approach taken to land-related rights and responsibilities.

The note lists the following are areas of potential collaboration, where a right to a healthy environment could strengthen policy and action, and which, in turn, could provide opportunities to build capacity and operationalise such a right: Vacant and derelict land; Planning and community engagement; Capacity Building – Land Rights and Responsibilities; and Meeting Scotland's Climate Change Targets.

Briefing by the Environmental Rights Centre for Scotland on behalf of Scottish Environment LINK 35 members (support by Badenoch and Strathspey Conservation Group; Environmental Rights Centre for Scotland; Friends of the Earth Scotland; Keep Scotland Beautiful; RSPB Scotland; Scottish Wild Land Group; Scottish Wildlife Trust; Woodland Trust Scotland; WWF Scotland) supports recognition of the human right to a healthy environment in its substantive and procedural environmental dimensions.

RSPB Case studies on Human Right to a Healthy Environment and Planning Decisions indicated that a right to a healthy environment could help deliver these goals by giving the environment higher status in decision-making and ensuring that decision makers can be held accountable.

Environmental Rights Centre for Scotland (ERCS), "Why Scotland needs a human right to a healthy environment", 2 February 2021 and ERCS, brief "The case for a substantive right to a healthy environment: case review" (October 2020) expresses support for a codified substantive right that can reprioritise the pursuit of environmental protection over unsustainable economic drivers to the benefit of children, the elderly, and those suffering ill health, who are more negatively impacted by environmental health hazards, but are often least responsible for causing environmental damage.