The Linkage of Life and Nature
Homo sapiens cannot live alone, the earth is 4.543 billion years old, the existence of human life on earth is thought to be only 200,000 years over which millennia we have reshaped the earth.
Life, our life, is just a link in a chain of innumerable living beings that have succeeded one another on earth. The engine of life is a linkage, everything is linked, nothing is self-sufficient, water and air are inseparable, soil, trees are all united in life and for our life on earth, and the earth relies on a balance in which every being has a role to play and exists only through the existence of another being.
In the greatest adventure of life on earth every living thing (nature, spices) plays a special role, none is futile or harmful; the trees breath ground water into the atmosphere as light mist, they form a canopy that alleviate the impact of heavy rains. The forest provides the humidity that is necessary for life.
They store carbon, all the spices, animals, water, insects, etc. have purpose, they all balance out, that is where our life, humans, homo sapiens, the wise human and arrogant human enter the story. We have gained from all these fabulous necessities of life over four billion years bequeathed by the earth. We have not been here for long, but yet have changed the earth.
Justification for Environmental Law
Environmental security is the biggest threat facing Ghana today; the threat is bigger than conventional weapons or atomic bombs. Environmental related diseases, death or disaster the world has witnessed is unprecedented, yet environmental threats have been overlooked by policy makers.
The link between human rights and the environment was made at the United Nations Conference on the Human Environment in Stockholm in 1972, it declared in the principle 1 that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”.
The resolution recognized the human right to a clean, healthy and sustainable environment as an important human right. Though States were disappointed with the strength of the principle 1, nevertheless, the principle 2 seems to affirm the need to address the persistence of environmental problems affecting present and the future generation.
The principle 2 states that “the natural resources of the earth, including the air, water, land, flora, and fauna and especially reprehensive samples of neutral ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.”
Stockholm Declaration and right to a healthy environment
This cemented the effective integration in international law and stronger implementation domestically. The right to a healthy environment has been in existence since 1970 until the Stockholm Declaration which paved a way for the recognition of the right to a healthy environment at the regional and national levels.
In the regional level, for instance, the African Charter on Human and Peoples’ Rights (1981) provides that “all peoples shall have the right to a general satisfactory environment favourable to their development,” and at the national level, Portugal was the first country to enshrine this right in its constitution, in 1976. Since then, the right to a healthy environment has rapidly spread to other constitutions.
Recently, David Boyd (UN Special Rapporteur) said, the right to a healthy environment “is included in regional human rights treaties and environmental treaties binding more than 120 States.
“It enjoys constitutional protection in more than 100 States and is incorporated into the environmental legislation of more than 100 States. In total, 155 States have already established legal recognition of the right to a healthy and sustainable environment.”
Although, the international recognition of the right to a healthy environment is much less advanced, at the moment, States, especially the advance countries have shown reluctance to adopt a binding legal instrument recognizing such a right to continue advancing industrialisation by polluting the earth, the right to a healthy environment is essentially lack the legal force in international environmental law.
The Rio Declaration (1992) also affirmed with less ambit that “human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”.
However, Rio did not change very much the resistance among States to recognize this right in the Rio Declaration.
In the face of such reluctance, several initiatives have sought to enshrine the right to a healthy environment in international treaties.
For instance, the International Union for Conservation of Nature’s (established on 5th October 1948 in France, Fontainebleau) Draft International Covenant on Environment and Development (1995) provides in its Article 14 states that “undertake to achieve progressively the full realization of the right of all persons to live in an ecologically sound environment”.
More recently, the draft Global Pact for the Environment (2017) proposed the recognition of the right to a healthy environment in its first article.
Successful Legal Cases on Environmental Issues
On October 8, 2021, the United Nations Human Rights Council adopted a resolution recognizing that the right to a clean, healthy and sustainable environment is a human right. This decision is a major step forward.
Although not legally binding, its near-unanimous adoption shows consensus on the formulation, content, and importance of this human right. Ghana has the worst environmental practice, but the right to a healthy environment is essentially devoid of legal force in our constitution.
Procedural and substantial implications
From a legal point of view, the right to a healthy environment has procedural and substantial implications. Taking as a reference the implementation of the right to a healthy environment by national jurisdictions, most States have enacted legislation identifying procedural and substantive elements to enable the effective implementation of this right. Why can’t Ghana do so to protect the environment as humans are at risk, the ecosystem and biodiversity, food security above all the future generation.
The right to a healthy environment has been adopted by many countries to control environmental wrong doing and protecting the environment is the right thing to do for people and the planet, and it is also the law. Environmental laws regulate environmental protection, from air and water quality to waste management, pollution, chemical safety, land degradation, hunting and fishing.
Every year, legal cases arise that change the physical and political landscape of the environment; Collins v. EPA 2023 in Guyana on oil and Gas, PSB, P-SOL,PT REDE v Uniao,2022 Brazil on Human right, Daniel Billy &Ors v Australia, Australia on Climate Change, Human Right and Indigenous People, Sanjay ChandrakantKeluskar v State of Maharashtra &OrsOrig, 2022 on mining, sand, gravel and aggregate mining, and there are many more successful environmental cases. These are also three landmark cases that have shifted the environmental politic and the polluter’s behavioural.
Sierra Club v. Morton, 1972
This case established that in order to demonstrate legal standing to sue in environmental cases, a plaintiff must prove that they stand to suffer, and that the injury can be traced to the challenged action. Furthermore, the proposed action must be shown to violate statutes within the zone of interest and it must be remediable by judicial action. This case established a framework that informs environmental lawsuits to this day.
Massachusetts v. The Environmental Protection Agency, 2007
Just over a decade ago, the Supreme Court (USA) made a landmark environmental decision as a result of the case between the State of Massachusetts and the EPA.
The state sought to shed light on the environmental issues caused by the federal government’s failure to regulate tailpipe emissions from cars and trucks.
The Bush Administration argued that it did not have the right (and would not exercise the authority if it did) to regulate carbon emissions under the Clean Air Act.
The Supreme Court disagreed, arguing that it needed to be proven that greenhouse gases do not contribute to climate change or a reasonable explanation needed to be provided as to why the government would be incapable of restricting pollution.
The verdict definitively stated that action needed to be taken to combat climate change, and it needed to be taken immediately.
The ramifications of this verdict have been extremely positive for environmental litigation. The verdict validated the perspective that the government has a responsibility for addressing climate change.
Ongoing Deepwater Horizon Litigation
Unlike other matters in this list, this incident involves many high-profile lawsuits, several of which are ongoing. With the Deepwater Horizon incident, however, that changed.
The BP oil spill on April 20, 2010, was an unprecedented disaster. When the Deepwater Horizon drilling rig on the Gulf of Mexico exploded due to negligence on the part of BP, 11 people were killed and the equivalent of nearly 5 million barrels of oil was spilled into the Atlantic Ocean.
Not only did the explosion have a profound effect on nearby people; 30 percent of all locals suffered from mental illness in the wake of the event, the accident had a global impact, affecting an untold number of people.
So what consequences does BP face? It pleaded guilty in November 2012, reaching a settlement with the U.S. Department of Justice to pay $4.5 billion. While that may seem like a lot of money, it is nothing compared to what the company is being held liable for today. While BP allotted $3.5 billion to the case, the actual costs have skyrocketed beyond that figure; in addition to the $28 billion already spent in clean-up costs and paid out in claims, it may be subject to $18 billion more in penalties.
On the one hand, recognizing a right to a healthy environment often implies upholding procedural rights such as the rights to receive information, to participate in decision-making about environmental matters, and to obtain access to the justice system.
Alongside procedural rights, the right to a healthy environment also contains a substantive component. By definition, the right to a healthy environment, regardless of its precise formulation, protects the elements of the natural environment that enable a dignified life. It englobes the preservation of basic human rights such as the right to life, clean water, food, etc.
A case can be brought against the Ghana government, if one wishes, on land degradation, soil contamination, deforestation, and Water and air pollution for the government not taking actions to stop or prevent environmental disaster.
Moreover, this substantive component has allowed national and regional courts to impose duties on States to effectively implement the right to a healthy environment.
By Dr. Edward Kwadwo Yeboah, Kumasi
*The Writer is an Economic Development Consultant
