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Ngad 023
https://doi.org/10.1093/hrlr/ngad023
Article
1. INTRODUCTION
In a historic move, on 28 July 2022, the UN General Assembly released a resolution recognising
a clean, healthy and sustainable environment as a human right with the majority of states voting
in favour of it.1 One year before that, the UN Human Rights Council released a similar resolution
recognising the right to environment.2 Despite these remarkable efforts which indicate a turning
point in environmental human rights law, this right is under-theorised and contested. It is still
unclear if the right to environment is a precondition to the enjoyment of other already existing
human rights? What is the scope and nature of this right? What is the content of this right?
Is this a collective or individual right?3 As Bridget Lewis argues, ‘one of the most compelling
yet controversial areas of environmental human rights is the notion of a substantive right to
* Senior Lecturer in Law at School of Law and Social Justice, University of Liverpool, United Kingdom;
e-mail: a.chalabi@liverpool.ac.uk
1 This includes 161 votes in favour and eight abstentions. See GA Res, 28 July 2022, The human right to a clean, healthy, and
sustainable environment, A/76/L.75.
2 UNHRC Res, 18 October 2021, A/HRC/RES/48/13, Promotion and protection of all human rights, civil, political,
economic, social and cultural rights, including the right to development. This resolution was released following at least three
recent ‘joint statements’ endorsed by 69 states, 15 UN entities and more than 50 human rights experts, including the Special
Rapporteur on Human Rights and the Environment, which called upon the UN to adopt a resolution in 2021.
3 A wide variety of formulations are used including, among others, the right to a ‘clean’, ‘healthy’, ‘balanced’ and ‘harmonious’
environment. In some countries, the right to environment is recognised as an individual right and in others as a collective
one. In most cases, it is formulated as an anthropocentric right, though in some cases, it is more in harmony with ecocentrism
(e.g. Ecuador, Bolivia and New Zealand). See Daly and May, ‘Learning from the Constitutional Environmental Rights’, in
Knox and Pejan (eds.) The Human Rights to a Healthy Environment, (2018).
Received: March 27, 2023. Revised: June 25, 2023. Accepted: July 12, 2023
© The Author(s) [2023]. Published by Oxford University Press.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommo
ns.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original
work is properly cited.
2 • Human Rights Law Review
an environment of a particular quality.’4 Even the proponents of recognising such right have
admitted the challenge of defining what exactly this right means and that this challenge, if left
unaddressed, can render the right ineffective and infeasible.5 MacDonald, for example, says that
there are ‘dilemmas concerning the nature and extent of the right, the shape of the right, the
content of the right, the threshold required to trigger harm under the right and other definitional
and content-based hurdles.’6 This unsettlement can be explained by the fact that the right to
environment was not initially articulated through a firm theoretical underpinning but rather has
been suggested as a practical, yet theoretically baseless, response strategy in reaction to the need
4 Lewis, Environmental Human Rights and Climate Change: Current Status and Future Prospects (2018) at 59.
5 See, e.g. Handl, ‘Human Rights and the Protection of the Environment’ in Eide et al., (eds.) Economic, Social and Cultural
Rights (2001) at 303; Pevato, A Right to Environment in International Law: Current Status and Future Prospects (1999) 8
(3) Review of European Comparative & International Environmental Law, 309.
6 MacDonald, ‘A Right to a Healthful Environment-Humans and Habitats’ (2008) European Energy and Environmental Law
Review 213, at 214.
7 Chalabi, National Human Rights Action Planning (2018) at 45–65.
8 Ibid.
A New Theoretical Model of the Right to Environment • 3
3 advances a new theoretical model of the right to environment. This section consists of three
sub-sections. It first illuminates the nature and scope of the right to environment and its link
to basic human needs, human interests, basic capabilities and the natural environment. Then,
it deals with the question as to whether a right to environment is a collective or individual
right expanding the right to environment to include a three-level system of protection. This
includes (1) right to environment as an individual right; (2) right to environment as a collective
right; and (3) right to environment as a global right. The last part of this section offers a new
categorisation of basic human rights in order to examine the logical relationships between the
9 Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environ-
ment, UN Doc. A/CONF. 48/14, at 2 and Corr. 1 (1972).
10 Knox, ‘Constructing the Human Right to a Healthy Environment’, (2020) Annual Review of Law and Social Science (Draft)
at 10.
11 Ibid.
12 The nexus has been also recognised by using a set of procedural rights related to the environment such as the right to access to
environmental information and participate in decision making. This path is procedural in nature and belongs to the category
of ‘environmental rights’ whereas the other two paths are more substantive and fall into the category of ‘environmental
human rights’. For example, the Aarhus Convention or Escazú Agreement which entered into force in 2021 are more focused
on the procedural protection of the environment. There seems to be more agreement on the procedural protection of the
environment, both at the theoretical and practical level, though the substantive relationship between human rights and
environment has remained far from simple or straightforward. See Lewis, supra n 4 at 4; Boyle, ‘Human Rights and The
Environment: Where Next?’ (2012) 3 The European Journal of International Law Vol. 23.
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13 Although the right to environment as an individual right has been recognised in the San Salvador Protocol, this protocol
does not make this right reviewable by the Inter-American Commission or Court of Human Rights. See Knox 2020, supra
n 10 at 84.
14 The approach adopted by the ECtHR is faced with further challenges. For example, in the case of Article 8(2) of the
Convention, the failure to recognise the right to environment can result in giving priority to ‘the economic wellbeing of
the country’ over environmental protection. This can be a significant problem especially when it comes to climate change.
Moreover, as reflected in Lambert’s report, allowance of a considerable domestic margin of appreciation affects the extent
of supervision by the ECtHR. This can reinforce the internal looking character of the greening of human rights path
discussed before. See Pavoni, ‘Environmental Jurisprudence of the European and Inter-American Court of Human Rights:
Comparative Insights’, in Boer (ed.), Environmental Law Dimensions of Human Rights, (2015) at 69–106; Lambert, ‘The
Environment and Human Rights, Introductory Report to the High-Level Conference Environmental Protection and Human
Rights’, Strasbourg, 27 February 2020 at 13; PACE, Doc. 9791 ‘Environment and Human Rights, Report of the Committee
on the Environment, Agriculture and Local and Regional Affairs’, Rapporteur: Ms Agudo, 16 April 2003 at para 28.
15 E.g. Öneryildiz v. Turkey, Application No. 48939/99, judgment of 30 November 2004 at para 118. For an overview of
the European Court of Human Rights’ judgments on environmental matters, see Council of Europe, Department for the
Execution of Judgments of ECtHR, Thematic Factsheet, October 2020.
16 E.g. Fadayeva v. Russia, Application No. 55723/00, judgment of 9 June 2005 at para 134; Taşkin and others v. Turkey,
Application No. 46117/99, judgment of 10 November 2004, Para126; López Ostra v. Spain, App. No. 16798/90, judgment
of 9 December 1994 at para 58; Cordella and others v. Italy, Application Nos. 54,414/13 and 54,264/15, judgment of 24
January 2019 at para 174.
17 See, e.g. Saramaka Peoples v. Suriname, Series C No. 172, judgment of 28 November 2007, para 158; Indigenous Community
of Yakye Axa v. Paraguay, Series C No. 125, judgment of 17 June 2005, at para 143.
18 Lhaka Honhat Association v. Argentina Series C No. 420, judgment of 6 February 2020.
19 See, e.g. Dubetska v Ukraine Application No 30499/03, 10 February 2011; Di Sarno and others v Italy Application No
30765/08, 10 April 2012; Fadeyeva v Russia, supra n 16; Moreno Gomez v Spain Application No. 4143/02, 29 June 2004;
Dzemyuk v Ukraine Application no 42488/02, 4 September 2014; Mayagna (Sumo) Awas Tingni Community v Nicaragua
(Merits, reparations and costs) Series C 79 [15] judgment of 31 August 2001; Maya Indigenous Community of the Toledo
District v Belize, Case 12.053, Report 40/04, IACHR OEA/Ser.L/V/II.122 Doc 5 rev 1, 727 (2004).
20 See, e.g. Fadeyeva v Russian Federation, Judgment, Merits and Just Satisfaction, App No 55723/00, ECHR 2005-IV, [2005]
ECHR 376; Budayeva and others v Russia Application No. 15339/02, 20 March 2008; Ivan Atanasov v. Bulgaria (application
no. 12853/03); Kyrtatos v. Greece, Application No. 41666/98, 22 May 2003.
21 See, e.g. Çicek and Others v Turkey, Application No. 44837/07, 4 February 2020.
22 See, e.g. Khan Cement Company v. Government of Punjab, Supreme Court of Pakistan, 2021 SCMR 834; Milieudefensie et al. v.
Royal Dutch Shell plc, District Court of the Hague, 26 May 2021; Sacchi et al. v. Argentina, Brazil, France, Germany and Turkey,
CRC/C/88/D/104/2019.
A New Theoretical Model of the Right to Environment • 5
most from the effects of man-made environmental harms such as climate change.23 Fifth, the
greening of human rights path is still more internal looking and territorial in practice. As Knox
argues, ‘almost all of the environmental claims brought to human rights tribunals involve internal
harm not regulated by international environmental law.’24 This is a significant shortcoming in
addressing the transboundary nature of many types of environmental harms. Sixth, this path
has failed to provide a firm theoretical explanation to link environment and already recognised
human rights, and therefore, what has been proposed is more eclectic than integrated.
In short, due to the fact that environmental protection is offered only indirectly and condi-
23 See, e.g. Beckerman and Pasek, Justice, Posterity, and the Environment (2002); Gosseries, ‘On Future Generations’ Future
Rights, (2008) 16 Journal of Political Philosophy 446, 456; Macklin ‘Can future generations correctly be said to have rights?’
in Partridge (ed.), Responsibilities to Future Generations: Environmental Ethics (1981) 151 at 152.
24 Knox, supra n 10 at 16.
25 See, e.g. Lumina, ‘The Right to a Clean, Safe and Healthy Environment under the African Human Rights System’, in Addaney
and Jegede (eds.), Human Rights and the Environment under African Union Law (2020) at 25–54.
26 E.g. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, 15th Annual
Activity Report of the ACHPR (2002); African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application
No. 006/212, 26 May 2017 at para 199; SERAP v. Federal Republic of Nigeria, judgment No. ECW/CCJ/JUD/18/12, 14
December 2012.
27 This individualistic approach is different from the approach adopted by the African Charter. Yet, in the landmark decision,
Indigenous Communities Members of the Lhaka Honhat Association v. Argentina (2020), and following its remarkable advisory
opinion in 2017, the Inter-American Court of Human Rights goes even beyond the right to environment and recognises the
‘right of environment’ (nature) holding that the right to a healthy environment protects components of the environment,
such as forests, seas, rivers and other natural features, as interests in themselves, even in the absence of certainty or evidence
about how it affects individual people.
28 Recommendation CM/Rec(2022)20 of the Committee of Ministers to member States on Human Rights and the Protection
of the Environment (Adopted by the Committee of Ministers on 27 September 2022 at the 1444th meeting of the Ministers’
Deputies) available at: https://search.coe.int/cm/pages/result_details.aspx?objectid=0900001680a83df1 [last accessed 24
December 2022].
6 • Human Rights Law Review
constitutional protection in at least 110 countries.29 In total, more than 80 per cent of the UN
States Members (156 out of 193) legally recognise the right to environment.30
Recognising a right to environment can serve at least five purposes. First, it can elevate such
an extremely important matter to the same level as other human rights, well beyond just a
preference or matter of policy. Second, it can improve accountability and environmental justice
by paving the way for bringing an action against states and non-states actors for failing to protect
the environment or for their environmentally damaging activities.31 Such recognition can act
as ‘a lever to overcome classical hurdles in human rights-based environmental litigation, such
[F]or the right to be practically useful, it needs to be defined narrowly enough to allow a claim
to be brought before a court . . . For a right to a healthy environment to be actually useful,
. . . it must be capable of being defined in such a way as to be applicable to specific real-life
situations. Without this rigorous definition, a right to a healthy environment risks remaining
29 See, e.g. Boyd, ‘Catalyst for Change’, in Knox and Pejan (eds.) The Human Right to a Healthy Environment, (2018) at 18;
Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy
and sustainable environment, Human Rights Council 2020, A/HRC/43/53.
30 See ‘At a Glance: A Universal Right to a Healthy Environment, December’ (2021) European Parliament, available at:
www.europarl.europa.eu/RegData/etudes/ATAG/2021/698846/EPRS_ATA(2021)698846_EN.pdf [last accessed 02
September 2022].
31 See, e.g. Knox, ‘Constructing the Human Right to a Healthy Environment’, (2020) 16 Annual Review of Law and Social
Science 79; Boyd, ‘Catalyst for Change’, in Knox and Pejan (eds), The Human Right to a Healthy Environment (2018) at 25.
32 Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (2011) at
181.
33 Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy
Environment Under International Law’ (2002) 16 (1) Tulane Environmental Law Journal 65. See also Elena Cima, ‘The right
to a healthy environment: Reconceptualizing human rights in the face of climate change’ (2022) 21 (1) Review of European,
Comparative and International Environmental Law at 38–49.
34 Gardbaum, ‘Human Rights as International Constitutional Rights’ (2008) 19 (4) European Journal of International Law
749; Knox supra n 10.
35 Rodríguez-Garavito, ‘A Human Right to a Healthy Environment? Moral, Legal, and Empirical Considerations’, in Knox and
Pejan (eds), The Human Right to a Healthy Environment, (2018) 155–68, at 159.
36 The UN General Assembly, Resolution 37/7 of 10 October 1982.
37 Handl, ‘Human Rights and Protection of the Environment: A Mildly “Revisionist” View’ in Trindade (ed.) Human Rights,
Sustainable Development and The Environment (1992) at 137.
A New Theoretical Model of the Right to Environment • 7
an irrelevant member of the group of third-generation human rights which have proliferated
recently.38
In response to such criticism, in 2020 the UN Human Rights Council released a report on the
right to environment in which the UN Special Rapporteur, David Boyd, seeks to describe good
practices followed by states in recognising the right to environment in order to address both
the procedural and substantive elements of the right. The report recognises four procedural
elements including access to information, public participation, access to justice and effective
38 Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of
Customary International Law’ (2000) 25 Columbia J Environ Law, 283, at 297.
39 Human Rights Council, forty-third session 24 February–20 March 2020, Agenda item 3 Promotion and protection of all
human rights, civil, political, economic, social and cultural rights, including the right to development A/HRC/43/53.
40 Kant, The Critique of Pure Reason (1999).
41 Following this report and influenced by that, in 2022, the ‘Strasbourg Principles’ were released. These principles, which are
meant to be a uniform restatement of general principles that have emerged in international human rights law in the context of
the environment, were drafted by a group of human rights and environmental law experts who were brought together by the
Conference ‘Human Rights for the Planet’ held in 2020 at the European Court of Human Rights in Strasbourg. Most of the
above criticisms, however, are applicable here too. See ‘The Strasbourg Principles of International Environmental Human
Rights Law’ (2022) 13 Journal of Human Rights and the Environment, 195–202.
8 • Human Rights Law Review
environment path has more potential to enhance environmental protection, the recognition of a
new right to environment without an adequate theoretical justification can weaken the integrity
and strengths of existing human rights.42 The lack of theoretical foundation which resulted in
conceptual vagueness and ambiguity can have significant repercussions. First, this vagueness can
make it easier for the state and non-state actors to avoid bearing any clear obligations to protect
the environment appealing to the fallacy of equivocation. For example, the reason raised by some
states who abstained from the UN Human Rights Council resolution on the right to environ-
ment, such as China and Russia, was that the content of the right to environment is unclear.43
42 See Alston, ‘Conjuring up New Rights: A Proposal for Quality Control’ (1982) Am J Int Law 78(3):607; Higgins (1994)
Problems and Process: International Law and how we use it. Clarendon, Oxford; Donnelly, In Search of the Unicorn: the
Jurisprudence and Politics of the Right to Development, California West International Law Journal 15:474 (1985); Lewis
supra n 4 at 97.
43 Cervantes, Marmolejo and Roeben, Volker and Solis, Reilly, ‘Global Climate Change Action as a Jus Cogens Norm: Some
Legal Reflections on the Emerging Evidence’ (2022) 8 Environmental Policy and Law, 359.
44 Chalabi, supra n 7.
45 Ibid.
46 Hamilton, The Political Philosophy of Needs, (2003).
47 For full details, see Chalabi, supra n 7 at 48–50.
A New Theoretical Model of the Right to Environment • 9
As its name implies, the interest approach is focused on human interests but surprisingly it
suffers from a remarkable absence of any coherent discussion about the definition of the concept
of ‘interest’. A right in different versions of this approach is either grounded in (certain) ‘interests’
or is to further right-holders’ ‘interests’, though the same linguistic label ‘interest’ has been used
with different connotation across different versions of this theory.48 Their failure to adopt a
systemic approach, has led to a blurred use and polysemous analysis of ‘interest’ which can
distort our understanding of rights. Moreover, there is a network or apparatus of interconnected
but district concepts—namely basic needs, capabilities, values, wants, preference, happiness
48 See, e.g. Finnis, Natural Law and Natural Rights (1980); Raz, The Morality of Freedom (1986); MacCormick, Legal Right and
Social Democracy, (1982); Kramer, Simmonds and Steiner (eds.) A Debate Over Rights, (1998); Kramer ‘Some Doubts about
Alternatives to the Interest Theory’ (2013) 123 Ethics at 245–63; MacCormick, ‘Rights in Legislation’, in Hacker and Raz
(eds.) Law, Morality and Society: Essays in Honour of H.L.A. Hart (1977) at 189–209.
49 For full details see Chalabi, supra n 7 at 50–52.
50 Ibid. at 56–57.
51 For full details see ibid. at 45–48.
52 For details on deficiencies of the capability approach see ibid. at 50–52.
53 See, e.g. Qizilbash, ‘Sugden’s critique of Sen’s capability approach and the dangers of libertarian Paternalism’ (2011) 58 (1)
International Review of Economics 21; Egdell and Robertson, ‘A critique of the Capability Approach’s potential for application
to career guidance’ (2021) 21 International Journal for Education and Vocational Guidance 447.
54 A basic human need is a lack of something (object or process) required for the continued healthy existence of every human
being. Whereas meeting primary needs is a matter of life and death, meeting secondary needs is a matter of health or sickness.
For more details on the conceptual definitions of need, interest and capability, see Chalabi, supra n 7 at 53–58.
55 For more details on what ‘valuable items’ mean, see ibid. at 54–56.
56 Ibid. at 52–60.
57 Ibid. at 55.
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In what follows, I introduce the new model, which I would call the NIC-based model of right
to environment, fleshing out the nature, scope and content of the right to environment.
A. The Nature and Scope of Right to Environment
As Figure 2 indicates, there is an external existential relationship (ontological) between the
environment and human beings including human needs and capabilities (and indirectly human
interests). This is due to a number of factors. First, the human being is not and cannot be
separated from the environment, that is, the idea of human-being-in-environment. Second, the
environment is the only source responsive to some primary basic human needs,58 such as the
need for air, water, food and shelter. Third, this unique meta-source, which includes various
resources (air, water, land, etc.), is non-replaceable (at least based on our current knowledge).
These three objective facts imply that certain qualities of the environment which can make human
beings capable of meeting their needs are valuable to human beings and should be recognised
as a standalone human right.
According to this model, being endowed with a right to environment consists of being capable
of living in an environment of certain qualities where human beings can meet their basic needs
in accordance with their interests. The phrase ‘certain qualities’ here refers to not only those
qualities which can make human beings capable of meeting their basic needs in accordance with
their interest such as being clean and healthy but also the sustainability of an environment with
such qualities over time.
As Figure 2 shows, there is a reciprocal relationship between the environment and human
capabilities. Enhancing capabilities can enable human beings to protect (or damage) the envi-
ronment and vice versa. Likewise, there is a ‘subjective relationship’ between human interests
and the environment. On the one hand, the natural environment, like the social environment,
can play a role in shaping one’s interests (e.g. a person living in close proximity to forest land may
develop different interests from someone living near the sea) and on the other hand, individuals
may have different interests towards environment. However, as environment is the only source
responsive to some basic human needs and the concept of basic interest is closely related to
the concept of basic needs, the degree of choice and, therefore, subjectivity of interests here is
low. For example, people with dementia may rarely feel thirsty or hungry but there is no doubt
that food and water are in their objective interest. As our interests here are more objective than
58 Basic needs are a threshold. Beyond basic needs is where the concept of human wants comes in. The concept of want goes
beyond basic needs. It is subjective and refers to desire towards something. People sometimes want things that can contribute
to their flourishing or advancement of their society such as becoming a mathematician, painter or ‘doctor without border’,
and sometimes want to indulge themselves in ways dangerous to others or their own health such as smoking. For details on
the types of wants and their relationship with basic needs, wants, interest and capabilities, see Chalabi, supra n 7.
A New Theoretical Model of the Right to Environment • 11
subjective, our need for and interest in an environment of certain qualities largely overlap or
become almost the same. That is, the external existential relationship between the environment
and human needs and capabilities can be found indirectly between environment and human
interests as well, though even in the case of primary basic needs such as water, some degree of
subjectivity in terms of its properties is present. For instance, one is interested in cold water, the
other person in room temperature and the third one may be interested in hot water early in the
morning.
It should be noted that the right to environment is not just an ‘umbrella’ right, or the sum
of the already existing rights but rather a composite right. This is because of the fact that the
ecosystem is so intertwined that often any damage in one part can cause damage in other parts
of the environment. Adopting a systems approach, the environment as a system can include
both non-living and living beings, humans and non-humans, which are interdependent, and
their survival depends on biodiversity at different levels from genes to biomes. The key point
is that often harm to any aspect of the environment can be seen as harm to the environment
as a whole. For example, as the global temperature continues to rise, the glaciers start melting
and this will increase the sea levels. Following that, farms will be flooded, and coastal cities may
be immersed. Apart from its influence on the level of food security, all this may make people
migrate to other places and can have negative impacts on economies and their role in sustaining
everyone. This could gradually make a habitable place unlivable in the long term, if not in the
12 • Human Rights Law Review
short term. Biodiversity and sustainable environment are objective needs of both humankind
and other species, and thus protecting the environment is where the interest of both overlaps.
The intertwining of the elements of the environment implies that any act or omission which
contributes negatively to the qualities of the environment and its sustainability over time will be
in violation of the right to environment. What is important here is to protect the environment as
a system of non-living things (water, soil, air, light and minerals, etc.) and living things (humans,
animals, plants, bacteria, fungi, protists, etc.) and its biodiversity (especially ecological diversity)
over time.
right-holding group has an identity and existence that is separate from its members.68 It is not,
however, clear why a number of separately identifiable individuals who share some common
interests cannot hold collective rights even if they don’t form a group in advance. For example,
pedestrians who do not necessarily have any common identity have a collective right to have
footpaths. In this case, the interest of no single person is sufficient to justify holding authorities
to the duty to build footpaths, rather it is in their shared interests.69
Having briefly discussed the main accounts of collective rights in the literature, three clarifi-
cation points need to be made here:
68 See, e.g. Raz, supra n 66; Miller, ‘Group Rights’, Human Rights and Citizenship, (2002) 10 (2) European Journal of Philosophy
178.
69 Jones, Group Rights (2009).
70 For more details on the distinction between collective conception and corporate conception of collective right see, e.g.
Jones, ‘Human Rights, Group Rights and People’s rights’, in Robert McCorquodale (ed.), Human Rights (2003).Some other
theorists whose approach to group rights is consistent with what is described here as “collective” include Brett, supra n 65;
Buchanan, The Role of Collective Rights in the Theory of Indigenous People’s Rights (1993) 3(1) Transnational Law and
Contemporary Problems 89; Jacobs, ‘Bridging the Gap between Individual and Collective Rights with the Idea of Integrity’
(1991) 4(2) Canadian Journal of Law and Jurisprudence 375.
71 See, e.g. Kymlicka, Multicultural Citizenship (1995); Jones Essays on Culture, Religion and Rights (2020) 53–81.
72 There is a vast literature on the relationship between individual rights and collective rights. E.g. Jones, ‘Group Rights’,
supra n 71; Jones, ibid; Jones, ‘Human Rights and Collective Self-Determination’, in Etinson (ed), Human Rights: Moral
or Political? (2018); Buchanan supra n 65; De Feyter and Pavlakos, The Tension Between Group Rights and Human Rights:
A Multidisciplinary Approach (2008); Isaac, ‘Individual versus Collective Rights: Aboriginal People and the Significance of
Thomas v Norris’ (1992) 21(3) Manitoba Law Journal 618.
14 • Human Rights Law Review
example, a plaintiff may file a lawsuit challenging the pollution of a nearby stream or the noise
pollution caused by a rock crusher next to her house.73
(ii) Right to environment as a collective right
Beyond individual entitlement, which is universal and covers every human being, the right to
environment is a collective entitlement which pertains to groups of different forms. At this level,
preserving an environment of certain qualities as a collective good over time is in our collective
interest. The right at this level involves many environmental harms, such as polluted water,
Such rights pertain at a time to each member as well as to all members collectively, the
object of the protection being the same, a common good (bien commun) such as the human
environment, so that the observance of such rights benefits at a time each member and all
members of the human collectivity, and the violation of such rights affects or harms at a time
each member and all members of the human collectivity at issue. This reflects the essence of
‘collective’ rights, such as the right to a healthy environment in so far as the object of protection
is concerned.76
The right to environment as a dual standing collective right is also different from ‘non-individual
collective right’ where the protected good is a participatory or shared good and cannot be
enjoyed individually (only communally), such as the right to self-determination.
73 See, e.g. Coventry and others v Lawrence and another [2014]; Andrae v Selfridge and Co Ltd [1938] Ch 1, [1937] All ER 255;
Cocking v Eacott and Waring [2016] EWCA Civ 140.
74 Buchanan, supra n 64 at 3.
75 Buchanan, ‘The Role of Collective Rights in the Theory of Indigenous Peoples’ Rights, (1993) 3 (1) Transnational Law and
Contemporary Problems 89.
76 Trindade, ‘The Parallel Evolutions of International Human Rights Protection and Environmental Protection and the
Absence of Restrictions upon the Exercise of Recognized Human Rights’ (1991)13 Revista Instituto Interamericano de
Derechos 36, at 66.
A New Theoretical Model of the Right to Environment • 15
Likewise, this must not be confused with the fact that collective rights might well be estab-
lished irrespective of possibilities of enforcing them.77 Also, this must not be confused with
‘joint rights’ when the protected good is the subject of both individual and collective right at
once, though this can happen in the case of the right to environment. For example, if the river
runs through a landowner’s land, we can talk about the right to environment as a joint right.
Whereas the landowner will own the riverbed and has an individual right to the natural flow of
water through their stretch of the river, she must not do anything which would obstruct, pollute
or divert the river as it would violate the collective right of others. Such cases, however, look
77 Pentassuglia, Minorities in International Law—An Introductory Study, Council of Europe Publishing (2002) 47–8.
78 See, e.g. Rugby v. Walters (1967); Weston Paper v. Pope (1900); Pennington v. Brinsop Hall Coal (1877); Swindon Waterworks
v. Wilts and Berks Canal (1875).
79 This is the first article in a series on the right to environment. The second one is focused on the right to environment as a
global right.
16 • Human Rights Law Review
relationships, it helps to draw a distinction among three categories of human rights. The first
category, which I would call category A, includes those human rights whose subject is an element
of the natural environment such as the right to clean water, clean air and food. These rights
fall into socio-economic rights. The next category, which I would call category B, includes
those human rights whose subject is not an element of natural environment, but their subject is
directly influenced by the natural environment such as the right to health, life, work, housing and
education. These rights fall more into socio-economic rights, though some civil and political
rights such as the right to life or privacy, home and family life can be found here. The last
80 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (2002) 3.
A New Theoretical Model of the Right to Environment • 17
responsibilities toward the environment and this can help realise the right to environment in
practice.
This reciprocal causal relationship is also true in the case of most civil and political rights. On
the one hand, all basic individual rights need to be exercised in the environment and therefore
the quality of the environment is always crucial. The environment influences our capabilities and
this can have an impact on, for example, the right to freedom of expression, to vote or religion.
On the other hand, as shown by Nobel prize winner, Amartya Sen, democracy can avoid famine
mainly because the right to information and the right to free expression.82
unintentionally or intentionally, when the interests of some powerful collective actors such as
states and corporations arise.
More importantly, at the practical level, this new model can serve at least ten purposes. First, it
can inform legislators and policymakers in enacting or reforming already existing laws and poli-
cies on the right to environment. It can be especially significant if we seek to include such right in
a legally binding instrument at the international level. Second, this new model can be used by the
UN human rights bodies in interpreting the right to environment, articulating corresponding
legal obligations and monitoring its implementation in practice. It can also be used by judges
5. CONCLUSION
In July 2022, in a historic move, the UN General Assembly adopted a resolution recognising
a clean, healthy and sustainable environment as a human right with the majority of the states
A New Theoretical Model of the Right to Environment • 19
voting in favour of it. This timely effort indicates a turning point in environmental human
rights law. Yet, this new standalone right has been widely criticised as being vague and that this
vagueness can influence its effectiveness and feasibility in practice. Even attempts to recognise
such right have been criticised as ‘duplicative efforts’ without any added value. Drawing upon the
NIC theory as an integrated approach, this article put forward a new theoretical model for the
right to environment built upon the five key concepts of basic needs, interests, capabilities, basic
human rights and the environment, and five different types of relationships. The relationships
include internal existential relationship, external existential relationship, normative relationship,
ACKNOWLEDGEMENTS
The first draft of this article was presented at ESRAN-UKI workshop in Manchester. Many
thanks to the ESRAN-UKI network members, in particular Felix Torres, Judith Bueno de
Mesquita, Ben Warwick and Claire Lougarre, for their feedbacks. This article also benefited from
the valuable feedback and comments provided by the Liverpool School of Law and Social Justice
Pre-Publication Reading Committee, especially Professor Nicola Barker and Professor Michelle
Farrell. I am also grateful to the anonymous reviewers for their very helpful comments. Finally, I
want to thank my father, Massoud Chalabi, emeritus professor of sociology, for all the productive
discussions we had and his invaluable comments on this article.