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Since the Universal Declaration of Human Rights, a lot of water has flowed under the bridge and new rights closely linked to those already declaimed have surfaced. This important document celebrates its 75the anniversary next Sunday and offers a pretext to review the evolution of these rights since 1948.
Ecology has in fact taken an increasingly larger place in public debates, whereas at the end of the Second World War, concerns were mainly focused on peace and security.
“Air pollution kills five million people per year”, “Access to drinking water: the UN takes stock of the forgotten”, “Welcome to cancer alley in Louisiana”: the right to healthy environment is now commonly discussed in media headlines.
He has also entered the legal arena, for example in a request for collective action targeting the government of Quebec and the Horne Foundry. Citizens exposed to a cocktail of toxic and carcinogenic contaminants “wonder why they do not have the same right to a healthy environment as other Quebecers,” declared in an interview the lawyer leading this request, Mr.e Karim Diallo.
It is also the vision of this environment which has transformed over the last 75 years. First, “there is a dam that broke” with the Stockholm Declaration in 1972, says Lucie Lamarche, professor of legal sciences at UQAM. Rather than separating humans from nature, seeing the environment as a separate object with its own program, it is a “conceptual revolution”, summarizes this specialist.
“It has therefore been around 50 years that it has been recognized as protecting the elements of the natural environment which allow a dignified life,” notes Merlin Voghel, lawyer at the Quebec Environmental Law Center (CQDE). The definition that is then often given to it includes clean air, access to water that is not contaminated, a safe climate and biodiversity of ecosystems that are also healthy, explains this expert.
Do you feel like you don’t hear much about it? The right to a healthy environment is not, however, “a rare thing”, illustrates Mme Lamarche: it is recognized in roughly half of the constitutions around the world. Costa Rica, for example, which is recognized for its biodiversity, has enshrined it directly in its Constitution.
Since August 1, 2022, the United Nations (UN) has recognized it as a human right and has called for it to be made an internal right in member countries. Certain passages of the resolution in question are “very powerful”, notes Me Voghel: Environmental degradation is notably mentioned as one of the “most urgent and serious threats to the ability of current and future generations to exercise all human rights effectively.”
This therefore means that the international community no longer hesitates to directly link the right to a healthy environment to human rights, such as the right to life and security. The word “interdependence” is key here, says Me Lamarche.
A dynamic portrait
Lucie Lamarche refuses to categorize it as a “new generation”, her vision being rather that of “addition”, of the enrichment of human rights, and not of more recent rights which would take precedence.
The fundamental instruments of human rights are “living trees”, she gives as an example, an image used in the past by the Supreme Court of Canada. Some more critical people or those who are “looking for new magical rights” will deplore that this right is not explicitly enshrined in the famous declaration. She sides more with the optimists, she says: “The strength of the Universal Declaration of Human Rights is the simplicity of its language. […] She is an open book that adapts and has often demonstrated that she is capable of absorbing new demands without naming them. »
The right has indeed emerged, and it is not a marginal right, even if Canada has created a “slightly more shaky” situation. The healthy environment is not included in the Canadian Charter of Rights and Freedoms, but it has been present in the Quebec Charter since 2006.
It is therefore not a “superright”, above other ordinary laws, illustrates Merlin Voghel. However, it can be used to interpret certain obligations, if there is vagueness for example. Concretely, the right to a healthy environment, registered in Quebec, could therefore not compel action, which limits “the potential for practical applications”.
A simple “movement” of this right to another article of the Charter — to article 1 — would, however, allow it, he adds, as proposed in a bill by MP Désirée McGraw this fall in Quebec. We could then challenge the authorization of a project which is subject to exemptions from government standards, even if this exemption is provided for in a law. “If, for example, massive logging were authorized in an area near certain communities, and the trees were subsequently replaced only by one species of tree, it could be argued that these loggings put the communities at risk of less deal well with the consequences of climate change, such as forest fires,” he describes.
Another important development, Canada recognized this in June 2023, during a modernization of the Canadian Environmental Protection Act. However, it does not yet include an implementation framework, specifies the CQDE lawyer. Its scope therefore remains unknown.
In Quebec, there is also the “enormous” Environmental Quality Act, recalls Professor Lamarche.
If the lever is therefore still imperfect, it is nevertheless increasingly mobilized.