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"Human right to a healthy environment for a thriving Earth: Handbook for weaving human rights, SDGs, and the post-2020 global biodiversity framework", SwedBio/Stockholm Resilience Centre, International Development Law Organization, Office of the High Commission of Human Rights-Special Procedures, UN Environment and Natural Justice

Authors:
  • Raoul Wallenberg Institute of Human Rights and Humanitarian Law / Stockholm University / University of British Columbia

Abstract and Figures

This handbook, edited by Claudia Ituarte-Lima and Maria Schultz, discusses strategies on how to weave the human right to a clean and healthy environment together with the Sustainable Development Goals (SDGs) and the post-2020 global biodiversity framework with a focus on the Global South. The authors, from various institutions and countries, reveal innovative strategies being utilized at international, national and local levels to recognize and implement the right to a healthy environment. Implemeting these strategies helps accelerate the transition towards sustainable consumption and production patters across the world, the access to clean and safe drinking water for millions and, the protection of the diversity of our planet. The global recognition of the human right to a healthy environment would be a significant step in empowering courageous environmental human rights defenders, women and men, youth and children who are ready to stand-up for human rights and healthy ecosystems. The handbook is premised on the fact that taking a human-rights approach to the post-2020 global biodiversity framework is critical since human rights provide an explicit normative framework which most countries have agreed to by ratifying the main international human rights agreements. Building on collective efforts such as the Machakos peer to peer Dialogue and the Nairobi workshop, two complementary strategies are proposed to inform the post-2020 global biodiversity framework: a) a right to a healthy environment as a standalone target and b) a rights-based approach incorporated across all targets. “The authors have provided a useful guide, showing the pathways that could enable humanity to reverse the daunting trends of ecological deterioration, achieve the ambitious Sustainable Development Goals, and leave no-one behind. As the Intergovernmental Panel on Climate Change concluded in its 2018 Special Report, the future of human society depends on our ability to undertake rapid, far-reaching and unprecedented changes at all levels of society. This visionary publication merges law, policy and practice to illustrate, in the context of biodiversity, how we might achieve such transformations.” David Boyd, UN Special Rapporteur on human rights and the environment, and Associate Professor of Law, Policy, and Sustainability at Institute for Resources, Environment and Sustainability and School of Public Policy and Global Affairs at University of British Columbia.
Content may be subject to copyright.
Stockholm Resilience Centre
May 2019
Handbook
Human right to a healthy
environment for a thriving Earth
Handbook for weaving human rights, SDGs,
and the post-2020 global biodiversity framework
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HUM AN R IGHT TO A HE ALTHY E NV IRONM ENT FOR A T HRI VING E ART H
Citation:
Ituarte-Lima, C., and Schultz, M., (eds.) 2018. Human right to a healthy environment for a thriving Earth: Handbook for weaving human
rights, SDGs, and the post-2020 global biodiversity framework, SwedBio/Stockholm Resilience Centre, International Development Law
Organization, Office of the High Commission of Human Rights-Special Procedures, UN Environment and Natural Justice
Corresponding author:
claudia.ituarte@su.se
Cover images:
Photo middle upper part: Miran Kegl/Azote. Photo left lower part: Sven Erik Arndt/Azote. Other photos in cover: Claudia Ituarte-Lima
Funding:
The main economic support to develop this policy paper was provided by the Swedish International Development Cooperation Agency
(Sida) through the Resilience and Development Programme (SwedBio) at Stockholm Resilience Centre, Stockholm University. This
publication is also an outcome of the research project, “Effective and Equitable Institutional Arrangements for Financing and
Safeguarding Biodiversity (254-2013-130)” funded by The Swedish Research Council for Environment, Agricultural Sciences and Spatial
Planning (Formas).
Disclaimer:
The information and views set out in this report are those of the authors and do not necessarily represent the official opinion of the
institutions. Reproduction of this document in whole or in part and in any form for educational or non-prot purposes may be made
without special permission from the copyright holders, provided acknowledgment of the source is made. The partners would
appreciate receiving a copy of any publication or material that uses this document as a source.
Except where otherwise noted, the text is protected under a Creative Commons Attribution Non-commercial-No Derivative Works
License. The images are copyright as indicated in the captions.
Editors and authors
EDITORS
Claudia Ituarte-Lima
SwedBio/Stockholm Resilience Centre
Maria Schultz
We Effect/Vi Agroforestry
FOREWORD
David Boyd
UN Special Rapporteur on human rights and the environment
Institute for Resources, Environment and Sustainability
University of British Columbia
AUTHORS
Rose Birgen
Natural Justice
Gino Cocchiaro
Natural Justice
Isabell Kempf
UNDP-UN Environment Poverty-Environment Action for
SDGs
Robert Kibugi
University of Nairobi/International Development Law
Organization
Rodrigo Martínez-Peña
SwedBio/Stockholm Resilience Centre
Benard Moseti
International Development Law Organization
Kariuki Muigua
University of Nairobi
Richard Mulwa
University of Nairobi
Jane Mutune
University of Nairobi
Elvin Nyukuri
University of Nairobi
Benson Ochieng
Institute for Law and Environmental Governance
Per Stromberg
Swedish Environmental Protection Agency
Emmanuel Siakilo
Natural Justice
Tristan Tyrell
SwedBio/Stockholm Resilience Centre
Ben Wandago
USAID
Grace Wong
Stockholm Resilience Centre
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Contents
Acknowledgements .....................................................................................5
Foreword ..............................................................................................6
David Boyd
1. Setting the scene: the human right to a healthy environment for a thriving Earth .............................8
Claudia Ituarte-Lima and Maria Schultz
2. Beyond borders: human rights, biodiversity and climate change ...........................................14
Claudia Ituarte-Lima and Tristan Tyrrell
3. Women’s courageous roles as guardians of the Earth’s ecosystems .........................................22
Claudia Ituarte-Lima
4. Mainstreaming human rights principles and the ecosystem approach into the mining sector ..................31
Claudia Ituarte-Lima and Per Stromberg
5. Connecting the dots between Human Rights, Environmental Impact Assessments
and the Convention on Biological Diversity ................................................................43
Rodrigo Martinez-Peña, Claudia Ituarte-Lima, Isabell Kempf and Grace Wong
6. Stemming the tide: local community approaches to legal empowerment for sustainable development ..........56
Rose Birgen, Gino Cocchiaro and Emmanuel Siakilo
7. Legal assessment tool for mainstreaming biodiversity and human Rights and insights for the
post-2020 global biodiversity framework ..................................................................64
Robert Kibugi. Contributing authors: Benard Moseti, Kariuki Muigua, Elvin Nyukuri,
Richard Mulwa, Benson Ochieng, Ben Wandago, Jane Mutune
8. Concluding remarks on weaving Human Right to a Healthy Environment,
Sustainable Development Goals and the post-2020 global biodiversity framework ..............................78
Claudia Ituarte-Lima and Robert Kibugi
Appendices ...........................................................................................88
Acknowledgements
We recognise the key collaborative efforts of the members
of Steering Committee of the Peer-to-peer Dialogue, which
provided key insights to this report: Harry Jonas & Gino
Cocchiaro (Natural Justice), Rodrigo Martinez-Peña
(SwedBio/SRC), Soo-Young Hwang & Jamshid Gaziyev
(Ofce of the High Commissioner of Human Rights-Special
Procedures) Robert Kibugi and Benard Moseti (IDLO),
Angela Kariuki, Andreas Obrecht & Lara Ognibene (UN
Environment), and all the participants of the Peer-to-peer
Dialogue on the human right to a healthy environment
and SDGs: weaving SDG 16 and human rights law with
the post-2020 global biodiversity framework. Further
acknowledgements are included in individual chapters.
We would also like to thank support by Viveca Mellegård
in copyediting and to Hannah Grifths-Berggren and
Aarushi Balani in proofreading, Pamela Cordero Fannkvist
for facilitating the layout process, and Done by Friends for
developing the layout.
This report has beneted from valuable inputs from the
SwedBio/Stockholm Resilience Centre team, and colleagues
from the Secretariat of the Convention on Biological
Diversity; UN Environment, Law Division, Ofce of the
High Commissioner of Human Rights-Special Procedures,
Natural Justice, UNDP-UN Environment Poverty
Environment Initiative; We Effect/Vi Agroforestry; Swedish
International Development Cooperation Agency; the United
Nations Development Program; the Raoul Wallenberg
Institute; the Forest Peoples Program; the CBD Alliance,
Wangari Maathai Institute for Peace & Environmental
Studies; ICCA Consortium; Global Forest Coalition; among
other partners. This report should be considered as a basis
for dialogue, and also hope to continue collaborating with
these and other organisations in the development of this
report and associated Peer-to-peer Dialogue.
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Foreword
David Boyd
The Earth is the only planet in the universe that is known to
support life. The only planet where the chemical and physical
conditions somehow gave birth to biodiversity. This
miraculous blue-green orb is our home, the only home we will
ever know, and yet human society is causing unprecedented
levels of environmental degradation. Human activities have
sent concentrations of carbon dioxide in the atmosphere
soaring above 400 parts per million, the highest level in
hundreds of thousands of years. Pollution kills more people
every year than wars, murder, road accidents, tuberculosis,
HIV/AIDS, and malaria combined. Scientists have
determined that rates of extinction are hundreds of times
above background rates, indicating that humans are causing
the sixth mass extinction in the 3.8 billion years of life on
this planet. Not only the diversity but the abundance of other
life forms has suffered a precipitous decline, with global
wildlife populations plummeting sixty percent since 1970.
The crash involves not only charismatic megafauna such as
rhinos, tigers, and elephants, but also the Earth’s enigmatic
microfauna, including insects, frogs, and amphibians.
The direct causes of the decline in biodiversity include
over-exploitation, habitat destruction, the introduction of
invasive species, pollution, climate change and depletion of
the ozone layer. Strides have been made in addressing some
of these problems, pulling some species back from the brink.
Inspiring examples range from blue whales, grey whales and
humpback whales to eagles and falcons. Yet the overall
trends are bleak. The underlying drivers of human population
growth, economic growth and excessive consumption by the
wealthy minority continue to be largely unaddressed.
An infamous attempt to replace Nature’s goods and
services with manmade substitutes, called Biosphere 2,
was a complete failure. Built in Arizona in the Southwestern
United States in the late 1980s/early 1990s, Biosphere 2
was intended to be a closed system that could mimic deserts,
oceans, wetlands, rainforests and other natural biomes, along
with a farm and a human habitat. Although it cost more
than $100 million, in less than two years the inhabitants of
Biosphere 2 were miserable, hungry, and deprived of oxygen.
Humanity’s intellect and technological wizardry are no
match for the unfathomable genius of Nature.
In light of the dire environmental challenges we face, it is
absolutely imperative to recognise and understand that
human beings are related to, and dependent upon, the species
and ecosystems with whom we share the planet. The air
we breathe and the water we drink are ltered by natural
ecosystems. The food we eat and the homes where we live
are ultimately based on the productivity of natural
ecosystems and the goods and services they provide.
Many human rights depend on biodiversity, particularly
in less wealthy regions of the world. The rights to food,
water, health, culture, and even life itself depend on thriving
biodiversity and ecosystems. The people who are most
vulnerable to declining biodiversity are those who directly
depend upon other species, including Indigenous peoples,
artisanal shers, hunters and gatherers, small-scale famers,
and pastoralists. By protecting biodiversity, we protect their
human rights. At the same time, if their human rights are
respected, these people are often the most capable of
protecting, conserving, and sustainably using biodiversity.
Given the magnitude and the urgency of the environmental
challenges faces humanity, we need to harness the most
powerful tools and approaches available in order to conserve
what remains of this planet’s beautiful but beleaguered
biodiversity and eventually restore it to its former glory.
One of the most promising avenues, based on a series of
remarkable historical precedents, is to employ the power of
rights-based approaches to protect the people, places, and
other living beings that we love and depend upon.
History is full of inspiring examples of the transformative
power of rights, enabling grassroots movements to overcome
powerful opposition and overturn the status quo. The
abolitionists used rights to end slavery in a David and
Goliath battle against wealthy landowners and corporations
who proted from the exploitation of right-less people. The
suffragettes successfully harnessed rights to propel women
towards equality. The civil rights movement in the United
States championed the constitutional rights of African-
Americans, revolutionizing American society. Anti-apartheid
activists, Indigenous people, LGBTQ advocates … the list of
rights movements that have achieved improbable gains is
long and impressive.
There are two promising rights-based approaches that could
dramatically enhance protection for the health and wellbeing
of humans and ecosystems. The rst is global recognition of
the human right to a healthy and sustainable environment,
and the second is the more radical extension of rights beyond
humans to other species, ecosystems, and Nature herself.
The right to a healthy and sustainable environment
already enjoys a surprising depth of acceptance around the
world, but more needs to be done to make this right globally
recognised and enforced. Over 120 States in Africa, Latin
America, Europe, West Asia, the Middle East, and the
Caribbean have ratied regional treaties that incorporate
the right to a healthy environment. This right enjoys
constitutional protection in more than 100 States, from
Argentina to Zambia, and is also included in environmental
laws in more than 100 States. In total, 155 States recognise
the right to a healthy and sustainable environment. It is time
for this right to be recognised by the United Nations as a
fundamental human right belonging to all. Such global
recognition would catalyse progress at the national level in
terms of stronger laws, enhanced public participation, and
improved enforcement.
Empirical evidence from numerous scholars demonstrates
that recognition of the right to a healthy environment leads
to superior environmental performance, including stronger
protection for species such as endangered sea turtles, scarlet
macaws, sharks, and salamanders. In dozens of countries,
citizens and activists have employed environmental rights in
lawsuits that have produced remarkable court decisions, in
some cases resulting in substantial on-the-ground benets for
people and ecosystems. For example, the Mendoza decision
of Argentina’s Supreme Court in 2008 sparked a massive
clean-up of the Riachuelo River watershed, as well as billions
of dollars in spending for new drinking water and
wastewater treatment infrastructure serving predominantly
poor communities.
Recognition of the rights of nature also has the power to
inspire both cultural and legal transformations. Ecuador’s
constitution recognised the rights of Pachamama in 2009,
spurring changes to more than 75 laws and policies and
enabling lawsuits to protect Nature, from the Galapagos to
the Vilcabamba River. Laws articulating Nature’s rights have
been enacted in Bolivia, Mexico, New Zealand and at the
local level in dozens of municipalities in the United States. In
New Zealand, extraordinary new laws reect the Indigenous
wisdom and culture of the Maori people, granting rights to
the Whanganui River and an ecosystem formerly known as
Te Urewera National Park. These path-breaking laws are
poetic and powerful, transferring title to the legal persons
established to represent Nature. In other words, the forests,
mountains, lakes, and riverbeds now own themselves, with
their rights defended by stewardship bodies led by the Maori
people. Innovative court decisions regarding the rights of
nature have been made from Colombia to India, although in
some contexts implementation has not yet lived up to
aspiration.
This important handbook provides additional detail
about the ways in which rights-based approaches can be
benecial for both humans and Nature, with a particular
focus on low-income countries. This publication builds on
innovative dialogues that took place involving legal scholars,
practitioners, and policy-makers working on human rights
and biodiversity issues, mainly in the Global South. The
authors have provided a useful guide, showing the pathways
that could enable humanity to reverse the daunting trends of
ecological deterioration, achieve the ambitious Sustainable
Development Goals, and leave no-one behind. As the
Intergovernmental Panel on Climate Change concluded in its
2018 Special Report, the future of human society depends on
our ability to undertake rapid, far-reaching and
unprecedented changes at all levels of society. This visionary
publication merges law, policy and practice to illustrate, in
the context of biodiversity, how we might achieve such
transformations.
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HUMAN RIGHT TO A HEALTHY ENVIRONMENT FOR A THRIVING EARTHHUMAN RIGHT TO A HEALTHY ENVIRONMENT FOR A THRIVING EARTH
1. Setting the scene:
the human right to a
healthy environment
for a thriving Earth
Claudia Ituarte-Lima and Maria Schultz
Figure 1. Weaving human rights principles, biodiversity and SDG16
Nairobi and zebras (Nairobi National Park). Photo: Rodd Waddington
1. Recognition of right to a healthy
environment in global legal framewor
A strong call for the recognition of the right to a healthy
environment in a global instrument such as a resolution by
the General Assembly has been voiced by various actors
including current UN Special Rapporteur on Human Rights
and Environment, Prof. David Boyd and former UN Special
Rapporteur on Human Rights and Environment, Prof. John Knox.
Parties to the Convention on Biological Diversity and other
relevant groups are currently discussing the process to
develop the post-2020 global biodiversity framework.
Informally, several organisations and governments are
already exploring potential future content of the post-2020
global biodiversity framework.
Human rights principles and related considerations are
included in the Strategic Plan on Biodiversity (2011 – 2020)
as crosscutting issues. Sustainable Development Goal 16
(Agenda 2030) is dedicated to ‘Peace, Justice and Strong
Institutions’. In light of both of these points, this is a strategic
time to assess the linkages between human rights, good
governance and biodiversity, and to develop proposals for
these issues’ inclusion in the post-2020 global biodiversity
framework.
The aim of the policy report is two-fold:
Clarify the ways in which the human rights principles and
legal tools can contribute to implement the right to a safe,
clean, healthy and sustainable environment with a focus on
biodiversity related human rights obligations.
Contribute to the conceptualization and design of draft
elements to incorporate SDG16 and principles of human
rights and good governance into the post-2020 global
biodiversity framework in a new dedicated target and as
crosscutting dimensions of all targets of this framework.
The report builds on technical peer-to-peer review support
and contextual feedback by participants of the Peer-to-peer
Dialogue on the human right to a healthy environment and
SDGs: weaving SDG 16 and human rights law with the post-
2020 global biodiversity framework convened by SwedBio/
Stockholm Resilience Centre, International Development
Law Organization, Of ce of the High Commission of
Human Rights-Special Procedures, UN Environment and
Natural Justice (Ituarte-Lima and Kibugi, 2018). A
preliminary version of this chapter was included as part of
the Living Document prepared for this Peer-to-peer Dialogue,
which provided an opportunity to receive comments and
feedback (see Acknowledgements).
2. Agenda 2030 and Sustainable
Development Goals
The diversity of all forms of life on our planet and healthy
ecosystems providing ecosystem services, such as food,
pollination of crops and ful lment of people’s cultural life,
are necessary for enjoying a broad range of universal human
rights, for example, the right to food, the right to health and
cultural rights. Conversely, the respect for, and the exercising
of procedural rights, such as public participation, access to
justice in cases of non-compliance with environmental
regulations, and proactive public awareness and
dissemination of relevant information, are necessary for a
stronger engagement of a diversity of individuals and groups
on environmental matters. Safeguarding Life on Earth for
present and future generations relies on these rights (Knox,
2018; Ituarte-Lima, 2017; Ituarte-Lima and McDermott,
2017; Ituarte-Lima et al., 2014).
Innovative approaches are needed for enabling
transformations for sustainability and implementing Agenda
2030 adopted at the UN Sustainable Development Summit in
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2015, including the Sustainable Development Goals
(SDGs).1 Agenda 2030 is intended to be the plan of action
for all countries until 2030 for development that works for
people, the planet and prosperity for all, leaving no one
behind (UN, 2015). The thematic issues of sustainability,
biodiversity and healthy ecosystems are crosscutting
dimensions of Agenda 2030 (Schultz, Tyrrell, and Ebenhard,
2016). SDG15 life on land, SDG14 life below water, SDG6
clean water and sanitation, and SDG13 climate action, and
are also key topics addressed by the Convention on
Biological Diversity.
Like sustainability, human rights principles are also a
crosscutting dimension of Agenda 2030. The human rights
principles match SDG 16 on peace, justice and strong
institution. SDG 16 aims to “Promote peaceful and inclusive
societies for sustainable development, provide access to
justice for all and build effective, accountable and inclusive
institutions at all levels.” (see Table 1 and Appendix 1).
This raises three issues. First, the text of SDG 16 does not
specify social-ecological dimensions. Hence, there is a need
for the development of a conceptual framework and tools to
be used for understanding and acting upon the connections
between SDG 16 and biodiversity. Second, international
guidance on how to implement SDG 16 and interlinked
SDGs at national and local levels can contribute to
integrated approaches for achieving Agenda 2030 at various
levels. Thirdly, during CoP16 in December 2016, the CBD
Human rights based approach
principles (UNDG, 2003)
Agenda 2030 and SDG 16 on peace, justice and strong institutions
Indivisibility, interdependence and
interrelatedness of human rights
“10. The new Agenda is guided by the purposes and principles of the Charter of the United
Nations, including full respect for international law. It is grounded in the Universal
Declaration of Human Rights, international human rights treaties…”
E.g. “The interlinkages and integrated nature of the Sustainable Development Goals are of
crucial importance in ensuring that the purpose of the new Agenda is realized”…The SDGs
“seek to realize the human rights of all and to achieve gender equality and the
empowerment of all women and girls. They are integrated and indivisible….”
Equality and non-discrimination 16.b Promote and enforce non-discriminatory laws and policies for sustainable development
Participation and inclusion 16.7 Ensure responsive, inclusive, participatory and representative decision-making at all
levels
16.10 Ensure public access to information and protect fundamental freedoms, in accordance
with national legislation and international agreements
Accountability and the rule of law 16.3 Promote the rule of law at the national and international levels and ensure equal access
to justice for all
16.5 Substantially reduce corruption and bribery in all their forms
16.6 Develop effective, accountable and transparent institutions at all levels
Table 1.
Matching the human rights principles with Agenda 2030 and SDG 16 on peace, justice and strong institutions
State Parties agreed that a mainstreaming approach to
biodiversity would be most appropriate. More specically,
through the Cancun Declaration on Mainstreaming the
Conservation and Sustainable Use of Biodiversity for Well-
Being (CBD, 2016), State Parties to the CBD made a
commitment to work at all levels of government, and across
all sectors to mainstream biodiversity, by establishing
effective institutional, legislative and regulatory frameworks
incorporating full respect for nature and human rights.
3. Towards a global recognised right to a
healthy and sustainable environment
Human rights provide an explicit normative framework,
which has already been agreed upon by most countries
through ratifying the main international human rights
agreements - the International Covenant on Economic, Social
and Cultural Rights and the International Covenant on Civil
and Political Rights. Likewise, some countries have
incorporated the human rights principles as key pillars of
international development cooperation (Regeringskansliet,
2014). This is because human rights are essentially inherent,
irreducible (subject to permissible and lawful limitations
only) and place a clear immediate or progressive obligation
on the State as the main duty bearer. Protection of human
dignity is an inviolable element of the human rights
structure. Understanding that human rights are
interdependent with, and indivisible from environmental
protection, it is clear that stronger forms of legal protection
for human rights could, when appropriately aligned, be
1. Adopted at the UN Sustainable Development Summit in 2015.
applied to provide stronger protections for biodiversity
conservation and sustainable use.
Agenda 2030 explicitly recognises that it is grounded in
international human rights treaties and calls for
sustainability transformations to overcome poverty and
safeguard life on land and underwater. Specically, it
mentions:
“10. The new Agenda is guided by the purposes and
principles of the Charter of the United Nations, including
full respect for international law. It is grounded in the
Universal Declaration of Human Rights, international
human rights treaties…” …The SDGs “seek to realize the
human rights of all and to achieve gender equality and
the empowerment of all women and girls. They are
integrated and indivisible….
In 2018, Prof. John Knox presented the Framework
Principles on Human Rights and the Environment to the
37th session of the UN Human Rights Council (Knox,
2018). He also made a strong call for the recognition of the
right to a healthy environment in a global instrument such as
a resolution by the General Assembly. He referred to Victor
Hugo’s quote that, “it is impossible to resist an idea whose
time has come”. He noted that while the right to a healthy
environment had been recognised in regional agreements and
in most national constitutions, it has not been adopted in a
human rights agreement of global application.
Prior to this report, Prof Knox presented his 2017
thematic report on human rights and biodiversity to the
Human Rights Council (Knox, 2017, para. 5), which
contributes to the interpretation of the right to a healthy
environment in the context of biodiversity-related human
rights obligations. In this report, he acknowledges that the
degradation and loss of biodiversity undermines the ability
of human beings to enjoy their human rights. The report
mentions that human rights law does not require that
ecosystems remain untouched by human hands (Knox, 2017,
para 8), because people depend on the use of ecosystems for
their social development. However, in order to support the
continued enjoyment of human rights, this development
cannot overexploit ecosystems, but must be sustainable, and
sustainable development requires healthy ecosystems and
climate stability. This has created a valuable conceptual
interdependency between the needs for successful attainment
of sustainable development, and the underpinning human
rights requirements such as observance and protection of
fundamental human entitlements, as well as ecosystem
protections and limits, on which realization of those rights,
and development that is sustainable, depend (see Chapter 2).
The indivisibility of the link between sustainable
development obligations to observe ecosystem limits and
upholding human rights was afrmed in the 2016 Cancun
Declaration on Mainstreaming the Conservation and
Sustainable Use of Biodiversity. Through this Declaration,
Parties afrmed this indivisibility, by way of an agreement to
promote the conservation, sustainable use, and where
necessary, restoration of ecosystems. These and other actions
are a basis for achieving good health, clean water and
sanitation, food security, improvement of nutrition, the
reduction of hunger, poverty eradication, prevention of
natural disasters, resilient, sustainable and inclusive cities
and human settlements, and climate change adaptation and
mitigation. The role of the human right to a clean and
healthy environment (the language varies from country to
country) remains at the centre of this journey – and this
right, substantively, and the accompanying procedural rights
(access to court, access to information, right to public
participation) remain central to mainstreaming biodiversity
and human rights and integrating SDG16 fully into a post-
2020 global biodiversity framework.
The momentum on this topic at the 37th session of the UN
Human Rights Council was continued by the United Nations
Special Rapporteur on the right to food, Elver Hilal, in the
presentation of her report on the right to food and disasters
(Hilal, E. 2018). The report provided important insights for
the human rights, healthy ecosystems and resilience building
nexus and the role of legal measures on the prevention and
disaster risk reduction measures, in order to avoid
environmental degradation and consequences on ecosystems
and biodiversity. UN Environment also used the occasion to
launch, with its partners, the Environmental Rights Initiative.
Progress at the international level, together with an
increased sense that business as usual is no longer an option,
can provide a window of opportunity for addressing
signicant growing challenges such as those associated with
gender equality and the rights of environmental human
rights defenders (see Chapter 3 in this report) who work to
safeguard biodiversity and healthy ecosystems.2 In 2017, the
UN Special Rapporteur on human rights defenders, Michel
Forst, presented his report on the situation of environmental
human rights defenders to the UN General Assembly. His
recommendations to the international community include
“ensuring that the implementation of the 2030 Agenda for
Sustainable Development is guided by a human rights-based
approach, guaranteeing meaningful participation of
environmental human rights defenders and affected
communities, as well as empowering and protecting
defenders at the international, regional and national levels.
(A/71/281, para 97 A).
Human rights are relevant to widespread biodiversity
mainstreaming because of the cross-sectorial nature of
human rights laws and policies. The Human Rights Council
Resolution A/HRC/RES/34/20 recognises the need for
mainstreaming the conservation and sustainable use of
2. For example, the Execu tive Secretary of the CBD expressed her concerns
on this topic in her opening remarks at SBST TA .
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biodiversity for well-being, and explicitly refers to the
Cancun Declaration adopted at the high-level segment of the
thirteenth meeting of the Conference of the Parties to the
Convention on Biological Diversity, held in Cancun, Mexico
in 2016 (mentioned above).
Human rights is an issue that goes beyond a concern of
governments and human rights organisations, to a concern
that criss-crosses thematic and geographical areas of work
of a wide range of institutions.
4. Human rights and the post-2020 global
biodiversity framework
The 15th UN Biodiversity Conference in 2020 is expected
to consider and adopt a post-2020 global biodiversity
framework, as a follow up to the Strategic Plan for
Biodiversity 2011 2020 including the Aichi Targets building
on a participatory process (see appendix 3 and 4) (CBD,
2018a; CBD, 2018b; CBD n.d.a). Ahead of the 14th UN
Biodiversity Conference in 2018, one of the agenda items
under the second meeting of the Convention on Biological
Diversity Subsidiary Body on Implementation was the
discussion of a comprehensive and participatory process
for the preparation of the post-2020 global biodiversity
framework (CBD, n.d.a). Overarching principles, building
on submissions of Parties and relevant groups, provide
guidance to this process. These principles explicitly include
participation, inclusion, and transparency, which mirror the
human rights principles of Participation and Inclusion and
the Principle of Accountability and Rule of Law, since
transparency is a key dimension of this latter principle.
Operationalizing the principle of Accountability and the
Rule of Law is key so that States meet the standards they set
for safeguarding biodiversity and healthy ecosystems. The
Secretariat of the Convention on Biological Diversity (SCBD)
on assessing the progress towards the achievement of the
Aichi targets stated that unless additional actions were taken,
the status of biodiversity would continue to decline and the
Aichi Biodiversity Targets would not be met. The SCBD
assessed that the international community was on course to
exceed only one of the 56 components of the targets and to
meet only four (Secretariat of the Convention on Biological
Diversity, 2014). Knox (2017, para 48) considers that,
“States are not meeting the standards they themselves have
set for the protection of biodiversity. In many developing
countries, much of this failure may be due to lack of the
necessary capacity, and in these cases developed countries
and international institutions should increase their support
for capacity-building”.
The need for a conceptual framework and guidance for
understanding and acting upon the connections of human
rights and SDG 16 with biodiversity and healthy ecosystems
has been highlighted in various processes that SwedBio has
organised and/or been actively engaged (see Appendix 2 for a
non-comprehensive list). Questions in these spaces included:
Is there a need to reect human rights standards more
clearly in a post-2020 global biodiversity framework? If
so, any elements in particular?
Is it useful to have aspirational objectives, or more
concrete targets?
In what ways could or should a post-2020 biodiversity
framework align with Agenda 2030 and the SDGs?3
SwedBio has also engaged in dialogue with its collaborative
partners such as Natural Justice and International
Development Law Organization (IDLO) on proposals for a
stand-alone target mirroring SDGs 16, as well as crosscutting
dimensions of human rights in the post-2020 global
biodiversity framework. This includes addressing the
questions:
Will Parties to the CBD and others benet from a Target
(loosely dubbed ‘Target 21’) in the post-2020 global
biodiversity framework that spells out the obligations
under international human rights law and SDG16?4
What elements related to human rights should be
embedded as crosscutting elements of all targets within
a post-2020 global biodiversity framework?
How would such a stand-alone target and crosscutting
dimensions in all targets integrate with the focus of
SDG16 on Peace, Justice and Strong Institutions in terms
of implementation?
How could such a stand-alone target and crosscutting
dimensions be measured (incl. indicators), reported and
how could measures to support progress be designed and
supported?
Can such a stand-alone target and crosscutting
dimensions that unify human rights elements and SDG16,
conceptually and in practice, support mainstreaming of
biodiversity nationally in specic socio-economic sectors
and cross-sectorally; and internationally with the
mandates of other related conventions such as UNFCCC,
UNCCD in order to stop and reverse the decline of
biodiversity?
In this context, SwedBio and partners are exploring how to
respond to the questions above raised at the nexus of Agenda
2030 and the development of the post-2020 global
biodiversity framework. In order to build on the existing
CBD Strategic Plan and envision the future we want. Part of
the exercise will entail examining the current Strategic Plan
for Biodiversity 2011 2020 and visualize how a stand-alone
human rights target could have looked like and how human
rights would ideally have been embedded in this strategic
plan in a cross-cutting manner; and associated indicators.
With this background, additional guidance is therefore
needed on how to tackle risks to the integrity of life on Earth
and how to take advantage of the special protection of
human rights - in particular, protecting populations in
vulnerable situations in the Global South and local
3. These three questi ons were raised in the presentation by Tanya McGre-
gor Gender Programme O fficer of the Secretariat of the Convention on Bi-
ological Diversit y Human Rights and Biodiversity Conser vation: Scaling
up the Synergies in the post-2020 Aichi Targets and the SDG Agenda
(Co-conveners: SwedBio/SRC; CIPDP; Fores t People Program, Natural Jus-
tice) at the side events at the tenth s ession of the Ad Hoc Open-ended In-
ter-Sessional Working Group on Article 8( j) and Related Provisions in
2017.
4. See Natural Justice and Future L aw, co ncept note on Target 21.
References
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CBD. (2016). The Cancun Declaration on Mainstreaming the Conservation
and Sustainable Use of Biodiversity for Well-Being. UNEP/CBD/COP/XIII/24
CBD. (2018a). Strategic Plan for Biodiversity 2011 2020, including Aichi
Biodiversity Targets. [online] Available at: https://www.cbd.int/sp/.
CBD. (2018b). Preparations for the post-2020 Biodiversity Framework.
[online] Available at: https://www.cbd.int/post2020/.
CBD. (n.d.). Draft for consultation: Proposals for a comprehensive and
participatory process for the preparation of the post-2020 global biodiversity
framework. [online] Available at: https://www.cbd.int/doc/strategic-plan/
Post2020/post2020-process-draft-en.pdf.
Ituarte-Lima, C. (2017). Transformative biodiversity law and 2030 Agenda:
mainstreaming biodiversity and justice through human rights. In: Hutter,
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UK: Edward Elgar Publishing, pp.84-107. Available at: doi:10.4337/978178
5363801.00013.
Ituarte-Lima, C. and McDermott, C. (2017). Are More Prescriptive Laws
Better? Transforming REDD+ Safeguards into National Legislation. Journal
of Environmental Law, 29(3), pp.505-536.
Ituarte-Lima, C., and Kibugi, R. (2018). Co-chairs’ Summary Report of the
Peer-to-peer Dialogue on the human right to a healthy environment and
SDGs: weaving SDG 16 and human rights law with the post-2020 global
biodiversity framework. SwedBio/Stockholm Resilience Centre, International
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Rights-Special Procedures, UN Environment and Natural Justice.
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(2014). Biodiversity nancing and safeguards: Lessons learned and proposed
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communities and indigenous peoples against adverse
impacts. Furthermore, guidance is needed to appropriately
make visible and recognise the agency of right holders who
are often not duly recognised, such as women and
environmental human rights defenders. The chapters in this
report aim to contribute to this process. The report also puts
forward tailored legal and policy tools that are needed for
living in harmony with nature. It is time to “walk the talk”
on safeguarding biodiversity and respecting, promoting and
fullling universal human rights of all people in the planet.
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2. Beyond borders:
human rights, biodiversity
and climate change
Claudia Ituarte-Lima and Tristan Tyrrell
1. Global and local dynamics
The impacts of climate change are not evenly spread. The
onset of slow or rapid shifts in climate, and in particular the
ability to respond effectively to climate change-induced
natural disasters, varies greatly both within and between
countries. The adaptability of communities and societies to
such changes depends on the resources and rights available
to them. As climate change takes hold, the need for effective
legal measures that secure tenure and access rights to healthy
natural resources becomes increasingly paramount.
While many human rights cases are local in their direct
impacts, they are increasingly an outcome of
interconnections and social-ecological system dynamics that
go beyond national borders. These complex dynamics
include, for example, the nexus between progressive and
unexpected events derived from climate change and
degradation of ecosystems. Biodiversity and healthy
ecosystems, which are key for human prosperity, are rapidly
being degraded and destroyed with grave and far-reaching
implications for exercising a wide range of human rights,
especially the rights of individuals and groups in vulnerable
situations (Knox 2017).
“Networked global environmental risks” is a term used to
refer to risks where causality and impacts are connected
across continental scales, display complex systems properties,
and are highly contested such as the 2008-09 food crises
(Galaz et al., 2017). Academics and legal practitioners have
made various proposals to address these global risks which
include overarching principles for Earth system governance
(Biermann, 2015), framework principles on human rights
and environment (Knox, 2018), the Maastricht Principles
on Extraterritorial Obligations of States in the Area of
Economic, Social and Cultural Rights (ETO Consortium
2013) and proposals to acknowledge “ecocide” as a “crime
against peace” (Higgins et al., 2013). For example, Higgins
et al. (2013) propose to expand the remit of the International
Criminal Court to include ecocide as an international crime.
They argue that ecocide should stand alongside other
international crimes such as genocide, war crimes, crimes
against humanity and crimes of aggression to ensure global
governance and protection against crimes of State and
corporate actors that cause or fail to prevent climate
disasters and other ecological catastrophes.
As for States’ extraterritorial obligations to protect human
rights, innovative interpretations by national courts linking
general principles of international law, climate and human
rights law can offer interesting insights on the strategic use of
international law to foster sustainability and climate justice.
For example, in the case Urgenda Foundation v State of
the Netherlands, the Court recognised that Dutch emissions
are among the highest in the world and employed general
principles of international law, such as the ‘no harm’ rule as
well as human rights such as the right to life (Article 2
ECHR) and the right to health and respect for private and
family life (Article 8 ECHR) as a source of inspiration to
dene the State’s duty of care in a climate context
(Lambrecht & Ituarte-Lima, 2016). These types of cases
could serve to interpret point 25.a on “harm or threat of
harm [that] originates or occurs on its territory” of the
Maastricht Principles.
Framework principle 13
States should cooperate with each other to establish,
maintain and enforce effective international legal
frameworks in order to prevent, reduce and remedy
transboundary and global environmental harm that
interferes with the full enjoyment of human rights
Framework principle 16
States should respect, protect and full human rights in
the actions they take to address environmental challenges
and pursue sustainable development
Box 1. Framework principles 13 and 16 on human rights and
the environment (Knox 2018)
Likewise, the nexus between climate and biodiversity
dynamics is relevant when understanding and acting upon
States’ obligations to protect human rights and point 25.a of
the Maastricht Principles in the context of contemporary
social-ecological dynamics. The increase of pests is negatively
affecting agro-diverse forestry systems. For example, the rust
disease is signicantly affecting shade-grown coffee which is
the main source of livelihoods of millions of family farmers
in the Global South (Libert et al. forthcoming). These
impacts which are intertwined with climate dynamics can
have signicant effects on various human rights such as
rights to food and right to health. States’ Obligations to
protect human rights in these cases would entail, for
example, a prompt declaration of phytosanitary emergencies
and collaboration between States to address these types of
socio-ecological crises. International schemes for nancing
climate mitigation and biodiversity have generated concerns
about the effect of large inuxes of money on the human
rights of local land users. While there is agreement in the
literature and in multilateral environmental agreements such
as the Convention on Biological Diversity (CBD) and United
Nations Framework Convention on Climate Change
(UNFCCC) on the need for safeguards to prevent negative
social effects including on groups in vulnerable situations,
how prescriptive or exible those safeguards should be, is
not well understood. We have found that State’s procedural
obligations (e.g. public participation, freedom of speech and
expression, access to justice) in climate and biodiversity
related mechanisms are intertwined with substantive rights
such as tenure/property rights (Ituarte-Lima & McDermott,
2017; McDermott & Ituarte-Lima, 2016). Both types of
rights and their interactions need to be taken into account
respecting, protecting and fullling States’ obligations. The
Maastricht Principles in particular Section V. on obligations
to full would be relevant in the interpretation of these
obligations.
At the international level, the recognition of the rights
of people to a healthy environment, one that allows them
to effectively adapt to climate change, is not always explicit.
A review of decisions taken by Conferences of the Parties
(COP) to the CBD shows that there has been little attention
given to taking a rights-based approach in the recognition
of the interlinkages between climate change and biodiversity,
and certainly as a supporting mechanism to climate change
mitigation and adaptation. Rather, the focus has traditionally
been on recognising climate change as a threat to
biodiversity, with more recent discussions calling for the
increased exploration and use of ecosystem-based
approaches to addressing climate change. The difference in
the wording between the biodiversity and climate change
decisions taken at COP12 (decision XII/20, 20145) and
COP13 (decision XIII/4, 20166) shows a marked positive
change. Namely, a focus on mitigation through REDD+ and
asking the Executive Secretary to compile and promote
ecosystem-based approaches including adaptation, changed
to calling on Parties themselves to actively review and
implement such approaches. Such changes may have been
inuenced by decisions taken in other fora, such as the Paris
Agreement and the 2030 Agenda for Sustainable
Development, in which the role of nature in underpinning
the ght against climate change and ensuring sustainable
development became explicit. COP14 (decision XIV/5, 2018)
took this even further with calls for Parties to recognise and
implement numerous forms of ecosystem-based approaches,
and acknowledged with concern the report of the
Intergovernmental Panel on Climate Change (IPCC 2018)
on the need for immediate action.
Human rights in the context of climate change remains
absent from the CBD decision texts. While recognition is
given to the role of traditional knowledge and practices in
helping to address climate change through effective
ecosystem management, there have been no calls for the legal
recognition of tenure, access or ecosystem integrity for the
health and well-being of local communities. However, one
recent development in this regard is the development of
Voluntary Guidelines for the Design and Effective
5. https://www.cbd.int/decisions/cop/?m=cop-12
6. https://www.cbd.int/decisions/cop/?m=cop-13
Climate change affects present and future generations.
Photo: Claudia Ituarte-Lima
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Implementation of Ecosystem-based Approaches to Climate
Change Adaptation and Disaster Risk Reduction, which was
led by the CBD Secretariat and contained in an annex to
decision XIV/5. These include the undertaking of stakeholder
and rights-holder analyses, guaranteeing the free, prior and
informed consent of indigenous peoples and local communities,
and ensuring that implementation of ecosystem-based
adaptation (EbA) and ecosystem-based approaches to
disaster risk reduction (Eco-DRR) involve the collaboration,
coordination, and cooperation of stakeholders and rights
holders.
Under UNFCCC, the recognition of the human rights
concerns with climate changes is perhaps best expressed in
the text of the Paris Agreement (FCCC/CP/2015/L.97), where
it states that “Parties should, when taking action to address
climate change, respect, promote and consider their
respective obligations on human rights, the right to health,
the rights of indigenous peoples, local communities,
migrants, children, persons with disabilities and people in
vulnerable situations and the right to development, as well as
gender equality, empowerment of women and
intergenerational equity. This text has been adopted by
almost all Parties to the UNFCCC and demonstrates that
there is concern for the impacts of climate change on
minorities and the more vulnerable. The right to a healthy
environment might be considered implicit, but it requires
sufcient interpretation at the national level in order for the
correct actions, including the passing of appropriate
legislation, to be taken.
Prior to the Paris Agreement, the Male’ Declaration on the
Human Dimension of Global Climate Change8 was adopted
in November 2007 by representatives of small-island
developing States. It was the rst intergovernmental
statement that explicitly recognised the human rights
dimension of climate change, including the rights to life, an
adequate standard of living and the highest attainable
standard of health. The Declaration called for the Human
Rights Council (HRC) to convene a debate on human rights
and climate change. In addition, the declaration called for
the Ofce of the United Nations High Commissioner for
Human Rights (OHCHR) to study the effects of climate
change on the full enjoyment of human rights, and the
UNFCCC COP to work with OHCHR and HCR in
assessing the human rights implications of climate change. In
February 2015, a number of countries9 signed the Geneva
Pledge10 – a commitment to enable meaningful collaboration
between national representatives in the UNFCCC and the
HRC to increase understanding of how human rights
obligations inform better climate action. The statement
acknowledges that the effects of climate change will be felt
most acutely by those who are already in vulnerable
situations owing to factors such as geography, poverty,
gender, age, indigenous or minority status and disability.
Human rights obligations and commitments have the
potential to inform and strengthen international and national
policymaking in the area of climate change, promoting policy
coherence, legitimacy and sustainable outcomes. As a result,
the signatories to the Geneva Pledge sought to facilitate the
exchange of expertise and best practice between their human
rights and climate experts to build their collective capacity to
deliver responses to climate change that are good for people
and the planet. To which end, they aimed to include human
rights knowledge in their delegations to the UNFCCC and,
where applicable, climate change expertise in the HRC.
There have also been numerous calls from Observers to
the UNFCCC to more formally recognise the rights of
people, and in particular certain groups such as indigenous
peoples and local communities, women, children and the
elderly by the Convention, and for Parties to act accordingly.
More recently, the Talanoa Dialogue process instigated by
Fiji as the COP24 Presidency has allowed for both Party and
Observer voices to come to the fore on this issue, perhaps
more strongly than through the more formal COP and
subsidiary bodies’ meetings, although the impact of such an
approach remains to be seen. The most recent meeting of the
COP, COP24 in 2018, agreed the rulebook to implementing
the Paris Agreement (FCCC/CP/2018/L.23) which, while it
recognises nature-based solutions to adaptation, fails to
acknowledge human rights – providing an issue of concern
that they will subsequently remain absent from Nationally
Determined Contributions (NDCs) and other national
climate change policy instruments. COP24 also failed to
properly acknowledge the drastic call to action by the IPCC
(IPCC 2018).
The 2030 Agenda for Sustainable Development11, agreed
in September 2015, envisages “a world of universal respect
for human rights and human dignity, the rule of law, justice,
equality and non-discrimination; … a just, equitable,
tolerant, open and socially inclusive world in which the needs
of the most vulnerable are met. This should equally be
considered in the context of climate change and ongoing
biodiversity loss and ecosystem degradation. Sustainable
development Goal (SDG) 13 – take urgent action to combat
climate change and its impacts – builds fundamentally on the
Paris Agreement. While it does not mention rights, it does
call on countries to:
13.1 Strengthen resilience and adaptive capacity to
climate-related hazards and natural disasters in all
countries.
13.b Promote mechanisms for raising capacity for
effective climate change-related planning and
management in least developed countries and small
island developing States, including focusing on women,
youth and local and marginalized communities.
It could be argued that the only means to effectively ensure
that everyone is resilient and capable of adapting to climate
change is through the full recognition of their human rights.
Equally, a rights-based approach to addressing climate
change and its impacts should form a sound basis for
ensuring the most vulnerable are well positioned to tackle
the expected and unexpected effects of a changing climate.
Of the biodiversity-related SDGs, the only one that shows
any direct relevance to the issue of human rights is SDG15
protect, restore and promote sustainable use of terrestrial
ecosystems, sustainably manage forests, combat desertication,
and halt and reverse land degradation and halt biodiversity
loss. Under it, the following target would consider many
rights issues if implemented correctly:
15.9 By 2020, integrate ecosystem and biodiversity
values into national and local planning, development
processes, poverty reduction strategies and accounts
SDG16 – Promote peaceful and inclusive societies for
sustainable development, provide access to justice for all and
build effective, accountable and inclusive institutions at all
levels – provides the framework for addressing the need for
effective institutions and the rule of law that works for the
benet of everyone in society. With regards to human rights,
biodiversity and climate change, the indivisibility of the
SDGs as a whole would make all measures that promote a
healthy, safe and stable way of life as being relevant. Despite
this, there are four targets under SDG16 that are particularly
important:
16.3 Promote the rule of law at the national and
international levels and ensure equal access to justice
for all.
16.7 Ensure responsive, inclusive, participatory and
representative decision-making at all levels.
16.9 By 2030, provide legal identity for all, including
birth registration
16.b Promote and enforce non-discriminatory laws and
policies for sustainable development.
One of the challenges to the successful achievement of the
entire 2030 Agenda for Sustainable Development is the
number of issues to be addressed, and the need for
widespread changes in governance, societal and economic
systems to make transformative change happen. Current
systems need to be improved rst and there are limited
resources, which means that the implementation of some
SDGs and their targets will likely be prioritised using the
monitoring system developed. As such, the indicators chosen
to track progress will inadvertently provide the list of
priority targets. A review of the indicators selected to track
the 2030 Agenda for Sustainable Development provides the
following:
Indicator 5. Percentage of women, men, indigenous
peoples, and local communities with secure rights to
land, property, and natural resources, measured by (i)
percentage with documented or recognised evidence of
tenure, and (ii) percentage who perceive their rights are
recognised and protected (SDG112; SDG513; SDG1014).
Indicator 90. Proportion of legal persons and
arrangements for which benecial ownership information
is publicly available (SDG16).
Complementary National Indicator 15.1. Improved
tenure security and governance of forests
Complementary National Indicator 15.3. Vitality Index
of Traditional Environmental Knowledge
Complementary National Indicator 16.2. Compliance
with recommendations from the Universal Periodic
Review and UN Treaties (SDG16).
If such prioritisation were to be followed, it could see
progress on tenure rights, at least on paper. Other rights
would still be dependent on full and effective implementation
of other treaties and agreements.
2. Synchronizing legal frameworks
In the section below we provide a synthesis of a case study
on the process of transformation of international law
relevant for the human rights, climate and biodiversity nexus
into national legislation based on Ituarte-Lima &
McDermott (2017).
How can the pursuit of climate change mitigation lead to
local environmental justice and the enjoyment of human
rights rather than to dispossession or disempowerment of
vulnerable local communities?
Here we use Reducing Emissions from Deforestation and
Degradation and forest enhancement (REDD+) as a way of
approaching the question. REDD+ is a mechanism developed
by Parties to the UNFCCC which aims to encourage
developing countries in particular to curb deforestation,
forest degradation and enhance carbon stocks. This is done
by offering nancial incentives to communities and
individuals looking to convert forest areas into alternative
land uses. This may sound like a good idea but there are
drawbacks and signicant economic interests of governments
and others on what is often perceived as large amounts of
money coming from the REDD+ mechanism.
7. https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf
8. http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf
9. Costa Rica, Chile, Guatemala, France , Ireland, Marshall Islands, Kiribati,
Maldives, Micronesia, Mexico, Palau, Panama, Peru, Philippines, Samoa,
Sweden, Uganda, Uruguay
10. https://carbonmarketwatch.org/wp-content/uploads/2015/02/The-Ge-
neva-Pledge-13FEB2015.pdf
12. SDG1: End pover ty in all its forms every where
13. SDG5: Achieve gender equality and empo wer all women and girls
14. SDG10: Reduce ine quality within and among count ries
11. http://www.un.org/ga/search/view_doc.asp?symbol=A/
RES/70/1&Lang=E
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Stories of land grabs and violations of human rights to gain
access to the nancial benets of REDD+ come out
frequently, dispossessing local communities and possibly
even transforming natural forest into carbon plantations. To
prevent these kinds of outcomes, effective implementation of
human rights and biodiversity law is needed.
2.1 Complex land structures
Over 80% of forested land in Mexico belongs to ejidos,
communities combining communal and individual land
rights to manage the land and its resources. The task of
translating international climate agreements into national
law brought attention to the complex dynamics surrounding
Mexico’s forests and highlighted the need to address a
diverse but interconnected set of issues. The complex social-
ecological systems in Mexico’s forests made it necessary to
address a diverse but interconnected set of issues that affect
translating international climate agreements into law. The
issues ranged from a system to monitor the reduction of
carbon emissions to property rights, public participation,
indigenous and local communities’ legal identity and rights,
and biodiversity protection and sustainable use.
While right-holders and stakeholders were generally
supportive of the inclusion of safeguards in Mexican law,
they pointed out that broader socio-ecological issues were
The study analysed perspectives of people belonging to
different organisations concerned with the development
of Mexico’s REDD+ legal reforms. The analysis included
68 semi-structured interviews, 10 focus groups and the
sourcing of additional observations from participants in
the legal processes. Interviewees included people from
governmental organisations of the legislature and
executive committee, as well as civil society
organisations working locally, nationally and/or
internationally. The information from interviews was
then combined with a conceptual framework of legal
prescriptiveness to perform a socio-legal analysis of the
reform process in Mexico. The conceptual framework
used for the analysis involved three criteria of obligation,
delegation, and precision. In combination, these three
criteria were used to describe the relative level of
prescriptiveness of the relevant legislation from the
international to the national level. The distinction and
interactions between substantive and procedural human
rights were also analysed.
The authors have also engaged in dialogue for sharing
and receiving feedback to the ndings of this paper in
meetings in the research, policy and practice interface in
Mexico and internationally. This paper has been
highlighted in the Nature Sustainability Journal as a
research highlight on environmental law.
left unresolved and that these would prevent them from
exercising their individual and collective human rights and
safeguarding healthy ecosystems. For example, the current
policies on subsoil resource extraction in Mexico serve to
weaken the rights of forest-dependent communities and
ecosystem services in favour of mining companies. If issues
such as these were not resolved, there would be signicant
challenges or obstructions to operationalising REDD+
related human rights issues in Mexico.
2.2 Tensions and challenges
One of the steps taken during the reform process involved
providing expanded legal rights and processes to local
communities. While these reforms may be positive for
fostering equity in mechanisms regarding environmental
management, they are not without their own challenges.
Some interviewees found tensions between different
rights. For example, the right to information associated with
the development of REDD+ monitoring, reporting and
verication in a relatively short period of time and the right
to public participation in forest and climate governance.
Other interviewees were concerned that the application of
certain of these new legal procedures could interfere with the
development of future REDD+ policies and potentially
render REDD+ inoperable. Some also pointed out challenges
that could arise from using the ejidos structure to implement
climate mechanisms - such as the risks and disadvantages for
those who do not formally hold legal land rights, particularly
women and children.
Despite these challenges, the need for dialogue and the
freedom to express how to better operationalise
communities’ human rights and international safeguards, in
different ways that t local contexts, was seen ultimately as a
positive outcome for the future of ejidos and forest
management.
2.3 Clarity on human rights obligations, room for
dialogue on how to implement them
The legal reform did not focus on regulating who has property
rights over carbon sequestration, but rather on the way in
which benets from contributing to ecosystem services,
which are part of the bundles of property rights over natural
resources, were shared. While it may seem like a minor
distinction, this has legal implications in that the goals of
REDD+ regarding carbon can be achieved but the economic
benets should go to people contributing to healthy
ecosystems, of whom the majority are ejidos but also to other
people such as women, who often do not hold formal legal
land rights. Hence, the reform process went beyond the
REDD+ commitments to carbon sequestration and extended
to regulate benet sharing of ecosystem services.
Right holders and stakeholders felt both optimistic and
cautious at the end of the reform process of transforming
Community Monitoring Jaguars in Mexico. Photo: Claudia Ituarte-Lima
international safeguards including protecting property and
natural resources, as well as communities’ human rights into
national legislation.
The ndings of the above-mentioned article argue for a
legal approach that is ‘not too tight, but not too loose’. Right
holders were satised that the reform process was specic
about the Mexican state’s obligations to protect the human
rights including vulnerable populations, the recognition of
the right to free prior informed consent and benet sharing,
but also left room for right holders’ dialogue on how to
operationalize these rights into the future.
Table 1, next page, summarizes the above analysis of
perspectives on precision and associated human rights
implications (source: adapted from Ituarte-Lima and
McDermott 2017)
3. Concluding remarks
Global environmental risks have very complex cause-effect
links that are difcult to prove in human rights settings. Yet,
they have signicant impacts on human rights and a healthy
environment. Hence there is an urgent need to understand
and act upon these dynamics. The interplay between climate,
biodiversity and human rights demands the rethinking of
States’ obligations to respect, protect and full human rights
in order to consider dynamics at multiple levels.
The international legal climate landscape and the
connections with human rights and biodiversity related
dimensions continue to evolve. As mentioned earlier, the
recent 2015 Paris Agreement under the UNFCCC contains
the rst mention of human rights in a multilateral
environmental agreement. This reference, together with
general references to REDD+15, raises new questions for
REDD+ law-making processes at distinct scales because it
may affect the way REDD+ is translated and implemented at
the national level. For example, in terms of the strength of
States’ obligations to full the human right to information
and participation as well as other interconnected human
rights.
The indivisibility of the SDGs and their implementation
should provide an overarching framework that would allow
governments to identify the interlinkages between these
fundamental issues facing society. However, while progress
has been seen to be made on some the SDGs and their
targets, such positive trends are not universal, and a key
measure on the integration of biodiversity, climate change
and human rights is not present to provide that clear path
for countries to follow in order to act appropriately.
Key recommendations that arose from the peer to peer
dialogue relevant to the human rights, climate change and
biodiversity nexus included the following:
15. See e. g. Para 55 of the Paris Agreement: http://unfccc.int/paris_agree-
ment/items/9485.php
Box 2. Methodology of the case study
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Positive implications for the
implementation of human rights
Negative implications for the environment enabling
people to exercise human rights
CARBON SEQUESTRATION
Substantive:
Low prescriptiveness in dening
property-related rights over
carbon.
More comprehensive application of
safeguards to environmental services
nancing mechanisms (e.g. biodiversity
related, not only those carbon-related).
Property rights over carbon remain unspecied
legally and open to subsequent denition. Local
values and denitions concerning ecosystems
embedded in consuetudinary norms of local and
indigenous peoples are not explicitly recognised.
Procedural:
Highest prescriptiveness in
Monitoring Reporting and
Vercation (MRV) safeguard.
New information will be available to
communities in a relatively short period
of time for exercising their right to
information on deforestation and forest
degradation issues.
Timeline required by the law for MRV development
may limit the possibilities of communities to exercise
the right to participation in providing inputs for
developing an appropriate MRV system that includes
local values of forest ecosystems. This will also affect
the quality of the information in the MRV system.
HUMAN RIGHTS RELATED PROVISIONS/SOCIAL SAFEGUARDS
Substantive:
Medium prescriptiveness on
benet distribution safeguard.
Positive for owners and legitimate
possessors of forest land. In Mexico,
most of them are ejidos and
communities.
Negative for inhabitants or users of forest resources
on land subject to ecosystem -nancing mechanisms
schemes that lack legally recognised ownership or
possession rights.
Procedural:
Medium prescriptiveness in Free
Prior Informed Consent (FPIC)
safeguard.
Positive for ejidos, communities and
indigenous peoples as it strengthens
their legal FPIC in projects that may
affect their livelihoods.
Potential negative consequences if FPIC is used as a
one-size-ts-all problem-solving tool e.g. for policies
and legislation where broader democratic processes
are needed.
BIODIVERSITY SAFEGUARDS
Substantive:
Low precision in dening
property-related rights over
biodiversity.
New denition of ecosystem services
positive for ejidos, communities and
indigenous peoples for recognising the
intertwined relationships between peo-
ple and nature embedded in many
indigenous peoples’ worldviews.
Difficult for local communities to legally prove that
specic benets generated by ecosystems are
necessary for the survival of the natural and
biological system as a whole.
Procedural:
No additional level of precision.
The participants emphasized that it is necessary to
promote the use human right approaches to
environmental protection through developing cross-
linkages in the already existing Multilateral
Environmental Agreements. Conventions such as
UNFCCC and UN Convention to Combat Desertication
Convention should, though Conference of Parties’
decisions increase the role of human rights in achieving
their targets. It was noted that the preamble to the Paris
Agreement, 2015 already calls on States to respect,
promote and consider their respective obligations on
human rights, the right to health, the rights of indigenous
peoples, local communities, people in vulnerable
situations as well as gender equality, empowerment of
women and intergenerational equity.
Further, the participants noted that good governance of
land use is fundamental for addressing the root causes of
unsustainability. They recommended that land tenure
Landscape of Machakos, that hosted the Peer-to-peer Dialogue. Photo: Claudia Ituar te-Lima
Table 1
rights, human rights and gender rights be at the center of
the efforts being made to combat the challenges arising
out of climate change, biodiversity loss, poor land use
governance and the resultant human rights violations
(like access to clean water).
The participants felt that the targets for the post-2020
global diversity frameworks should shift their focus
from a biocentric approach to one which includes socio-
economic and legal dimensions. They emphasised that
isolating the people from the targets they are supposed to
meet resulted in ignoring socio-economic aspects that are
key for engaging citizen in climate change and
biodiversity discussions. They recommended that while
mainstreaming human rights in the post-2020 agenda, it
should be made clear the connection between the SDGs
(including indicators relevant for sustainability), human
rights and climate.
Another recommendation was to build better relations
between governments and right holders instead of
militarising agencies in protected areas and criminalising
environmental defenders. These create a hostile
environment instead of building a positive and powerful
relationship between States and right holders, including
those who have lived in those territories and have
valuable knowledge and practices relevant to biodiversity
and healthy ecosystems.
References
Biermann, F. (2015) Earth System Governance – World Politics in the
Anthropocene. Cambridge MA: MIT Press.
ETO Consortium. (2013) Maastricht Principles on Extraterritorial
Obligations of States in the Area of Economic, Social and Cultural Rights.
[online] Heidelberg, Germany: FIAN International. Available at: https://
www.etoconsortium.org/nc/en/main-navigation/library/maastricht-
principles/?tx_drblob_pi1%5BdownloadUid%5D=23.
Galaz, V., Boin, A., Tallberg, J., Ituarte-Lima, C., Hey, E., Olsson, P. &
Westley, F. (2017) Global governance dimensions of globally networked
risks: The state of the art in social science research. Risk, Hazards and Crisis
in Public Policy, 8(1):4-27
Higgins, P., Short, D. & South, N. (2013) Protecting the Planet: A Proposal
for a Law of Ecocide. Crime, Law and Social Change 59 (3): 251-66.
IPCC. (2018) Global Warming of 1.5°C, an IPCC special report on the
impacts of global warming of 1.5°C above pre-industrial levels and related
global greenhouse gas emission pathways, in the context of strengthening the
global response to the threat of climate change, sustainable development,
and efforts to eradicate poverty. Intergovernmental Panel on Climate
Change, Geneva, Switzerland.
Ituarte-Lima, C., and Kibugi, R. (2018). Co-chairs’ Summary of the Peer-to-
peer Dialogue on Weaving SDG 16 and Human Rights Law with the post-
2020 global biodiversity framework. SwedBio/Stockholm RC, International
Development Law Organization, Ofce of the High Commission of Human
Rights-Special Procedures, UN Environment and Natural Justice
Ituarte-Lima, C. & McDermott, C.L. (2017) Are more prescriptive laws
better? Transforming REDD+ safeguards into national legislation. Journal of
Environmental Law 29 (3): 505–536
Lambrecht, J. & Ituarte-Lima, C. (2016) Legal innovation in national courts
for planetary challenges: Urgenda v State of the Netherlands. Environmental
Law Review 2016 18: 57-64
Libert, A., Ituarte-Lima, C. & Elmqvist, T. (forthcoming) Learning from
social-ecological crisis for legal resilience building: multilevel dynamics in the
coffee rust epidemic.
McDermott, C. & Ituarte-Lima, C. (2016) Safeguarding what and for
whom? The role of institutional t in shaping REDD+ in Mexico. Ecology
and Society 21(1):9.
Knox, J. (2017) Report of the Special Rapporteur on the issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable environment. UN OHCHR. Report Number: A/HRC/34/49.
Knox, J. (2018) Framework Principles on Human Rights and the
Environment: Report of the Special Rapporteur on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment. UN OHCHR. Report Number: A/HRC/37/59.
Source: tuarte-Lima, and McDermott, (2017)
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3. Womens courageous roles
as guardians of the Earth’s
ecosystems
Claudia Ituarte-Lima
Acknowledgements: The author would like to thank Soo-
Young Hwang, Ida Karlsson, Marika Haeggman, Grace
Wong and Maria Schultz as well as participants of the
Peer-to-peer Dialogue who provided valuable inputs and
comments to this chapter.
Women are recognised in legal and policy instruments
ranging from international human rights laws and standards,
the Convention on Biological Diversity (CBD) and related
targets and Sustainable Development Goals (SDGs). Yet,
there is a gap in gender-centred assessments with integrated
approaches. Furthermore, the recognition of women in
different areas often focuses on avoiding discrimination
against girls and women, identifying unique challenges and
vulnerabilities and less on their essential roles and
contributions for thriving ecosystems for present and future
generations.
Given the lack of integrated approaches and the limited
recognition of women’s courageous roles as guardians of
the Earth’s ecosystems, this chapter is divided into two parts.
The rst part provides an analysis of existing framework
relating to women, in an attempt to bring together the three
domains that often operate in silos. It intends to deepen our
understanding of how the silos intersect with each other with
a focus on gender aimed at promoting an integrated and
coherent approach to the formulation of gender-specic
policies and to the implementation of policies in the area of
the nexus between women’s rights and biological diversity.
The second part of the paper focuses on women
environmental defenders, one of the priority and urgent
issues to address the protection and promotion of biological
diversity. It introduces case studies of women environmental
defenders who work tirelessly to protect healthy ecosystems
and have successfully generated awareness and action on the
environment and their human rights nexus.16
1. International law and policy
1.1 CBD and gender perspectives
Parties to the CBD and the Secretariat have committed to
integrate a gender dimension in the implementation of the
CBD through the Gender Plan of Action (2015 – 2020) and
other associated programmes. The Strategic Plan for 2010 –
2020 and Aichi Target 14 aim to reect the needs of women
in restoring and safeguarding “ecosystems that provide
essential services, including services related to water, and
contribute to health, livelihoods and wellbeing”. Women play
an essential role in protecting and managing ecosystems and
the environment. For instance, women consist of 45% of
agricultural labour force in developing countries and also
engage in sheries in several different ways. Furthermore, in
some least developed countries such as Burundi and Congo
the percentage of women working in agriculture can go up
to around 90% (World Bank, 2018).
They are indeed in the forefront and centre of biodiversity
actions as the guardians of agrobiodiversity; however,
women are largely excluded in decision-making processes,
formal land and resource tenure rights on forest and water.
In addition, women’s contributions are not adequately
recognised and consequently, their rights relating to
biodiversity are also not well understood and often lack
formal support. Further action is needed to support for
example Sustainable Wildlife Management reconciling the
goals of promoting sustainable use and gender equality by
strengthening women’s leadership and decision-making
power in relation to the use of resources. For this purpose,
the collection of more sex-disaggregated data would support
mainstreaming gender issues in wildlife management and
support in monitoring and assessing outcomes (CBD, n.d.b).
In terms of CBD synergies with other multilateral
environmental agreements on gender perspectives, the
Secretariats of the three Rio Conventions – UNFCCC, CBD,
and UNCCD – are working together to identify and develop
opportunities for joint capacity building on gender issues
with Parties and stakeholders under each of the Conventions.
Phorn Sopheak. Photo: Savann Oeurm/Oxfam
1.2 Human Rights Law and Women’s Rights
Several international human rights laws and standards are also
relevant in promoting and protecting women’s rights in
biological diversity-related actions. The principle of equality
and non-discrimination is enshrined in the Universal
Declaration of Human Rights, the International Covenant on
Civil and Political Rights as well as the International Covenant
on Economic, Social and Cultural Rights, among others.
While recognising vulnerable situations faced by women
is relevant, just highlighting this dimension can contribute to
make invisiblewomen’s signicant contribution. Hence
in identifying relevant provisions for protecting women’s
rights in biological diversity-related actions enshrined in
international law, it is vital to identify provisions that
recognise women’s agency. For example, the Convention
on the Elimination of All Forms of Discrimination against
Women contains Article 14 that relates to women working
in rural areas where their activities are largely based on
ecosystems. This article while recognising the problems also
highlights women’s signicant roles “States Parties shall take
into account the particular problems faced by rural women
and the signicant roles which rural women play in the
economic survival of their families, including their work in
the non-monetized sectors of the economy, and shall take
all appropriate measures to ensure the application of the
provisions of the present Convention to women in rural
areas.” Women rights in this provision include “(a) To
participate in the elaboration and implementation of
development planning at all levels;… (e) To organise self-help
groups and co-operatives in order to obtain equal access to
economic opportunities through employment or self-
employment; (f) To participate in all community activities;”17
17. The Commit tee on the Convention on the Elimination of All Forms of
Discrimination against Women also adopted General Recommendation
No. 34 that does a thorough review and interpretation of the Convention
regarding the rights of rural women .
16. A prior version of this sec tion was originally published at Rethink
(Ituarte -Lima, 2018).
Eleanor holding Declaration of Human Rights in Spanish at Lake Success, New
York. November 1949. Photo: Blatant World/ Creative commons (CC BY 2.0)
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The nexus between climate change and healthy ecosystem is
an area also relevant for women rights that treaty bodies
have addressed. The Committee on the Convention on the
Elimination of All Forms of Discrimination against Women’s
in its General Recommendation No. 37 recommends disaster
reduction in the context of climate change.
The UN Human Rights Council at its 38th session adopted
a resolution on climate change focusing on women (A/HRC/
RES/38/4) urging states to strengthen and implement policies
that take gender-sensitive climate change actions. It also
decided to organise a panel discussion on women’s rights and
climate change at its 41st session in 2019. This kind of spaces
emerge as opportunities where the courageous roles of
women as guardians of the Earth’s life support systems can
be visualized in high level international fora.
1.3 SDGs and gender equality
The SDGs and its targets are interlinked and are supposed to
be understood and implemented in relation to one another:
“The interlinkages and integrated nature of the Sustainable
Development Goals are of crucial importance in ensuring
that the purpose of the new Agenda is realized”…The SDGs
“seek to realize the human rights of all and to achieve gender
equality and the empowerment of all women and girls. They
are integrated and indivisible…”
SDG16 on peace, justice and strong institutions is
connected to other SDGs such as SDG 5 on Gender Equality
and SDG 6 on clean water and sanitation. As such, SDG 5 on
Gender Equality and its Target 5A to “undertake reforms to
give women equal rights to economic resources, as well as
access to ownership and control over land and other forms
of property, nancial services, inheritance and natural
UN Human Rights Council. Photo: Jean-Marc Ferr on behalf of the UN, 2016
Phyllis Omido with her staff at the Centre of Justice, Governance, and Environmental Action. Copyright: Goldman Environmental Prize
resources, in accordance with national laws”, should be
implemented in relation to other goals relevant to
sustainability such as SDG 14 life below water and SDG 15
life on land.
Innovations are needed to address contemporary
sustainability challenges in ways that support the human
rights and agency of girls and women in relation to this and
other interconnected SDGs such as SDG 16, 14 and 15
above-mentioned. For example, Lake Victoria – the largest
lake in Africa, chief reservoir of the Nile and shared by
Kenya, Tanzania and Uganda – is affected by the destructive
and invasive water hyacinth. This invasive species decreases
access to fresh water and threatens biodiversity and healthy
ecosystems by depleting oxygen in water, which in turn kills
native sh species. It also increases the risk of malaria, as it
is a breeding ground for mosquitoes and parasites. After this
water hyacinth invasion at Lake Victoria, initiatives have
emerged to develop low cost, biodegradable sanitary pads
made from the invasive water hyacinth. Such pads can be
particularly helpful for girls living in poverty in rural areas
of the Global South, who often drop out or miss a signicant
number of school days each month once they begin
menstruating. Through the Empowering Women Period
project, these pads are manufactured and distributed by
women to women. The project thus aims to improve the
living conditions for women and secure the right to
education for girls and young women, while at the same time
contributing to the health of Lake Victoria by reducing the
amount of invasive plants. The sustainability of these kinds
of initiative often depends on whether local women groups
have been actively engaged from an early phase of this kind
of initiatives (Howden and Ituarte-Lima 2018).
2. The faces of women protecting a healthy
environment
Frontline environmental defenders, many of them women,
are critical in safeguarding healthy ecosystems. They work
tirelessly to protect biodiversity and uphold human rights,
and their efforts need to be formally recognised.
Many environmental human rights defenders are “risking
their today for our tomorrow” according to John Knox, the
UN special rapporteur on human rights and the environment.
This issue concerns not just present, but also future
generations.
One such defender is Phyllis Omido. She is a single
mother living in Owino Uhuru, a community on the outskirts
of Mombasa, Kenya’s second-largest city. She learnt that her
breast milk was making her baby sick. The streams that
residents used to wash, cook, and clean were being polluted
with untreated wastewater from an industrial plant that
extracted lead from used car batteries. Omido also realised
that her son wasn’t the only one suffering the consequences.
She mobilised her community and used legal means to
stop the pollution. In 2012, they initiated a process of
evaluating the likely environmental effects of the plant’s
operations, taking into account how water pollution was
affecting people’s health. Health scans showed high levels of
lead in the blood of local residents.
After a meeting with the UN special rapporteur on toxic
waste, a committee of the Kenyan senate came to assess the
situation. By 2014 the owner of the plant decided to close it.
In the process of bringing attention to the consequences of
the pollution the plant was causing, Omido received support
18. See more at ht tps://ww w. asf.be/
19. See the video inter view at https://www.une nvironment.org/news- an d-
stories/video/uns-environmental-rights-initiative
from organisations such as Frontline Defenders and Human
Rights Watch. They also helped her realise that her case was
of international importance.
To avoid similar businesses setting up shop in the future,
the community teamed up with pro-bono lawyers from
Avocats Sans Frontières18 in Brussels and took the Kenyan
government to court for exposing workers and local
residents to lead pollution.
For close to a decade, Omido has been monitoring various
illnesses, deaths, and miscarriages that have occurred in her
community. She has been threatened, arrested by the police,
and forced into hiding for organising the opposition to the
industrial plant. The non-governmental organisation she
founded, the Centre for Justice, Governance and
Environmental Action – forced the plant’s closure and now
promotes environmental justice in Kenya’s coastal regions.
The organisation has built a network of support across the
world, and in 2015 Omido was awarded the Goldman
Environmental Prize – the world’s largest prize honouring
grassroots environmentalists.
“I have learnt over the years that I am not alone,” Omido
said in a recent interview. “Thousands of people from around
the world risk their lives protecting their way of life – their
rights over food, water, clean air and land. They stand up for
their basic human rights.19
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Paradoxically, often these people in marginalised situations
in the Global South, such as Omido, are at the forefront of
protecting vital ecosystems and natural resources. They foster
sustainability for the planet and people and can provide new
insights into how to tackle the increasingly rapid global
biodiversity loss.
“This is not just about indigenous communities, the poor
or the marginalised. This is about everyone, because
environmental rights are enshrined in over 100 constitutions.
Even with so many people recognising their rights, often
people are unable to assert them when business or
government are not held accountable for environmental
violations,” says Omido.
Women all over the world see exercising their political
rights as critical to their struggle to put food on the table but
also as a key to their long-term security and sustainable
human development. Research clearly shows the need for
development practitioners – as well as politicians and
business leaders – to recognise women as agents, not victims,
and support them in their work to achieve environmental
justice (Sweetman and Ezpeleta, 2017).
Omido has shown what can be achieved when people get
access to basic information and networks, such as other
organisations at a national and international level.
In some places, development workers reach out to
illiterate women and train them in basic law. Shvetangini
Patel, for example, has worked with women’s organisations
in the state of Gujarat in India for many years to make sure
that the law works for people. She has used creative
methods, including illustrations, to train illiterate women on
various environmental laws (Centre for Policy Research
(CPR) – Namati Environmental Justice Program, 2018).
2.1 Paralegals offer support
As grassroots civil society efforts have proved effective in
many parts of the world, the role of community paralegals
has evolved signicantly. Community paralegals are
grassroots advocates who use their knowledge of the law to
seek concrete solutions to instances of injustice. They are
trained by law specialists and development workers, and are
often linked to lawyers who provide guidance and are
helping people to hold rms accountable for damage to
rivers and farmland. They can play a vital role in
empowering communities around the world, making it
possible for community members to protect their rights and
the biodiversity of their regions.
The Kenya hub of the civil society organisation Natural
Justice is based in Nairobi and includes a team of lawyers,
mainly women. They advise community paralegals in Lamu,
on the northern coast of Kenya, who work with their
communities on how to access environmental information at
the county level, for example about the impact that
infrastructure projects have on water.
Lamu was declared a UNESCO biosphere reserve in 1980,
has a rich cultural heritage, and is the home of rare marine
species such as sea turtles, sharks, and dugongs.20 Concerns
are now growing over the construction of a port and a coal
plant in the region, where water pollution could have a
devastating impact on marine wildlife and local shing
communities.
Local community paralegals have taken on the cause, as
part of a larger collaborative partnership between Natural
Justice and SwedBio at the Stockholm Resilience Centre to
support legal empowerment in Kenya and Zimbabwe.21 The
paralegals are writing letters to access information from the
authorities concerning the construction of the Lamu port,
complaint letters concerning the breach of environmental
regulations, and follow-up letters when they do not receive
replies. Thanks to these persistent requests, the paralegals are
starting to make an impact. They have also expanded their
efforts to educate public ofcials in the understanding of
citizens’ rights to demand and receive records from public
authorities.
In April this year, the High Court of Kenya declared that
the construction of the Lamu port failed to meet basic
constitutional and legal requirements. Compensation of
1.7bn Kenyan shillings (£12.7m) was awarded to the 4,600
shers affected by the construction of the port. The case was
led by Katiba Institute, with the support of the
environmental protection organisation Save Lamu, Natural
Justice, and Environmental Law Alliance Worldwide.
2.2 Defenders: safeguarding nature’s contributions to
people despite threats and violence
Environmental human rights defenders are voicing the
interest of their own communities but also defend those who
are voiceless – plants and ecosystems, animals, and other
living beings. The land and water they protect provides
globally important carbon stores, havens for wildlife, life-
saving medicines, and clean water for millions. For people to
fully enjoy their human rights to good health and food, they
need the providing, supporting and cultural services that
healthy ecosystems provide (see Figure 2). Maintaining
biodiversity is necessary to ensure that ecosystems remain
healthy and resilient.22
But the defenders face growing threats. Three UN special
rapporteurs have stated that the UN’s sustainable development
goals cannot be met if environmental defenders, who are on
the frontline of sustainable development, are not protected.
20. See more at http://w ww.vliz.be/projects/marineworldheritage/
sites/3.1%20Lamu-Kiunga%20Archipelago.php?item=The%20Indian%20
Ocean
21. See ht tps://naturaljustice.org/programme/extrac tives-and-infrastructure/
22 See https://w ww.stockholmresilience.org/research/research-news/2017-
04-06-healthy- ecosystems-are-crucial-for-the-enjoyment-of-uni versal-
human-rights.html
23. See https://www.internationalrivers.org/blogs/227/agua-zarca-a- stain-
on-the-dutch-and-nnish-human-rights-record
Figure 2 Source: own elaboration building on MEA (2005) and Diaz (2018)
With mandates from her local community, and travelling together with
community leaders to the capital, Bertha Cáceres led complaints against the
proposed Agua Zarca Dam and its effects on the Gualcarque River, which is
spiritually important to the Lenca people. Copyright: Goldman Environmental
Prize.
The UN special rapporteur on the situation of human rights
defenders, Michel Forst, has stressed that those working on
land rights and natural resources are the second-largest
group of human rights defenders at risk of being killed
(Forst, 2016). He also highlights that women human rights
defenders working on land and environment rights “are
often excluded from land ownership, community
negotiations and decisions about the future of their lands.
When they engage in activism, they are often criticized for
neglecting their domestic duties and endangering their
families” (Forst, 2019, para 77). The Honduran human
rights defender Berta Cáceres is one of at least 1,000
environmental defenders who have been murdered since
2002. Cáceres’ death in 2016 sparked a global outcry and
environmental, human rights, and women’s rights
movements have joined forces to call for justice.
Development projects often have international funders
and investors. For example, both the Finnish and the Dutch
development nancers were fundi ng the hydroelectric dam
opposed by Cáceres.23 A key part of tackling the human
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rights defenders crisis is to see that states and businesses in
industrialised countries, who invest in other countries,
comply with their human rights obligations and ensure that
the projects they nance do not violate those rights.
Under the UN Human Rights Council, there are
discussions towards developing an international legally
binding instrument to regulate the activities of transnational
corporations and other business enterprises24. The UN
Guiding Principles on Business and Human Rights (2011)
spell out that while states retain a duty to protect
populations against corporate human rights abuses,
businesses have a responsibility to avoid human rights abuses
resulting from their activities, or those of business partners,
at home or abroad.
But many human rights defenders continue to face threats
and violence. Concerned about the disappearing forest,
people in a remote village have been defending a community-
protected area in the Prey Lang forest in central Cambodia.
One of them, Phorn Sopheak, was attacked when she went
on a regular patrol to make sure illegal loggers were not
cutting down trees. The illegal loggers routinely threaten her
for speaking out against environmental destruction, and the
attack was a warning of worse things to come. But Sopheak
says she intends to continue her work: “The government has
laws to protect the forest, and […] has said that Prey Lang
will be a protected forest. But local ofcials don’t take
serious action to protect the environment.25
Phorn Sopheak scrolls the timeline of her friend’s Facebook that posted her
photos during a ve-day patrol combating illegal logging in central Cambodia.
Copyright: Savann Oeurm/Oxfam.
Phyllis Omido engaging with community members and former factory workers of Owino Uhuru. Copyright: Goldman Environmental Prize.
Biodiversity and ecosystem defenders often live in isolated
areas, where many biodiversity hot spots are located. Many
of the violations against them remain unreported because
they take place in these remote places, for example deep
within rainforests. In 2017, almost four people a week were
killed worldwide in struggles against mines, plantations,
poachers, and infrastructure projects, such as pipelines and
dams.26 The situation is particularly grave in Latin America
and South East Asia, but it affects every region of the world.
2.3 Finding new ways to recognise defenders
Concerns are growing and vital steps are being taken on a
global level to protect environmental human rights defenders
who work to safeguard the environment on which the
enjoyment of human rights depends. Last year, the UN
Human Rights Council adopted a landmark resolution
requiring states to ensure the rights and safety of
environmental defenders.27 And in March this year the UN
Environment Programme adopted a policy on “promoting
greater protection for environmental defenders”. In this
policy, the UN recognises that women environmental
defenders face increasing risks related to their activism.
The UN is also moving towards recognising the human
right to a healthy environment. In March 2018, John Knox
proposed 16 “framework principles on human rights and the
environment”, and the rst two principles emphasise the
connections between human well-being and ecological well-
being. In October 2018 the UN Special Rapporteur on
human rights and the environment, David R. Boyd urged the
UN General Assembly to recognise the right to a healthy
environment. Dr. Boyd was tasked by the UN Human Rights
Council to report to the highest body in the United Nations
system, The General Assembly. He argues that while the right
to a healthy environment has been recognised in regional
agreements and in most national constitutions, it has not
been formalised in a human rights agreement on a global
level. A formal global recognition of a human right to a
healthy environment could help protect those who
increasingly risk their lives to defend the land, water, forests,
and wildlife.
The Convention on Biological Diversity, a global treaty
focusing on systems that sustain life on Earth, is also
working to set new targets beyond 2020. Legal practitioners
from around the world, invited by SwedBio at the Stockholm
Resilience Centre and partner organisations, met in
Machakos, Kenya in 2018 to discuss how environmental
human rights could be addressed in relation to the human
right to a healthy environment and biodiversity (Ituarte-Lima
and Kibugi, 2018).
24. See ht tps://w ww.ohchr.org/Documents/HRB odies/HRCouncil/WG-
TransCorp/Session3/LegallyBindingInstrumentTNCs_OBEs.pdf
25. https://stories.oxfamamerica.org /stories/
26. https://www.globalwitness.org/en-gb/land
27. https://swed.bio/news/healthy-ecosystems-crucial-for-universal -human-
rights/
In addition to efforts for a global recognition of a healthy
environment as a human right, work is also being done to
support people in understanding and asserting their rights.
The recently launched Environmental Rights Initiative,
headed by the UN Environment Programme and other
organisations, is aiming to bring environmental protection
closer to the people, helping them to better understand their
rights and how to defend them.
2.4 Strength in numbers
Women environmental defenders around the world are
forming networks to push for change they cannot achieve
alone. In South America, Central America and Mexico, the
Mesoamerican Women Human Rights Defenders Initiative
brings together national and international civil society
organisations. Through the initiative, women from
indigenous groups and local communities share their
experiences and work together to improve the situation. A
registry has been established to gather data on attacks and
threats against women human rights defenders. Activists,
leaders, and journalists are trained in risk prevention and
four national networks have been created in Mexico,
Guatemala, Honduras, and El Salvador to protect those
under threat.
Omido points out that many people are on the frontline
of the ght for a healthy planet. Her community took legal
matters into their own hands and saw for themselves how
change was happening. Even if it was a slow process,
Omido’s community has shown that change is possible.
Omido is still working in the civil society organisation to
promote environmental justice. She continues to raise
awareness in Kenya and beyond about the connections
between law, a healthy environment, and people’s well-being,
and she is part of a growing movement.
“We want to show environmental defenders can use
litigation as a tool and we want the UN to build up the
capacity to enforce environmental law in courts around the
world,” she told the Guardian. “Defenders are often treated
as criminals or people who are hostile to development. That
is not the case.
3. A changing narrative coupled with legal
and institutional effective mechanisms
A key recommendation for the global recognition of the
human right to a healthy environment and development of
the post-2020 global biodiversity framework is to adopt
effective means to support the substantial contribution by
women to sustainability, including the roles of women in the
management of biodiversity and healthy ecosystems.
Beyond operating silos, integrated approaches building on
advances on human rights law, multilateral environmental
agreements and SDGs need to be further recognised and
supported as highlighted by the participants of the Peer-to-
peer Dialogue who included women and men from
grassroots communities, academics, civil society members,
lawyers, members of the judiciary and government, and
inter-governmental organisations. Women contributions’ and
expertise range from selecting seeds with valuable nutritional
qualities, to women working as legal advisers to indigenous
peoples and local communities, and legal scholars advancing
sustainability considerations in environmental and human
rights law at national and international levels. These
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contributions are often made invisible, especially those
involving courage and risk-taking often stereotyped as
domains of men. Furthermore, serious violation of the rights
of women environmental rights defenders exist such as in the
context of extractive industries; as well as in the
implementation of adverse policies in the name of
“conservation”. A change on narrative from an emphasis of
vulnerability of women and girls in developing countries to
also recognising women’s signicant and courageous
contributions to sustainability is vital for making gender
equality a reality.
References
Bosshard, P. (2016). Agua Zarca: A Stain on the Dutch and Finnish Human
Rights Record, International Rivers [online] Available at https://www.
internationalrivers.org/blogs/227/agua-zarca-a-stain-on-the-dutch-and-
nnish-human-rights-record
CBD. (n.d.a). Gender Perspectives on Biodiversity. [online] Available at:
https://www.cbd.int/gender/doc/fs-gender-perspectives-en.pdf.
CBD. (n.d.a). Sustainable Wildlife Management and Gender. [online]
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(2018). Making the Law Count: Ten Environment Justice Stories by
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Making%20the%20Law%20Count%20Final%20(1).
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Diaz et al. (2018). Assessing nature’s contributions to people, Science 19 Jan
2018, Vol. 359, Issue 6373, pp. 270–272.
Forst, M. (2016). Situation of environment human rights defenders. UN
General Assembly. Document Number: A/71/281.
Forst, M. (2019). Situation of women human rights defenders. UN General
Assembly. Document Number: A/HRC/40/60
Ituarte-Lima, C., and Kibugi, R. (2018). Co-chairs’ Summary of the Peer-to-
peer Dialogue on Weaving SDG 16 and Human Rights Law with the post-
2020 global biodiversity framework. SwedBio/Stockholm RC, International
Development Law Organization, Ofce of the High Commission of Human
Rights-Special Procedures, UN Environment and Natural Justice
Ituarte-Lima, C. (2018). ‘The guardians of the Earth’s ecosystems: Frontline
environmental defenders are critical in safeguarding healthy ecosystems.
[online] Stockholm: Re-Think Available at: https://rethink.earth/the-
guardians-of-the-earths-ecosystems/
Knox, J. (2017). Environmental Human Rights Defenders: A global crisis,
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universal-rights.org/wp-content/uploads/2017/03/EHRDs-spread.pdf
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is a dangerous business. Ecologist [online] Available at: https://theecologist.
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dangerous-business
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human-rights/guiding_principles_business_and_hhrr_en.pdf
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data.worldbank.org/indicator/SL.AGR.EMPL.FE.ZS
4. Mainstreaming human rights
principles and the ecosystem
approach into the mining sector
Claudia Ituarte-Lima and Per Stromberg
This chapter focuses on the linkages between ecosystems
services, human well-being and human rights. Human well-
being and human rights hinge on ecosystem services.
Globally, there is a growing demand for ecosystem services.
At the same time, there is increasing degradation of
ecosystems and consequently, a reduction in the capability of
ecosystems to provide services. One such economic activity is
mining, which is set for continued growth in the future. A
challenge for decision-makers is that mining often poses an
increasing demand for ecosystem services such as water and
at the same time, it contributes to serious degradation of
biodiversity and ecosystems. This chapter proposes a
framework for connecting Ecosystems and Well-being
Frameworks with SDG 16 on peace, justice and strong
institutions, and the human rights principles. As such, the
framework is a support tool to assess the full impacts of
mining in order to support sound policies with positive
social-ecological outcomes.
This chapter is based on Ituarte-Lima, C., and Stromberg, P.,
(2018) Sustainable Development Goal 16 and biodiversity:
mainstreaming biodiversity, ecosystem services and human
rights in the mining sector, Stockholm: SwedBio at the
Stockholm Resilience Centre, and Stromberg, P., Ituarte-Lima, C.
(2018) Using the Ecosystem Services Approach for Assessing
the Mining, Ecosystems and Human Rights Nexus, in UNDP
(2018) Extracting Good Practices: A Guide for Governments
and Partners to Integrate Environment and Human Rights into
the Governance of the Mining Sector, United Nations
Development Program. The authors would like to thank
Margaret Wachenfeld (Themis Research), Tim Scott (UNDP)
and Marianne Kjellen (UNDP), Sanna Due (UNDP), Ann
Pedersen (UNDP), Maria Bang (SEPA) for valuable comments
to earlier drafts of this article. The article has also greatly
beneted from feedback in the SEPA-UNDP webinars
Environmental governance of the mining sector (GOXI, 2017),
and a joint side-event co-convened by SwedBio/SRC, UNDP,
SEPA, IDLO and Natural Justice at the Convention on
Biological Diversity Subsidiary body on scientic, technical
and technological advice in Montreal, Canada (Dec. 2017).
We would also like to thank Aarushi Balani and Viveca
Mellegård for their support in the editing process.
Biodiversity refers to the diversity of life on Earth. It is
essential for the functioning of ecosystems that underpin
ecosystem services that in turn ultimately affect human well-
being. Ecosystem services are the benets people obtain from
ecosystems. However, mining operations are often allowed
without sufcient information about negative impacts in
biodiversity and ecosystem services.
Box 3. Participatory process and Acknowledgments
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1. The Ecosystem and Well-being frame-
works and their application to Mining
The framework examining the linkages between ecosystems
and human well-being developed under the Millennium
Ecosystem Assessment (see Figure 3) and the framework
under the Intergovernmental Science-Policy Platform on
Biodiversity and Ecosystem Services (IPBES) (see Figure 4)
are applied to mining as a way to analyse how mining affects
biodiversity, and ecosystem goods and services. The MEA
Ecosystems Services Framework places human well-being as
the central focus for assessment; highlights that biodiversity
contributes to its many constituents directly and indirectly;
and focuses on the interconnections between ecosystem
services and different dimensions of human well-being as
they are affected by changes in environmental quality and
quantity.
The IPBES framework and its nexus between mining,
ecosystems and human rights.
The IPBES framework is a simplied model of the complex
interactions between natural world and human societies. It
highlights the central role that institutions, governance and
decision-making play in the link among the elements of
nature, the benets that people derive from it and a good
quality of life. It aims to include a wide set of viewpoints and
stakeholders to understand the diversity of people and nature
relationships.
Figure 3. The Ecosystem Services Framework as applied to extractive industries (red rings exemplify effects
of mining on ecosystem services to human well-being, while the breadth and colour of arrows are kept
intact from the general MEA framework and hence are not adopted to the case of extractive industries).
Source: MA (2005) adapted by the authors.
Figure 4. The IPBES framework showing nexus between mining, ecosystems and human rights. Source: adapted by authors from I PBES and Diaz et al 2018
It helps to assess the impact and trade-offs that different
economic activities have on human welfare, by mapping the
effects of the mining on the contributions of nature to people
(ecosystem services), through different localities, and,
through time (Figure 4).
This framework’s visual tools provide a shared language and
common set of denitions and relationships to make complex
systems relatively pedagogical and easy to understand. They
include the main social-ecological dynamics and complexities.
The framework is important for multi-actor dialogue between
right-holders and duty bearers such as governments. It can be
applied in distinct sectors, such as the mining industry, as well
as institutions that nance mining and related infrastructure
such as dams for water provision. By clarifying and focusing
the analysis on social-ecological relationships, this conceptual
tool supports communication across disciplines and knowledge
systems and between knowledge and policy.
2. Weaving together SDG 16 with
HR principles and EW frameworks
In this section, key conceptual entry points are introduced,
which together we refer to as the EW-HR (Ecosystems Well-
being – Human Rights) framework. This framework aims to
be a legal/policy support tool to weave together Agenda
2030 in particular the Sustainable Development Goal 16,
human rights and ecosystems and well-being frameworks
(Ituarte-Lima and Stromberg, 2018).
Figure 5. The SDG16 pigeon and human rights weaving nature and good quality of life. Source: own elaboration, building on Rockström and Sukhdev 2016
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Key entry points for the EW-HR framework:
1. Principle of interconnectedness and indivisibility: connect
distinct ecosystem services with interdependent human
rights recognised in national constitutions, which in
many countries is the legal instrument with the highest
legal hierarchy. This is a helpful entry point for making a
strong case for inter-sectorial coordination, which is key
for mainstreaming human rights and biodiversity in the
mining sector. Understanding the connections between
distinct ecosystem services and human rights can provide
important information that can also serve coordination
between these Ministries and National Human Rights
Commissions, local governments, parliaments and
judiciaries. This also includes specifying the content of
the duty bearers’ obligations to respect, protect and full
human rights and safeguard healthy ecosystems, which is
recognised in Constitutional law in many countries, such
as in the Kenya Constitution.
2. The second entry point is connecting the principle of
equality and non-discrimination embedded in SDG 16.b
“Promote and enforce non-discriminatory laws and
policies for sustainable development” with the ecosystem
approach. It is important to highlight both individual and
collective dimensions when understanding the
contributions of ecosystems and biodiversity to people.
Assessing whether laws and institutions are promoting
and enforcing non-discriminatory, sustainable
development in regulating how access to ecosystem
services is distributed among distinct groups is important
in actions towards achieving SDG16. The proposed
framework can help to identify who is affected (in a
positive or negative way) by ecosystem alteration caused
by mining. After evaluating what groups are in a relatively
disadvantaged position, other tools can be weaved in to
harness the human rights, ecosystems and well-being
connections. For example, legal empowerment
methodologies intended to support people in a
disadvantaged position. Tools such as legal empowerment
can be a means to foster an enabling environment for
people to exercise human rights such as access to
information and access to remedy for themselves rather
than engaging on behalf of them in an on-going basis
(Golub, 2010). Legal empowerment methodologies such
as community protocols and paralegals can place local
communities, including women, youth and elders, on
a relatively more equal level playing eld, in dialogue,
mediation and/or court cases concerning the mining
sector. Training community environmental legal advisers
to identify and systematize actionable legal evidence can
be a means to support and catalyse collective action in
legal processes.
3. A third entry point is connecting the participation and
inclusion human rights principle embedded in SDG 16.7
“16.7 Responsive, inclusive, participatory and
representative decision-making at all levels” and 16.10
“Public access to information and protect fundamental
freedoms” with the ecosystems and well-being
frameworks. Complementary to the connections
presented in the IPBES framework, we propose to
assessing the contribution of people to nature through
exercising human rights such as freedom of speech and
expression and being able to do so without
discrimination.
Empowered right holders with reliable and
understandable public information should be able to
contribute to addressing the effects of mining and
safeguard Earth’s life support systems without any fear
(Knox 2017b). The right to information, public
participation and access to justice is interdependent and
indivisible with the right to a clean and healthy
environment as mentioned in the rst entry point
referring to the indivisibility and interrelatedness of
human rights. The right to access biodiversity-related
information as the basis for the rights of women, men,
girls and boys to be able to participate in public
consultations concerning biodiversity and ecosystem
values needs to be enshrined in law and enforced in
practice without discrimination.
4. The fourth point is connecting the accountability and
rule of law principle embedded in SDG 16.3 “Rule of law
at the national and international levels and equal access
to justice for all”, 16.5 “Reduction of corruption and
bribery in all their forms” and 16.6 “Effective,
accountable and transparent institutions at all levels”
with the ecosystems and well-being frameworks. The
reason why healthy ecosystems are degraded in the
mining sector is often due to the degradation of the rule
of law and accountability mechanisms. Hence, the
implementation of the human rights principle of rule of
law and accountability is at the core of solutions for
addressing, in practice, environmental challenges in
mining. Specically, the lack of compliance of
environmental regulation in mining activities can be
tackled through strengthening judicial mechanisms and
non-judicial complaint mechanisms. As a human rights
principle, it can also serve to guide the legal architecture
for environmental impact assessment and environmental
management plans in mining. Furthermore, legal
provisions that would trigger compulsory human rights
assessments connected to environmental impact
assessments and monitoring can be part of the synergies
between these tools for realizing human rights and
healthy ecosystems.
Systems of Life include non-use values of biodiversity. Photo: Ituarte-Lima
3. The EW-HR framework: the case of
human right to water
In 2017, the UN Special Rapporteur on Human Rights and
the Environment, Professor John Knox (2017a), made a
further step in linking biodiversity and related ecosystem
services and specifying distinct but interdependent human
rights obligations: substantive obligation, procedural
obligations and obligations concerning people in vulnerable
situations.
3.1 Substantive obligations: Using the example of
the right to water and impacts of mining
Biodiversity underpins healthy ecosystems and continued
provision of ecosystem services in turn affecting substantive
human rights such as the right to water and right to health.
Among the many distinct connections, the focus here is
on highlighting the nexus of mining impacts on ecosystem
services and the right to water. The mining industry typically
has signicant impacts on water but is also strongly reliant
on water for processing and for hydroelectric plants
supporting their high demand for energy. Water also provides
vital ecosystem services. Given its importance to many
dimensions of human well-being, in 2010, the UN recognised
the human right to safe drinking water and sanitation as a
separate right; it is also an important component of e.g. the
right to an adequate standard of living. Regional human
rights mechanisms such as the African Commission on
Human and People’s Rights, European Court of Human
Rights and the Inter-American Court of Human Rights have
also contributed to interpreting the content of the water-
related obligations, as have various courts under national
law (WaterLex and Wash United, 2014).
The right to water is a right for personal use. It does not
apply to companies or operations like the mining sector.
Instead, decision-makers must consider the mining sector’s
demand for water use in light of the rights of individuals and
the communities to water. As the UN Committee on
Economic, Social and Cultural rights in its General Comment
No. 15 (2002) highlights that as with other human rights,
the rights to water include obligations to respect, protect and
full human rights:
Respect human rights which requires States to refrain
from interfering directly or indirectly with the enjoyment
of the right to water such as by arbitrarily interfering
with customary or traditional arrangements for water
allocation or unlawfully diminishing or polluting
watersheds and water-related ecosystems through waste
from State-owned mining companies.
Protect human rights, which requires States to prevent
third parties such as non-state owned (i.e. private) mining
companies from interfering with the enjoyment of the
right to water
Full human rights requires States to adopt the necessary
measures such as sufcient recognition of this right
within the national political and legal systems, preferably
by way of legislative implementation; adopting a national
water strategy and plan of action to realize this right;
ensuring that water is affordable for everyone; and
facilitating improved and sustainable access to water,
particularly in rural and deprived urban areas.
In order to help governments and others set parameters
around the right to water, the UN CESCR also sets out the
different aspects of the right to water:
Availability – whether there is a sufcient amount of
water available within a given geographical area and
whether there is a regular supply of water over time. It is
an objective criterion, which can be measured through
quantitative data
Accessibility – has at least 4 dimensions – (i) physical
accessibility means that water must be within physical
reach and can be accessed without physical threats;
(ii) economic accessibility is often referred to as
affordability; (iii) Information accessibility of
information on water; and (iv) non-discrimination
which cuts across all dimensions of accessibility.
Acceptability – consumer acceptability of water in terms
of colour, odour, taste and cultural acceptability.
Quality – water must be safe; the state must prevent,
control and treat water-related diseases; and water
facilities and services must be of sufcient quality. This
can be dened by reference to water quality standards
issued by technically competent, internationally
recognised authorities – WHO or UNICEF (Jensen,
Villumsen and Døcker Petersen, 2014).
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3.2 Procedural obligations
Substantive rights such as right to water and right to health
often depend on procedural rights. The procedural human
rights obligations of States in relation to the environment
include the three rights covered by Principle 10 (access to
information, public participation and access to justice
including remedy). For example, States have specic
procedural obligations before granting a mining concession
or authorizing a dam, which would cause the degradation or
loss of biodiversity. These obligations include assessing the
environmental and social impacts of the proposal, including
through the ESIA processes, and facilitating that people
exercise their rights to freedom of expression and association
and public participation in the decision-making processes.
Operationalizing the right to public participation can
contribute to better informed decision-making about
ecosystem services (See d) below). Procedural rights also
include the right to access effective legal remedies for those
who claim that their rights have been violated (Knox 2013;
Ituarte-Lima, 2017).
3.3 Obligations concerning people in vulnerable
situations
Adverse impacts to ecosystems by mining activities may have
disproportionately severe effects on the enjoyment of human
rights of members of minorities or indigenous peoples who
rely directly on the ecosystems through traditional activities
such as shing. In these cases, States have heightened
procedural obligations. For example, taking positive legal
measures to ensure the effective participation of members
of minority communities in decisions, which adversely affect
their relationship with the ecosystems they depend on.
Additionally, States have obligations concerning substantive
rights such as the protection of the ecosystems themselves.
Sometimes, whole groups can be in a vulnerable situation
such as indigenous peoples or ethnic minorities but it can
also be sub-populations, such as women, youth, children and
the landless. In communities who depend directly on the
ecosystems for their livelihoods, women and children are
often the ones fetching water. Restrictions on the physical
accessibility of clean water can affect the possibilities,
particularly of girls, to attend school and hence affect the
conditions of a specic group to exercise their rights to
education (Hey, 2009).
Ecosystem degradation often has its most direct and
severe impact on people under poverty conditions in rural
settings. Wealthier segments of the population control access
to a greater share of ecosystem services and can often
purchase alternative access to services, or offset local losses
of ecosystem services by shifting production and harvest to
other regions. For rural people in poverty situations, who are
often the most affected by mining, substitutes for access to
biodiversity and ecosystem services and alternative choices
are often very limited. This has led to many conicts between
competing social groups or individuals over access to and use
of biological products and ecosystem services. For these
reasons, disaggregating the ecosystem services used by
different sections of society and understanding and
addressing how they will be impacted by mining operations
can support the operationalization of the human rights
principle of equality and non-discrimination (Daw et al.,
2011; Ituarte-Lima et al., 2014).
3.4 Using the EW-HR Framework to understand and
act upon the impacts of mining on ecosystem services
and impacts on human rights
Using the right to water as an example, Table 3 gives an
example of how the EW-HR Framework can also be used to
understand and act upon the impacts of mining on ecosystem
services and impacts on human rights. The Framework can
Category of
Ecosystem
Service
Direct or
Indirect
Impact of
Mining
the EW dimension of the EW-HR Framework to
highlight how mining affects human
well-being through:
Associated links to Human Rights
(Interna-tional Covenant on Economic, Social
and Cultural Rights 1976)
Provisioning Depletion of
groundwater /
unsustainable
extraction of
surface water
• A strong link between the provisioning service
provided by water –> negative impact on basic
material for good life as
a dimension of human well-being, would be
indicated by the broad arrow.
• A low potential for mediation by socio-
economic factors between the provisioning
service water purication –> basic material for
good life as a dimension of human
well-being, would be indicated by the light
colour of the arrow
Right to an adequate standard of living, Right
to water, Right to food and Right to education
Mining impacts can limit the physical
accessibility of clean water e.g. by diverting
rivers in order to provide for dammed water
used in hydroelectric plants for mining
operations –
which limits use for productive purposes
such as agriculture affecting the right to
food
can affect the time spent to collect water
and hence the possibilities particularly of
girls to attend school and to exercise their
rights to education (Hey, 2009)
Regulating Contamination
of watersheds
• A strong link between the provisioning service
provided by water –> negative health impact as
a dimension of human well-being, would be
indicated by a broad arrow.
• A weak potential for mediation by socio-
economic factors between the provisioning
service provided by water –> health would be
indicated by light colour of the arrow. This
would mean that it is not possible to substitute
the water with something else in order to keep
the impact on human well-being unchanged.
Right to life, Right to health & Right to water
Water pollution by mining may affect:
quality of water drinking polluted water
may impact the health or life of people;
pregnant women and children may be at a
greater risk.
Colour, odour and taste of water used for
personal or domestic use with impacts on
acceptability of the water. This in turn may
prompt people to resort to unsafe water
alternatives
Regulating Deforestation
in order to
enable open pit
mining reduces
the ood
regulation
ecosystem
service
• A strong link between the regulating service
ood regulation –> security as a dimension of
human well-being, would be indicated by a
broad arrow.
• A weak potential for mediation by socio-
economic factors between the provisioning
service provided by water purication –>
security from ooding would be indicated by
light colour of the arrow. This would mean that
it is not possible to substitute the ood control
with something else in order to keep the impact
on human well-being unchanged.
Right to an adequate standard of living &
Right to Food & Right to adequate housing
Mining impacts can prompt ooding such
as by dam breaks for e.g. when these dams
are not strong enough to withstand
torrential currents during the typhoon
season or earthquakes,, or emergency
releases, or through deforestation that
reduces nature´s own ood control. These
impacts can in turn affect local cultivation
grounds causing food insecurity and also
affect housing areas.
Cultural Contamination
of watersheds
and inundation
of land for
dams to
provide water
for mining
A strong link between the cultural service
spiritual aspects –> possibly all aspects of human
well-being including health and good social
relations as a dimension of human well-being,
would be indicated by a broad arrow.
• A weak potential for mediation by socio-
economic factors between the cultural service
provided by the spiritual aspects –> possibly all
aspects of human well-being would be
indicated by light colour of the arrow. This
would mean that it is not possible to substitute
the spiritual aspects from the ecosystem service
with something else in order to keep the impact
on human well-being unchanged.
Indigenous peoples and local communities
rights to ownership and control over their
ancestral lands and resources
Inundation and siltation by large-scale
corporate mining and associated dams can
cause the dislocation of indigenous
peoples and local communities from their
ancestral lands and traditional livelihoods
such as swiddens, hunting, grazing
livestock, household gardens with
vegetables and traditional medicinal
plants.
Table 1 Using the ES Framework to Consider the Right to Water in Mining (examples)
Photo: Bent Christensen/Azote
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help identifying different ecosystem services such as
protection against erosion and purication of water, as well
as how mining affects human rights of different groups.
Key dimensions of the EW-HR framework are as follows:
time horizons (short-term, medium-term and long-term).
spatial dynamics / scales (local, regional, global) (for
example, a global market may lead to regional loss of
forest that increases ood magnitude along a local stretch
of a river.
factors that indirectly affect ecosystems, such as
population, technology, and lifestyle.
that can lead to changes in factors directly affecting
ecosystems, such as the catch of sheries or the
application of fertilizers to increase food production.
The resulting changes in the ecosystem cause the
ecosystem services to change
• thereby affect human well-being.
Mining impacts on e.g. water have wide spatial distribution,
and often wide ranging and irreversible effects through time.
Therefore, what may appear as a sound use of water today
needs to be assessed through the lens of the full user chain of
water both today and in the future, and locally and beyond.
Mining needs to be carefully considered in the broader
context of how it may affect such important matters of
national security as the current and future ability of the
country to supply its population with sufcient water and
food, and the long term-prospects of local and regional
economies. Such effects on water can be of substantial
importance for local livelihoods but also regionally or even
nationally and internationally.
4. The EW-HR framework: necessary
(but not sufcient on their own) criteria for
mining, guided by Human Rights Principles
The EW-HR framework described above is here aimed to
enhance policies for mining. Human rights principles are
applied to such mining challenges where we conceive that
policy mistakes are particularly common, and provide a legal
tool to motivate the use of the criteria. Moreover, it shows
how weaving the human rights principles in SDG 16 helps
internationally agreed biodiversity priorities, exemplied by
the implementation of international biodiversity law
commitments in terms of the CBD.
Assessment criterion 1: Is the mining venture too risky in
terms of likely bankruptcy?
Guiding HR principle: Principle of Accountability and the
Rule of law
Box 4. Correspondence between and the human right principles
Assessment criterion 2: Are societal benets of the project
larger than societal costs? (without accounting for
opportunity cost)
Guiding HR principle: Interdependency and
Interrelatedness & Principle of Participation and Inclusion
Assessment criterion 3: Does the project mean the most
benecial use of society´s resources?
Guiding HR principle: Interdependency and
Interrelatedness & Principle of Participation and Inclusion
Assessment criterion 4: Do the revenues from the project
reach the nation’s people without discrimination?
Guiding HR principle: Accountability and the Rule of Law
& Principle of Equality and Non-discrimination
Box 7. Correspondence between Assessment criterion 4 and the
human right principles
These assessment criteria are basic business criteria. It is
worth recognising that the material motivating the benets
of a project are often provided by the project proposer, a
vested interest. Naturally, the potential benets need to be
scrutinized with the same rigour as the potential negative
impacts of the project. Firms and policy planners may make
different judgments about the riskiness of projects. This can
be due to rms understating the nancial cost of future
environmental liabilities. Firms may commit this wrongdoing
either in a planned way, or, become aware of it during the
mining process. For different reasons, such revised
information may not reach the policy makers who are also
the main duty bearers of human rights.
CBD implications: Often, there are not sufcient funds
after a bankruptcy to cover environmental liabilities.
Similarly, even if economic securities are deployed, these may
not work as intended (e.g. because they are too low, or for
reasons outlined in criteria 4). Hence, these liabilities are
either left unaddressed, meaning a direct effect on the
environment. Alternatively, tax money is invested in cleaning
up the environmental debt of the mine. In contrast, avoided
bankruptcy frees up such tax money to invest in other
biodiversity conservation and sustainable use activities.
Hence, adhering to the Principle of Accountability and the
Rule of law assists compliance with CBD through reduced
risk of diverting resources to cleaning up the pollution from
bankrupted mines and instead investing these resources in
projects. For example, supporting local agroforestry systems
rich in biodiversity that further the CBD goal of biodiversity
conservation and sustainable use and the protection and
fullment of human rights.
Duty bearers have a margin of discretion for balancing
environmental protection and other legitimate societal goals,
however the balance must be reasonable, and never result in
unjustied, foreseeable infringements of human rights (Knox
2017). To contribute to clarifying whether a reasonable
balance has been struck, human rights bodies have identied
key factors in the context of environmental harm and
included whether the project in question is the result of a
process that complied with the corresponding procedural
obligations; whether it is non-retrogressive; whether it is
non-discriminatory; and whether it is in line with
international and domestic standards (A/HRC/25/53, para.
53 56). States should also fully implement their laws
protecting human rights related to the environment in
striking the balance between environmental protection and
other legitimate societal goals.
This assessment criterion 2 (see Box 5) entails a comparison
of societal benets and costs, without accounting for other
potential uses of the resources (see Criteria 3). Examples are
income from taxes and royalties, direct expenditures such as
when subsidizing infrastructure used by the mine, or hidden
costs. Clearly, the revenues from the project need to exceed
the host country´s net cost for the project.
CBD implications: States may use more tax money than
they receive from taxes from a mining venture. When there is
more tax expenditure than tax gain from mining ventures,
economic resources are diverted that could otherwise be
invested in nature conservation and sustainable use. Hence,
adhering to the Human Rights Principle of Interdependency
and Interrelatedness & Principle of Participation contributes
to compliance with the CBD through reduced risks of
diverting resources from investing in the CBD goal of
biodiversity conservation.
This assessment criterion 3 (see Box 6) adds the opportunity
cost of resources to the comparison of societal costs and
benet criteria. It is not sufcient that the mining venture
contributes more than it receives from society (Criterion 2).
It also needs to be established that the resources such as the
minerals, the ecosystem services, the labour, would not
contribute more to society if used in an alternative way. This
is the so-called opportunity cost of resources,28 for example,
using these resources for agriculture and shery activities,
and to households. Hence this third criterion also needs to
account for future use of resources. For example, it may be
the case that the timing is not right for extracting the
minerals. From the point of view of a foreign investor, there
may not be time to wait for higher international raw
material prices. However, in economizing with a nations’
resources it may in some cases be preferable to wait for
higher raw material prices in order to extract a higher
economic rent from the mineral resource.
CBD implications: This reasoning applies to all four criteria:
adhering to the HR Principle: Interdependency and
Interrelatedness & Principle of Participation and Inclusion
contributes to compliance with CBD through increased
likelihood of saving the tax basis that could be used to invest
in the CBD goal of biodiversity conservation and sustainable
use.
Assessment criterion 4 (see Box 7) concerns institutions for
the correct use of benets and distributional aspects. Even if
criterion 3 is fullled, and the mining venture provides
sufcient net-surplus benets to the country, there are risks
that these benets are diverted and do not contribute to
legitimate societal goals.
CBD implications: Adhering to the Principle of Equality
and Non-discrimination and the Principle of Accountability
and the Rule of law helps towards compliance with CBD
through reduced risk of losing resources that could be used
to invest in the CBD goal of biodiversity conservation,
sustainable use and benet sharing. The implications
explained in Criterion 3 are also applicable to Criterion 4.
5. Concluding remarks
Mainstreaming biodiversity in the mining sector is necessary
for safeguarding the contributions of nature to people that
support the full enjoyment of a wide range of human rights,
including the rights to life, water, health, and an adequate
standard of living. Here tools for guiding policy makers are
proposed, enabling them to trace the links between mining,
environment, human well-being, and human rights. In order
to protect human rights, States have a general obligation to
safeguard biodiversity and ecosystems as they affect human
welfare. In turn, enabling conditions to exercise rights in the
mining sector can contribute to safeguarding life support
systems. For example, the right to public participation in
environmental impact assessments in mining, access to
information e.g. base-line data concerning the status of
biodiversity and ecosystems before a mining concession is
granted, and access to justice in environmental matters.
Below we mention key areas where the Ecosystem and
Human Well-being – Human Rights (EW-HR) Framework
aims to contribute. They are followed by recommendations
for different groups. It is worth noting that some
recommendations to one group may also be relevant to other
groups.
28. It is useful to have this as a criterion on i ts own, rather than to integrate
it in criterion 2, in order to make the difference betwe en the different ele-
ments more clear.
Box 5. Correspondence between Assessment criterion 2
and the human right principles
Box 6. Correspondence between Assessment criterion 3
and the human right principles
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The operationalization of human rights principles in mining
decision-making simultaneously helps to achieve SDG 16,
and safeguard biodiversity and healthy ecosystems.
States, the main duty bearers of human rights, can use
the policy support tool proposed in this policy paper, the
EW-HR Framework, to:
Assess and clarify key impacts of mining for sound legal
and policy making. This, in line with the general human
rights obligation to protect biodiversity and ecosystem
services and also the full enjoyment of interdependent
human rights;
Highlight the urgent need to properly assess how mining
affects biodiversity and ecosystems services, across
locations and time;
Promote legal and policy coherence by mainstreaming
cross-cutting dimensions of Agenda 2030, specically
sustainability and human rights principles in the mining
sector.
The EW-HR framework can contribute to assessing the full
picture of the impacts of mining for informed decision-
making. In contrast to a fragmented analysis (limited to, for
example, hectares of trees affected in a mining project site,
which may be compensated for elsewhere with other trees),
the EW-HR framework helps to assess impacts beyond the
extraction site and further ahead in time. In this context, the
full picture of the impacts of mining means assessing relevant
geographical connections, for example, impacts of mining
downstream in contrast to solely in the mining project site.
The proposed framework also helps to identify the impacts
prior to a mining concession, during the mining exploitation
active time, and after the mine closure - in contrast to only
the time that the mining project is commercially active. In
line with the HR principle of indivisibility and
interrelatedness of human rights, the EW-HR framework
helps to assess interrelated human rights obligations such as
those associated with the right to clean drinking water and
the general obligation to safeguard biodiversity and
ecosystems.
Mining and related infrastructure industry, as well as
investors in mining companies, can use the EW-HR
framework to make sure they respect human rights through
actions that may affect the contributions of nature to people,
including by:
Complying with the human rights principles specied in
this policy report in all actions that may affect
biodiversity and ecosystems, including by being
transparent and accountable vis-à-vis public authorities
and civil society about the full picture of impacts of their
operations;
Following the CBD relevant guidelines (e.g. CBD
Voluntary guidelines for safeguards and Akwé:Kon
voluntary guidelines) and recommendations of UN
Special Rapporteurs relevant to mining (e.g.
recommendations of the Special Rapporteur on human
rights and environment concerning biodiversity (A/
HRC/34/49) and the Special Rapporteur on the rights of
indigenous peoples with respect to extractive activities
(A/HRC/24/41)) and;
Avoid applying for concessions for mineral exploitation
and related infrastructure such as dams in protected areas
or indigenous and community conserved areas.
Civil society organisations are encouraged to use the
proposed EW-HR Framework as a means for:
Contributing to prevent and address the effects of mining
on life support systems for a prosperous future for
current and future generations. Exercising the right to
information, public participation and access to justice, is
interdependent and indivisible with the right to a clean
and healthy environment;
Systematizing and sharing good practices, for example,
with groups using legal empowerment methodologies and
community protocols and paralegals that place local
communities, including women, youth and elders, on a
more level playing eld, in dialogue, mediation and/or
court cases concerning the mining sector.
Further Reading
Daw, T., Brown, K., Rsoendo, S. and Pomeroy, R. (2011). Applying the
ecosystem services concept to poverty alleviation: the need to disaggregate
human well-being. Environmental Conservation. 38(4), 370–379. Available
at: doi: 10.1017/S0376892911000506
Diaz et al. (2018). Assessing nature’s contributions to people, Science 19 Jan
2018, Vol. 359, Issue 6373, pp. 270–272.
Department of Environmental Affairs, Department of Mineral Resources,
Chamber of Mines, South African Mining and Biodiversity Forum, and
South African National Biodiversity Institute. (2013). Mining and Biodiversi-
ty Guideline: Mainstreaming biodiversity into the mining sector. [Online]
Pretoria: Typo Colour Specialists cc. Available at: http://biodiversityadvisor.
sanbi.org/wp-content/uploads/2012/09/MINING-GUIDELINES-2013-e-
mail.pdf.
GOXI. (2017). The Goxi Learning Series – September 2017-April 2018:
Mainstreaming Biodiversity, Ecosystem Services and Human Rights into the
Mining Sector. [Online] Available at: http://api.ning.com/les/zBuXAPjY2N4
U6M1DRDGKtUSaxFYWmGoeDM7U*kU6UqQ8ZXNLW2jslHaQ5I1AQ
upPLs4jTr3NPEuYYOcDl-VNudShPdOpe*5g/
KnowledgeProductBiodiversityandHRDecember17.pdf.
Hey, E. (2009). Distributive justice and procedural fairness in global water
law. In: Ebbesson, J. and Okowa, P. (eds.) Environmental Law and Justice in
Context. Cambridge: Cambridge University Press, pp. 351–370. Available at:
doi: 10.1017/CBO9780511576027.019.
ICMM. (2015). A practical guide to catchment-based water management for
the mining and metals industry. International Council on Mining & Metals.
[Online] London: ICMM. Available at: https://www.icmm.com/website/
publications/pdfs/water/practical-guide-catchment-based-water-
management_en
IFC. (2014). Water, Mining and Communities: Creating Shared Value
through Sustainable Water Management. [Online] Washington DC: IFC.
Available at: http://commdev.org/userles/IFC_140201_Water%20
Mining%20Communities_0519c%20web.pdf
Ituarte-Lima, C. (2017). Transformative biodiversity law and 2030 Agenda:
mainstreaming biodiversity and justice through human rights. In: Hutter,
B.M. (Ed.) Risk, Resilience, Inequality and Environmental Law. Cheltenham,
UK: Edward Elgar Publishing, pp.84-107. Available at: doi:10.4337/978178
5363801.00013.
Ituarte-Lima, C., and Stromberg, P. (2018). Sustainable Development Goal
16 and biodiversity: mainstreaming bio- diversity, ecosystem services and
human rights in the mining sector [Online] Stockholm: SwedBio at
Stockholm Resilience Centre. Available at: https://swed.bio/wp-content/
uploads/2018/05/SUNI-218.pdf
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(2014). Biodiversity nancing and safeguards: Lessons learned and proposed
guidelines. In: 12th Conference of the Parties of the Convention on Biological
Diversity. Stockholm: SwedBio/Stockholm Resilience Centre at Stockholm
University
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perspectives. Industry and Environment. 23. Available at: http://www.unep.
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United Nations Development Group. (2003). The Human Rights Based
Approach to Development Cooperation: Towards a Common
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common-understanding-among-un-agencies
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Division of Early Warning and Assessment (DEWA) – UNEP. Available at:
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rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable environment, Compilation of good practices. UN OHCHR.
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rights obligations relating to the enjoyment of a safe, clean, healthy and
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Knox, J. (2017b). Report of the Special Rapporteur on the issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable environment, on his visit to Madagascar*. UN OHCHR. Report
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WaterLex and WASH United. (2014). The human rights to water and
sanitation in courts worldwide: A selection of national, regional and
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Global-Water-Tool
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5. Connecting the dots between
Human Rights, Environmental
Impact Assessments and the
Convention on Biological Diversity
Rodrigo Martinez-Peña, Claudia Ituarte-Lima, Isabell Kempf
and Grace Wong
1. Introduction
In this article, we present two different legal/policy
instruments for implementing the human rights principles
to biodiversity governance. Firstly, we address biodiversity
guidelines that serve in facilitating the design,
implementation and assessment of policies and strategies.
Specically, we use as an entry point the CBD voluntary
guidelines for safeguards in biodiversity nancing (Ituarte-
Lima et al. 2018a). The purpose of these guidelines is to
safeguard both biodiversity and human rights in biodiversity
nancing mechanisms, such as payment for ecosystem
services, biodiversity offsets and ofcial development
assistance, inter alia. Metaphorically speaking, this
international legal/policy instrument serves to ‘ne tune’
other more applied legal/policy instruments at national level.
Secondly, we utilize the CBD voluntary guidelines as a
framework to analyse a concrete policy instrument whose
implementation takes place at national level, namely
environmental impact assessment (EIA). We use a case study
approach to analyse the environmental and social impact
assessment policy instrument (ESIA) from Lao People’s
Democratic Republic, which was tested, piloted and
implemented with international development assistance
from the UNDP-UNEP Poverty and Environment Initiative,
the Finnish Environmental Management and Support
Programme (EMSP) and Swiss Centre for Development
and Environment (CDE).
In this article, we unveil connections between human
rights principles, the CBD voluntary guidelines for
safeguards, ESIA in Lao PDR and international cooperation.
The ndings presented aim to provide insights on how to
adapt EIA national systems to address social-ecological
dimensions, by means of implementing Sustainable
Development Goal 16, the Framework Principles on Human
Rights and the Environment, and the human right to a safe,
Nam Gnouang dam on a tributary of the Nam Theun River. Photo: Eric Baran
clean, healthy and sustainable environment. We close the
chapter with recommendations for States, ofcial
development cooperation agencies and business sector.
Recommendations were enriched through the multi-actor,
Peer-to-peer Dialogue on Weaving Human Rights and
Biodiversity with SDG16 that took place in Machakos,
Kenya the 29th-31th of May, 2018, whereby time was
dedicated to examine the connections between human rights,
environmental impact assessments, biodiversity and healthy
ecosystems.
2. CBD Voluntary Guidelines for Safeguards
as a Means to Apply a Human Rights-based
Approach to Biodiversity Governance
The CBD voluntary guidelines for safeguards are considered
an instrument suitable to select, design, evaluate and adapt
policies and strategies to protect biodiversity and society
from the risks of biodiversity nancing mechanisms (see the
CBD guidelines in Box 8). We argue that CBD voluntary
guidelines for safeguards are additionally useful to adopt a
human rights approach to biodiversity governance. Our
argument is based on the fact that voluntary guidelines t
human right principles (see Table 5 for further details).
2.1 Guideline (a): Biodiversity underpins local
livelihoods and resilience
Guideline (a) follows the human right principle of
indivisibility, interdependence and interrelatedness, which
can be understood as follows, “the enjoyment of one right
(or group of rights) requires enjoyment of others – which
may or may not be part of the same ‘category’” (Whelan
2008).
Biodiversity is a constitutive part of the environment to
which the right to a safe, clean, healthy and sustainable
environment refers. It has been recently recognised that
rights to health, life, food, water and culture are supported
by ecosystem services, and that biodiversity is necessary for
ecosystem services (UN General Assembly 2017). If the right
to a safe, clean, healthy and sustainable environment is
violated, the enjoyment of biodiversity dependent rights will
Human rights based
approach principles
CBD Guidelines for Safeguards in
BFM
Indivisibility,
interdependence and
interrelatedness
(a). Biodiversity underpins local
livelihoods and resilience
(c). Local and country-driven/specic
processes linked to the
international level
Equality and non-
discrimination &
participation and
inclusion
(b). People’s rights, responsibilities
and effective participation
Accountability and
the rule of law
(d). Governance, institutional
frameworks, transparency,
accountability and compliance
Table 5. Fit between human rights principles and CBD voluntary
guidelines for safeguards
be compromised. Guideline (a) captures this relation by
addressing biodiversity and its contribution to livelihoods
and wellbeing, and by adopting a systemic perspective to the
relation between society and ecosystems. Furthermore, it
highlights the relation between the right to culture and the
right to a sustainable environment by taking into account
intrinsic values of biodiversity that may relate to traditional
and local ecological knowledge.
2.2 Guideline (b): People’s rights, responsibilities and
effective participation
Guideline (b) ts with the principles of equality and non-
discrimination, as it incorporates a criterion of equality in
dening both responsibilities and rights. Additionally, it
incorporates the principle of effective participation by stating
that, “all actors concerned” should be taken into account.
Furthermore, it incorporates prior informed consent and
emphasizes participation of less privileged groups such as
indigenous people and local communities.
2.3 Guideline (c): Local and country-driven/specic
processes linked to the international level
Guideline (c) ts with human right principle of indivisibility,
interdependence and interrelatedness. It states that
safeguards should align international agreements that
Source: own elaboration based on UNMG (2003) and CBD Guidelines for
Safeguards in BFMs
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Box 8. CBD guidelines for safeguards in biodiversity nancing mechanisms (UNEP/CBD/COP/DEC/XII/3).
Box 9. Framework principles 8 and 16 on human rights an the
environment (UN General Assembly 2018)
(a). Biodiversity underpins local livelihoods and resilience. The role of biodiversity and ecosystem functions for local livelihoods
and resilience, as well as biodiversity’s intrinsic values, should be recognised in the selection, design and implementation of
biodiversity nancing mechanisms;
(b). People’s rights, responsibilities and effective participation. Rights and responsibilities of actors and/or stakeholders in
biodiversity nancing mechanisms should be carefully dened, at national level, in a fair and equitable manner, with the
effective participation of all actors concerned, including the prior informed consent or approval and involvement of indigenous
and local communities, taking into account, the Convention on Biological Diversity and its relevant decisions, guidance and
principles and, as appropriate, the United Nations Declaration of the Rights of Indigenous Peoples;
(c). Local and country-driven/specic processes linked to the international level. Safeguards in biodiversity nancing
mechanisms should be grounded in local circumstances, be developed consistent with relevant country-driven/specic
processes as well as national legislation and priorities, and take into account relevant international agreements, declarations
and guidance, developed under the Convention on Biological Diversity and as appropriate, the United Nations Framework
Convention on Climate Change, international human rights treaties and the United Nations Declaration of the Rights of
Indigenous Peoples, among others;
(d). Governance, institutional frameworks, transparency, accountability and compliance. Appropriate and effective institutional
frameworks are of utmost importance for safeguards to be operational and should be put in place, including enforcement and
evaluation mechanisms that will ensure transparency and accountability, as well as compliance with relevant safeguards.
Framework principle 8
“To avoid undertaking or authorizing actions with
environmental impacts that interfere with the full
enjoyment of human rights, States should require the
prior assessment of the possible environmental impacts of
proposed projects and policies, including their potential
effects on the enjoyment of human rights.
Framework principle 16
“States should respect, protect and full human rights in
the actions they take to address environmental challenges
and pursue sustainable development.”
incorporate human rights, such as human right treaties, the
United Nations Framework Convention on Climate Change,
and the United Nations Declaration of the Rights of
Indigenous Peoples.
2.4 Guideline (d): Governance, institutional frame-
works, transparency, accountability and compliance
Guideline (d) ts the human right principle of accountability
and the rule of law as it provides concrete means to
Muang Khua Akha woman. Photo: Moto Lao Xe Kaman dam project. Photo: Frédéric Glore
operationalize this principle through institutional
frameworks, mechanisms of enforcement and evaluation for
guaranteeing transparency, accountability, and compliance
with related safeguards.
3. Environmental Impact Assessment
Environmental Impact Assessment (EIA) is a formal study
conducted prior to making a decision on and implementation
of a policy or a project. It is used to analyse the policy or
project’s potential effects on the environment and in some
cases also includes an evaluation of whether impacts can be
mitigated and managed (UNEP 2010). Recently, the UN
rapporteur of the HR to a healthy environment pointed out
that, in order to protect the environment States should take
the procedural measures to, Assess the social and
environmental impacts of all proposed projects and policies
that may affect biodiversity” (UN General Assembly 2017).
Moreover, the UN appointed rapporteur developed
framework principles that recognise a relation between
environmental assessment and the full enjoyment of human
rights (see Box 9). Monitoring performance and compliance
of the EIA and Environmental Management Plans, if
implemented adequately, are recognised as a tool to
implement transparency and accountability. In national and
international development nancing and ofcial development
assistance, EIA can serve as a procedural safeguard for the
full enjoyment of human rights, including those of
indigenous peoples and local communities, and for the
conservation and sustainable use of biodiversity.
4. Lessons Learned from ESIA in Lao PDR
Lao People’s Democratic Republic (PDR) has received a high
inow of foreign direct investment during the last decades,
which has driven remarkable economic growth (World Bank
2017). However, foreign direct investments in the mining,
biofuel, hydropower, forestry and agriculture sectors have
signicantly contributed to deforestation, land cover
conversion, pollutants spills, erosion, and damage to
waterways and sh stocks (UNEP-UNDP Poverty-
Environment Initiative 2010). These changes have had
detrimental impacts on biodiversity, healthy ecosystems and
human rights – such as the right to safe, clean, healthy and
sustainable environments – of local communities in spite of
regulations addressing these issues (Regulation on
Environment Assessment in the Lao PDR 2000). In the last
decade, the government of Lao PDR has aimed to take a
series of measures to minimize negative impacts of foreign
direct investment while maximizing the benets. One stream
of Lao PDR’s policy has focused on strengthening the ESIA
process. Over the past decades, several development
programs have supported the ESIA, from the drafting and
reviewing of the policy instrument to its implementation
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through capacity building and development of guidelines
and pilot testing. These included the Poverty-Environment
Initiative (PEI) - an UNDP-UNEP programme addressing
country-specic poverty-environment nexus – the Finnish-
funded Environmental Management and Support Programme
(EMSP), replacing the earlier Swedish Strengthening
Environment Management, and the Swiss-funded Centre
for Development and Environment. The role of the PEI is
highlighted in this paper, as its support is focused on
integrating human rights and environmental safeguards into
national development planning, including regulating foreign
direct investment (UNEP-UNDP 2015). Since 2009, PEI has
supported Lao PDR to transition towards a pro-poor and
environmentally sustainable trajectory, which included
strengthening of EIA as one of the strategic streams
(UN PEI 2015).
Although ESIA has been integral part of laws regulating
natural resources and land concessions (e.g. Water and Water
Resources Law 1996, Mining Law 1997, Law of Minerals
2011), compliance was very uneven across the country and
associated rules and procedures were unclear. There wasn’t
enough capacity or resources to monitor investments and
agreements with investors were made before conducting EIA,
often without the participation of all the stakeholders in
consultations (Jusi 2010, Poverty-Environment Initiative Lao
PDR 2010a, Poverty-Environment Initiative Lao PDR
2010a) (see Box 10 that highlights some challenges in ESIA
implementation). Because of these issues, Lao PDR and PEI’s
strategy was to strengthen EIA regulatory framework.
Box 10. The challenges and loopholes of ESIA in Lao PDR
Understanding cross-sector impacts on livelihoods and biodiversity:
Laos has taken up the gauntlet of implementing its ESIA regulations to safeguard against negative social and environmental
impacts in the development process. An ESIA or IIE is mandated of all development projects and is typically carried out by the
project developer for its individual project. In the case of Laos, where hydropower dams and large-scale plantations have been
some of the key driving forces behind economic growth, the cumulative and cross-sector effects of both types of projects have
had multiple cascading impacts on local livelihoods and environmental degradation (Ian and Barney 2017). The livelihood
strategies of local villagers in areas along the Mekong often encompass river and land ecosystems (Baird et al. 2015, Barney
2007). As such, the local outcomes of hydropower and plantation projects can only be fully understood when their interventions
and effects are considered in relation to each other, and to local livelihood and resource management strategies. Moreover, these
cascading socio-ecological transformations can also undermine developers’ efforts at meaningful mitigation action and
livelihood compensation.
Scientic quality is part of a meaningful consultation process for ESIAs:
There was a recent report that an official impact assessment for a new Lao dam being reviewed at the Prior Consultation meeting
led by the Mekong River Commission has been directly copied and pasted from a previous report for another dam about 400 km
upstream, including “at least 90 per cent of the Social Baseline Condition section … including photos, tables and text” (Voa News
2018). Hydropower is the only sector that examines cumulative effects of projects but with more than 140 dams planned for the
Mekong and its tributaries, the scientic quality of these assessments is of critical importance to understand the far reaching
social and ecological consequences. Civil society partners expressed concern that there has not been any meaningful public
participation in the preparation of the assessment, since the” Public Involvement section is an almost exact copy of the … (other)
report, with the main change being the name of the dam”. They argued that without a scientically robust report, the Prior
Consultation process would merely be relegated as an item on the checklist for rubber stamp approval.
Lessons learned from Lao PDR’s government and
international development assistance processes relevant to
EIA have also specic connections with biodiversity and
healthy ecosystems (see Table 6 and Table 7). For
understanding further these connections, lessons have been
categorised below according to the CBD voluntary guidelines
for safeguards.
4.1 Lessons learned from looking at ESIA in Lao PDR
through the lens of guideline (a) Biodiversity under-
pins local livelihoods and resilience and HR principle
of interconnectedness and indivisibility
Recognising the underpinning role of biodiversity for human
rights. The Laotian Constitution (2003a) allocates the
responsibility of protecting the environment and natural
resources to ‘all organisations and citizens’. This provision
can be interpreted as conrming the State’s human rights
obligations related to biodiversity and healthy ecosystems.
Human rights - such as the right to life, health and food -
depend on ecosystems that can provide what is necessary for
people to live and biodiversity underpins healthy ecosystems
(UN General Assembly 2017).
Safeguarding places of high bio-cultural value. According
to the EIA Decree, investment projects are divided in two
categories depending on their potential impact:
Environmental and Social Impact Assessment (ESIA) or the
Environmental Evaluation (IEE) (Decree on Environmental
Impact Assessment 2010a), which is less stringent. If an
investment project is likely to affect sites of either high
Provisions Biodiversity related human rights provisions Lessons learned from the case
Biodiversity Substantive It is the duty of all organisations and citizens to protect the
environment (Art. 19. Laotian Constitution).
It could gain from recognising
biodiversity as underpinning
ecosystem services, on which
human rights depend stantive
Procedural Ministerial Agreement No. 8056/ MONRE (Remarks)
establishes that if an investment project is likely to affect sites
of high value either environmen-tal or social, conducting the
most comprehensive EIA is mandatory.
Environmental Impact Assessment Guidelines (Appendix 9 –
2.1) contain a system for evaluation of impacts on biodiversity
that is based on scien-tic knowledge.
Ministerial Agreement No. 8056/ MONRE (Remarks) species
with high level of detail what type of projects should
undertake either ESIA or the lesser strict study IEE.
Land use rights are granted to customary users (art.26. Decree
on the Implementation of the Land Law No. 88/PM).
Article 17 of Laotian Constitution establishes that ‘The State
protects the property rights (such as the rights of possession,
use, usufruct and disposition)’
This safeguard could gain from
speci-fying which impacts on
biodiversity and ecosystems are
not allowed.
The evaluation system could gain
from including values from other
knowledge systems.
High level of specicity makes
proce-dures easier to comply,
assess and monitor
Recognition of customary rights
could gain from coherence with
procedural safeguards preventing
legalization of involuntary
re-settling.
Social Substantive Land use rights are granted to customary users (art.26. Decree
on the Implementation of the Land Law No. 88/PM).
Article 17 of Laotian Constitution establishes that ‘The State
protects the property rights (such as the rights of possession,
use, usufruct and disposition)’
Recognition of customary rights
could gain from coherence with
procedural safeguards preventing
legalization of involuntary re-
settling.
Cultural Substantive Informed public involvement free of power abuse is a joint
responsibility of both the government and the project
developer (Ministerial Instructions No. 8029/MONRE and
8030/MONRE). Additionally, local population hold the right to
participate in all the EIA-related discussions at all government
levels (Decree No 112/PM).
Approval of EIA is mandatory before investment projects can
begin (Ministerial Instructions No. 8029/MONRE and 8030/
MONRE)
Project developers must compensate project-affected persons
for loosing land use rights, means of production and assets
(Art. 6 Decree on Compensation and Resettlement
Management in Development Projects No. 192/PM). Likewise,
project developers must compensate cultural losses (Art. 3;
Decree on Compensation and Resettlement Management in
Development Projects No. 84)
Project developers have the responsibility of funding public
involvement and making it effective (Art. 8; No 112/PM On
Environmental Impact Assessment; Ministerial Instructions
No. 8029/MONRE and 8030/MONRE)
Project-affected persons hold the right to submit a proposal to
the government regarding compensation, resettlement, and
rehabilitation of their livelihood from the development
project; (Art. 3; Decree on Compensation and Resettlement
Management in Development Projects No. 84)
Several provisions could jointly
achieve FPIC if project-affected
persons and local stakeholders
have and enjoy the right of veto.
If compensation is not linked to
FPIC, it risks to legalizing cultural
loss or involuntary displacement.
As interests of the public and
project developers might be
opposed, a third party could
undertake participation
responsibilities.
Access to grievance mechanisms
is key to operationalize this
procedural safeguard.
Table 6. Lessons learned from safeguard-related legal provisions of the ESIA regulatory framework in Laos PDR
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biological or social value, according to other regulations,
it is mandatory to conduct the most comprehensive EIA
(MONRE 2013a). Although conservation forests and
UNESCO areas are recognised, this safeguard could gain
from specifying other social, cultural, biodiversity and
ecosystems related criteria of “no-go areas” such as
customary lands or ecologically fragile areas, which are not
formally recognised.
Integrating values from different knowledge systems.
Although ministerial regulations (MONRE 2013b) state that
knowledge of local stakeholders and project-affected persons
regarding impacts on biological aspects must be included in
the environmental impact assessment, the system that
evaluates the relevance of biodiversity and ecosystems is
based on ‘consensus in the scientic community’
(Environmental Impact Assessment Guidelines 2011a).
Including values from different knowledge systems in the
evaluation process, would complement the capacity of
scientic knowledge to safeguard important components of
biodiversity and ecosystems (Tengö et al. 2014).
Furthermore, it would attribute relevance to species and
ecological processes that underpin livelihoods at the local
level and which should be used sustainably.
Linking compensation for cultural loss to FPIC. EIA
guidelines include compensation for cultural losses such as
those related to traditional livelihoods, institutions and use
of natural resources (Environmental Impact Assessment
Guidelines 2011b). This provision constitutes a disincentive
for developers that risk impacting on local societies that
traditionally use biodiversity and ecosystems sustainably. To
contribute to the full enjoyment of human rights,
compensation provisions need to be synchronised and do not
replace the need to safeguard procedural rights such as FPIC,
public participation and access to information.
4.2 Lessons learned from looking at ESIA in Lao
PDR through the lens of guideline (b) People’s rights,
responsibilities and effective participation