Biosphere Defenders Leveraging the Human Right to Healthy Environment for Transformative Change

1Introduction

The human right to a clean, healthy and sustainable environment (right to a healthy environment) is recognized by the UN General Assembly in 2022 in a time when Earth’ systems are increasingly affected by human actions.¹ Climate change results in ecosystems breakdown, further exacerbating social problems, and global health problems, such as an increase in heat-related human mortality.² Profoundly changing the water cycle -the bloodstream of the biosphere- is affecting the health of the entire planet.³ These interconnected hazards and risks have important consequences for the realization of the right to a healthy environment. The substantive elements of the right to a healthy environment include “a safe climate, clean air, clean water and adequate sanitation, healthy and sustainably produced food, non -toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems”, and the procedural elements include access to information, public participation and access to justice (emphasis added).⁴

Earth’s life support systems that enable people’s good quality of life are at risk by biodiversity loss, climate change and other human-induced changes such as land use changes, urbanization, industrial agriculture and aquaculture expansion.⁵ Approximately one million of animal and plant species are threatened with extinction, a situation that is unprecedented in human history.⁶ A healthy biosphere and the associated nature contributions to people depend on biodiversity and healthy ecosystems.

2Quest for a Transformative Change

The IPBES global assessment⁷ found that: “Except in scenarios that include transformative change, negative trends in nature, ecosystem functions and in many of nature’s contributions to people are projected to continue to 2050 and beyond, due to the projected impacts of increasing land/and sea-use change, exploitation of organisms and climate change.”(emphasis added). The IPCC Special Report on Extreme Events defines transformation as “the altering of fundamental attributes of a system (including value systems; regulatory, legislative, or bureaucratic regimes; financial institutions; and technological or biological systems)”.⁸ Like the call for transformations within biodiversity and climate science-policy bodies, the 2030 Agenda for Sustainable Development describes its vision and the Sustainable Development Goals (SDGs) and targets as ‘transformative’.⁹ The process as well as the end result by 2030 is also characterised as transformative: “We are determined to take the bold and transformative steps which are urgently needed to shift the world on to a sustainable and resilient path”¹⁰ and “We reaffirm our unwavering commitment to achieving this Agenda and utilizing it to the full to transform our world for the better by 2030.”¹¹

Looking beyond Stockholm+50, Rockstrom et al.¹² argue that evidence has increased on the systemic nature of social-ecological problems with various feedbacks between biophysical and social domains and conclude that without radical transformation, staying within safe planetary boundaries that leaves no one behind becomes impossible. The focus on transformations to address structural and systemic social-ecological challenges converges with the academic literature on the Anthropocene, sustainability and equity.¹³ However, the scholarly debate on sustainability transformations in biodiversity legal and policy processes and the associated connections with the right to a healthy environment and environmental human rights defenders has been limited. While there is relatively more awareness of the tensions between human rights and biodiversity law¹⁴, the conceptual and normative advances under the Convention on Biological Diversity and its connections with the right to a healthy environment and the rights of environmental human rights defenders are understudied.

While the inequalities within people in various countries and between Global North and Global South are increasingly recognized¹⁵, the agency and rights of people often placed in the category of “vulnerable” -women, children, indigenous peoples, local communities, migrants- are not sufficiently recognized. Specifically, it is not well understood whether and under which conditions environmental human rights defenders in vulnerable situations can help trigger these sustainability transformations.

The research questions in this article are: a) What is the content of State’s obligations concerning the biodiversity element of the right to a healthy environment? b) How might advances and innovations triggered by women and youth defenders on the right to a healthy environment contribute to societal transformations?

The article draws insights from socio-ecological systems research and feeds them into understanding of the content of the right to a healthy environment. It uses a legal interpretation method, and a systemic interpretation approach¹⁶ to address these questions. As both the Convention on Biological Diversity (CBD) ¹⁷ and human rights law include relatively open-ended provisions, CBD Conference of the Parties (COPs) UN Human Rights Council resolutions, and UN Human Rights Special Rapporteurs’ thematic reports are used to clarify the interpretation of obligations and rights that Stated have agreed upon. It also builds on the IBPES Conceptual Framework and IBPES Assessments because they are helpful tools for the implementation of the CBD building on transdisciplinary and contemporary insights on the state of biodiversity and ecosystems.¹⁸

In this paper, I propose the term “biosphere defenders” as an alternative to “environmental human rights defenders”. People form part of the biosphere -the biosphere being the whole intertwined network of life on Earth. Using access to information, public information, and access to justice to achieve the substantive elements of the right to a healthy environment not only benefits humans but also other living beings. While there are biosphere defenders in the Global North and Global South, the focus of this paper is on biosphere defenders in the Global South whose contributions are often overlooked. When discussing the role of biosphere defenders in litigation, the article uses the right to a healthy environment-based litigation concept as an umbrella category bridging distinct bodies of literature: the more developed literature on climate litigation¹⁹ and the emerging literature on biodiversity litigation.²⁰

3The Right to a Healthy Environment and the Convention on Biological Diversity

States have overlapping human rights and biodiversity obligations which help identify the contours of the right to a healthy environment in the context of biodiversity and ecosystems.

4Biosphere Defenders: Transformative Agency in Vulnerability

This section takes the discussion on the right to a healthy environment to the next level, specifically it discusses the work of biosphere defenders who work individually and collectively to protect healthy ecosystems using the law in practice. While recognizing vulnerable situations faced by certain groups such as women, children, indigenous peoples and migrants is relevant, just highlighting this dimension can contribute to make invisible these groups’ embodied and multifaceted realities.

The connections between the right to a healthy environment, biodiversity, and ecosystems may be most dramatically apparent in the situation of people around the world. Biosphere defenders using the law to trigger social change, play a vital role towards a safe climate and healthy biodiversity and ecosystems upon which present and future generations depend. However, they are increasingly at risk of being threatened or even killed.⁴⁹ Yet, the future of the our planet and those who defend it is not already written. Recent legal and policy developments as well as media coverage have provided much needed attention to the challenges faced by biosphere defenders. In 2020, the UN General Secretary Global Call for Action on Human Rights⁵⁰, called for protecting the rights and supporting the work of environmental human rights defenders. The Escazu Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean is the first treaty to specify the rights of human rights defenders in environmental matters (Art 9).⁵¹

Despite these advances in the law and policy fora, there has been little scholarly debate and systematic analysis of the dynamics at multiple scales that affect biosphere defenders. Emerging literature has assessed repression of environmental defenders across various geographical scales and groups. For example, Le Billon et al.⁵² show country-level determinants of killings of environmental defenders, which include income level, foreign direct investment, dependency on mineral extraction, and frequency of protest movements. Over the 2002–2018 period, there have been 150 reported killings of women environmental defenders, with a growing proportion of women defenders killed since 2010. The number of youth environmental defenders reported killed between 2014 and 2015 is ten times higher than that the number of elders environmental defenders killed in the same period.

While building on this emerging literature on environmental defenders, the approach of this section is distinct. The emphasis is not on violence against individual defenders. Instead, it focuses on understanding how individuals and groups of women, and youth have use laws concerning the right to a healthy environment to catalyze change for sustainability transformations. While women, youth and children are often in vulnerable situations, they are also courageous agents of change. Not only do they actively participate in public manifestations but they have also triggered landmark climate and biodiversity lawsuits and participated in environmental impact assessments public hearings.⁵³ Youth, and future generations will have to live with the success or failure of current responses to these crises so it is timely to use the law to prevent damage to ecosystems.

5Humanizing Biodiversity

Humanizing biodiversity through the right to a healthy environment provides a human face to the biodiversity and healthy ecosystems’ crises by making visible the courageous role of biosphere defenders who are “risking their today for our tomorrow”⁵⁴ and the tomorrow of generations of people and other non-human beings yet to be born. Furthermore, recognising agency is a crucial dimension of the inherent dignity of every human being. In low-income countries, there are many catastrophes that afflict groups in vulnerable situations more strongly. Yet, there are also positive initiatives emerging from these people and places to address biodiversity loss and the degradation of ecosystems. It is just as important to engage in dialogue about these initiatives as to highlighting catastrophic events because a single narrative of catastrophe associated with certain regions or countries risks to creating distance rather than bringing people together, emphasising differences rather than our equal human dignity.⁵⁵ Placing a spotlight in the agency of biosphere defenders also shows that the right to a healthy environment has both individual and collective dimensions.

Analysing Court cases concerning the right to a healthy environment is a good way both to identify the content of the right to a healthy environment and to investigate the role of biosphere defenders. As part of using law to enact change, biosphere defenders use progressive jurisprudence concerning the right to a healthy environment. For example, Colombia’s Constitutional court⁵⁶ uses the concept of “ecological constitution” and elaborates the content of the right to a healthy environment with reference to biocultural rights, weaving together national law and the CBD, among other multilateral environmental agreements. In Tierra Digna y otros vs Presidencia de la Republica y otros, Colombia’s Constitutional Court recognised that “... now is the moment to take the first decisions to protect the planet and its resources efficiently before it is too late, or before the ecological damage became irreversible, not only for future generations, but for the human species”.⁵⁷ The relatively vague concept of sustainability transformations can become more inclusive and infused with innovative meaning by building on legal advances from across the world, not least from the “Global South”.

The content of State’s obligations concerning a healthy environment has been advanced by the Interamerican Court of Human Rights. The Advisory opinion OC-23/17 by the Interamerican Court of Human Rights⁵⁸ states that “it must take international law on environmental protection into consideration when defining the meaning and scope of the obligations assumed by the States under the American Convention in particular, when specifying the measures that the States must take” (parr 44). The court refers to the precautionary principle as well as the obligation to prevent significant adverse effects on biological diversity included in the CBD. Likewise, this court used the CBD to clarify the groups that are particularly vulnerable to environmental degradation including communities that, essentially, depend for their survival or economically from marine ecosystems, forested areas and river basins. A new Advisory Opinion has been requested by Chile and Colombia on human rights and the climate emergency which includes specific questions for the Court on environmental human rights defenders. Advisory Opinions of Courts have no binding force yet biosphere defenders can use them in litigation because they provide an authoritative interpretation on questions of international law.⁵⁹

Youth are among those courageously defending biodiversity and healthy ecosystems taking practical and innovative steps needed to respect, protect and fulfil the right to a healthy environment. UN Secretary General, Mr. Antonio Guterres, issued the UN Global Call for Action on Human Rights. Under the “rights of future generations” theme, he calls for increasing the focus on protecting the rights and supporting the work of environmental human rights defenders. An example of jurisprudence referring to future generations is a court case in the Philippines where the Supreme Court of the Philippines ruled in favour of a group of 14 young Filipinos, directing the government to clean the bay and protect it for the benefit of future generations, including by not issuing any further permits for activities that would pollute the bay.⁶⁰

Another example of youth initiatives is the initiative spearheaded by youth from Pacific Island Students Fighting Climate Change⁶¹ which is a campaign by young leaders from Pacific Island States seeking an Advisory Opinion by the International Court of Justice. Vanuatu Government responded to the youth call and the process has resulted in a UN General Assembly Resolution adopted by consensus in 2023⁶² that seeks an Advisory Opinion from the International Court of Justice (ICJ), on the obligations of states on climate change. The UNFCCC, the Paris Agreement and Convention on Biological Diversity are among the Multilateral Environmental Agreements mentioned in this UNGA Resolution. The transformative potential of this initiative lies both in its legal relevance and in the fact that this initiative became a global movement led by the World’s Youth for Climate Justice and then supported by various other constituencies.

Many women around the world are also acting as biosphere defenders.⁶³ An example is a coalition’s lawsuit led by Mayan beekeeper Leydy Pech. In this case, the Mexico’s Supreme Court unanimously ruled that the government must consult indigenous communities before planting GM soybeans, canceled Monsanto’s permits and prohibited the planting of GM soybeans in Campeche and Yucatán-southern states in Mexico rich in biocultural diversity. In September 2017, Mexico’s Food and Agricultural Service revoked Monsanto’s permit to grow genetically modified soybeans in seven states.⁶⁴ For Mayan communities living in the highly biodiverse tropical forests in Campeche, beekeeping in a sustainable manner is part of a millennial tradition. Synergies between Mayan beekeepers, in particular women, Mexico’s Universidad Autonoma and the UN Development Programme helped provide evidence of the impacts of GM soy cultivation not only on the honey. Traces of the glyphosate herbicide used in GM soy cultivation were found in the water supply of Hopelchén, and in the urine of the town’s residents. Pech calls on “all governments and world leaders to rethink more comprehensive development models that respect and recognise human rights, autonomy, self-determination of indigenous peoples and ancestral heritage”.⁶⁵

Sustainability science studies have identified coordination across jurisdictions, and unleashing values of responsibility as key for sustainability transformations.⁶⁶ The collective action involved on what Pech frames as “lucha de la vida” (a struggle for life) included coordination across jurisdictions and impacted bureaucratic decision-making with concrete results specifically Monsanto’s permits cancelation. The process leading to the litigation unleashed values of responsibility by various actors who contributed to visualize the biocultural values of agrobiodiversity and translate these values into evidence for judicial decision-making. This case also illustrates the interdependency of the right to a healthy environment with the right to health, and the right to water and sanitation. It also shows how law can be used to question development paradigms and unequal power relations in practice.

Biosphere defenders are also active in the biocultural rich Amazon in cases concerning the right to a healthy environment. Strategies used by certain indigenous peoples involve using the law together with other strategies to enact changes that transform power relations and development paradigms. For example, Nemonte Nequimo, the first female leader of the Waorani Nation, and cofounder of the Ceibo Alliance (a confederation of Amazonian Indigenous nations) led a legal action claiming a violation of Waorani’s right to prior consultation. The case resulted in a court ruling protecting 500,000 acres of Amazonian biocultural diverse rainforest and Waorani territory from oil extraction.⁶⁷ Nequimo also led an international campaign to petition to the Ecuadorian government in defense of indigenous peoples’ rights. Certain indigenous peoples and local communities in the Amazon who engage in litigation hold alternative views of nature values and social relations⁶⁸ which can contribute to rethinking the right to a healthy environment both in the present and in reshaping our future.

Biosphere defenders have also used the law to safeguard biocultural marine heritage.⁶⁹ For example, local civil society groups won a court case against the backers of a coal project in Lamu, Kenya. This project was the largest in eastern and central Africa, and largely Chinese-financed.⁷⁰ Lamu is a marine biodiversity hotspot with a rich cultural heritage. Lamu was declared a UNESCO biosphere reserve in 1980, and is the home of rare marine species such as sea turtles, sharks, and dugongs.⁷¹ If the coal plant had been developed, the water pollution derived from the project would have had a devastating impact on marine wildlife and local fishing communities. Since the cancellation of the project’s license, various investors who were cited as possible supporters of the coal plant have withdrawn their possible financing including the African Development Bank in 2019. In 2020, Save Lamu⁷² reported that the Industrial and Commercial Bank of China (ICBC) had also decided not to finance the Lamu coal plant due to environmental and social risks of the project. Like the case on agrobiodiversity in Mexico and the case on the Amazonian rainforest in Ecuador, this case on marine ecosystems also unleashed values of responsibility by various actors who contributed to account for biocultural values in judicial decision-making. Their collective action impacted bureaucratic and financial decision-making with tangible results specifically divestment from what would have been a polluting coal-power plant.

The examples above show that biosphere defenders play a vital role in multi-actor initiatives for sustainability transformations through leveraging the right to a healthy environment. The figure below shows how the right to a healthy environment provides an umbrella category to conceptualize the means that biosphere defenders use -open information, public participation and access justice- to achieve societal change that enables the substantive elements of the right to a healthy environment including safe and sufficient water, safe climate and healthy ecosystems and biodiversity.

6Conclusion

For transformative change towards sustainability, weaving human rights law and CBD obligations is important but not sufficient. If the right to a healthy environment is to exercise its transformative potential, it needs to be informed by a deeper understanding of not only legal provisions but also on the ways in which biosphere defenders use the law in practice to alter fundamental attributes of value systems, regulatory and bureaucratic regimes as well as financial institutions. Hence, findings of the first and second research question are intertwined.

On the first research question on State obligations concerning the biodiversity and ecosystems element of the right to a healthy environment, the article finds that UN Human Rights Council Resolutions and CBD Conference of the Parties Decisions serve to specify the content of the right to a healthy environment and State’s obligations grounding them in interpretations of human rights instruments and the Convention on Biological Diversity agreed by States. While the right to a healthy environment has a humanizing role to play within the CBD, bringing an ecosystems approach embedded in CBD guidance to the right to a healthy environment can help recognise the magnitude of the biodiversity crises and the vulnerable state of nature’s contributions to people as well as recognize the intrinsic values of biodiversity. Yet, progressive developments are not sufficient. Instead, transformative change is needed as identified by international science policy bodies and Agenda 2030.

Fig. 1

Leveraging the right to a healthy environment. Source: author’s elaboration building on Chan et al 2019; Boyd 2019; UNDP et al 2022.⁶⁶ Illustration: C. Geijer af Ekström.

The article finds that recognising and supporting the transformative agency of groups in vulnerable situations such as women, youth, indigenous peoples in safeguarding nature, rather than framing these group as passive victims, is at the core of transformative societal action towards sustainability. The concept of biosphere defenders and the concrete cases discussed in this article contribute to change the narrative that these groups need to be “saved” because they are weak and powerless. While these cases on the way biosphere defenders use the law to enact change are by no means exhaustive, they do show the powerful agency of these groups and also how the right to a healthy environment recognized by the United Nations, Constitutions and secondary legislation is not only an abstract concept but a means to achieve real-life change. These examples span different countries: from women beekeepers in Mexico and indigenous peoples in the Ecuadorian Amazon to fisherfolk communities in Kenya, and young students from the Philippines and the Pacific Islands States. Evidence of their impacts show the very concrete possibilities of societal action for change.

More research is needed analyzing empirically whether the biosphere defender concept can help overcome the divide between people and nature and also in bringing natural allies together such as those advocating for human right to a healthy environment and those advocating for the rights of nature. The urgency of the biodiversity and climate crises requires catalyzing the right to a healthy environment by a diversity of groups and revealing the existing courage in vulnerability with all subjects and agents of change recognized and supported. This is not to inflict more burden or responsibility in people in already vulnerable situations, but to recognize the contribution that biosphere defenders have already done and may chose to continue to do so.

Similar to other authors (e.g. Chan et al (2020)), we find that coordination across jurisdictions and unleashing values of responsibility by various actors are key to sustainability transformations. We find that biosphere defenders create bridges across various jurisdictional scales and actors, contribute to visualize biocultural values of biodiversity and ecosystems and, together with other groups, translate these values into evidence for judicial decision-making. Duty-bearers can synergise with biodiversity defenders’ led initiatives for innovative ways of complying with State’s overlapping human rights and biodiversity obligations. Understanding the role of biosphere defenders fostering transformations with positive social-ecological outcomes at national, regional and international levels are vitally important because these practices demonstrate the feasibility of effective actions on the right to a healthy environment addressing systemic challenges. Furthermore, recognising agency is a crucial dimension of the inherent dignity of every human being.