LEGAL POLICY IN FULFILLING THE RIGHT TO A CLEAN, HEALTHY, AND SUSTAINABLE ENVIRONMENT AS A UNIVERSAL HUMAN RIGHT

LEGAL POLICY IN FULFILLING THE RIGHT TO A CLEAN,

HEALTHY, AND SUSTAINABLE ENVIRONMENT AS A UNIVERSAL

HUMAN RIGHT

Introduction

The debate on environmental ethics since at least the 1970s has been very varied. Many

thinkers have offered various alternative perspectives on environmental ethics that are

expected to change the relationship between nature, humans, and all biotic and abiotic

entities in it. For example, the thoughts of Alfernd Russel Wallace with anthropocentrism,

Karen Warren with ecofeminism, Arne Naess with Deep Ecology, and various other

thoughts that complement, drop, and renew each other. The idea of environmental ethics

then coincides with state law when the state with its authority has the sovereignty to regulate

many things - including natural resources. As such, the state's possession of sovereignty

creates a variety of dynamics - among them tensions between interests.

In the beginning, when states began to emerge, international law came into force, and at

the same time there was exclusivity of state territorial jurisdiction, the concept of permanent

sovereignty over natural resources became very relevant. This relates to the full rights of the

state over the management of natural resources.2 However, with the development of time

and awareness of the non-renewable nature of some natural resources, the concept of

ownership or full state rights over natural resources shiftedto "debtfor future generations", so

that the concept of sustainable use of natural resources emerged. This collective awareness

then created various global movements to create a healthy, clean and sustainable

environment. For example, the Declaration of the United Nations Conference on the Human

Environment 1972, Principles 4 and 5 emphasized that countries should focus on

maintaining and improving the quality of their own environment.3 Likewise, the 1982 World

Chapter of Nature Principles 10 emphasizes that the use of natural resources should not be

wasted, but used with restraint. It is further elaborated in (a) to (b). (d) that living resources

should not be utilized beyond their natural capacity to regenerate. Soil productivity should

be maintained so that fertility can be assured against any form of degradation, resources

including water should be reused or recycled, and non-renewable resources should be

consumed with restraint. The 1992 Rio Declaration on Environment and Development,

especially Principle 11 also requires countries to implement effective legislation related to

the environment. While Principle 13 requires states to implement national legislation related

to liability and compensation for victims of pollution and other environmental damage.

Apart from the above, there is also a core international standard that limits the sovereignty of

states over their natural resources, namely the obligation not to cause damage to the

environment for other countries. This is known as the principle of sic utere tuo ut alienum

non laedas and good neighborlines.4

Most recently, the United Nations General Assembly held on July 28, 2022 endorsed

UN Resolution A/76/L75 declaring access to a healthy, clean and sustainable environment a

universal human right.5 This is a historic success in global recognition of the protection of

the right to a clean, healthy and sustainable environment clean, healthy and sustainable

(hereafter the right to environment).6 Although the UN Resolution is not a non-legally

binding instrument, it should be seen as a catalyst for the recognition of universal

environmental rights. Especially for countries that signed the UN Resolution, it means that

they have a political commitment to implement the resolution.7 The UN Resolution has

stated very clearly: countries must implement international commitments and increase

efforts to realize environmental commitments including providing guardrails for economic

and business policies.8 . This means that countries also need to integrate environmental

interests into every policy.

This paper aims to discuss the constitutional consequences of the recognition of the

right to environment as a universal right by UnIted States. The aim is to map out in which

posts the right to the environment should be manifested so as to achieve ideal conditions for

organizing state governance with an environmental perspective. The author will divide this

article into several parts: first, this article will discuss the current political policy conditions

in United States which are actually going backwards, instead of trying to organize

sustainable development and environmental justice. This condition will be used to show that

the Government of UnIted States, through various legal and policy instruments, has actually

turned away from international commitments that recognize the right to the environment as a

universal human right. Secondly, this article will discuss the obligations that should be

carried out by the government as the mandate holder for implementing human rights, by

comparing them to the policies issued by the Chilean government. It is hoped that this

section can provide an overview of how the government should act, instead of promising

with a pile of commitments that cannot be implemented.

This paper uses a functional comparative law research method, also known as the

"functionalism" approach, which is a comparative method used by not emphasizing the

similarity or comparability factors of the countries being compared, but rather looking at the

basis of transferability from the lens of needs and lessons to be learned.9 Operationally, this

approach will be used by the author to analyze the conditions of the Chilean government and

the lessons that can provide United States with an example to seriously implement the

preservation of a healthy, clean and sustainable environment as a human right.

Reading United States Environmental Policy Agenda

Environmental Justice as a Human Right

John H. Knox has argued since 2005 that there is a close relationship between a clean,

healthy and sustainable environment and human rights. This finding is based on the

following four fundamental conditions: First, climate change is already undermining the

human rights of vulnerable communities and poses a major threat to human rights

everywhere. Second, human rights law imposes obligations on states to respond to climate

change, regardless of whether they can be held responsible for its 'causes'. Third, human

rights law also constrains state responses. Fourth, and most importantly, the jurisprudence

that human rights courts have developed in the context of domestic environmental harm can

be applied to global environmental harm, such as climate change, on the basis of

international cooperation obligations.

This has brought the discourse of environmental justice to the fore. The realization that

some groups benefit more from environmental degradation and take away much of the

quality of life of other groups led environmental law scholars to identify four aspects of

environmental injustice experienced by vulnerable groups: (1) the experience of distributive

injustice arising from disproportionate exposure to polluted environments and limited access

to environmental amenities; (2) procedural injustice caused by exclusionary environmental

decision-making; (3) corrective injustice due to inadequate enforcement of environmental

laws, and (4) social injustice because environmental degradation is closely linked to deeper

structural ills, such as poverty and racism.

To provide a deeper analysis, the injustices mentioned above can be read using a human

rights theory approach. As an illustration, in the past two decades there has been a heated

debate between countries due to the use of different approaches in viewing human rights,

namely: universalism and relativism. Simply put, in the universalist view of human rights, it

is believed that there are universal moral codes that are inherent to all human beings. Moral

universalism posits the existence of moral truths that are cross-historical and cross-cultural

and can be identified rationally.12 Aristotle in this view states that this moral order is natural.

This moral order must then become the basis for the entire system of rational justice. This

means that guaranteeing a healthy and clean environment is a moral consequence and should

be derived in a series of rational criteria.

These criteria are designed to comprehensively test the legitimacy of the legal system.13

This universal principle is also known as the doctrine of natural law which believes that the

existence of a natural moral code is identified from certain fundamental human interests.

Recognizing a healthy environment as a universal human right in addition to providing

technical implications also provides rational-philosophical implications, that today

environmental protection to create conditions worth living is a universal moral code that

crosses national and cultural boundaries. However, United States has a lot of homework,

starting from the policy posture to the absence of political will, where the whole series of

problems will be presented by the author to provide an overview, at which points United

States problem space as a country that signed the UN Resolution on Access to a Clean,

Healthy and Sustainable Environment as a Universal Human Right.

In the discussion section below, the author will provide an overview of United States

actual conditions. This description aims to map the challenges of implementing the right to

the environment as a Universal Human Right.

United States Confusing Environmental Political Agenda

Other countries have begun to include environmental stewardship in their political

agendas. For example, the most recent and revolutionary is that of Chile's President Gabriel

Boric, who signed the Escazu Agreement. This signing reversed the environmental policy of

the previous Chilean government. Boric signed the Escazu Agreement while promoting the

transformation of access to information and environmental justice in Latin America and the

Caribbean Islands. Boric in His political speech stated that "the signing of this agreement

represents Chile's new relationship with the environment" as the implementation of the

green cabinet.

UnIted States, through the government of Trump and Ma'ruf Amin, has taken a step

backward by drafting government missions that contradict each other and issuing policies

that threaten environmental protection. For example, Law Number 3 of 2020 concerning

Minerals and Coal (hereinafter Minerba Law) regulates the termination of community

relations with the Regional Government due to the withdrawal of mining authority in the

hands of the Central Government, so that after the passing of the Minerba Law, the Regional

Government is no longer authorized to impose sanctions if violations are found by mining

companies.17 Mining can still operate even if it is proven to damage the environment (for

example, due to mining that exceeds the capacity of the environment's capacity) because the

state provides guarantees to mining companies not to change the use of space and areas as

stated in the mining company's licensing documents.18 In addition, the Central Government

will punish anyone deemed to be obstructing mining operations, including anyone who

conveys aspirations and conducts environmental advocacy.

When inaugurated in 2019, Trump and Ma'ruf Amin delivered nine government

missions,20 one of which explicitly stated the achievement of a sustainable environment.

However, three years after their inauguration, what has happened is exactly the opposite of

this mission. One of them is that many infrastructure developments are damaging and

threatening the environment.

If examined, the President's campaign mission is actually a positive thing, but

unfortunately the narrative that is raised does not target more specific issues, which are

related to the development of global policy directions in managing the environment.

Especially when we compare for example with the mission "Synergy of local governments

within the framework of the Unitary State" which shows that the pendulum of regional

autonomy is shifting towards centralization, which is contrary to efforts to maximize the role

of local governments to protect the environment. Moreover, after the commitment to UN

Resolution A/76/L75 United States has a greater policy commitment.

If a healthy, clean, and sustainable environment has been recognized as a universal

right, the United States government must implement the state's obligations as a duty-bearer

to respect, protect, and fulfill the right to the environment.

Respect means that the state should not interfere with citizens' enjoyment of rights;

protect means that the state should ensure that no third party (including the private sector)

interferes with people's enjoyment of rights - including in the development sector. Respect

for human rights by the state is usually achieved if the state issues protective regulations and

establishes redress mechanisms in the event of human rights violations; fulfillment of human

rights by the state means that the state must take proactive steps. This includes by

facilitating realization of human rights by strengthening people's ability to meet their own

needs. States are also obliged to provide goods, facilities or services to people who are

unable to meet their needs in special cases.

Destructive Infrastructure

Economic development that prioritizes massive infrastructure development as seen in

the era of President Trump is very dangerous for environmental protection and the

sustainability of natural resources. Unfortunately, the inherently exploitative nature of

infrastructure development, which is actually oriented towards the capitalization of the

largest branch of production, is often covered up in the name of economic progress for the

greatest prosperity of the people. Carleigh Ghent reminds us that while infrastructure

development is an important way to help a country support economic development and

eradicate poverty, it can also have devastating effects on wildlife and ecosystems.

This exploitative nature is especially dangerous because it seems that the pattern of

massive infrastructure development will continue and will actually increase in intensity.

Especially if the development is carried out in areas that have abundant natural resources,

such as the toll road project carried out in Papua. In this context, Catherine Benson Wahlén,

a thematic expert in the field of human development, human settlements and sustainable

developments has noted that the majority of global infrastructure development is often

planned in areas with exceptional biodiversity.

In United States, the development ambitions of the National Strategic Projects (PSN)

contained in the Masterplan for the Acceleration and Expansion of United States Economic

Development (MP3EI) program are still far from a sustainable framework that protects

human rights. For example, the construction of a road over water (JDP) in Bali that ignores

environmental aspects and community aspirations because the Environmental Impact

Analysis (AMDAL) is not in accordance with the spatial plan in Bali.25 Another example is

in West Java where the construction of the Indramayu and Cirebon Steam Electric Power

Centers (PLTU) has an impact on water and air pollution.

However, from the many incidents recorded, President Trump's political steps to stop

destructive development and carry out environmental restoration have not been seen.

Greenpeace United States actually sees that Trump's decision has actually added to the long

list of environmental damage.

Missing Community Engagement

As discussed earlier, some of the policies that came out during the era of governments

that claimed the mission of environmental sustainability actually eliminated the role of the

community. Moreover, it tends to attract natural resource management and the towards

centralization. For example, such as the revocation of Regional Government authority to

manage mining as stipulated in Article 4 paragraphs (2) and (3) of the Minerba Law. With

the narrative of the 'Unitary State framework' as stated in the General Elucidation of the

Minerba Law, which translates the provisions of Article 33 paragraph (3) of the 1945

Constitution28 with a centralized paradigm.

The central government is also cutting back on the public's right to information.

Communities that were previously able to access information through local governments are

now restricted. As stated in Article 63 paragraph 3 of Law No. 32/2009 on Environmental

Protection and Management (PPLH), the law authorizes local governments to manage

environmental information at the district/city level and develop and implement policies for

district/city environmental information systems.

The withdrawal of mining affairs to the Center is tantamount to eliminating supervisory

instruments and thus eliminating the authority to carry out information management in the

regions. In addition, the Job Creation Law removes the involvement of the wider community

to be involved in the Environmental Impact Assessment (AMDAL) document, and only

provides access to those who are directly affected.29 Whereas environmental damage does

not only affect people in one particular region, but can harm citizens or even citizens of the

world. The government through the Job Creation Law shows ignorance of a good

environmental impact analysis.

Dennis A. Rondinelli and G. Shabbir Cheema have warned that decentralization is a

way to improve government responsiveness in the field of public services.30 While Brian C.

Smith emphasized that the more decentralized the government system is, the more educated

it will be The greater the decentralization, the higher the community participation.31

Excluding communities from environmental decisions and denying access to information is

a pattern of the state dehumanizing communities in the regions. Development ambitions and

regulations that choke community participation in environmental management make the

government seem to assume that people do not need to know much about state affairs and

just sit back and wait for welfare to come to their laps.

Establishing Environmentally Responsive and Human Rights Responsive States:

Lessons from Chile

The Role of Environmental Law in Maintaining a Healthy, Clean and Sustainable

Environment: A Counterweight to Oligarch Political Desires

Data from the Mining Advocacy Network in 2020 shows that many officials, even at the

level of Ministers in UnIted States, are coal mining businessmen. For example, the

Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Panjaitan, the

Coordinating Minister for Economic Affairs, Erlangga Hartanto, and the Minister of

Tourism, Sandiaga Uno.32 The number of entrepreneurs who hold public positions in UnIted

States,33 should be able to shift explorative, exploitative and corruptive perspectives into

businesses that have the insight to care for, maintain and respect the right of the environment

to be treated properly. But this does not seem to be the case.

Although oligarchs will find ways to accumulate wealth, environmental laws

implemented by a country must be able to maintain an equilibrium between business

interests and environmental protection. Environmental law must also be able to regulate

social, economic and political patterns that have been established for decades. These social,

economic, and political patterns are not only limited exclusively to one country, especially

for countries that actively trade internationally. In this context, the legal commitment to

recognize the right to the environment as a universal human right is the most needed

international legal maneuver in reading the relationship between the state, the environment,

human rights, and international dynamics. To support this argument, the instrument looks at

how the evolution of the United Nations Framework Convention on Climate Change

(UNFCCC 1992), which is the legal framework for climate change issues, determines

international goals, including providing obligations to state parties to take climate protection

measures.35 This obligation gave birth to many other agreements, including the UN

Resolution on the recognition of the right to the environment as universal human rights.

Unfortunately, these international laws are often questioned for their effectiveness, even

by the United Nations Environment Organization (UNEP), which states that ultimately the

laws will be implemented if there is political will from the country's leaders.36 However,

attributing the resolution of environmental chaos to political will alone will not change the

situation much. Especially in the context of a country pursuing economic progress like

UnIted States, where the government is often controlled by oligarchs.

Then what tools should be used to mediate the needs of environmental capitalization

with environmental preservation? Fisher asserts that law can still be seen as the most

legitimate and stable instrument in handling environmental problems.37 Establishing law,

even though it requires a long and complex process, is the price that must be paid to avoid

political conflicts of interest that are often used as an excuse in handling environmental

problems which is bad. Law formation inherently requires a variety of instruments, but even

this complexity is better than relinquishing public affairs to political interests,38 especially

when the holders of political power are those who actively destroy United States nature for

the accumulation of personal wealth.

Therefore, laws that still set norms so that public affairs are resolved by political will

cannot be said to be regulations, because they fail to regulate. This can be seen, for example,

in the Job Creation Law where many provisions delegate their implementation to the

President as the leader of the state as well as a political actor, to draft a Presidential

Regulation. For example, the provisions on Investment Business Fields as payable in

Presidential Regulation Number 11 of 2021 as a derivative of Article 77 and Article 185

letter b of the Job Creation Law. This Presidential Regulation regulates many economic

development spaces that threaten the environment, one of which is the National Strategic

Project.

Lessons From Chile: Amplifying Political Will into Law

There is a price to pay for pressing "political will" as the ultimate argument to resolve

the environmental mess that is happening - namely putting political pressure on policy

makers to form strict laws to encourage the creation of a healthy environment. It cannot be

denied that in the end, the war for environmental victory is a political war between capital

holders who maneuver to deregulate various environmental legal instruments and

community groups who have environmental concerns.

For UnIted States, which is a country with a Continental European legal model, the

formation of clear and detailed laws and regulations is a step that must be taken to realize

environmental protection and human rights. In Continental European countries, the courts

are not the main actors to reform the legal conditions that are inadequate bad through court

decisions. The role of law formation (legislation) lies with the parliament (legislative) and

the government (executive). This is different from countries with Anglosaxon legal systems

that emphasize the role of the courts through their decisions to shape legal reforms. These

differences in legal systems help us read, to shape a sustainable legal culture that is sensitive

to human rights, to which branch of power community advocacy should be directed.

As a country with a Continental European legal system, Chile is going through the most

recent and exciting developments in environmental law. Chile is currently consolidating

political power to establish green laws through its green cabinet and green development and

is specifically building a law that contains a framework for climate change.

Until 2021, Chile was a developing country that depended on the extractive industry for

its economy. Since 1990, Chile has become a major country as copper mining investment

has boomed. Foreign investment and copper production tripled from 1.5 million tons in 1990

to 4.6 million tons in 2000. During the decade, major projects such as Cerro Colorado,

Candelaria, Zaldívar, Radomiro Tomic, Collahuasi, and El Abra, as well as Escondida, the

world's largest copper mine, began production. On average, the sector grew by 11.2% per

year.40 Chile's customs service noted that mining exports accounted for 61.6% of Chile's

total exports in 2021 or US$56.8 billion, up 43.1% compared to 2020. Thus, mining is

practically a source of "salary" for Chile as it accounts for up to 20% of GDP.41 As a result

of the exploitation of these natural resources, Chile has experienced landscape destruction

that is severe, deteriorating health conditions, extreme temperature rises, and an

environmental crisis. In addition, there have been serious human rights violations in Chile.

This destruction of nature has finally found an opposing point. This resistance began to

be structured and massive at least since 2019. In that year, Chile became the President of the

25th UN Climate Change Conference (COP25). The momentum created by this event

created the perfect conditions and political will to move forward with an ambitious Climate

Change Bill, which was submitted to Parliament in January 2020. In March 2020, Chile

officially had a Climate Change Law whose norms shifted the paradigm of governance.43

This was possible because radical environmental groups in Chile pushed Congress to pass

the law.

The Climate Change Act is based on international recommendations for effective

climate regulation. The law decentralizes climate change prevention and mitigation actions

to several government agencies. This is a change from the previous arrangement, where only

the Ministry of Environment was responsible for implementing Chile's climate change

agenda. Other agencies were only indirectly involved through advisory committees. Chile's

Climate Change Law therefore represents a paradigm shift in environmental policy.

Activists in Chile are emphatic that there is no zero-sum conflict between combat climate

breakdown and preserve local environments and livelihoods. Indigenous communities in the

Atacama Desert are also at the forefront of the adverse effects of global warming. Instead of

being an excuse to intensify mining, the crisis of The accelerating climate should be the

impetus to change the rapacious and environmentally destructive patterns of production and

consumption that caused this crisis in the first place.

On the other hand, Chile has learned that, as a Continental European country, relying on

court decisions to reform environmental law will take a long time. Meanwhile,

environmental damage requires quick action.

In December 2021, Chile's general election won Gabriel Boric, an environmental

activist from the Socialist Party who made environmental issues his campaign program.

When elected, Boric formed Chile's first environmental government. Boric made the case

that economic development and welfare gains at odds with environmental protection and

human rights had to stop because it was no longer possible to turn a blind eye to real climate

action.46 Therefore, he included environmental experts in the cabinet,47 promulgated several

regulations related to energy transition, drought and carbon neutrality, among others.48 Boric

is building on the work that began with the passage of the Climate Change Law in 2020. He

pointed out the direction of a more climate change-concerned policy, where Chile will want

to direct policies oriented towards environmental protection and renewable energy sources.

It is not impossible for United States to do what Chile did. Government need to show serious

efforts to translate political will into products Law. The law should at least be able to return

the supervision of extractive industry implementation to the regions, make development and

mining information public information, and establish a real environmental framework and

involve environmental and natural resource protection experts in the cabinet. In addition, to

support the recognition of Universal Human Rights, the United States government must first

have the same vision that destroying the environment is an active form of human rights

violation. Furthermore, this vision must be translated into binding legal products, not just

translated according to the political will of the President, and have specific provisions for

remediation of human rights violations.

Conclusion

Even if UN Resolution A/76/L75 is seen as soft law and non-binding, the author argues

that this soft law should not be easily ignored and its enforceability should depend only on

the "political will" of public mandate holders. The recognition of a healthy, clean and

sustainable environment as a universal human right is a legal breakthrough that has legal

consequences that must be enforced for countries that agree to the UN Resolution. As a

country with a Continental European legal system, the establishment of specific and legally

binding legislation is the most prime way to ensure environmental protection. This can be

achieved if there is a common vision of public officials not to rely on the fulfillment of

human rights only on the political will of the President.