Environmental Rights in the Commonwealth Caribbean

Alexander Ramdass

Across international, regional, national, and subnational levels, countries are increasingly recognizing and expanding the link between human rights and environmental protection. Regions such as Africa, Europe, and the Americas have adopted binding agreements affirming fundamental rights related to the environment, such as the African Charter on Human and Peoples’ Rights, the 2004 Revised Arab Charter on Human Rights, and the Additional Protocol to the American Convention on Human Rights regarding Economic, Social, and Cultural Rights.¹ Additionally, judicial bodies are interpreting human rights treaties to include environmental dimensions: the Inter-American Court of Human Rights, for example, has interpreted the American Convention on Human Rights to encompass the right to a healthy environment and a state duty to prevent environmental harm, both domestically and extraterritorially.² The European Court of Human Rights has similarly found that environmental harm can infringe on rights within the European Convention, such as the rights to life, property, and respect for private life and home.³

Rights-based approaches to environmental protection are bolstered by numerous national constitutions, which often recognize substantive and procedural rights essential for safeguarding public health, welfare, and the environment. While the right to life is explicitly included in 78% of national constitutions, courts in at least 20 countries have interpreted this right to implicitly include a right to a healthy environment.⁴ In practice, human rights law offers a broader, more adaptable framework than environmental law alone, often enabling a wider range of remedies and legal avenues by which individuals and communities can seek redress for environmental harm.⁵

Across the Commonwealth Caribbean, Guyana and Jamaica stand out as pioneers in codifying the right to a healthy environment, explicitly embedding it within their constitutions. In 2003, Guyana became one of the earliest countries to constitutionalize this right, elevating the aspiration of environmental protection into a justiciable mandate.⁶ Article 149J of Guyana’s Constitution affirms that “everyone has the right to an environment that is not harmful to his or her health and well-being” and imposes on the state a duty to safeguard environmental quality for present and future generations.⁷

Similarly, Jamaica’s Constitution, through Section 13(3)(l), enshrines the right to a healthy environment, mandating freedom from environmental abuse and ecological degradation.⁸ In Ashton Evelyn Pitt v The Attorney General of Jamaica, the Jamaican judiciary reinforced these protections by recognizing both the substantive environmental rights and the procedural rights to participation and access to justice.⁹

Guyana and Jamaica’s approaches are informed by global jurisprudence that stresses the duty of states to actively prevent environmental harm. The Nigerian case Social Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights v Nigeria, referenced in Pitt, highlights the importance of state accountability in upholding environmental rights. In SERAC, the African Commission on Human and Peoples’ Rights found that Nigeria’s failure to regulate industrial pollution violated the Ogoni people’s rights, emphasizing that states are obligated not only to avoid direct harm but also to prevent third-party actions that threaten environmental and public health.¹⁰

Courts in Guyana and Jamaica have similarly been cautious in exploring the full extent of constitutional environmental rights. Despite both countries’ explicit recognition of the right to a healthy environment judicial interpretation has been notably limited, with very little decisions emanating from either jurisdiction which fully fleshes out the scope of the right.

Despite not having a right to a healthy environment enshrined in their Constitutions, all other Commonwealth Caribbean territories have enshrined a right to life. In recent times there has been a significant movement towards this right including elements of environmental protection. For example, the Inter-American Court of Human Rights’ (IACHR) notes that while that the right to life is distinct from the right to a healthy environment, emphasized that a state’s obligation to ensure the full realization of the right to life inherently requires consideration for environmental protection. This duty includes safeguarding conditions essential to human rights, such as access to food and water.¹¹

Regional courts have generally been hesitant to affirm environmental protection as an extension of the right to life. In Fishermen and Friends of the Sea v The Environmental Management Authority and Atlantic LNG (2004), the High Court of Trinidad and Tobago ruled that an unlawful grant of a Certificate of Environmental Clearance did not constitute a breach of the constitutional rights to life, protection of the law, or respect for private and family life. The court deferred this recognition to the legislature, suggesting that the judiciary’s role in this context was limited. This decision arguably stands in contrast with the Privy Council’s guidance in Fisher, which espoused a generous interpretation of fundamental rights and highlighted the judiciary’s role as “the Constitution’s guardian.”¹²

In his analysis, Professor Rajendra Ramlogan notes that FFOS v Atlantic LNG was decided under the framework of the 1998 National Environmental Policy (NEP), which asserted that the right to life and the enjoyment of property as espoused in the Trinidad and Tobago Constitution included in some form a right to a healthy environment.¹³

“Article 4 of the Constitution of Trinidad and Tobago declares that every person in Trinidad and Tobago has the fundamental rights of life and the enjoyment of property. Further, the Government of Trinidad and Tobago recognizes that humans influence by their environment and that humans influence and are influenced by their environment and that the natural and built environments affect their well beings. Government therefore accept the responsibility to adopt policies and measures with a view to improving human health and the quality of life. Government also acknowledges that following basic environmental health and development principles are interdependent and in harmony with the Constitution of the nation.¹⁴

In other Commonwealth Caribbean jurisdictions, judicial precedent addressing the rights of indigenous peoples and environmental rights remains relatively limited. Nonetheless, notable decisions in jurisdictions such as the British Virgin Islands and Belize highlight judicial willingness to engage with these complex issues within a rights-based framework. In the 2007 case of The Virgin Islands Environmental Council v Attorney General, the British Virgin Islands court considered the right to environmental quality as grounds to disallow a hotel and marina development in a protected marine area.¹⁵ However, as the decision to approve the development was made prior to the enactment of new constitutional environmental protections, the court held it was bound by the law as it stood at the time.¹⁶

In Belize, the judiciary has shown a more progressive stance, especially in the context of indigenous rights. The Cal v Attorney General case (2015) represents a watershed moment, where the Caribbean Court of Justice (CCJ) ruled that the Belizean government had failed to protect the customary land rights of the Maya people. Despite the Belizean land law system’s lack of formal mechanisms to recognize Maya land tenure, the CCJ emphasized the government’s duty under both domestic constitutional law and international law to safeguard these rights. The Court specifically cited the Constitution’s preamble, which mandates respect for indigenous culture and identity, aligning it with Belize’s broader international commitments, including obligations under the American Declaration of the Rights and Duties of Man and the recommendations of the Inter-American Commission on Human Rights (IACHR). The Cal v Attorney General decision in Belize, while focused on indigenous land rights rather than environmental rights, highlights the Caribbean Court of Justice’s (CCJ) openness to drawing upon international principles to inform regional constitutional interpretation, breathing new life into regional constitutions and setting a significant precedent for future rights-based claims in the Caribbean.¹⁷

The growing trend of recognizing environmental rights at both domestic and international levels signals a meaningful shift toward a more comprehensive human rights framework that includes environmental protection as a core element. Across the globe, courts and legislatures are acknowledging that environmental health is integral to ensuring rights to life, health, and well-being. For Commonwealth Caribbean jurisdictions, this international shift presents an opportunity to advance environmental protections within their own legal systems, either through judicial interpretation of existing constitutional rights or through legislative reform.