The “regression” of the human right to a healthy environment in Mexico

“Human beings have the right to a healthy and productive life in harmony with nature.” Principle 1, Rio Declaration (1992).

“Nature has an intrinsic right to exist, to prosper and to evolve.”
Principle 2. World Declaration of the International Union for Conservation of Nature (IUCN).

introduction

Since the 1970s, the environmental crisis has been recognized as a global problem by the United Nations (UN), and as reported by the Global Economic Forum (WEF), environmental deterioration is not disconnected from the economic, technological, geopolitical and social sectors.

This represents a “global risk” that is defined as “... that event that, if it occurs, can cause a significant negative impact on a large number of countries and industries...”. In the 2016 WEF, it was noted that the environmental crisis for the next 10 years would be the most dangerous in terms of climate change, while the 4th and 6th place would be the water crisis and the loss of biodiversity respectively (1).

For its part, the Government of Mexico stated in its National Development Plan (PND) 2013-2018 that this risk continued to rise, representing an economic cost equivalent to 6.9% of GDP in 2011. This has made it necessary to recognize the serious risk faced by certain environmentally vulnerable sectors of the population who are even considered environmental victims (2). In other words, environmental deterioration has repercussions not only on biodiversity, as Boege (2008) explains, but also a long list of negative impacts on the environment ¹ as well as social and economic repercussions (3).

The social impact increases inequality gaps and the increasing exposure to situations that affect human health, such as the current global crisis we are facing with COVID-19. The subject is presented as multidimensional and structurally complex. The environmental crisis has resulted in growing socio-environmental conflicts throughout the country associated with the increase in productive activities subject to extremely lax regulations (4).

Faced with this environmental crisis, the international community has materialized a series of international treaties and conventions whose purpose is to reverse environmental deterioration and move towards a development that is more harmonious with nature. Mexico has joined several of these international treaties and has accepted them as a commitment to protect the environment and guarantee the right to a healthy environment, as established by the Mexican Constitution, and other regulatory instruments derived from it.

The Mexican State is obliged to integrate a human rights approach and, in accordance with the principle of progressivity, it must move gradually and refrain from going backwards ('no regressivity') in the protection of the human rights of all people, as stipulated in the international treaties assumed by Mexico on the subject.

This article highlights several of the commitments made by the Mexican State to protect the environment and its link with human rights. In the second instance, it presents the State's obligations to promote, protect, respect and guarantee human rights. At this point, emphasis is placed on the principle of 'progressivity' to advance the protection and guarantee of rights and, in particular, the one that we want to address: the right to a healthy environment. Finally, it reviews the progressivity of this human right based on the investment of public resources allocated by the government to protect and care for the environment, Mexico's natural heritage through protected areas.

International environmental agreements signed by Mexico

Mexico has signed a series of international instruments and treaties in environmental matters that make up the legal framework for the care of the environment, and which are considered in article 1 of the Constitution. Among the international commitments assumed by the Mexican State, and in accordance with article 133 of the Constitution, related to the conservation of biodiversity are the following:

In the 2019-2024 NDP, the current government confirms its commitment to sustainable development, and places it as an indispensable factor of well-being. This is summarized in “the unavoidable ethical, social, environmental and economic mandates that must be applied in the present to guarantee a minimally habitable and harmonious future” (5).

In addition, there are other programs that emanate from the PND and recover this objective. It is striking here that the National Program for Protected Natural Areas 2020-2024 (PNANP), run by the National Commission for Protected Natural Areas (Conanp), says it takes into account all the commitments and priorities that Mexico has assumed with the various international initiatives. However, the PNANP 2020-2024 only includes an objective related to compliance with these agreements and conventions. This is the increase in the percentage of Protected Natural Areas (ANP) with international designations that integrate into their operation actions to meet the criteria of those designations, such as those of World Heritage Site, MaB Biosphere Reserve or Ramsar sites.

In this way, the Executive not only has unappealable commitments to the national community, but it has also been committed for more than four decades to the conservation of the environment and the protection of human rights.

In addition to the international commitments of the Mexican State in environmental matters, there are also its obligations in the area of human rights. The following section addresses some relevant points about the role of the State as a guarantor of the right to a healthy environment for development and well-being, taking into account the principle of progressivity of human rights, which must govern its performance.

Human Rights Approach

The Constitutional reform of 2011 brought significant advances in the area of human rights, once these were enshrined in Article 1 of the Mexican Constitution, which literally states: “all people shall enjoy the human rights recognized in this Constitution and in the international treaties to which the Mexican State is a party, as well as the guarantees for their protection” (6). This reform also included the State's obligation to promote, respect, protect and guarantee human rights, in accordance with four principles: universality, interdependence, indivisibility and progressivity.

These principles are especially important because they outline the way in which the State and the authorities must seek rights so that all people can access and enjoy them without any discrimination (principle of universality). In this regard, it is interesting to know the implications of these principles in practice, that is, in the actions that governments must take to fulfill their obligation as the maximum guarantor of rights.

All human, political, economic, social, cultural and environmental rights ² must be understood as a whole. This implies that the enjoyment and exercise of a right is linked to the guarantee of other rights; just as the violation of one right also puts other rights at risk (8). From this perspective, the measures and actions that the State must implement to guarantee, promote, protect and respect the exercise of human rights must be considered in a comprehensive manner, so that access to or enjoyment of one of them does not hinder or violate another right.

There are some human rights that may require greater efforts and time to ensure their full exercise. In this sense, the principle of progressivity considers the “gradual progress” of the law to achieve its full compliance; “certain rights require taking measures in the short, medium and long term, but proceeding as expeditiously and effectively as possible” (8). The importance of the principle of progressivity lies in the fact that it appeals to the State's responsibility to “provide the necessary means and elements to respond to the requirements of the effectiveness of the law” (9).

However, in order for the progressive nature of human rights to materialize, General Comment No. 3 of the Committee on Economic, Social and Cultural Rights, where environmental rights are inserted (DESCA) identified a series of obligations immediately complied with by States (parties), including Mexico, including: legislative, administrative and judicial measures, committing to the maximum of available resources to guarantee rights and, to refrain from adopting “deliberately regressive” measures that affect the advancement of rights. ³

In practice, the principle of progressivity involves the deployment of various measures, as well as the allocation and effective use of the public budget, understood as the maximum amount of resources available, so that all people can exercise their human rights.

Therefore, the rights approach emphasizes precisely the obligation of the Mexican State to carry out the necessary measures to guarantee the exercise and progressiveness of all human rights so that people, without any discrimination, can enjoy a decent life.

The human right to a healthy environment
“The progressivity and non-regression of environmental human rights is
understood as the right of every person to live in an environment
suitable for their health, well-being, dignity, culture and fulfillment and the
corresponding obligation of the State and of every natural or legal person, public
or private, to care for, conserve, protect and restore the integrity of
ecosystems and contribute to the improvement of their quality, is of nature and
progressive character” (10)
Mario Peña Chacón.

The right to a healthy environment is one of the human rights recognized by the Mexican Constitution in Article 1, which in turn is enshrined in Article 4 “the right of every person to enjoy a healthy environment for their development and well-being”. This article mentions that the State must ensure and guarantee the respect and exercise of this right, so it stipulates that “environmental damage and deterioration will generate responsibility for whoever causes it”.

In this regard, the Supreme Court of Justice of the Nation has interpreted the human right to a healthy environment as a direct mandate to State authorities to guarantee the conservation of ecosystems and their environmental services and, in general, to prevent factors such as water, soil or air pollution, or global climate change, from affecting the development and well-being of people and preventing the exercise of other fundamental rights, such as access to the highest possible levels of health or the provision of sufficient water, safe and affordable (11).

In this sense, the Mexican State, as the guarantor of the right to a healthy environment, has the obligation to implement measures to effectively protect the environment, since it is of 'vital' importance for the social interest, for the development, health and well-being of people and, essential for the enjoyment of other human rights. ⁴

Taking into account the above, the implementation of measures by the State must be progressive and without setbacks that affect not only the full enjoyment of the right, but also the effective protection of nature, which has an intrinsic right to exist and prosper (13).

The case of Protected Natural Areas

However, one of these measures is the investment of public resources, since it constitutes a crucial element to guarantee the right to a healthy environment, as dictated by the Constitution. The public budget allocated to the environmental sector reveals the degree of “participation” that the federal government has in protecting the environment. The weights that are assigned each year to environmental protection ⁵ show not only the priority that the government gives it, but also the efforts it makes to advance the right to a healthy environment.

In Mexico, in recent years, there has been a steady decline in the public budget allocated to environmental protection, in this case to the Secretariat of Environment and Natural Resources, and especially to the National Commission for Protected Natural Areas. This indicates that caring for the environment has not been a priority for previous governments or for the current federal administration.

As an example, suffice it to mention that, in 2016, the country's protected area was expanded, and four new protected areas were declared, adding a total of sixty million hectares to this scheme (14). However, in the following years, there were no increases in public resources for their care, on the contrary, there were serious setbacks in the budget.

Specifically, public resources per protected hectare fell by 90%, going from an all-time high of 94.35 pesos in 2016 to 9.5 pesos in 2021 (15). This shows a severe drop in public resources allocated to the care of natural heritage.

In fact, the care of protected areas in Mexico shows an increasing dependence on private initiative for the operational functioning of ANPs, and a lack of investment in resources generated by federal agencies through the collection of rights, authorizations and fines in protected areas (16). In addition to this, the constant decline in the public budget, which denotes a lack of certainty of resources to guarantee the effective protection of the most precious spaces in the territory.

By 2022, the resources allocated by the federal government to the National Commission for Protected Natural Areas, which oversees the 182 terrestrial and marine protected areas that exist in country ⁶, amount to just over 887 million pesos, and has a reduction of 11.1 million pesos (in real terms ⁷), that is, its budget decreased 1.2% compared to the previous year.

It is a fact that far from supporting the budget for the care of the environment and Protected Natural Areas, there are setbacks that limit or prevent the very execution of policies and programs established by the federal government.

In this way, the reduction of the public budget jeopardizes conservation, restoration and surveillance actions, as well as the effectiveness of community projects within protected areas. This can undoubtedly affect the health of the environment and the well-being of society as a whole.

In conclusion, it can be seen that the Mexican State has not allocated the maximum of available resources to comply with its obligations in this area. As mentioned previously, the progressive nature of human rights, and in this case the right to a healthy environment, is closely related to the prohibition of unjustified regressions or retreat from the levels of compliance achieved, as mentioned by the DESCA Committee, “non-regression” in the protection and guarantee of rights (13). However, the constant cuts in the budget for environmental protection reflect the regression faced by the right to a healthy environment in Mexico.

Although the investment of public resources forms part of various measures to advance the guarantee and effective exercise of the right to a healthy environment, it is important to review the budget allocated to caring for the environment, to evaluate the role of the Mexican State in the advancement of this right. At this point, it is important to highlight the serious setbacks in the allocation of the public budget, and the urgent need to allocate sufficient resources so that the State and the authorities fulfill their mandates with regard to the rights established in the Constitution and in the international treaties to which it is a party.

The Mexican State has failed in its responsibility to guarantee the right to a healthy environment, to non-regression in the implementation of public policies that reverse environmental deterioration and, in the allocation of sufficient public resources for the effective protection of the environment.

Recently, the dissolution of the Office of the President for Attention to the 2030 Agenda and the incipient participation of Mexico in the Conference of the Parties (COP-26) of the United Nations on Climate Change held in Glasgow, UK (November 2021), show the government's disinterest in actively participating in the international agenda that seeks to stop and reverse the environmental crisis. Mexico is heading down a dangerous road that could lead us, in the medium term, to an environmental crisis with economic and social consequences of unsuspected proportions.