Are breaches of the Right to a Healthy Environment capable of triggering the Responsibility to Protect in International Law? Exploring the potential of mental health protection as a catalyst

Human rights law emerged in the 19th century in a Westphalian international community characterized by sovereign States. This new area of law revolutionized the legal order. It asserted the importance of the human being, regardless of nationality, as a bearer of specific rights defined by the international order. This emerging philosophy gave rise to a new doctrine: the doctrine of humanitarian assistance. In turn, this doctrine led to the concept of the Responsibility to Protect (R2P). The legal basis of R2P and its relevance remains controversial. However, most scholars agree that R2P has a normative quality, whose basis lies between morals and legality. Initially, R2P appeared to have little connection to environmental issues. R2P could only be invoked in major humanitarian disasters constituting international crimes under the Statute of the International Criminal Court (ICC): genocide, crime against humanity, crime of aggression, and war crimes. However, recent legal scholarship has underscored the connections between human rights and environmental health. One example is the growing recognition of the human right to a healthy environment. This right has been recognized in many countries and acknowledged by the United Nations Human Rights Council in Resolution 48/13 (2021) and the United Nations General Assembly in Resolution 76/300 (2022). There is mounting evidence suggesting this right is customary. Building upon these developments, this paper argues that breaches of the right to a healthy environment, if they amount to international crimes as defined in the ICC Statute, could serve as the basis for activating R2P. The right to a healthy environment includes an emphasis on mental health. While this argument previously may have been deemed unreasonable, recent developments on the crime of ecocide and requests to the Office of the Prosecutor of the ICC to investigate Jair Bolsonaro’s alleged destruction of the Amazonian Forest as a crime against humanity offer compelling evidence of the evolving legal scholarship on this subject