Skip to main content

Preparing for power outages at UEF

Flue gases come out from the factory chimney.

Doctoral defence of Rosemary Mwanza, LL.M., 12.12.2022: Right to a healthy environment is not necessarily a regulatory panacea for corporate environmental damage

The doctoral dissertation in the field of Environmental Law will be examined at the faculty of Business and Social Sciences at Joensuu.

What is the topic of your doctoral research? Why is it important to study the topic?

This thesis critically examines the strengths and limitations of the right to a healthy environment to confront corporate environmental damage. As with many jurisdictions around the world, Kenya constitutionalized the right to a healthy environment in 2010. The recognition of new human rights norms is often accompanied and driven by an enthusiastic belief in their transformative potential. But does this belief hold true when such rights are brought to bear on complex environmental problems? This question is the crux of this thesis, which explores the potential of the right to a healthy environment as a regulatory approach against corporate environmental damage in Kenya.

The focus on Kenya as a case study is timely owing to certain germane factors. Corporate actors are implicated in some of the worst environmental incidents in Kenya as is the case in many countries in the so-called Global South. As a legal fiction, the corporate form presents unique challenges that test and often reveal the limits of the State’s ability to prevent and remedy their environmentally damaging behavior through the instrumentality of law. Corporate environmental damage is a complex environmental problem that is produced, facilitated or worsened by governance, legal, and structural factors that interact in a complex, shifting and non-linear fashion. The relative novelty of the right to a healthy environment presents an opportune moment to examine its potential to make a difference in dealing with corporate environmental damage.

What are the key findings or observations of your doctoral research?

This thesis makes several key findings. First, it finds that the right can shape the subjective experiences of victims of corporate environmental damage by centralising the protection of human well-being as a priority for the State. Moreover, the right has the potential to enhance a model of public and corporate accountability grounded on a holistic conception of human well-being. Importantly, the potential of the right to a healthy environment to confront corporate environmental damage is not limited to its ability to modify the behaviour of public and corporate actors. On the contrary, the right can shape environmental laws in a manner that is responsive to the challenges posed by corporate environmental damage because it prescribes the protection of human well-being as an overriding normative goal for environmental law.

These potential benefits notwithstanding, this study finds that the right to a healthy environment is not necessarily a regulatory panacea for corporate environmental damage. Like other human rights, the right to a healthy environment is susceptible to distortion and redirection to ends that are antithetical to the protection of human well-being. Distortion can occur when the right to a healthy environment is interpreted to accommodate the interests of corporate actors to the detriment of the interest of protecting human well-being.

How can the results of your doctoral research be utilised in practice?

The right to a healthy environment has progressively become one of the most popular legal responses to environmental problems. This popularity is evidenced by its near-universal inclusion in environmental statutes and constitutions of legal systems around the world and further buttressed by its recent recognition in the United Nations Human Rights Council’s Resolution on the Human Right to a Safe, Clean, Healthy and Sustainable Environment.

Before these recent developments, most scholarly debates on the right centered on the question whether it bore the genuine characteristics of a human right norm as to fit within the existing corpus of international and municipal human rights law. With these debates appearing to recede to the background, the outstanding question for scholars and practitioners is how its promise of a safe, healthy, sustainable environment can be realized in practice. The findings of this thesis on how the right could operate in the face of a real-life environmental challenge offers preliminary thinking on how a right-based approach to other environmental governance at the national, regional and global levels.

What are the key research methods and materials used in your doctoral research?

In a set of five peer reviewed articles, this study has applied a mixed method approach to interrogate the regulatory potential of the right to a healthy environment in the face of complex challenges presented by corporate environmental damage. Drawing on general theories of human rights, I articulate the defining objective that sets the right apart from other environmental human rights and related concepts. The conceptual analysis method is applied to study the interrelationship between the right to a healthy environment and the principle of sustainable development.

Third, I employ a case study approach to examine how the right has shaped the conduct of corporate and public actors whose conduct is implicated in the occurrence or worsening of corporate environmental damage. The case study approach has also been used to examine whether the right has had a positive impact on the subjective experiences of victims of corporate environmental damage.

Fourth, the reform-oriented doctrinal method is used to examine the right’s potential to shape ordinary remedial law that is applicable to corporate environmental damage in Kenya and identify possible targeted reforms.

Finally, I draw on socio-legal critiques of constitutional and human rights law to critically assess the right’s potential to shape the environmental law-making function of the State and ordinary environmental laws.

The doctoral dissertation of Rosemary Mwanza, LL.M., entitled Confronting Corporate Environmental Damage in Kenya. A Study on the Regulatory Potential of the Constitutional Right to a Healthy Environment, will be examined at the faculty of Business and Social Sciences on 12.12.2022 at 12 noon in Auditorium AU100 Aurora building of the Joensuu Campus and online. The Opponent will be University Researcher Freek van der Vet, University of Helsinki, and the Custos will be Professor Harro van Asselt, University of Eastern Finland. Language of the dissertation event is English. Public examination will be streamed live.

Public examination

Photo available for download

Dissertation book online (coming soon)

For further information, please contact

Rosemary Mwanza, rosemary.mwanza(at)uef.fi