The United Nations Human Rights Council recently recognised a human right to a safe, clean, healthy and sustainable environment, in a historic moment for human rights law and environmental activism. This post briefly explains the development and ventures some observations on its potential significance.
Reportedly, pollution was responsible for 9 million premature deaths in 2015 alone. When accounting for the increased disease and lower standards of living caused, the toll of pollution on human life is staggering. The climate crisis poses significant threats to life, health, food and water security, housing, political stability and a range of human rights, with its impacts to be felt disproportionately by vulnerable populations. The Holocene extinction event continues gathering pace. It is in this context, on 8 October 2021, that the UN Human Rights Council (HRC) momentously recognised the human right to a safe, clean, healthy and sustainable environment (RHE). The resolution (Res 48/13) was led by Costa Rica, Maldives, Morocco, Slovenia and Switzerland, inter alia. Russia, China, India and Japan abstained.
Res 48/13 acknowledges the seriousness and urgency of the facts relating to accelerating environmental degradation. It recognises the growing global consensus that human rights protect the environment. Substantively, it encourages states:
- to build capacity for efforts to protect the environment in order to fulfill their human rights obligations and to enhance cooperation with a range of relevant actors;
- to share good practices in fulfilling the RHE, including by bearing in mind that an integrated, multisectoral and comprehensively rights respectful approach is necessary;
- to adopt policies for the enjoyment of the RHE, including with respect to biodiversity and ecosystems; and
- to take the RHE into account in relation to the implementation of and follow-up to the Sustainable Development Goals.
Almost 50 years since the Stockholm Declaration 1972, such recognition is arguably much overdue. After all, the exercise of human rights depends (at 91, 92) on a healthy environment. Despite a growing corpus of human rights recognised since the Universal Declaration of Human Rights 1948, the RHE has remained conspicuously absent.
Even without such explicit recognition, it has been argued that an RHE may have already crystallised. This may be the result of the emerging norms constituted by the last 25 years of “(a) widespread adoption of environmental rights in regional treaties and national constitutions; (b) the greening of other human rights, such as the rights to life and health, through their application to environmental issues; and (c) the inclusion in multilateral environmental instruments of rights of access to information, public participation, and access to justice in environmental matters” (John H. Knox, ‘Constructing the Human Right to a Healthy Environment’ (2020) 16(1) Annual Review of Law and Social Science 79, 81).
Still, formal recognition of the RHE was much desired. The quickest way to recognise a right is via UN resolution. Recognition by this method was unlikely to be as influential as recognition by treaty, particularly in the absence of a clear global consensus. However, within the 47-member HRC Res 48/13 passed by overwhelming majority. There were no votes against.
Will this change anything?
It is far too early to know the full ramifications of Res 48/13. Detailed expositions of obligations arising from the RHE will likely be generated with time.
John Knox, former Special Rapporteur on human rights obligations relating to a healthy environment, has speculated that a UN resolution recognising the right to a healthy environment would benefit environmental protection in several ways:
- it would extend the common language of human rights to environmental issues;
- it would put a human face to environmental harm by highlighting those people most affected;
- it would draw attention to the gaps in international environmental law, most notably the focus on transboundary harm to the exclusion of harm within borders (because human rights law, by contrast, is internally focused);
- it would strengthen the bases for enforcement action at regional and international human rights enforcement and review mechanisms such as the HRC’s Universal Periodic Review;
- it may influence countries to adopt stronger environmental protections in municipal law;
- it may provide remedies that would not otherwise exist in domestic law;
- it would belie the proposition that human rights law is a top-down Western led colonial imposition on the Global South, because the emergence of a right to a healthy environment has been led by the Global South;
- it may lead to the development of principles of extraterritoriality in human rights law, given the nature of environmental harm;
- it may lead to the development of principles concerning responsibility to future generations in human rights law, given the nature of environmental harm; and
- it may lead to recognition of the rights of nature itself, encompassed within the human right to a healthy environment, overcoming the charge of anthropocentrism when applying human rights law to environmental issues.
Knox assumed a General Assembly resolution would recognise the RHE. A HRC resolution has the potential to produce the same changes, albeit constrained by the substantially reduced membership and normative weight of the HRC relative to the General Assembly. Res 48/13 invites the General Assembly to consider the matter. It can only be hoped that the General Assembly takes up this invitation.
The development of rights of nature from the RHE, a path left open by the Inter-American Court of Human Rights (Advisory Opinion Oc-23/17 of November 15, 2017 at ), raises a conceptual tangle which may be difficult to satisfactorily resolve. It will certainly be interesting to watch the tensions between anthropocentric models of environmental activism and the rights of nature movement unfold. Likewise, it will be interesting to observe the interplay between international environmental law and the RHE, and pre-existing ‘greened’ human rights and the RHE, in coming years. Will RHE’s growth asphyxiate, or outflank, the formers’?
At the very least, recognition of the RHE means environmental activists avoid the need to rely on other human rights, such as the right to life, to make RHE-type claims. This has always fit uneasily as a matter of conceptual clarity if not of law. Given the political potency of a clear message, this may be the RHE’s most important influence in the short term.
The force of the RHE ultimately depends on the degree of recognition it obtains and the action it elicits. The United States continues to oppose recognition of the right despite several US states having recognised such a right in their constitutions, with several more in the process of constitutional enshrinement. RHE nevertheless enjoys direct constitutional protection in more than 100 countries already (and indirect recognition in many more), tellingly suggesting that the RHE is the subject of widespread agreement among nations. That the RHE is so widely protected, often in the context of ongoing environmental destruction, may suggest to some that its practical effect is minor. Yet studies have concluded that direct domestic recognition of the RHE leads to better environmental outcomes. A human right is neither a panacea nor a counsel of perfection.
The HRC has also now established a Special Rapporteur dedicated to the human rights impacts of climate change (Res 48/14). The Parliamentary Assembly of the Council of Europe recently passed a resolution urging the adoption of an additional protocol to the European Convention of Human Rights establishing an enforceable RHE. The COP26 conference will begin on 31 October 2021. The host nation, the UK, voted in favour of the RHE at the last minute. COP26 may well be a platform for more universal recognition of the RHE, if only rhetorically. Momentum is gathering at the confluence of the human rights and environmental movements.
Humankind is living through an environmental catastrophe of their own making. Perhaps recognising that all of us enjoy an inalienable RHE will facilitate acknowledgement that conserving and cleaning up our environment is not a matter of mere intellectual or emotional concern (to use a familiar phrase to Australian environmental lawyers) but of protecting our inherent dignity.
Jared Wilk is Tipstaff to the Honourable Justice Pain of the Land and Environment Court of NSW. He writes this blog in his personal capacity only.
Suggested citation: Jared Wilk, ‘The right development: brief reflections as the UN finally recognises the right to a healthy environment’ on ILA Reporter (20 October 2021) <https://ilareporter.org.au/2021/10/the-right-development-brief-reflections-as-the-un-finally-recognises-the-right-to-a-healthy-environment-jared-wilk/>