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Clean, Healthy Environment

A Universal Human Right Now

In July this year, the United Nations General Assembly (UNGA) passed a historic resolution whereby it recognized the right to a clean, healthy and sustainable environment as a human right. Through the resolution, the UNGA has called upon states, international organizations, businesses, and other stakeholders to “scale up efforts” to ensure a clean, healthy, and sustainable environment for all. While the resolution is not legally binding, experts say it can give rise to constitutional and legal changes that will positively impact the environment and human well-being. According to David Boyd, the UN Special Rapporteur on Human Rights and the Environment, the Assembly’s decision will change the very nature of international human rights law. Although the governments have made promises to clean up the environment and address the climate emergency for decades but having a right to a healthy environment changes people’s perspective from ‘begging’ to demanding governments to act.

On July 28, with 161 votes in favour, and eight abstentions, member states of the UN General Assembly – the highest UN body that wields considerable influence over its member states –voted overwhelmingly to adopt a historic resolution: the recognition that it’s a universal human right to live in a clean, healthy and sustainable environment. The text, originally presented by Costa Rica, the Maldives, Morocco, Slovenia and Switzerland last June, and now co-sponsored by over 100 countries, notes that the right to a healthy environment is related to existing international law and affirms that its promotion requires the full implementation of multilateral environmental agreements.

The resolution, based on a similar text adopted last year by the Human Rights Council, calls upon States, international organisations, and business enterprises to scale up efforts to ensure a healthy environment for all. In that resolution of 8 October 2021, the UNHRC had recognised, with 43 votes in favour and 4 abstentions, that access to a healthy and sustainable environment is a universal right. 

The latest resolution also recognises that the impact of climate change, the unsustainable management and use of natural resources, the pollution of air, land and water, the unsound management of chemicals and waste, and the resulting loss in biodiversity interfere with the enjoyment of this right – and that environmental damage has negative implications, both direct and indirect, for the effective enjoyment of all human rights.

UN Secretary-General António Guterres welcomed the UNGA decision as a milestone in the “collective fight” against what he called “the triple planetary crisis of climate change, biodiversity loss, and pollution”. According to the UN Secretary-General, “The resolution will help reduce environmental injustices, close protection gaps and empower people, especially those that are in vulnerable situations, including environmental human rights defenders, children, youth, women and indigenous peoples.”

It will spark constitutional changes and stronger environmental laws, with positive implications for air quality, safe and sufficient water, healthy soil, sustainably produced food, green energy, climate change, biodiversity and the regulation of toxic substances.

In an interview ahead of the UNGA vote, UN Special Rapporteur on Human Rights and the Environment David Boyd noted that while not legally binding, UNGA resolutions can serve as catalysts for action. He said the 2010 UNGA resolution on the human rights to water and sanitation resulted in “a cascade of positive changes that have improved the lives of millions of people,” and hoped recognition of the human right to a clean, healthy, and sustainable environment would similarly “increase and improve people’s quality of life all over the planet.” A UNEP press release suggests that the UNGA resolution could prompt countries “to enshrine the right to a healthy environment in […] constitutions and regional treaties,” which “would allow people to challenge environmentally destructive policies under human rights legislation.” 

History
In 1972, the United Nations Conference on the Environment in Stockholm, which ended with its own historic declaration, was the first one to place environmental issues at the forefront of international concerns and marked the start of a dialogue between industrialized and developing countries on the link between economic growth, the pollution of the air, water and the ocean, and the well-being of people around the world.

UN Member States back then, declared that people have a fundamental right to “an environment of a quality that permits a life of dignity and well-being,” calling for concrete action and the recognition of this right.
Last October, after decades of work by nations at the front lines of climate change, such as the Maldives archipelago, as well as more than 1,000 civil society organisations, the Human Rights Council finally recognised this right and called for the UN General Assembly to do the same.

The recognition of the right to a healthy environment by these UN bodies, although not legally binding— meaning countries don’t have a legal obligation to comply— is expected to be a catalyst for action and to empower ordinary people to hold their governments accountable.

Human rights and the environment
The important link between human rights and the environment, including climate change, has been recognised by the UN human rights bodies (e.g. the Human Rights Council) and the treaty bodies, and has been embedded in the UN special procedures. This link works in two directions:
1) environmental protection is instrumental to the enjoyment of a number of human rights (as explained above), and 
2) the exercise of human rights (particularly procedural rights such as access to information, public participation and access to effective judicial and administrative proceedings, including redress and remedy) is vital for effective environmental protection – an approach upheld most staunchly by the Aarhus Convention. The 1972 Stockholm Declaration on the human environment was the first international document to recognise the link between human rights and the environment. The Paris Climate Agreement (2015) is the first binding multilateral environmental agreement to include an explicit human rights reference. Its preamble acknowledges that states ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. The Glasgow Climate Pact adopted at COP26 reaffirms these obligations.

More recently, in June 2022, UN Member States and stakeholders issued a call to recognize and implement the right to a clean, healthy, and sustainable environment as part of the outcome of the Stockholm+50 meeting, which included ten recommendations “for accelerating action towards a healthy planet for the prosperity of all.”

The current resolution comes at a time when the current and future impacts of climate change are becoming increasingly clear. Wildfires are growing in size and ferocity, destroying ecosystems, homes and livelihoods. In Europe alone, more than 515,000 hectares (1.27 million acres) of land have burned since January across several nations, including France, Spain and Greece, and more than 2,000 people have died from heat waves during this period. Ongoing drought in the Horn of Africa has left an estimated 13 million people facing hunger. Rising sea temperatures are leading to a steady increase in coral bleaching events across the world’s oceans, impacting marine biodiversity that supports life both in and out of the water.

According to an assessment released earlier this year by the Intergovernmental Panel on Climate Change (IPCC), we have a rapidly narrowing window to lower global emissions and limit warming to 1.5° Celsius (2.7° Fahrenheit) above pre-industrial levels. If we fail to take swift and meaningful action, the planet will continue to warm with disastrous consequences.

The resolution
       1. Every person on the planet has the right to live in a clean, healthy environment.
    2. Climate change and environmental degradation are the most critical threats awaiting humanity in the future.
       3. It demonstrates that the member states can unite in the collective fight against the triple planetary crisis of climate change, biodiversity loss and pollution.
    4. The declaration adopted by over 160 UN member nations, including India, is not legally binding.
     5. But, it will encourage countries to incorporate the right to a healthy environment in national constitutions and regional treaties.
Legal recognition in the UN treaties

International human rights law does not guarantee the right to a clean and safe environment. UN human rights treaties – most of which were adopted before environmental protection came under the focus of international attention – do not explicitly endorse this right, but some make indirect references to it. The 1966 International Covenant on Economic, Social and Cultural Rights provides in its Article 12 for the right to the highest attainable standard of physical and mental health, and calls on states parties to take steps to improve all aspects of environmental and industrial hygiene. The 1989 Convention on the Rights of the Child provides that states parties shall take appropriate measures to combat disease and malnutrition through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution (Article 24). UN human rights treaty bodies, through their case law or other declarations, have driven a ‘greening’ of human rights by arguing that many human rights, such as the right to life, private life, health, water and property, depend on a healthy environment.

In national constitutions and law
According to a 2019 report by the UN Special Rapporteur on Human Rights and the Environment, ‘There are 110 States where this right enjoys constitutional protection…[and] 101 States where this right has been incorporated into national legislation…In total, more than 80 percent of States Members of the United Nations (156 out of 193) [including those bound by a treaty] legally recognize the right to a safe, clean, healthy and sustainable environment’.

Triple crisis response
As mentioned by the UN Secretary-General, the newly recognised right will be crucial to tackling the triple planetary crisis. 

This refers to the three main interlinked environmental threats that humanity currently faces: climate change, pollution and biodiversity loss – all mentioned in the text of the resolution.

Each of these issues has its own causes and effects and they need to be resolved if we are to have a viable future on Earth.

The consequences of climate change are becoming increasingly apparent, through increased intensity and severity of droughts, water scarcity, wildfires, rising sea levels, flooding, melting polar ice, catastrophic storms and declining biodiversity.

Meanwhile, according to the World Health Organization (WHO), air pollution is the largest cause of disease and premature death in the world, with more than seven million people dying prematurely each year due to pollution.

Finally, the decline or disappearance of biological diversity – which includes animals, plants and ecosystems – impacts food supplies, access to clean water and life as we know it.

Impact of rights litigation
The preface to the Paris Agreement, concluded in 2016, included language on climate change and human rights:
“Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.”

It was against this background that a wave of climate litigation cases based on human rights issues arose. Academics have referred to this as a “rights turn”.

Rights-based litigation is not restricted to specific infringements of the rights of certain individuals or groups. It takes a more general view. There is an increasing number of attempts to protect the rights of the young or even of future generations, because, as is clear to see, it is they who will deal with the consequences of climate disaster.

The first case to take the human rights approach was Ashgar Leghari v. Federation of Pakistan in 2015. Here, a young Pakistani farmer successfully filed a petition saying the government’s failure to act on climate change infringed his fundamental right to life and dignity.

The most famous similar case was in 2019. Urgenda v. Government of the Netherlands saw environmental group the Urgenda Foundation argue successfully that the government’s weak climate policy represented a failure to fulfil its duty of care under the Dutch Civil Code, and hence a breach of the protections in the European Convention on Human Rights of the right to life and right to private and family life. Of course, not all such attempts succeed. For example, Norway’s highest court decided that the government’s issuing of oil extraction permits in the Arctic did not infringe on constitutional rights. Be that as it may, many more cases taking a human rights approach are working their way through the courts.

As international human rights laws are binding on states, it is the states that plaintiffs take aim at, complaining that governments have failed to take adequate action on climate change. Cases against businesses have taken off more slowly and generally been unsuccessful. But the science behind the causes of climate change is improving and innovative rights-based arguments are bringing breakthroughs in such cases. The most attention-grabbing is Milieudefensie [Friends of the Earth Netherlands] et al. v. Royal Dutch Shell plc. The district court of the Hague agreed that Shell’s greenhouse gas emissions were illegal and ordered the company to cut them globally by 45% by 2030, on a 2019 baseline. That has led to further consideration of how human rights law could be used to force non-state actors to take responsibility for their actions, and further attempts at doing so.

Conclusion
The science is clear that the world is fast running out of time to act on climate change. There      is literally no time left for more of the same endless conference cycles, hollow statements, and watered-down compromise declarations, and symbolic “rights” that are not enforced with hard sanctions. This is the time for civil society to stand up where governments fail to act responsibly, and businesses keep profiting from extraction and pollution. We need a worldwide movement, a global alliance of “citizens of Earth” leading to a new social contract on planetary boundaries, limits to growth, and respect for nature and other species, to transform the age of extraction into a new age of renewable, sustainable stewardship. It is unclear whether the UN is still an effective venue for the much necessary action in the face of environmental crises since, despite the move to engage nine “Major Groups” in processes related to sustainable development, it remains a closed club of nation-state governments, a majority of whom are not elected by their people. Rather, in the age of #MeToo, #BlackLivesMatter, or #FreePalestine, global social movements show that real change is possible.

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