Dr Meng ZHANG*
“We must build on this momentum to move beyond the false separation of environmental action and protection of human rights. It is all too clear that neither goal can be achieved without the other.”
Michelle Bachelet (UN High Commissioner for Human Rights)
Indeed, this sharp comment above from Michelle Bachelet, the UN High Commissioner for Human Rights, vividly sketches the landscape of human rights in environmental matters. One week ago, on 8 October 2021, two milestone resolutions with regard to human rights and the environment were adopted by the UN Human Rights Council (HRC) as a ‘Friday Surprise’. In resolution 48/13, the Council recognized, for the first time in the UN human rights system, that having a clean, healthy and sustainable environment is a human right. Meanwhile, through a second resolution (48/14), the Council also increased its focus on the human rights impacts of climate change by appointing a Special Rapporteur dedicated specifically to that issue. Starting from summarizing the half-century global journey to recognize the human right to a healthy environment in a nutshell, this blog spotlights the significance and implications of those two new HRC resolutions as well as suggests further steps to build on this renewed momentum for the in-depth integration of human rights and the environment.
1. The last mile of the journey to recognize the human right to a healthy environment in international arena – from Stockholm to Geneva
As is phrased by Dinah Shelton, a well-known scholar working in both the fields of environmental law and international human rights law, ‘the international community has adopted a considerable array of international legal instruments, and created specialized organs and agencies at the global and regional levels to respond to identified problems in human rights and environmental protection, although often addressing the two topics in isolation from one another’ (Shelton, 2009). For centuries, we humans have always lived in the natural conditions and phenomena surrounding us – appreciating, enjoying, sheltered by, subsisting on, sometimes afraid of, and sometimes in harmony with the natural environment. But only in the last couple of decades have the legal regimes that protect the rights of human beings and those that aim to protect the natural environment entered into dialogue with one another to create a human rights-based approach for the global environmental governance, especially turning the spotlight on the human right to a clean, healthy and sustainable environment.
This long and dramatic story of the ‘marriage’ between environmental action and human rights protection dates back to the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment (1972 Stockholm Declaration). According to the Preamble of the 1972 Stockholm Declaration, ‘[b]oth aspects of man’s environment, the natural and the manmade, are essential to his well-being and to the enjoyment of basic human rights – even the right to life itself’ (Stockholm Declaration, 1972). Principle 1 of this Declaration further reaffirms that ‘[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being’ (Stockholm Declaration, 1972). In addition to such a progress in the field of international environmental law, increasing attention has also been given to the link between human rights and the environmental protection in a few recent fundamental international human rights instruments. The International Covenant on Economic, Social and Cultural Rights (1966) contains a right to health in Article 12 that expressly calls on States parties to take steps ‘for the improvement of all aspects of environmental and industrial hygiene’ (ICESCR, Art. 12). The Convention on the Rights of the Child refers to aspects of environmental protection in Article 24, which 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’ (CRC, Art. 24). More importantly, environmental protection and human rights have been considered as interdependent and therefore a mutually reinforcing pathway for achieving the Sustainable Development Goals (SDGs).
Despite the lack of a general normative international instrument on the human right to a healthy environment so far, continuous efforts to provide a legal basis for the human right to environment and to promote legislative progress on the integration of human rights and the environment can be witnessed under the UN human rights system. Starting from a draft declaration on human rights and the environment in 1994 (UN Doc. E/CN.4/Sub.2/1994/9, 1994), the former UN Human Rights Commission adopted several resolutions linking human rights and the environment in the broader topic. For instance, a 2005 resolution entitled ‘Human rights and the environment as part of sustainable development’ called upon states to ‘take all necessary measures to protect the legitimate exercise of everyone’s human rights when promoting environmental protection and sustainable development’ (Commission on Human Rights Res. 2005/60, 2005). Further, as a milestone, the UN Human Rights Council (HRC), serving as the successor for the Commission since 2006, established the UN Special Rapporteurship on human rights and the environment as well as appointed a special rapporteur in this regard in 2012 (HRC res.19/10, 2012). When the pace of progress stepped into 2018, constructive studying works led by the expert under this UN mandate on human rights and environment eventually culminated in the ‘Framework Principles on Human rights and the Environment’ that embody the recognition of basic human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (UN Doc.A/HRC/37/59, 2018).
Along joint efforts to call for a further step towards the global recognition of the human right to a healthy environment – a recognition that is long overdue – came a groundbreaking achievement within the UN human rights system in Geneva on Friday 8 October 2021. The HRC through a resolution formally recognized, for the first time in the international arena, that having a clean, healthy and sustainable environment is a human right (A/HRC/48/L.23/Rev.1). This resolution is undoubtfully a historic victory for the integration of environmental action and human rights protection, as it is the first time that an international text explicitly recognizes the right to a healthy environment as an essential human right. In the evolving interaction between human rights and the environment in the international legal arena, the HRC resolution on this topic adopted within the UN human rights system is deemed to reshape the landscape of the integrated legal protection on human rights and the environment.
2. Priority on top of the agenda – human rights in the context of climate change
Throughout global environmental crises, there is a big monster, namely climate change, that exerts severe, pervasive and multifaced impacts on the environment, the everyday lives of people around the world, as well as their human rights to live in a safe and healthy environment. The serious threat to human rights posed by climate change has been highlighted by a numerous declarations and reports from the HRC and the UN High Commissioner for Human Rights (NIM, 2021). As a result, there is growing consensus that the incorporation of global standards and rules on human rights into the international climate regime plays an important role in addressing climate change, which, on the one hand ensures that climate change response measures do not violate human rights – protecting human rights; on the other hand, encourages that actions are taken to protect people from these climate harms by controlling greenhouse gas (GHG) emissions – promoting climate actions.
Against this background, in addition to the HRC resolution that recognizes the human right to a healthy environment, the Council, on the same day, also adopted a resolution to establish a Special Rapporteur on the promotion and protection of human rights in the context of climate change (A/HRC/48/L.27), increasing its focus on the human rights impacts of climate change. It is undoubted that the strengthened interlink between human rights and climate change through this resolution demonstrates a human rights-based pathway to address climate change. Firstly, human rights to free speech and association offer an enabling ground for climate defenders and whistleblowers to speak against climate change and institutional misconduct. Secondly, human rights institutions provide additional forums through which claims for climate actions can be addressed. And lastly, human rights fostering transparent, participatory, and responsive governance are crucial in achieving sound governance on climate change, which has been illustrated by a recent climate case brought by environmental NGOs and the public against Royal Dutch Shell before the court of justice in Den Hague.
More importantly, the Human Rights Council also requested the Advisory Committee of the HRC to conduct a study and to prepare a report, in close cooperation with the newly established Special Rapporteur, on the impact of new technologies for climate protection on the enjoyment of human rights. Nowadays climate technologies, such as energy efficiency technologies, carbon capture and storage, and technologies for renewables, have been hailed as game changers in the ever-changing climate game. But it is also equally true that social justice and human rights concerns arising from the deployment of climate technologies call for more attention and actions in the legal arena.
This HRC requirement concerning climate technologies can be therefore regarded as a significant step towards such actions. As has been highlighted by the IPCC report, no matter what kind of climate technologies would be deployed, social justice and equity are core aspects of climate-resilient development pathways that aim to limit global warming to 1.5 °C as they address challenges and inevitable trade-offs, widen opportunities, and ensure that options, visions, and values are deliberated, between and within countries and communities, without making the poor and disadvantaged worse off. Accordingly, the human rights-based approach to address climate change can be invoked by affected populations and civil society as a ‘tactical lever’ to ensure an essential role of human agency in the unfolding directions of our technological futures in the context of climate change.
It is also worth noting that this set of HRC resolutions regarding human rights in environmental matters/climate change cannot be read separately but should be interpreted in a systematic manner. The resolution to recognize the human right to a healthy environment provides a fundamental legal basis for the integration of environmental action and human rights protection. The resolution to appoint the Special Rapporteur on human rights in the context of climate change further highlights the priority on this topic. And the request from the Council to draft a report on the human rights impact of climate technologies demonstrates a specific action within this new momentum.
3. What will be the next step? – deeper international recognition and bold state action
The success of the new HRC resolution to recognize the human right to a healthy environment is not final, the failure of the separation of environmental action and human rights protection is not fatal, it is the courage to continue the global integration of human rights and the environment that counts. It is still too early to celebrate this milestone achievement from the HRC, as the Council’s resolution is far from being called a sufficient legal basis for the human right to a healthy environment. Further recognition of this human right needs to be considered by the UN General Assembly. In order to build on this momentum to move beyond the false separation of environmental action and protection of human rights, the shift from ‘soft law’ to ‘hard law’ is also required to strengthen the global recognition of the human right to a healthy environment. Maybe the international community needs to establish a third Covenant that specifically addresses this newly recognized human right to a healthy environment within the UN human rights system or needs to include this human right into the future Global Pact for the Environment that is still under negotiation within international environmental law. Or should the linking word be ‘and’ instead of ‘or’? The answer to this key question is rooted in to what extent joint efforts could be made between human rights law and environmental law in international arena.
Beyond international recognition, bold action is also required by UN Member States to give prompt and real effect to the human right to a healthy environment as well as to make sure this newly recognized right will serve as a springboard to push for transformative economic, social and environmental policies that will protect people and nature. As is known to all, both international human rights and environmental law only set minimum standards, leaving State parties free to adopt more stringent measures. Attention, therefore, also needs to be paid to the complexity of this aspect of the multi-level governance framework existing in environmental and human rights matters and to the main factors influencing its functioning. Although more than 150 States have already recognized this right to a healthy environment in their domestic legislation, the ‘geographical asymmetry’ concerning the implementation of this right is considered to constitute a crucial barrier on the path to achieve the real effect and in-depth integration of environmental action and human rights protection. For instance, on the one hand, Europe and the Americas have already made remarkable progress in this regard in the ambit of their respective regional human rights conventions; on the other hand, if the attention is switched to the Asia-Pacific region, it is not difficult to figure out that this region remains the forgotten land in which no regional treaty is in place to protect human rights in environmental matters. What is even worse, some major greenhouse gasses emitting countries in this region are still reluctant to adopt human rights standards in climate and environmental actions, due to reasons relating to complicated political considerations and the cultural heterogeneity, which can be best illustrated by their twisty attitude within the UN human rights system (some abstentions during the vote for these two new HRC resolutions in environmental and climate change matters come from some countries in this region).
The half-century journey of the integration of environmental action and human rights protection has vividly proved that just as human rights cannot exist without a healthy environment, a sound governance on the environment cannot be achieved without respect for human rights. What will be the next step to build on this momentum? As they say: one-step at a time – bold state actions on implementing the newly recognized human right to a healthy environment into the particularities of the world’s unique geographies should be definitely part of this step.
* Dr. Meng ZHANG: Research fellow, Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Sweden), meng.zhang@rwi.lu.se; Voluntary postdoctoral researcher, Centre for Environmental and Energy Law, Ghent University (Belgium), meng.zhang@ugent.be
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