In a landmark development for environmental activists, the UN recently recognised the right to a clean, healthy and sustainable environment.
With 24% of global deaths linked to environmental threats according to the WHO, it is to be hoped that this right could be used at this week's COP-26 meeting in Glasgow and beyond to further climate action.
On the 9th of October 2021, the United Nations Human Rights Council recognised the right to a clean, healthy and sustainable environment in its resolution 48/13. The Council also established a Special Rapporteur to address the impact of climate change on human rights in its resolution 48/14.
This is a landmark resolution, signifying the first formal recognition of a human right to a clean healthy and sustainable environment. The issue will now be put to the United Nations General Assembly for its consideration.
The Council voted 43-0, with some member States (Russia, China, Japan and India) abstaining from voting. The United Kingdom expressed its reservations prior to the vote, but ultimately voted in favour as the resolution is not legally binding upon States. The United States also expressed reservations but was not one of the 47 members of the Council with voting rights at the time. (The United States withdrew from the Council under the Trump administration in 2018, but regained its seat on the Council on the 14th of October 2021 under the Biden administration.)
In a statement, the United Nations High Commissioner for Human Rights Michelle Bachelet said as “environmental threats intensify, they will constitute the single greatest challenge to human rights in our era.”
While the enjoyment of many established human rights - to health, life, adequate sustenance and development - is dependent on the maintenance of a clean, healthy and sustainable environment, until now there has not been a stand-alone right to a clean environment. Prior to Res 48/13, States, international organisations and other human rights bodies have engaged in the ‘greening’ of existing human rights to require States to take steps to protect the environment in order to enjoy established human rights.
The Australian context
Australia is a signatory to several international environmental agreements, however remains one of a few States yet to implement the right to a clean environment in its constitution. Instead, environmental legislation such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth) remain the primary source of environmental obligations.
Meanwhile, Australia has performed poorly compared to other developed countries in terms of reducing emissions.
The importance of a stand-alone environmental right
The right to a clean, healthy and sustainable environment has a crucial normative effect. As former UN Special Rapporteur on human rights and the environment John Knox said in report A/73/188, such a right:
'would raise awareness of and reinforce the understanding that human rights norms require protection of the environment and that environmental protection depends on the exercise of human rights. It would highlight that environmental protection must be assigned the same level of importance as other interests that are fundamental to human dignity, equality and freedom.'
The recognition of this right places pressure on States to incorporate international law into robust domestic legislation and policy. Duty bearers may be more readily identified and held to account on behalf of rights holders as principles of transparency help delineate the boundaries of acceptable actions and consequences in the environmental sphere.
Ms Bachelet commented, “Bold action is now required to ensure this resolution on the right to a healthy environment serves as a springboard to push for transformative economic, social and environmental policies that will protect people and nature.”
- The right development: brief reflections as the UN finally recognises the right to a healthy environment International Law Association 20 October '21 (Link no longer available)