The UN Human Rights Council recognition of a Right to a Healthy Environment

Author: Emma Pagliarusco

On 8 October 2021, the UN Human Rights Council (UNHRC) recognised the right to a clean, healthy and sustainable environment. “This has life-changing potential in a world where the global environmental crisis causes more than nine million premature deaths every year” said UN special rapporteur on human rights and the environment, David Boyd, a key person behind the adoption of the resolution.

Our lives, well-being and dignity depend on a stable climate and healthy ecosystem. More concretely, our fundamental human rights are closely connected to the environment we live in, whether that is the right to food, water, sanitation or culture, self-determination, indigenous rights or the right to adequate housing. A right to a healthy environment recognises that human rights and environmental protection are complementary, and that a healthy environment is a prerequisite for the enjoyment of human rights. With this article, we take a look at how we got here, what this actually means and what comes next.

How did we get here?

Over 150 States have already legally recognised a right to a healthy environment, either through their constitutions, regional human rights agreements or national law. However, often this recognition does not lead to strong measures to fully respect, protect and promote this right, thus creating a large implementation gap.

At international level, the connection between the enjoyment of human rights and an environment of a certain quality has developed gradually since the Stockholm Declaration (1972), a non-binding but politically ground-setting soft law instrument. Already back then, its Principle 1 stated that “Man 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”.

A number of regional human rights instruments subsequently confirmed and developed the connection between the environment and human rights, including the African Charter of Human and Peoples’ Rights (1981) and  the Protocol of San Salvador to the American Convention on Human Rights (1998). On the contrary, the European Convention on Human Rights (1950) still does not enshrine the right to a healthy environment as such, which is instead dependent on the interpretation of the Court. In general, courts across the world have played an important role in interpreting human rights in a way that requires environmental or climate measures, even where there was no explicit recognition of a right to a healthy environment.

After years of work on this topic by civil society, indigenous groups, the Special Rapporteur on human rights and the environment, and academia, informal discussions on the recognition of the right to a healthy environment were started by Costa Rica, Maldives, Morocco, Slovenia, and Switzerland in September 2020. A big civil society campaign pushed the issue, with over 1,300 NGOs supporting the call for the recognition of this right.

In October 2021, the UNHRC then adopted Resolution 48/13 with 43 votes in favor, 4 abstensions (Russia, China, India and Japan) and no votes against. Its Article 1 reads: “Recognizes the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights;”

A new Special Rapporteur – Resolution 48/14

Alongside the Resolution recognising the right to a healthy environment, the UNHRC also adopted Resolution 48/14, which establishes a Special Rapporteur on the promotion and protection of human rights in the context of climate change. The Rapporteur will develop recommendations on how to prevent adverse impacts of climate change resulting in violation of human rights and how to strengthen the institutionalisation of cooperation between environmental and human rights protection institutions. This role should further strengthen dialogue and collaboration, ensuring that those most affected by the climate crisis, including young people, are heard as partners in the work to further define the content and requirements of this right.

Legal and non-legal consequences 

The UNHRC is an inter-governmental body responsible for the promotion and protection of all human rights around the globe. It is made up of 47 States that are elected based on regional groups, investigates allegations of breaches of human rights and explores thematic human rights issues.

UNHRC resolutions are ‘political expressions’ and therefore not legally binding so the recognition of the right at the UNHRC does not create an enforceable legal right in itself. However, the recognition is a strong political commitment and other resolutions, such as on the recognition of the right to water, have been a real catalyst for change. A key next step in this regard would be the consideration of the right at the UN General Assembly, the main UN policy-making body, a step the resolution encourages.

Beyond the direct non-binding political level, the recognition of the right in the UNHRC resolution also has a lot of potential to trigger and speed up some legal developments. The resolution could build up momentum for more States to recognise the right at national level, for better implementation where the right already exists and momentum for the future recognition of the right in a binding  international law text.

For example, the Parliamentary Assembly of the Council of Europe already recommended that there should be an additional protocol to the European Charter of Human Rights on a right to a safe, clean, healthy and sustainable environment. This happened on 29 September 2021, so shortly before the adoption of the resolution, and is therefore not a direct consequence and is further only a recommendation, but it shows that there are more and more developments in this direction.

But what does ‘clean, healthy and sustainable’ actually mean?

‘Clean, healthy and sustainable’ reflect some of the different adjectives used to describe the quality of the environment in the regional and national recognition of the right. However, they leave it open what exactly a ‘clean’, ‘healthy’ or ‘sustainable’  environment is.

Art.3 of the Resolution however provides some guidance by “affirm[ing] that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law”. Strictly speaking, this could mean that States that are, for example, not fully implementing their obligations under the Paris Agreement would not be complying with their obligations to promote the right to a healthy environment either.

Overall, the scope and content of the right will still need to be defined through the application and interpretation of the courts. Young people can play a key role in this process  and contribute to the broader debate on the content of the right. One must keep in mind that there may not be a ‘one-size-fits-all’ definition or concept of the right to a healthy environment, given different regional and local environmental circumstances. However, there will be common core elements independent of these circumstances, such as compliance with international environmental agreements or key health standards, for example on air pollution.

What next?

It is important that young people are involved in the further definition of this right by contributing to a debate of its content and the obligations that should follow. We can do so by discussing this right in international fora, referring to it and testing it in litigation, and conducting national level advocacy to push for the better implementation along with existing environmental obligations. A strong focus should be on the integration of the right across all sectors to ensure that the structural causes of the currently unhealthy, polluted and unsustainable environment are addressed at their core.