Historic Breakthrough for Environmental Justice: The UNHRC Recognizes the Right to a Healthy Environment as a Human Right

[Maria Antonia Tigre is a global climate litigation fellow at the Sabin Center for Climate Change at Columbia Law School and the Director of Latin America for the Global Network for the Study of Human Rights and the Environment (GNHRE). Victoria Lichet is the coordinator of the U.S. team of the Global Pact Coalition, and also researches issues related to human rights and environmental law for the GNHRE and the Ecological Rights subgroup of the Global Pandemic Network.]

From September 13th to October 9th, 2021, the United Nations Human Rights Council (UNHRC), an inter-governmental body made up of 47 States responsible for promoting and protecting human rights worldwide, held its 48th regular session. The members of the UNHRC adopted resolution A/HRC/48/L.23/Rev.1 recognizing the human right to a safe, clean, healthy and sustainable environment (hereinafter “the right to a healthy environment.”) A year ago, paving the way to this historical development, the UNHRC adopted resolution A/HRC/RES/45/30 urging States to adopt effective measures to ensure children’s rights through a healthy environment and, in particular, the recognition of a right to a healthy environment in their national legislation (see a detailed note here). The landmark resolution adopted last week goes a step further, ensuring a healthy environment to all. 

This is the first time that the United Nations has recognized that having a safe, clean, healthy and sustainable environment is a human right. Comparable to the right to water and sanitation, this resolution will lead to a subsequent process at the UN General Assembly (UNGA) in New York and might encourage stronger and more coherent environmental laws and policies both at the international and national levels.

The Recognition of the Right to a Healthy Environment as a Human Right

In September 2020, civil society organizations and Indigenous Peoples called on the UNHRC to recognize the human right to a healthy environment in a letter signed by more than 1,350 organizations. In June 2021, the core group on human rights and the environment composed of Costa Rica, Maldives, Morocco, Slovenia, and Switzerland (“the core group”) delivered a joint statement inviting governments to recognize the right to a healthy environment for all as “key to address[ing] the environmental crisis and protect[ing] human rights.” While a few countries expressed their concerns regarding the resolution, it was adopted with 43 votes in favor and four abstentions from China, India, Japan and Russia. Through this resolution, the UNHRC recognizes “the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.”

The UNHRC recognized that climate change, the environmental crisis and biodiversity loss have negative impacts on the enjoyment of all human rights. The resolution notes the interlinkages between human rights and the environment, recalling that protecting the environment contributes to “the enjoyment of human rights, including the rights to life, to the enjoyment of the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to housing, to safe drinking water and sanitation and to participation in cultural life, for present and future generations.” 

To implement the right to a healthy environment, the UNHRC encourages States to (i) cooperate and strengthen efforts to protect the environment to fulfil their human rights obligations and commitments, (ii) continue to share good practices in fulfilling human rights obligations relating to the enjoyment of a healthy environment, (iii) adopt policies for the enjoyment of the right to a healthy environment and (iv) keep taking into account human rights obligations and commitments relating to the enjoyment of a healthy environment in the implementation of and follow-up to the Sustainable Development Goals.

The work and leadership of David R. Boyd, Special Rapporteur on human rights and the environment, and his predecessor John Knox were crucial in advancing the debate regarding the necessity to recognize the right to a healthy environment. For example, the report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment underline the necessity to recognize the right to a healthy environment to protect people’s health, deliver cleaner air, improve access to safe water and sustainably-produced food. Their reports also recall States’ obligation to respect, protect and promote human rights, including through measures to address environmental challenges. In addition, the report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2020) provides a study on good practices related to the implementation and promotion of the right to a healthy environment that should constitute a map to efficiently implement the right to a healthy environment around the world.

While not binding and thus lacking the strength of implementation regulatory measures and judicial enforcement at the national level, this resolution is a historic landmark. The resolution should instill governments’ cooperation and stronger environmental actions.  It might further encourage States that have not recognized the right to a healthy environment yet, to join more than 150 States that formally recognize such right in their legal frameworks. The recognition of the right to a healthy environment, when associated with a strong implementation framework at the national level, undeniably improves environmental and human health outcomes (see more here). 

At the international level, the resolution should bolster environmental efforts as it invites the UN General Assembly (UNGA) to consider the matter. Debates and negotiations regarding the necessity to recognize the right to a healthy environment at the UNGA will broaden the recognition and protection of the right to a healthy environment. While we don’t know yet when the discussion will be brought at the UNGA, the core group will most likely keep its leadership role at the UNGA and be joined by more States. Abdulla Shahid of Maldives was elected President of the UNGA 76th session running from September 2021 to September 2022 and could play a supportive role.

When Non-Binding Resolutions Can Be a Catalyst for Change: The Example of the 2010 Recognition of Water and Sanitation as a Human Right

The significant development of the human right to water and sanitation can be traced to the meaningful work developed by UN bodies, the Commission on Human Rights, and the UNHRC. In 2010, the UNGA voted to adopt resolution A/64/292, formally recognizing “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” As human rights have expanded in scope and influence, the UNGA’s 2010 Resolution has proclaimed international political recognition of this distinct right.

The UNHRC adopted the same year another resolution recognizing the existence of a human right to access safe drinking water and sanitation, while also affirming the recognition by the General Assembly. Since then, several resolutions have been adopted reaffirming the existence of the right to water. In May 2011, the World Health Organization (WHO) made a call to Member States to come “in support to the progressive realization of the human right to water and sanitation” through its Resolution 64/24. In 2015, the UNGA adopted a new resolution separating the right to water from the right to sanitation, given that the latter is often neglected. In this context, the Committee on Economic, Social and Cultural Rights (CESCR) gained the competences of receiving the complaints of individuals and the collective as well as inter-state complaints with the adoption of the Optional Protocol to the ICESCR in 2008, which established a complaint procedure and an inquiry procedure to tackle different types of violations.

The UNGA and UNHRC 2010 resolutions both have had a remarkable influence on States’ commitments to ensuring access to safe drinking water and sanitation for all (see Goal 6 of the 2030 Agenda for Sustainable Development). Since then, the Special Rapporteur on the human rights to safe drinking water and sanitation noted that several countries have updated their national legislation or constitutional provisions, and courts have issued decisions to recognize the right to water and sanitation as a human right. In addition, the Special Rapporteur observed the adoption of the language of the human rights to water and sanitation by many civil society organizations and grassroots movements, and an increasing recognition of the multiple links between the human rights to water and sanitation and other human rights.

These resolutions thus marked a milestone in the development of the human rights to water and sanitation, which could be reflected by the resolution A/HRC/48/L.23/Rev.1 in the development of the right to a healthy environment. 

Conclusion 

The UNHRC recognition of the right to a healthy environment is a historic victory which undeniably constitutes a great milestone for the future. It is a powerful message to everyone around the world that living in a safe, clean, healthy, and sustainable environment is a human right that deserves to be protected. The upcoming negotiations at the UNGA will reveal if governments worldwide are ready to recognize, protect and enforce the right to a healthy environment at the national level. 

The UNHRC resolution was one of the significant developments in international environmental law last week that should be celebrated: 

• On September 29th, 2021, the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers draw up an additional protocol to the European Convention on Human Rights on the right to a safe, clean, healthy and sustainable environment. 
• On October 8th, the UNHRC also adopted resolution A/HRC/48/L.27 establishing the mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, thus recognizing the negative effects of the climate crisis on human rights. The Special Rapporteur will give recommendations and identify good practices to address the impacts of climate change on the enjoyment of human rights. 
• That same day, in five climate-related decisions brought by 16 children and youth against five States, the Committee on the Rights of the Child (CRC) found that it had jurisdiction to determine the cases since States are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders. While the cases were all rejected for a failure to exhaust local remedies, the  CRC concluded that the youth are victims of foreseeable threats to their rights to life, health, and culture, and that a sufficient causal link was established between the harm they alleged and the acts or omissions of the five States. 
• On September 13th, the UNHRC adopted a resolution on Human Rights and Indigenous Peoples affirming the essential role of Indigenous Peoples in addressing climate change and biodiversity loss, addressing concerns such as the protection of human rights defenders. 
• That same day, the UN Human Rights Committee found that Paraguay violated the indigenous community’s rights and sense of “home” when it failed to prevent and control the toxic contamination of traditional lands by nearby commercial farms intensively using pesticides.

Along with these other historic and long-awaited environmental advances, there is hope for future positive outcomes regarding the recognition and implementation of the right to a healthy environment. In the aggregate, these new developments might constitute a “pathbreaking precedent that provides a strong basis for future claims” against governments’ lack of environmental actions both at the national and the international level (see more details here and here).