UN Bodies Advance Recognition of Human Right to a Healthy Environment

image of Valley of Tasman River
Valley of Tasman River
Credit: Krzysztof Golik via Wikimedia Commons

In the past week, three developments at the United Nations strengthened international recognition of the relationship between the health of our planet and human rights. On October 8, the UN Human Rights Council adopted its first-ever resolution to recognize the human right to a healthy environment. [OHCHR Press Release: Bachelet] That same day, the Council created a new special procedure, the Special Rapporteur on the promotion and protection of human rights in the context of climate change. On October 11, the UN Committee on the Rights of the Child (CRC) published its decision concerning a complaint in which 16 children alleged that five States are violating their rights to life, health, and culture by “causing and perpetuating the climate crisis.” [OHCHR Press Release: Child Rights] The Committee rejected the complaint for failure to exhaust domestic remedies, but recognized that a State may be internationally responsible for the reasonably foreseeable extraterritorial harms to human rights caused by emissions originating in its jurisdiction. All three developments provide support for efforts to address the causes and consequences of climate change from a human rights perspective.

Right to a Healthy Environment

The Human Rights Council’s resolution acknowledges widespread support for the human right to a healthy environment, as evidenced by legislation or other commitments by “more than 155 States,” a joint statement by UN entities, and a letter to the Council signed by more than 1,100 organizations. See Human Rights Council, Resolution 48/13, The human right to a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/48/L.23/Rev.1, 5 Oct. 2021. Its operative paragraphs begin by recognizing “the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of [other] human rights” that is also related to those rights. The Council encourages States to: “build capacities” and “enhance cooperation” in order to implement this right; to “share good practices;” to “adopt policies” necessary for the enjoyment of this right; and to “continue to take into account” their human rights obligations in implementing the Sustainable Development Goals. See id.

The new resolution is considered historic because it marks the first time the Human Rights Council has expressly recognized a human right to a healthy environment. While the Council has previously recognized the importance of a healthy environment, including when creating a Special Rapporteur on human rights and the environment, it had not previously stated that humans have a right to a healthy environment. Similarly, none of the core UN human rights instruments includes a right to a “healthy environment,” as such. For example, the International Covenant on Economic, Social and Cultural Rights requires States to take steps to improve “all aspects of environmental and industrial hygiene” as part of their obligation to protect the right to “the enjoyment of the highest attainable standard of physical and mental health.”

The Council’s recognition adds support for a stand-alone human right to a healthy environment, which other human rights mechanisms have already affirmed. For example, in 2017, the Inter-American Court of Human Rights issued an advisory opinion in which it found that the American Convention on Human Rights protects an “autonomous right” to a healthy environment, which requires States to protect nature and the environment and which is related to the enjoyment of “all human rights,” including especially the rights to life, personal integrity, private life, health, water, food, housing, participation in cultural life, property, and the right not to be forcibly displaced. See I/A Court H.R., Advisory Opinion 23/17, The Environment and Human Rights, Series A No. 23 (Nov. 15, 2017). The Court has applied this right in subsequent caselaw. [IJRC: Lhaka Honhat]

Similarly, the UN Special Rapporteur on human rights and the environment has also issued guidance urging States to protect the human right to a healthy environment. See, e.g., General Assembly, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/73/188 (Jul. 19, 2018).

Many civil society organizations and other actors had, for many years, organized and advocated for the Council’s recognition of the human right to a healthy environment. Both the UN High Commissioner for Human Rights, Michelle Bachelet, and the UN Special Rapporteur on human rights and the environment, David Boyd, praised their efforts in welcoming the Council’s resolution. [OHCHR Press Release: Bachelet; OHCHR Press Release: Boyd] The Council invited the UN General Assembly to also take up this issue, for possible broader recognition, and committed to keeping the topic on its own agenda.

Special Rapporteur on Climate Change

In its resolution establishing a new special procedure focused on climate change, the Human Rights Council “[e]xpresses its resolve to contribute towards ongoing efforts at all levels to address the adverse impact of climate change on the enjoyment of human rights” before deciding to appoint an expert on this topic for a three-year term. The newly-created Special Rapporteur will be charged with collecting and communicating knowledge, good practices, and challenges, as well as helping increase governments’ capacity to address climate change and its negative effects on human rights. See Human Rights Council, Resolution 48/14, Mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, UN Doc. A/HRC/48/L.27*, 4 Oct. 2021. The Human Rights Council expects the mandate holder to be appointed at its 49th Session, in February – March 2022.

Child Rights Committee’s Decision

On October 11, the Committee on the Rights of the Child published five separate decisions, each concerning the admissibility of a complaint by 16 young people against five States: Argentina, Brazil, France, Germany, and Turkey. See, e.g., Committee on the Rights of the Child, Sacchi et al. v. Argentina, Views of 22 Sept. 2021, UN Doc. CRC/C/88/D/104/2019. While each decision deals with the specifics of domestic law individually, the Committee’s broader analysis of the claims and its decision are the same in all five. The press release refers to the CRC’s decision as “the first such ruling by an international body” in that it recognizes that individuals may hold States responsible when carbon emissions from within their borders contribute to violations of human rights within or outside their territory. [OHCHR Press Release: Child Rights] The decisions, which the CRC adopted on September 22, are all available on the webpage of the Committee’s recently-concluded 88th Session. Additionally, the Committee published an open letter to the complainants that includes a simplified explanation of its decision.

The 16 complainants include Greta Thunberg and other prominent activists; they are nationals of four of the States against which the complaint was brought (Argentina, Brazil, France, and Germany), as well as nationals of India, the Marshall Islands, Nigeria, Palau, South Africa, Sweden, Tunisia, and the United States of America. Some of their countries, such as the Marshall Islands, face particularly severe risks from climate change. Others are among the countries that produce the most CO2 emissions, in total or per capita. However, several of the world’s most polluting countries, including China, India, and the United States, have not authorized the Committee on the Rights of the Child to decide complaints brought against them; the United States is the only UN Member State that has not ratified the Convention on the Rights of the Child.

The complainants alleged that the five States had recklessly caused and perpetuated climate change by failing to reduce CO2 emissions, in violation of their obligations to take preventive action, cooperate internationally, and apply the precautionary principle to avoid foreseeable violations of human rights. They argued that the climate crisis poses risks to the rights of all children, everywhere, and “jeopardize[s] millenia-old subsistence practices” of the Indigenous complainants. On an individual level, they linked climate change to their own wellbeing, telling the Committee how wildfire smoke and pollution exacerbated their asthma, how climate change increased the spread and intensity of diseases – including malaria and dengue fever – that they have contracted, and how drought threatened their access to water, for example.

The historic aspect of the CRC’s admissibility decision is its recognition that a State “has effective control over the sources of emissions that contribute to the causing of reasonably foreseeable harm to children outside its territory,” meaning that each State has individual responsibility to prevent extraterritorial harms by reducing emissions, even though climate change is not caused by any one State alone. In adopting this standard, the Committee drew heavily from the Inter-American Court’s above-mentioned advisory opinion, as well as other human rights doctrine. In this instance, the CRC concluded that, prima facie, the harmful effects of climate change on these children were reasonably foreseeable, real, and significant.

However, the CRC ultimately rejected the complaint as inadmissible because the complainants had not brought their claims to any national court first. The complainants argued that effective domestic remedies were not available or would be too slow or ineffective, but the CRC was not convinced. For example, with regard to Brazil, the CRC noted “the absence of any information that would demonstrate that [a public civil suit] has no prospect of success and in light of existing suits filed on the issue of environmental degradation in the State party.” It concluded “that, in the absence of any specific information by the authors that would justify that domestic remedies would be ineffective or unavailable, and in the absence of any attempt by them to initiate domestic proceedings in the State party, the authors have failed to exhaust domestic remedies.”

The complainants and their representatives expressed disappointment at the CRC’s decision on inadmissibility and the additional delay in securing accountability, while welcoming the Committee’s recognition of States’ obligations to reduce emissions. [Earthjustice Press Release]

Additional Information

For additional information on the Human Rights Council, its special procedures, or the Committee on the Rights of the Child, visit the IJRC Online Resource Hub. See the News Room for coverage of previous developments involving environmental rights, and read the IJRC Daily for a global compilation of human rights news.