THE LINK BETWEEN HUMAN RIGHTS AND THE ENVIRONMENT
A degraded environment, whether it is through air pollution, oil spills, dumped waste, biodiversity loss, destruction of forests, or the effects of climate change, can have far-reaching implications for a range of human rights. A degraded environment impacts on the right to life, health, property, dignity, equality, food, adequate standard of living, and a family and private life. In fact, the Inter-American Court on Human Rights is of the opinion that “damage to the environment may affect all human rights”.
Certain vulnerable populations or groups are at greater risk of suffering human rights violations due to environmental degradation. For example, Indigenous populations or communities have a distinctly close relationship with the natural environment on which they rely for subsistence as well as cultural and religious practices. Loss thereof would impact on their lives and livelihood, their continued existence as a distinct group, and their health and development. Children, because of their developing bodies and minds, and the duration that they may suffer from long-term effects, are also more vulnerable to environmental harms. Older persons and persons living in situations of poverty are also more vulnerable to environmental degradation.
States, being the principal duty bearers under international human rights law, have the main duty to ensure that the human rights are protected from the impacts of environmental degradation. Under human rights law, states have negative obligations – not to interfere, or to refrain from acts which would impact on the enjoyment of human rights. In relation to the environment, this means that states have a duty not to cause human rights violations through environmental pollution and destruction. States also have positive obligations to take proactive steps and adopt measures to protect and safeguard human rights. Positive obligations arise where the state has to act as guarantor of the right – where the right cannot be realised without the assistance of the state.
POSITIVE ENVIRONMENTAL HUMAN RIGHTS OBLIGATIONS
The human right to a healthy environment is currently recognised in more than 150 states through national constitutions, legislation, or international treaties. While the formulation of this right differs depending on the context, it has substantive and procedural elements, both of which impose positive obligations on states. Positive substantive duties include ensuring that air, water, and soil are free from pollution and ensuring access to sustainably produced food and a safe climate. Positive procedural duties on state include providing access to environmental information, fulfilling the right to participate in decision-making related to the environment, and providing access to justice where environmental standards are breached. The UN Special Rapporteur on Human Rights and the Environment has further urged that states “must dedicate the maximum available resources” to ensure that their environmental human rights obligations are fulfilled. This implies a separate positive duty on states.
At the international level, the so-called international bill of human rights does not explicitly protect the right to a healthy environment. Neither is this right explicitly recognised in the European human rights system. However, in 2018 the United Nations Human Rights Committee, in its General Comment No. 36 on the Right to Life, recognised that environmental degradation poses a threat to the right to life, and set out the positive environmental human rights obligations of states as follows:
ensure sustainable use of natural resources;
develop and implement substantive environmental standards;
conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment;
provide notification to other states concerned about natural disasters and emergencies and cooperate with them;
provide appropriate access to information on environmental hazards; and
pay due regard to the precautionary approach.
In a 2019 decision regarding Paraguay, Portillo Cáceres v. Paraguay, the Committee found that the positive duty on the state includes taking “all appropriate measures to protect its people from any threat that is ‘reasonably foreseeable’”.
In the European system, principles of environmental protection have been derived from the rights to life, respect for private and family life, and protection of property rights in the European Convention on Human Rights. These principles include the positive duty of states to safeguard the life of those within their jurisdiction. Further, the duty to protect applies both to environmental impacts resulting from activities of the state itself as well as private companies, and in cases of natural disaster or matters beyond the control of the state. The European system also endorses the procedural duties set out above.
In other regional systems, both the Inter-American and the African human rights systems recognise the right to a healthy environment as an autonomous and justiciable right. The American Convention on Human Rights provides in article 26 for the progressive realisation of socio-economic rights, which was interpreted by the Inter-American Court to include the right to a healthy environment. The Protocol of San Salvador in article 11 explicitly recognises a right to environment and the duty on states to “promote the protection, preservation, and improvement of the environment”. The Inter-American Court in an advisory opinion on the environment and human rights held that states not only have duties in relation to environmental harm within their borders, but also for acts or omissions that harm people outside their jurisdictions. The Court also recognised the positive duties of the state towards Indigenous peoples, to ensure that they have “access to a dignified life”.
Both the European and the Inter-American Courts however held that positive obligations only arise where there is a real or imminent threat that is known or should be known to the state and there is a causal link between the environmental and human rights impacts.
At the African regional level, the African Charter on Human and Peoples’ Rights contains a direct provision on the environment in article 24, according to which “all peoples shall have the right to a general satisfactory environment favourable to their development”. The African Commission on Human and Peoples’ Rights in its jurisprudence in SERAC v Nigeria held that this right imposes positive duties on states to take all reasonable measures to; “prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources”. Other positive duties recognised include to undertake monitoring of threatened environments and undertaking “environmental and social impact studies”.
POSITIVE OBLIGATIONS AND THE CLIMATE CRISIS
While the application of these rights in many cases appears straight-forward, the climate change crisis illustrates some of the challenges of protecting human rights from large-scale environmental harm. Particularly, there is the challenge of proving imminent harm and causality.
Climate change has been called the “greatest ever threat to human rights”. The most basic human rights to life, water, freedom from fear and want are threatened by climate change consequences. These consequences, which are already starting to manifest, include droughts, flooding, extreme weather events, wars over scare resources, and mass displacement.
A landmark decision was adopted on the issue of climate change by the Supreme Court of the Netherlands at the end of 2019. In State of the Netherlands v Urgenda the Court interpreted the right to life and right to private and family life in the European Convention on Human Rights to include “a positive obligation on States to take appropriate measures to safeguard the lives of those within its jurisdiction”. That was interpreted to mean that the state has to take adequate measures to reduce greenhouse gas emissions in line with the scientifically set target of 25 to 40 percent. Based on the precautionary principle, the Court found that the risk of climate change may be imminent even if it materialises over a long time. This case firmly established the science-based positive duties of individual states even in the face of a global, long-term phenomenon like climate change.
TIME TO PICK UP THE PACE
Most of the international human rights instruments were developed at a time before the environment occupied a central place as a human rights concern. However, incremental developments have been pushing the boundaries of state environmental human rights obligations. There has also increasingly been a convergence of human rights and environmental concerns. This is highlighted in the Urgenda case, where environmental commitments under the Paris Agreement were used in support of human rights duties. The recognition of the environmental law precautionary principle as a basis to oblige states to address future human rights harm was another step in the convergence between environmental and human rights protections.
Yet not all states recognise the right to environment. Supporters of the Global Pact for the Environment are therefore pushing for the universal recognition of the human right to a healthy environment in a binding international treaty as an important next step. The Human Rights Committee General Comment 36 states that “Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life”. It is time that states start to treat it as such. It is time to pick up the pace.
This article is part of a series collaboration between Human Rights Pulse, E&U For the Climate and Earth Refuge. E&U For the Climate is an international student-led organisation driven by the commitment of young citizens to environmental protection working to advocate for sustainability and policy solutions that mitigate the environmental crisis whilst tackling both climate change and gender/social/ethnic/racial injustices. Earth Refuge is the planet's first legal think tank dedicated to climate migrants, seeking to provide insight and resources to mitigate and confront this crisis, bringing together the voices of those directly affected and those with the means to help.
Elsabé is a human rights lawyer by training and currently works in human rights at the African regional level. She is specifically interested in issues related to extractive industries, socio-economic rights, sustainable development and transitional justice. She is a co-editor of an edited volume: Governance, Human Rights and Political Transformation in Africa, and is excited to edit content for this inspiring initiative.