Does the right to a healthy environment need a treaty?

When the former president of the Human Rights Council Nazhat Shameem Khan struck the gavel on 8 October 2021, marking the approval of a resolution recognising the human right to a healthy environment, the room filled with applause. It had taken over 10 years of campaigning from environmental rights activists but also diplomats to get the necessary support for the text to pass. Ten months later, New York followed suit, with 161 state members of the UN general assembly voting in favour of the proposal.

But what does the UN stamp mean for people everywhere drinking from polluted rivers or breathing in toxic fumes from a factory across the border? What obligations does a state have towards its people to halt the degradation of the planet or to protect activists that defend it?

These are some of the questions discussed by some 70 diplomats, academics and rights advocates at the Glion Human Rights Dialogue held in Le Mirador spa resort in Chardonne, Switzerland in May and summed up in a report released last month. The two-day retreat, organised by the Universal Rights Group and hosted by Switzerland and Lichtenstein, is meant to encourage an open debate on human rights issues between diplomats, advocates and experts, away from the public eye.

One of the discussed proposals was to agree on a new treaty, but countries are wary of adding one more deal to the list of ongoing negotiations, especially in the current fraught multilateral context.

A diverging issue

The recognition of the “right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights” at UN level was hailed as a historic breakthrough for environmental rights. Campaigners argued that it would encourage states to take steps to protect the environment and even be helpful to argue environmental cases before courts.

But UN resolutions are not legally binding, as several countries that pushed back against the move pointed out. Among the opposers, the United Kingdom has said that it created “ambiguity” as it had not been agreed in any human rights treaty or had not emerged in customary law.

For Universal Rights Group executive director Marc Limon, countries will only commit to an official process, led by themselves. “If you really want to make it meaningful, you need to set down in a clear, intergovernmental instrument what is the scope and content of the right. And even more importantly, what are the corresponding obligations of states,” Limon told Geneva Solutions at the launch of the report.

David Boyd, UN special rapporteur on environmental rights, also believes that a legally binding instrument is “the logical next step after the political recognition at the HRC and the GA”.  Boyd has done substantial work in clarifying the definition of a right to a healthy environment and was among those spearheading efforts for its recognition.

“The right cannot be allowed to languish as a second class right that lacks legal status,” he told Geneva Solutions.

But despite getting through the UN, the right to a healthy environment remains a diverging issue. Over 150 countries already recognise it either through their constitutions, legislation or a regional treaty, but under different forms and with different scopes.

“We don't have a universal definition yet. Some elements are rather universal, like the right to information and the fact that people must participate which is genuinely agreed everywhere. ‘How’ is not always agreed upon and that fuels discussions,” Yves Lador, Geneva representative for EarthJustice, told Geneva Solutions.

The concept also continues to face strong opposition at an international level. The United States, which doesn’t recognise the right, pushed for scrapping any reference to the right to a healthy environment in a resolution on nuclear legacy tabled by the Marshall Islands at the last Human Rights Council session. India and the UK backed its demands.

Switzerland, one of the countries to champion the text at the council and which does not explicitly recognise the right in its constitution, has said it would not favour the move.

“In the current circumstances it is very complicated finding agreement on something internationally legally binding,” Swiss ambassador to the UN Jürg Lauber told Geneva Solutions, arguing that it was better to focus on concrete steps.

Shara Duncan Villalobos, Costa Rican ambassador to the UN in Geneva, who also led efforts alongside Switzerland and Morocco, argues that a years-long negotiation process would mean “spending a lot of energy” convincing countries to come to the table.

“There are some countries that actually have been repeating this argument that we need international law, but they haven't adhered to any of the international human rights instruments,” she told Geneva Solutions.

It would also add to the long list of ongoing treaty negotiations on issues including plastics pollution, business and human rights, pandemic preparedness and the high seas, which will also take several years.

The best way forward?

Lador pointed out that the urgency of the situation called for strengthening efforts on the ground where progress can be obtained. “The environment is continuing to degrade, catastrophes are accelerating, so how do you still protect the rights of the people in such a context? For courts and for legal systems this is a very practical question. At the international level, the current aim is to find common ground on such questions, so it runs the risk of being too abstract and disconnected,” Lador said.

Last year a Dutch court ordered Shell to reduce its carbon emissions by 45 per cent by 2030. Similar ongoing cases elsewhere for example against TotalEnergies could add to the growing pile of precedent.

The European Court of Human Rights, the last regional court to not recognise the right to a healthy environment as a standalone right, is in discussions to amend the convention. Lichtenstein's ambassador to the UN in Geneva Kurt Jäger told Geneva Solutions that the move could spur governments to take steps to protect the environment.

For Duncan Villalobos, existing UN mechanisms also have the tools to push countries to implement their environmental obligations. “Treaty bodies have a special role to play and they could, from their respective mandate, look at the consequences of these issues on the specific populations that they care for,” she said, citing the example of the Committee on the Rights of the Child, which in a historic ruling found that states “can be held responsible for the negative impact of its carbon emissions on the rights of children both within and outside its territory”.

Lador notes that a treaty could be a good idea in perhaps 10 years time, when existing bodies have moved forward on the issue, otherwise it could risk undermining ongoing efforts.

But Limon fears that these mechanisms lack the weight of an international treaty to enforce their recommendations. “In a neorealist world if you want a right to be real, you have to get states to sign up to and accept legally binding obligations. Otherwise, the state will not feel bound to do what a special rapporteur has told them. If a state doesn't like a recommendation from a treaty body, which is quasi judicial, they'll feel free to ignore it,” he said.

Boyd says that both avenues must be pursued. “States must take effective and equitable actions to improve air quality, ensure safe drinking water, produce healthy and sustainable food, address the climate emergency, protect and restore biodiversity and detoxify people's bodies and ecosystems,” he said.

“In light of the triple environmental crisis, time is of the essence.”