UN closer to recognising the right to a healthy environment

“It is our belief that a safe, clean, healthy and sustainable environment is integral to the full enjoyment of human rights,” said the Maldives on behalf of over 60 states, addressing the UN body, which is meeting online this month in Geneva.

“Therefore the possible recognition of the right at a global level would have  numerous important implications on what we leave to our future generations.”

The Maldives, along with Slovenia, Morocco, Costa Rica and Switzerland, has been leading informal consultations since last year with other states hoping that these will eventually lead to a Human Rights Council resolution to recognise that all humans have a right to live in a healthy environment. This is the first time that so many countries have publicly voiced their support.

Asked what recognising this right would mean for the world, Barbara Fontana, head of the human rights section at the Swiss permanent mission to the UN and other international organisations in Geneva, told Geneva Solutions that “it would be a political statement”.

“The hope, for those promoting it, is that the recognition of the right to a healthy environment will lead to more environmental protection,” she added.

“Through more attention to the issues that are linked to human rights and the environment, such as climate change, pollution, damage to wildlife and the impact of deforestation, there will be more action that will then lead to a greater enjoyment of human rights for all, including for those who are currently affected by attacks on the environment.”

Sébastien Duyck, senior attorney at the Center for International Environmental Law (CIEL) in Geneva, argues that this could also bring the focus to the rights holders.

“It sends an important message to environmental defenders that their work is legitimate, that they stand for a human right that is as valid as all of the original rights for which defenders standard for,” he told Geneva Solutions.

“This is important because environmental defenders are among the main targets for reprisals whether from corporate actors or state institutions.”

Of the 331 human rights defenders killed in 2020, according to the Irish NGO Front Line Defenders, two thirds worked to protect environmental, land, and indigenous rights.

Years in the making.  Over 150 countries across all regions already recognise this right either through their national constitutions or legislation, or by ratifying regional human rights treaties that do so, like the African Charter. But at the UN level, only the Convention of the Rights of the Child states that children have a right to a healthy environment.

“The right to a healthy environment is the big missing piece of the jigsaw, from the time of the negotiation of the Universal Declaration of Human Rights, for the simple reason that the environmental movement only happened in the 1960s and 70s. So, this wasn't on people's mind back in the 1940s,” Marc Limon, executive director of the Universal Rights Group, told Geneva Solutions.

Limon, who used to work with the diplomatic mission of the Maldives, participated 10 years ago in the efforts for a resolution to be passed, drawing links between human rights and the environment and appointing former independent expert John Knox to examine how countries and other actors are doing in protecting and respecting those rights. Knox was then followed by the current special rapporteur on human rights and the environment, David Boyd.

“We [the Maldives] never said explicitly at the time, but it was always our long-term goal that the work of the special rapporteur would lay the groundwork for the ultimate UN recognition of the right to a healthy environment,” he said.

Both Boyd and Knox followed through, repeatedly making the case for the right to a healthy environment to be recognised. Others have also thrown their weight behind the initiative. In an unprecedented action, 15 UN agencies, including UNEP, UNICEF, UNDP and the OHCHR, issued a joint statement last week voicing their support and backing the call of over 1,000 NGOs for UN members to recognise the right.

Reservations ahead. But getting new rights to be internationally recognised is an unusual occurrence. Since the Universal Declaration of Human Rights was proclaimed in 1948 by the UN General Assembly, the only new right to be declared by the HRC is the right to water and sanitation in 2010.

This is also because they come with obligations for states. A number of countries like the US, the UK, Canada and Switzerland don’t explicitly recognise the right to a healthy environment through their national constitutions.

Aside from forcing countries to take a look at their national frameworks, this recognition could also fuel a boom in climate and environmental litigation cases being filed against governments in recent years.

“Whenever you recognise a new right, it's always sensitive, especially with countries like the UK and the US who don’t like new rights, especially those that are associated with economic and social rights,” Limon explained.

“Ten years ago, the UK and the US fought tooth and nail to stop the right to water and sanitation from being recognised. They were unsuccessful in the end but countries with such a legalistic approach will always have difficulty.”

Their positions, however, have evolved, he noted. US President Joe Biden has promised to focus on environmental justice, a commitment echoed this Tuesday by new Environmental Protection Agency chief Michael Reagan.

According to Limon, who is in regular touch with US and UK diplomats, these countries are probably “in a better place on this issue than they were ten years ago - however, that does not necessarily mean they will be supportive”.

Other countries that might have often had reservations in the past are developing countries such as China, India and Brazil. “They have tended to worry that it could become a way to hold back their development, by saying that they shouldn't build more factories or power plants, or burn any more fossil fuels,” he said.

“Yet china too seems to be in a different place than it was 10 years ago. It is increasingly willing to acknowledge the negative impacts of environmental damage, for example air pollution, on human health and human rights.”

While civil society advocates are hoping to see a resolution by this September, others close to the discussions are less optimistic and have suggested that it might extend to next year, especially with Covid restrictions slowing down diplomatic processes. If passed, the resolution would then have to go through the UN General Assembly in New York, which would require another round of negotiations.