The emerging law of environmental human rights is clearer than ever before

by Professor John Knox, Independent Expert on human rights and the environment Blog, Blog, By invitation, Contemporary and emerging human rights issues

On the last day of its 25th session in March 2014, the Human Rights Council adopted by consensus a historic resolution on human rights and the environment. For the first time, the Council explicitly recognised that ‘human rights law sets out certain obligations on states which are relevant to the enjoyment of a safe, clean, healthy and sustainable environment.’

This resolution builds on the Council’s consideration of the topic since March 2012, when it decided to appoint an Independent Expert to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. I had the honour of being appointed to that position the following July.

In accordance with my mandate, in March I presented a report to the Council that maps human rights obligations relating to the environment. The report was based on an extensive review of statements by human rights bodies, including treaty bodies, regional human rights tribunals, and special rapporteurs, as well as UN resolutions, the UPR process, and international environmental instruments. The mapping report found that these sources had all come to remarkably similar conclusions about the duties that human rights law imposes on states to protect human rights from environmental harm.

As interpreted by the human rights bodies, states have obligations to assess environmental impacts on the enjoyment of human rights and to make environmental information public, to facilitate participation in environmental decision-making, and to provide access to remedies for environmental harm. The obligation to facilitate public participation includes duties to safeguard the rights to freedom of expression and association against threats, harassment and violence. In addition to these procedural obligations, states have substantive obligations to adopt legal and institutional frameworks that protect against environmental harms that may interfere with the enjoyment of human rights, including harm caused by private actors. States also have a general requirement of non-discrimination in the application of environmental laws, and may have additional obligations to members of groups particularly vulnerable to environmental harm, such as women, children and indigenous peoples.

In its March 2014 resolution, the Council picked up on these points.  It stated that the enjoyment of human rights can be facilitated by ‘assessing environmental impacts, by making environmental information public, and by enabling effective participation in environmental decision-making processes,’ and that ‘good practice includes adopting, strengthening and implementing laws and other measures to promote and protect human rights and fundamental freedoms in the context of environmental legislation and policies.’ It reaffirmed the duty of states to protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises, as provided in the Guiding Principles on Business and Human Rights. It also reaffirmed the importance of non-discrimination in the application of environmental laws, and ‘of paying due attention to the members of groups particularly vulnerable to environmental harm, bearing in mind that environmental damage is felt most acutely by those segments of the population already in vulnerable situations.’

Perhaps most importantly, the Council urged states to comply with their human rights obligations when developing and implementing environmental policies.

Although the emerging law of environmental human rights is clearer than ever before, much remains to be done. The norms governing transboundary responsibility are in particular need of attention, especially in light of the increasingly grave threats posed by climate change to the enjoyment of human rights. Although some communities, such as those living in small island states, other coastal regions, the Sahel, and the Arctic, are especially vulnerable, climate change will have devastating effects on the entire planet if we do not change course.

Whereas the application of human rights norms to environmental protection is clear, more must be done to close the gap between aspiration and implementation. One important avenue is the on-going negotiation of the new Sustainable Development Goals, which should take human rights into account in a pervasive, meaningful manner.

Another specific area that calls out for greater attention is the situation of environmental human rights defenders, those who try to protect the environmental rights of others. During the Council’s March session, the Universal Rights Group hosted a conference of environmental activists at which it became abundantly clear that many of these defenders risk harassment, violence and even death. A report this week by Global Witness finds that nearly 1000 environmental defenders were killed in the last decade, and that the number of deaths has increased, on average, to two every week. As bad as this figure is, it is almost certainly understated, since many deaths go unreported or are attributed to random crime. States and international organisations must do much more to safeguard those who try to defend the rights to life, health, and property against the untrammelled exploitation of natural resources.

In the coming months, I will examine good practices in the use of human rights obligations relating to environmental policymaking. Working with the United Nations Environment Programme, I will hold a series of consultations aimed at identifying and exchanging views on good practices, and asking interested stakeholders to provide more information about such practices. Our aim is to go beyond the minimum standards set by human rights law, to find practices by states and others that successfully bring a rights-based approach to bear on environmental challenges.  The results will be presented to the Council in March 2015.

 

 

Professor John H. Knox

UN Independent Expert on Human Rights and the Environment

Henry C. Lauerman Professor of International Law, Wake Forest University School of Law

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