UN declares right to a healthy environment: can the EU keep up?
The UN has finally recognised the right to a healthy environment as a universal human right. In a year that has seen people's basic needs threatened and violated by climate disasters across the globe, the EEB urges the EU to guarantee this right for all, write Ruby Silk and Margarida Martins.
From heatwaves in Europe leading to droughts and wild fires, to the flooding of Pakistan which has displaced hundreds of thousands of people, the lives of people across the world are being battered by the impacts of climate breakdown. What's more, vulnerable people with limited resources are being hit the hardest; left without access to water, food, clean air or a safe place to live, in sum, without a healthy environment.
On 8 October 2021, after decades in the making, the UN Human Rights Council (UNHRC) formally recognised "access to a healthy and sustainable environment" as a human right. Less than a year later, the UN General Assembly took up the baton from the UNHRC and adopted a resolution - a formal opinion - declaring access to a clean, healthy and sustainable environment a universal human right.
The resolution contains strong political commitments and calls upon states, international organisations and businesses to scale up efforts to ensure a healthy environment for all. To date, 126 countries have enshrined this right in their constitutions and national laws, including 19 out of 27 EU countries. Those EU member states which have not yet done so are nevertheless parties to the Aarhus Convention, which explicitly includes the right to a healthy environment in its text, and so have already legally recognised the right.
Although the UN resolutions have little legal power (they are non-binding) they do carry significant political weight. The recognition of the new right obliges states to adopt policies to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.?
It is the first time the right to a healthy environment has been explicitly recognised at the global level and it is arguably overdue; this year, UN High Commissioner for Human Rights, Michelle Bachelet, identified the triple planetary crisis of nature loss, pollution and climate change as the primary threat to human rights of this era.
What does this right mean??
The UNHCR has identified the components of a healthy environment as: clean air, a safe climate, healthy and sustainably produced food, access to safe water and adequate sanitation, non-toxic environments in which to live, work and play, and healthy ecosystems and biodiversity.
Countries around the world are already demonstrating the positive outcomes of implementing a right to a healthy environment. For instance, since the US enacted the Clean Air Act in 1970 - based on the right to clean air - there have been average reductions of over 70% for six main air pollutants. A study in California showed significant improvements in children's lung function as a result. More recently, after Vietnam included the right to a healthy environment in the Constitution in 2013 and established a new Law on Environmental Protection in 2014, the country was able to fine Formosa Steel $500 million for pollution exceeding permitted levels, and required the company to carry out environmental remediation of damaged areas following massive discharges of toxic substances into the ocean that killed large numbers of fish and shellfish.
Access to Justice
The right to a healthy environment also improves access to justice for people and NGOs. Good practices related to access to justice and effective remedies usually seek to overcome three major obstacles: the right to go to court, economic barriers, and lack of judicial expertise in environmental matters. In most of the countries where the right to a safe, clean, healthy, and sustainable environment is recognised in the constitution, individuals and NGOs are able to bring lawsuits based on the violation of this right or of environmental laws (e.g. Argentina, Colombia, Costa Rica, India, Portugal, Romania, Slovenia). Because of this, judges and the judiciary in these states are trained in environmental rights as part of their fundamental training - instead of in an optional side module - and are therefore better able to adjudicate on this fundamental right.
What's the point of a non-binding resolution?
While it is not yet legally binding, the newly recognised international human right is not just empty words. It is a political commitment to protect against environmental harm, to provide equal access to environmental benefits and to ensure a minimum standard of environmental quality for everyone. It also enables the international community to hold each other to account. This can pave the way for better global standards and bolder climate litigation; it has already created a new office of Special Rapporteur on Human Rights and Climate Change, focused on tackling the impacts of climate change on people's enjoyment of their human rights.
Overall, the recognition of a healthy environment will help to fill the gaps in environmental laws, tackle climate change and support respect for human rights in general. There is also hope that it will serve as a catalyst for more ambitious action on the environment across the board.
One of the best examples of the difference such UN resolutions can make is the 2010 resolution that?recognised the right to water. This served as a catalyst for governments all over the world to add the right to water to their constitutions, their highest and strongest laws. Since adding the right to water to its constitution, Mexico?has extended safe drinking water to over 1,000 rural communities.
When it comes to EU law, the Charter of Fundamental Rights of the European Union states that "a high level of environmental protection must be integrated into EU policies", but this falls short of recognising an individual right to a healthy environment.
Climate and European Green Deal promises need to translate into actionable rights for individuals - rights which when infringed give grounds for a lawsuit - so that authorities can be held to account. The European Parliament, in its June 2021 resolution on the EU biodiversity strategy for 2030, considers that the right to a healthy environment should be recognised in the EU Charter and that the EU should take the lead on the international recognition of such a right. Once the EU recognises this right, it becomes legally binding and therefore enforceable in member states which have not yet made it national law.
The European Convention on Human Rights does not contain any articles enshrining a right to a healthy environment either, but the Parliamentary Assembly of the Council of Europe has recommended that this right should be added and the Council of Europe has initiated discussions on the issue.?
The current political momentum driven by the UN resolution is handing the EU the framework for the right to a healthy environment on a plate. Now the EU must seize the opportunity to ensure this right for every European.
The COP 27 in November will be the first COP to take place following the UN recognition of the right to a healthy environment. This time, our #ClimateofChange campaign is calling on European leaders to safeguard a healthy and sustainable tomorrow for current and future generations that leaves no-one behind. Join us.