The Environment, Climate Change, And Human Rights: The Significance Of The Human Right To Environment.

• Author: Nanda, Ved P.

1. Introduction

   Concern with environmental degradation and the need to preserve the environment is not new. Thousands of years ago in India, the hymns in the four Vedas--the most ancient scriptures in the world--contained several references to environmental protection, the weather cycle, and related subjects, describing the adverse effects of environmental degradation, water pollution, and climate change. (1)

   As discussed in the next section, the global environment increasingly became a major concern in the United States (U.S.) in the 1960s. Reports of the Intergovernmental Panel on Climate Change (IPCC), starting in 1990, and the latest being the August 2021 Sixth Assessment Report by Working Group I and February 2022 by Working Group II, clearly evidence concern about climate change. (2) The IPCC issued a dire warning that without timely action taken to effectively address the unprecedented changes in the climate system, these changes will have a catastrophic impact on the planet and all life on it. (3) How does the human rights component fit in this picture?

   Human rights are intricately intertwined with the environment and all its related aspects, including climate change. During the second half of the twentieth century, international organizations, governments, civil society groups, and think tanks began addressing the climate crisis, establishing pertinent norms, agreements, and institutions, eventually making progress toward climate justice and protection.

   The United Nations (U.N.) Human Rights Council (HRC) took the first step in the ongoing international efforts to recognize a human right to a safe and healthy environment on October 8, 2021, when the HRC adopted Resolution 48/13, entitled "The human right to a clean, healthy and sustainable environment." (4) This right, the Resolution stated, "is important for the enjoyment of human rights." (5) The HRC followed that decision on the same day with the adoption of Resolution 48/14, appointing a Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change, with an extensive mandate. (6)

   Decades of intense efforts by concerned environmental and scientific professionals and citizens from all over the world are reflected in the following analysis of The Lancet: "[T]he 44 indicators of this report expose an unabated rise in the health impacts of climate change and the current health consequences of the delayed and inconsistent response of countries around the globe--providing a clear imperative for accelerated action that puts the health of people and planet above all else." (7) This essay provides a snapshot of the following three recent developments:

   1) The landmark HRC decision mentioned above, recognizing internationally the human right to a healthy environment, which should eventually be a first step toward a binding obligation on the part of states to operationalize this right.

   2) An advisory opinion of the Inter-American Court of Human Rights issued on November 15, 2017, (8) recognizing the right to a healthy environment, defining it as an "autonomous" (that is, fundamental) right, and detailing the human rights obligations of states parties to the American Convention on Human Rights when they cause significant environmental harm, including cross-border harm. The Court's decision to extend these obligations even to those outside of a state's borders is of special significance.

   3) The International Court of Justice's (ICJ) issuing its first decision on environmental damage and awarding compensation on February 2, 2018, in the case, Certain Activities Carried Out By Nicaragua In the Border Area (Costa Rica v. Nicaragua), Compensation Owed By The Republic Of Nicaragua To The Republic Of Costa Rica. (9)

2. Growing Awareness About The Environment and Its Linkage With Human Rights

   A growing public awareness led to the rise of the environmental movement. In the United States the outcome was the passage of legislation such as the Clean Air Act, (10) the Water Quality Act, (11) the National Environmental Policy Act of 1970 (NEPA), (12) and a wave of similar legislation thereafter. Rachel Carson's Silent Spring, (13) published in June 1962, Stewart Udall's Quiet Crisis, (14) published in November 1963, and Paul Ehrlich's The Population Bomb, (15) published in 1968, certainly played a significant part in spurring this movement, which found a powerful expression in Earth Day, (16) first celebrated on April 22, 1970, in the U.S. and now yearly worldwide.

   The U.N. General Assembly adopted a Resolution in 1968, entitled "problems of the human environment," noting profound changes in the "relationship between man and his environment." (17) Pursuant to that resolution, the U.N. convened the 1972 Stockholm Conference on the Human Environment. The Conference adopted the Stockholm Declaration, (18) which promulgated the right to environment as an aspect of human rights. The Declaration recognized that human rights and environmental protection are closely interrelated, proclaiming that "[b]oth aspects of man's environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights the right to life itself." (19) It acknowledged the impact of environmental degradation on human rights.

   The Stockholm Declaration stated that "[m]an has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of equality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the quality of the environment for future generations." (20)

   The criticism that the Stockholm Declaration is unenforceable misses the mark, as it simply reflects the unwillingness on states' part to go beyond the agreed language in the Declaration. It took almost another fifty years before an international body, the U.N. Human Rights Council, adopted a resolution recognizing the right to a healthy environment. However, the major criticism that the Stockholm Declaration considers environmental protection's sole role as providing enjoyment of human rights is valid. Thus, its narrow anthropocentric perspective ignores the need to protect the environment for its own sake and not just for humans' benefit. (21)

   During the 1980s, several environmental disasters fostered the perception that environmental degradation had reached crisis proportions. These include the 1984 Union Carbide Disaster in Bhopal, India, (22) the Chernobyl meltdown in Soviet Ukraine in 1986; (23) the toxic chemical spill from the Basel, Switzerland, Chemical Plant, also in 1986; (24) and the Exxon Valdez Oil Spill in 1989 in Prince William Sound, Alaska. (25)

   In 1986, the World Commission on Environment and Development Expert Group on environmental law adopted a principle stating that "all human beings have the fundamental right to an environment adequate to their health and wellbeing." (26)

   As a result, a number of noteworthy developments connecting human rights with the environment occurred on the regional level. Adopted in 1981 by the Organization of African Unity, the African Charter on Human and Peoples' Rights recognizes a substantive right to a healthy environment in Article 24, which states: "All peoples shall have the right to a general satisfactory environment favourable to their development." (27) Article 1 states that "[t]he Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them." Thus, the African Charter further obliges states parties to give effect to the right to the environment, thus making the right enforceable. Further, in 2003, the African Union adopted the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, which stated in Article 18 that women shall have "the right to live in a healthy and sustainable environment," and in Article 19, "the right to fully enjoy their right to sustainable development." (28)

   In 1986, the Inter-American Commission on Human Rights proposed a Draft Additional Protocol to the American Convention on Human Rights in the area of economic, social, and cultural rights, which the Inter-American Commission eventually adopted in 1988. (29) It included a right "to live in a healthy environment," obligating the states parties to promote the "protection, preservation and improvement of the environment." (30)

   The 2004 Arab Charter on Human Rights (31) includes in Article 38 the right to an adequate standard of living that ensures well-being and a decent life, including the right to a healthy environment. (32) Finally, the Association of Southeast Asian Nations adopted the Human Rights Declaration (33) in 2012, which includes in paragraph 28(f), "a right to a safe, clean, and sustainable environment" as part of the right to an adequate standard of living.

   Another regional development of international importance was the 1998 adoption of the U.N. Economic Commission for Europe's (UNECE) Aarhus Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters, (34) which came into force in 2001. This is the first multilateral treaty that calls for "the right of every person of present and future generations to live in an environment adequate to his or her health and well-being." (35) The parties to the Aarhus Convention are obliged to guarantee procedural environmental rights based upon three main pillars: access to information, public participation in decision-making, and access to justice in environmental matters. (36) The Aarhus Convention provides detailed guidance on states' obligations in each of these elements.

   The UNECE defines environmental information to include a "non-exhaustive list of elements of the environment (air, water, soil, etc.); factors...