Realising the Right to a Healthy Environment in International Law – Dr. Rawa Ghazy Almakky

Realising the Right to a Healthy Environment in International Law

تحقيق الحق في بيئة صحية في القانون الدولي

Dr. Rawa Ghazy Almakky

Assistant Professor in International Law

Faculty of Public Law King Abdulaziz University

Abstract

This study examines the right to a healthy environment and its vital role in international law, emphasizing its recognition as an independent human right th rough various treaties, declarations, and resolutions. It highlights the need for states to acknowledge and protect this right, especially in light of critical global issues such as pollution, climate change, and environmental degradation that impact vulnerable people and communities. The study also includes the roles of the United Nations and regional human rights bodies, as well as various stakeholders, in promoting and safeguarding this right. The study argues that recognizing the right to a healthy environment is essential for individuals’ well-being and the achievement of sustainable development. To achieve this recognition, stronger commitments at the national and international levels are necessary. This involves solutions such as integrating the right to a healthy environment into national legislation and establishing effective monitoring and oversight mechanisms. Overall, this study advocates for a more coordinated effort to establish the right to a healthy environment as a fundamental aspect of human rights, aiming to empower and protect individuals and communities while addressing urgent environmental challenges for a sustainable future.

Key terms: Right to a healthy environment, International Law, International Environmental Law, Human Rights, Sustainable Development

ملخص :

تناول هذه الدراسة الحق في بيئة صحية ودوره الحيوي في القانون الدولي، مع التركيز على الاعتراف به كحق إنساني مستقل من خلال مختلف المعاهدات والإعلانات والقرارات الدولية. وتبرز هذه الدراسة الحاجة إلى أن تعترف الدول بهذا الحق وتحميه، خاصة في ظل القضايا العالمية الحرجة مثل التلوث، وتغير المناخ، وتدهور البيئة، التي تؤثر بشكل غير متناسب على الأفراد والمجتمعات الأكثر ضعفًا. كما تسلط الدراسة الضوء على دور الأمم المتحدة والهيئات الإقليمية لحقوق الإنسان، بالإضافة إلى الجهات المعنية المختلفة، في تعزيز هذا الحق وحمايته. وتؤكد الدراسة أن الاعتراف بالحق في بيئة صحية أمر أساسي لرفاهية الأفراد وتحقيق التنمية المستدامة. ولتحقيق هذا الاعتراف، هناك حاجة إلى التزامات أقوى على المستويين الوطني والدولي. يتطلب ذلك إقرار الحق في بيئة صحية ضمن التشريعات الوطنية، وإنشاء آليات فعالة للرصد والرقابة، واتخاذ خطوات متعددة لضمان تحقيق هذه الأهداف. بشكل عام، تدعو هذه الدراسة إلى بذل جهود أكثر تنسيقًا لإقرار الحق في بيئة صحية كجزء أساسي من حقوق الإنسان بهدف تمكين الأفراد والمجتمعات وحمايتهم، مع التصدي للتحديات البيئية الملحة لضمان مستقبل مستدام. المصطلحات الرئيسية الحق في بيئة صحية، القانون الدولي، القانون الدولي للبيئة، حقوق الإنسان، التنمية المستدامة

1 Introduction

“[W]e cannot have a healthy life without a healthy environment”

A clean, healthy, and sustainable environment is a crucial factor for the enjoyment of many well-established human rights. Environmental harm undermines the ability to fully enjoy the rights to life, adequate food, housing, physical and mental health, and other human rights. Therefore there is an interconnectedness of human rights with a healthy environment. Despite this, the international community has yet to reach a conclusive agreement on the exact legal status of environmental rights within the global human rights framework.

This paper argues that various regions worldwide have acknowledged the incorporation of the right to a healthy environment into treaties and constitutions over the years. However, the right to a healthy environment would only be “truly revolutionary” or have an international impact if the right to a healthy environment was considered an independent individual human right.

Recognising the human right to a healthy environment is important, as issues such as pollution, climate change, and environmental degradation are increasingly impacting all human beings, particularly vulnerable communities. Furthermore, many governments have economic policies that have harmed ecosystems vital to life. The central question is whether individuals have a right to a clean, healthy, and sustainable environment and what roles do governments, international institutions, and businesses have in realising this right?

As such, this paper examines the concept of the right to a healthy environment, including its definition and recognition in international human rights treaties and declarations. It also explores the role of the United Nations and regional human rights organisations, as well as the role of governments and businesses in affirming and protecting the right to a clean, safe, and sustainable environment as a fundamental human right.

1.1 Defining Human Rights

Understanding how much disease and ill health can be attributed to modifiable environmental risks can contribute to identifying opportunities for prevention and should add impetus to global efforts to encourage sound preventive measures through available policies, strategies, interventions, technologies and knowledge.

When discussing the human right to a healthy environment, it is also important to understand the meaning of rights. Rights are basic demands people make of society based on moral values, requiring support for those claiming them. According to Ignatieff, “[r]ights are not just instruments of the law, they are expressions of our moral identity as a people.” The language of rights has considerable “symbolic force”. Because, according to Boyd, they provide recognition “for society’s most cherished values, such as dignity, equality, and respect”.

The term “human rights” is defined as rights held by all human beings, entitlements they have simply by being human. According to Louis Henkin, with its moral foundation it implies individual entitlement and obligations on society; “our rights are not granted by society”; but rather “we are entitled to them”. The term was first articulated in 1948 in the Universal Declaration of Human Rights (UDHR) and prescribes universality. The human rights movement, which originated with the UDHR, has continued to expand at the global, regional, national, and subnational levels.

The development of human rights norms and standards has been an evolutionary process. Although human rights existed in various forms long before the establishment of the United Nations (UN), the UDHR established the beginning of the international human rights framework. Providing all people “a common standard of achievement for all peoples and nation”. In the years since the UDHR, “the process has unfolded with detail and complexity, with each new instrument adding to the fund of wisdom of arguably the most exciting development in international law”. As such, the development of international human rights law has arguably been one of the most transformative advancements of its era. It is also important to note that human rights are not static, and standards continue to develop to respond to new and emerging indignities and violations. Requiring not only the development of human rights standards but also monitoring the implementation mechanisms of these standards.

1.2 Realizing the Right to a Healthy Environment

It is submitted that the “right to a healthy environment” lacks a universally accepted definition and is generally understood to encompass both substantive and procedural elements. For example, the right to clean air and water, adequate sanitation, to live in or be surrounded in a non-toxic environment are all considered substantive elements. While procedural elements include the right to participate in decision-making, access to justice and providing effective remedies.

The right to a healthy environment also refers to an environment that supports “the enjoyment of basic human rights” rather than a right to a “perfect” and “pollution free environment” This right entails responsibility for states to prevent harmful activities to the environment and to implement measures that promote “conservation and improvement of the quality of the environment”. It encompasses negative rights, which require governments to prohibit activities that release harmful substances to people, and positive rights, which obligate states to ensure “clean air, water, and healthy ecosystems”. These rights should be balanced for effective policies and governance.

Tang also recognizes that explicit recognition of an individual human right to live in “clean, healthy, and sustainable environment” is different from considering “a clean, healthy, and sustainable environment” as a prerequisite for the enjoyment of human rights.

Overall, the right to a clean, healthy, and sustainable environment is a right that all people should have and is essential to protecting human life. This is underscored by a report by the UN, which states that “[a]s human rights and the environment are interdependent, a clean, healthy and sustainable environment is necessary for the full enjoyment of a wide range of human rights, such as the rights to life, health, food, water and sanitation and development, among others.” As such, according to UNEP “[w]hile many human rights are linked to the quality of the environment (e.g. life, health and water), the right to a healthy environment is unique” as it provides a thorough protection against all types of environmental harms.

1.3 International Human Rights Instruments and the Right to a Healthy Environment

Since the United Nations (UN) was established in 1945, the call for universal human rights has also been established, as several of its provisions address the UN’s commitment to the promotion and protection of human rights. After the adoption of the UDHR in 1948, the UN General Assembly adopted approximately 30 human rights treaties and declarations and resolutions concerning human rights. Most international human rights treaties and declarations have traditionally focused on various human rights, with no reference to the right to a healthy environment. This is largely because the early human rights movements predate the establishment of international environmental law. However, environmental concerns are now emerging and according to Special rapporteur John Knox if these human rights treaties were drafted today, they would likely include a special provision on the right to a healthy environment.

Neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social, and Cultural Rights (ICESCR) explicitly includes a right to a healthy environment. However, the ICESCR indirectly connects environmental issues to human health and well-being. Article 12 of the ICESCR recognizes everyone’s right to attain the “highest possible standard of physical and mental health.” Additionally, Article 12(2) states that countries must take measures to ensure this right to health encompasses all aspects of environmental and industrial hygiene. Thus, mentioning of “environmental hygiene” highlights the necessity of establishing a healthy environment.

Among the nine core UN human rights treaties, only the Convention on the Rights of the Child (CRC), which entered into force in 1990, includes a provision recognizing the right of the child to the “enjoyment of the highest attainable standard of health”. It also mandates that State parties take measures to fully implement the child’s right to health, including ensuring access to “adequate nutritious foods” and “clean drinking-water” and protecting children from “environmental pollution.” Therefore, the CRC makes a reference to environmental pollution, without a specific provision on the right to a healthy environment.

Nevertheless, treaty bodies that have been established under human rights treaties have, over the years, interpreted and elaborated on the content of rights embodied in these treaties. According to Atapattu, the development of environmental rights at the international level has largely occurred through the broad interpretation of existing rights, essentially “greening” them.

For example, the Committee on Economic, Social and Cultural Rights (CESCR) established in 1985, provided a general comment No.14 (2000) on the Right to Health, which elaborates on Art. 12.2 (b) acknowledges the relationship between the right to health and a healthy environment. As they emphasise the “improvement of all aspects of environmental and industrial hygiene” requires “preventative measures” including the “prevention and reduction” of the populations exposure “to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.” Recalling that industrial hygiene aims to reduce health hazards in the work environment.

As such, the CESCR recognized the link between the right to a healthy environment and the right to health, as discussed above. The Committee also calls for states to prevent and reduce the use of harmful substances to the environment that affect human health.

Furthermore, the CESCR General Comment No. 15 (2002), The Right to Water, underscores the critical role of State parties in safeguarding the environment. It integrates “environmental hygiene” as a facet of the right to health under Article 12 of the ICESCR. States are encouraged to take non-discriminatory measures to prevent health risks arising from unsafe or contaminated water, emphasizing the responsibility of State parties in this matter.

Overall, the UN, its human rights mechanisms, and national oversight bodies can play a vital role in promoting and protecting the right to a healthy environment. However, Atapattu argues that the UN must amend existing international human rights treaties or add protocols to them to effectively implement this right. This is important because all international human rights treaties require ratifying States to report to the designated committees on their state practices. For instance, in this context, they must provide information on the state of their environment, the environmental laws in place, and how human rights are being protected in these circumstances.

2 UN Initiatives for Recognizing the Right to a Healthy Environment

The 1972 United Nations Conference on the Human Environment in Stockholm was the first global conference to address environmental issues as an international concern to indirectly make reference to the right to a healthy environment. A total of 113 States attended the conference, during which the Stockholm Declaration and Action Plan for the Human Environment was adopted. The declaration contains 26 principles, highlighting the importance of international cooperation for environmental protection and its significance for development and human well-being. For example, Principle 2 emphasizes that “the protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world.” Principle 25 calls for states to ensure that international organizations “play a coordinated, efficient and dynamic role for the protection and improvement of the environment”.

Along with the Declaration, an Action Plan was adopted, focusing on three key areas: a Global Environmental Assessment Program, environmental management activities, and international initiatives to support national and global assessment and management efforts. These areas were further detailed in 109 specific recommendations for states, which aims at addressing environmental challenges at various levels.

Finally, the United Nations Environment Programme (UNEP) was established at the end of the Stockholm conference. It aims to support UN member states in achieving sustainable development goals and “live in harmony with nature.” Since the 1970s, environmental harm and weak state responses have prompted constitutional reforms using human rights language.

2.1 The UN Human Rights Council and UN General Assembly Resolutions on Environmental Rights

The promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law.

The Human Rights Council (HRC) has played a significant role in promoting the right to a healthy environment internationally. As early as 1989, the UN appointed a Special Rapporteur to examine the connection between environmental issues and human rights. Although draft articles and reports were submitted to the UN General Assembly, little progress was made on the subject until 2012. At that time, the Human Rights Council began to take a greater interest in developing environmental rights. It established a mandate for a Special Rapporteur on the human right to a clean, healthy, and sustainable environment. This mandate aims to “examine the human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment,” promote best practices for integrating human rights into environmental policymaking, and identify challenges to implementing the right to a safe, clean, healthy, and sustainable environment. It also includes conducting country visits to assess these issues in various contexts.

However, despite all efforts, States failed to recognise the right to a healthy environment as a “stand-alone substantive right” in international human rights law. It was not until October 2021 that the Human Rights Council (HRC) adopted landmark Resolution 48/3, with 43 votes in favour and 4 abstentions. The adoption of the resolution recognises the right to a “clean, healthy, and sustainable environment” as a fundamental human right that is essential for the enjoyment of other human rights. It includes important provisions that emphasize the need for states to have the capacity to protect the environment in order to fulfill their human rights obligations. Additionally, the resolution calls on states to “adopt policies for the enjoyment of the right to a clean, healthy and sustainable environment as appropriate.”.

According to Inger Andersen, the Executive Director of the United Nations Environment Programme (UNEP), the HRC resolution marks “a breakthrough moment for environmental justice.” It aims to protect communities and individuals from risks that threaten their health and livelihoods. Additionally, a study published by the European Union states that “although non-binding, this resolution could be a first step towards filling a significant gap in international law.” Furthermore, as Cima argues, “given the inherent interdependence of environmental protection and the enjoyment of human rights—a healthy environment is fundamental for the full enjoyment of a vast range of human rights and, conversely, environmental degradation interferes with said enjoyment […]”.

Moreover, on July 28, 2022, the United Nations General Assembly (UNGA) adopted a “landmark resolution” recognizing the right to “a clean, healthy and sustainable environment as a human right”. This significant resolution received strong support, with 161 votes in favor, no votes against, and eight abstentions. The resolution also delivers a powerful message to the world about the right to a healthy environment as human right.

UNGA Resolution A/76/300 emphasizes the collective global responsibility to effectively address environmental challenges and recognizes the right to a clean, healthy, and sustainable environment as a universal human right that is interconnected with other fundamental rights. It also emphasizes that implementing multilateral environmental agreements is crucial under international environmental law. It urges states, organizations, businesses, and stakeholders to adopt effective policies, enhance international cooperation, and share best practices to achieve “a clean, healthy and sustainable environment for all.” Overall, the resolution recognizes that the right to a healthy, sustainable environment is a universal human right, and that there is a collective responsibility for states to address environmental challenges and introduce or strengthen national legislations that promote and protect the right to a healthy and sustainable environment.

3 Regional Efforts and Stakeholder Contributions to the Right to a Healthy Environment

Although, as stated above, no reference to the right to a healthy environment is provided in international human rights treaties, the right has been included in many regional human rights instruments, particularly after the 1970s. National tribunals and regional human rights courts have gradually defined and interpreted this right and its relationship with other human rights.

At the regional level, human rights systems have adopted a progressive approach towards integrating environmental protection with human rights. For example, the right to a healthy environment is included in the Arab Charter on Human Rights (2004), the African Charter on Human and Peoples’ Rights (1981) , the ASEAN Declaration on Human Rights (2012) , the San Salvador Protocol to the American Convention on Human Rights (1988). According to Cima, some regional human rights organizations and even national courts, view environmental rights as “collective” rather than just individual rights.

The Inter-American Court of Human Rights (IACtHR) is one of the most important regional human rights mechanisms. In 2017, it issued an advisory opinion recognizing that the right to a healthy environment, as provided in the Protocol of San Salvador, has “both individual and collective connotations”. The Court stated that this collective dimension constitutes “a universal value owed to both present and future generations”. This shows a more progressive view of environmental sustainability recognising it as a fundamental value.

Consequently, it can be argued that the IACtHR has established itself as a “vanguard of human rights institutions regarding the protection of the environment,” having recognized the right to a healthy environment as an “autonomous right” under the American Convention on Human Rights (ACHR), thereby enhancing the Court’s involvement with environmental matters.

In 2017, the Court issued its landmark Advisory Opinion OC-23/17, declaring the right to a healthy environment as an autonomous right.

In 2020, the Court delivered the Lhaka Honhat judgment, the first contentious case in which the right to a healthy environment was applied and found to be violated. States are called to “take measures to ensure significant environmental harm is not caused to individuals within and beyond their territory”. As such the 2017 Advisory Opinion, and Lhaka Honhat Association (Our Land) v. Argentina case signify a turning point in Inter-American Court of Human Rights (IACtHR) jurisprudence, establishing the right as “directly justiciable” under the ACHR.

More recently in 2024, the IACtHR issued another landmark case in the Court Decision on Right to a Healthy Environment: La Oroya v Peru. This case involved allegations that “more than a century of catastrophic industrial pollution from La Oroya Metallurgical Complex in Peru violated the right to a healthy environment.” Industrial pollution poisoned generations of residents in the community by lead and other toxic substances, causing many physical and mental health problems and even death. As such, the Court found extensive human rights violations had occurred and ordered the State to provide specialized medical assistance to the victims, pay compensation for both material losses and pain and suffering, and publicly acknowledge its wrongdoing”.

The Court also ordered the State to strictly enforce environmental standards, investigate and prosecute those who cause environmental damage, and inter alia, “rehabilitate damaged ecosystems, monitor air, water and soil quality, ensure that polluters pay for the environmental damage they cause.”

As David R. Boyd, the former Special Rapporteur on Human Rights and the Environment analysed, the IACtHR established that the right to a healthy environment includes procedural and substantive elements. The procedural elements include access to justice with effective remedies, while the substantive elements include clean air, safe water, and non-toxic environments.

Boyd states, “[t]he Inter-American Court’s decision is the strongest and most comprehensive judgment from any regional human rights court to date.” The Court set an essential precedent for environmental justice. The former Rapporteur stated that “in the context of a planetary environmental crisis,” the Inter-American Court showcased “exemplary vision, courage, and leadership,” urging governments and businesses to follow its example.

Since 1972, when the UN adopted the Stockholm Declaration on the Human Environment, 156 out of 193 UN Member States have legally recognized the right to a safe, clean, healthy, and sustainable environment. 101 States have incorporated the right to a healthy environment into national legislation, while 110 States enjoy constitutional protection.

States, therefore, have an obligation to respect, protect, and fulfil all human rights, including the right to a healthy environment, as stipulated in the 2022 UN GA resolution:

States, international organizations, business enterprises and other relevant stakeholders 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.

According to the UNGA resolution, States are considered the main “duty-bearers” and have an “obligation to respect, protect and promote human rights, including in all actions undertaken to address environmental challenges, and to take measures to protect the human rights of all … and that additional measures should be taken for those who are particularly vulnerable to environmental degradation.” Adopting a rights-based approach to development, appropriate constitutional, legislative, and policy reforms must be adopted to ensure the implementation of the right to a healthy environment. States also needed to collaborate globally and uphold the right to a healthy environment of present and future generations. They are also encouraged to adopt or join multilateral agreements focusing on environmental protection and human rights.

Furthermore, courts at the national and international levels should uphold and protect the right to a healthy environment and provide remedies for violations, for victims of environmental violations.

The Special Rapporteur on the Human Right to a Clean, Healthy and Sustainable Environment recalls that many states have recognized the right to a healthy environment in their constitutions, legislation, and various regional treaties to which they are parties. However, in spite of the recognition of its crucial importance, “the right to a healthy environment has not yet been recognized as such at the global level”. For example, the Special Rapporteur describes how air pollution can negatively impact the enjoyment of many human rights, such as the right to life and health, particularly by vulnerable groups. He emphasizes that states have both procedural and substantive obligations to ensure the right to breathe clean air is accessible to vulnerable individuals and groups.

National human rights institutions (NHRIs) and businesses also play a vital role in promoting and protecting environmental rights. For example, NHRIs can act as oversight bodies that assist governments in documenting the human rights impacts of environmental degradation; They also facilitate the implementation of international obligations, support individuals in their pursuing justice for human rights violations and provide education on sustainability and environmental conservation. Furthermore, NHRIs work to raise awareness of the effects of climate change and environmental degradation on human rights.

The UN Guiding Principles on Business and Human Rights (2011) is recognized as one of the most authoritative and widely adopted principles for ethical business practices and human rights. These principles encourage governments and companies to “identify, prevent, mitigate, and remedy actual and potential human rights abuses”. They serve as a framework for businesses to comply with human rights standards and support the UN’s 2030 Sustainable Development Goals. Furthermore, it is argued that companies should conduct environmental and human rights impact assessments and studies to address their environmental responsibilities.

4 Conclusion

In conclusion, a Report by the Special Rapporteur on the Human Right to a Clean, Healthy, and Sustainable Environment states that the the acknowledgment of the right to a healthy environment by the United Nations General Assembly resolution (UNGA) 76/300 in 2022 and the Human Rights Council resolution 48/13 in 2021 represents the most significant progress in the advancement of this right. The recent UNGA resolution, illustrates universal and worldwide support for this right.

It is contended that achieving the right to a healthy environment requires international support. Providing judicial redress for those affected by environmental pollution is vital. Additionally, national laws and legislations are crucial for protecting the environment and human rights to “ensure proper management of natural resources and environmental sustainability”.

It is also argued that states need to accelerate efforts to recognize, respect, protect, and fulfil the right to a safe, healthy, and sustainable environment. Although positive steps are being taken by many regional organisations and state practices, more work needs to be done to address the global environmental crisis and to encourage a more sustainable and cleaر living environment.

As stated above, one solution to effectively safeguard the right to a healthy environment at the international level is for the UN to acknowledge this right. This could be achieved by amending existing human rights treaties or adding a new protocol to one of these treaties. This ensures better implementation of environmental laws and monitoring of state practice.

Finally, as mentioned above a healthy environment is essential for the enjoyment of many fundamental rights. It is important for states to ensure that environmental laws are in place to deal with rising challenges such as impacts of climate change, environmental degradation, and rising pollution levels. The UN, governments, policymakers, and legal bodies must establish standards and mechanisms to effectively safeguard the protection of a healthy environment for the benefit of both present and future generations.