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The Case for the Recognition of the Right to a Healthy Environment at the International Level

The Case for the Recognition of the Right to a Healthy Environment at the International Level

Healthy Environment

Introduction

In March 2021, a joint statement, endorsed by 69 States, was delivered to the UN Human Rights Council calling for the recognition of the right to a healthy environment at the international level.  This was complemented by another joint statement to the Human Rights Council, endorsed by fifteen UN Entities, led by the UN Environment Programme, which argued that the time for recognition of the right is now.  This was followed in June 2021 by a joint statement made by more than fifty UN human rights experts, including the Special Rapporteur on Human Rights and the Environment, which called upon the UN to adopt a resolution, similar to those adopted in respect of the rights to water and sanitation, recognising the right.  This statement argued that recognition of the right at the international level would help address the environmental crisis facing the world whilst also protecting human rights. 

The status quo

This series of joint statements reflects the growing demand for the recognition of an autonomous human right to a healthy environment at the international level. A right to a healthy environment has been widely recognised at the national and regional level. Many countries, for example, have explicitly recognised such a right within their constitution, or through legislation. The right has also been recognised in the text of several regional human rights instruments, such as the Arab Charter on Human Rights. It has also been recognised within the text of several regional environmental agreements, such as the Aarhus Convention. The Escazú Agreement, for example, which entered into force earlier this year, states that its objective is to contribute ‘to the protection of the right of every person of present and future generations to live in a healthy environment’ (Article One) and further obliges Parties to guarantee the right to live in a ‘healthy environment’ (Article Four). 

As Boyd and Knox (2018) note, at least one hundred and fifty-five States have recognised a ‘binding legal obligation to respect, protect and fulfil the right to a healthy environment’.  The right has not, however, been recognised as a substantive human right by either the UN General Assembly or within the text of a UN human rights treaty. This reflects the reality that ‘international human rights instruments almost never mention the environment explicitly’ and that ‘multilateral environmental agreements’, with the Paris Agreement being a notable exception, ‘almost never refer to human rights’ (Knox, 2020).  

The benefits of recognition

The recognition of a substantive right to a healthy environment at the international level would create many benefits. Recognising the right would help hold States to account for environmentally damaging activities as a potential claimant would only need to ‘establish that the activity in question resulted in creating an unhealthy environment’ for them to live in (Atapattu, 2002).  This would be a significant improvement on the status quo. There has been a greening of existing human rights, such as the Article 8 ECHR right to respect for one’s private and family life, to incorporate an environmental dimension. The insistence, however, by human rights courts, such as the European Court of Human Rights, upon the claimant establishing a link between the environmental degradation and the actual impairment of a right which is sufficiently serious has been a significant limitation. In Fadeyeva v. Russia, for example, the ECtHR held that a certain minimum level of adverse effect upon health or quality of life due to the alleged pollution was required to engage Article 8.  Similarly, in Çicek v Turkey, the Court held that an individual must be ‘directly and seriously affected’ and be able to prove a direct impact upon quality of life.  

The limitations of relying solely upon the greening of existing human rights were highlighted by the recent judgment of Mr Justice Fordham in Richards, R (On the Application Of) v The Environment Agency [2021] EWHC 2501 (Admin).  The claimant, a 5 and a half year old boy, argued, inter alia, that the Environment Agency had failed to discharge its statutory duty under section 6 of the Human Rights Act 1998 to protect his Article 2 right to life and his Article 8 right to respect for private and family life. The claimant’s health was severely impacted by hydrogen sulphide emissions from a nearby landfill. Although the claimant ultimately succeeded, Mr Justice Fordham, in discussing the Strasbourg jurisprudence, was clear that ‘severe environmental pollution’ and a ‘direct effect on the applicant’s home, family life or private life’ as well as evidence that the ‘adverse effects of environmental pollution attain a minimum level’ will be required to trigger a positive obligation under Article 8. Further, the Article 2 positive duty will only be triggered in certain limited circumstances. It is clear therefore, that in the absence of a substantive right to a healthy environment, relying upon the greening of existing human rights means that in many cases, activities which are damaging to the environment, and human health, go unremedied. This may be because the damage to human health is not serious enough to bring the right into play, or because the claimant cannot prove the requisite direct impact. A court can find that although an activity is clearly damaging to the environment, and impacting upon human health, it is not sufficiently serious and/or so widespread as to support a finding that the right has been infringed. 

In contrast, however, the recognition of a substantive right to a healthy environment would mean that claimants would no longer need to establish a serious and direct adverse impact upon their health or quality of life, which may take several years to become evident. A claimant could, for instance, rely on relevant threshold limits or international standards to demonstrate that the right had been infringed where an activity has a negative impact upon the environment. States would, therefore, be in breach of their obligation to protect and vindicate the right to a healthy environment if they failed to adopt policies to successfully tackle phenomena such as air pollution which contribute to an unhealthy environment. It could also assist claims arising out of long-term environmental harm. As Knox (2020) argues, it is arguable that the right to a healthy environment would incorporate the rights of children ‘to be able to live in a healthy environment throughout their life’.  The right would, therefore, be another tool in the arsenal of those who seek to hold States to account for their failure to address climate change. It would also augment the potential remedies available to claimants. As successive pieces of climate change litigation across the world have demonstrated, human rights-based arguments are increasingly being utilised to force States into action. 

In addition, as was noted in the joint statement of the UN Entities to the Human Rights Council, the recognition of a right to a ‘healthy environment’ at the international level would help ensure a transition to ‘an environmentally healthy and socially equitable world and realise human rights for all’.  As Knox and Boyd (2018) noted, legal recognition would send out a strong signal ‘that this right must be universally protected’ and ‘would fill a glaring gap in the architecture of international human rights’ whilst reinforcing the actions ‘many States and regions are already taking’ to protect the environment.  It would build upon the explicit recognition of the right to a healthy environment at the domestic and regional level. This would encourage States, many of which have already recognised the right at the national and regional level, to take even stronger steps to protect the environment and human rights, whilst also coercing those States which have failed to recognise the right yet into action.  

Counterarguments

One argument that has been advanced is that the use of the word ‘healthy’ is too anthropocentric. It has been argued that this allows human rights, and the ability of humans to enjoy the environment, to take precedence over environmental protection per se. As Borràs (2016) outlines, this argument attacks the view that humans have a ‘right to the environment’ and advocates instead that we adopt a more biocentric approach which is formulated around the ‘rights of nature’.  This argument can be addressed however, by interpreting the ‘right to live in a healthy environment’ as including ‘the right of the environment itself to be healthy’ as was suggested by Knox (2020). This approach was evident in the 2017 Advisory Opinion on the Environment and Human Rights handed down by the Inter-American Court of Human Rights which held that the right to a healthy environment protects ‘the components of the environment’ despite ‘an absence of certainty or evidence about the risk to individual persons’. 

Another criticism is that human rights are not the correct vehicle for addressing questions concerning environmental protection. Some human rights lawyers have argued, for instance, that we risk diluting the clear protections offered by human rights if we broaden the scope of human rights to include an obligation to protect the environment. This argument overlooks, however, the fact that, as demonstrated by domestic cases such as Richards, R (On the Application Of) v The Environment Agency [2021], as well as caselaw from human rights courts such as the ECtHR, the greening of human rights has already, to a certain degree, broadened human rights to incorporate environmental considerations. This has not, in my view, diluted or undermined the other protections offered by, for example, Article 8. The issue is that existing human rights only protect the core of the right, such that, in my opinion, the greening of human rights has achieved all that it can reasonably be expected to achieve. It is now time to recognise a substantive right to a healthy environment at the international level. Further, the argument that human rights should not be intermingled with environmental considerations overlooks the reality that as Judge Weeramantry noted in Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (1997), ‘environmental rights are human rights’.  Enjoyment of all our human rights is ultimately predicated upon having a healthy environment surrounding us. 

Conclusion

Knox and Boyd (2018), in their joint report on the relevance and importance of the potential recognition of the right to a healthy environment by the UN, quoted Victor Hugo who said, ‘it is impossible to resist an idea whose time has come’.  It seems clear, for the multitude of potential benefits outlined above, that the time has surely come for the recognition of the right to a healthy environment at the international level by the UN. It is apparent that recognition would have positive impacts upon both the environment and the protection of human rights throughout the world. Counterarguments that suggest that the right should not be recognised are not, in my view, convincing. The UN should, therefore, recognise the right. This would send a clear message that the international community recognises the importance of individuals being able to live in a healthy environment and that challenges, such as climate change, which negatively impact upon that right, must be addressed. 
 

Biography

Mark O’Brien O’Reilly is a future Pupil Barrister at Francis Taylor Building. Mark has just completed his LLM (First Class Honours) at the University of Cambridge, having been awarded a full scholarship. As part of his LLM, he undertook a paper in international environmental law. He previously graduated from University College Dublin with a BCL (Law with History) degree (First Class Honours), where he was a Scott Scholar. He spent a term studying in Sydney at the University of New South Wales. He undertook the Bar Professional Training Course (Outstanding) at BPP University Law School as a Gray's Inn Baroness Hale of Richmond Scholar.