Image credit: Pok Rie
How the ‘Right to a Healthy Environment’ can become a vital tool in fighting the climate crisis
What is the idea?
In 2022, the UN General Assembly declared that the ‘right to a healthy environment’ was a universal human right. Though not binding on Member States, it was an important milestone. In this piece, I will make the case for utilising human rights law more widely in order to fight climate breakdown.
Why human rights?
Human rights are an ideal instrument for fighting the climate crisis for a number of reasons.
First, they appropriately recognise the universal nature of climate breakdown. The main culprits are wealthy corporations and Governments. Yet it is individuals who are forced to bear the impact. By recognising a right to a healthy environment, individuals are granted a powerful weapon which they can use to counter the power of those who destroy the climate. The right also acknowledges that some individuals are affected far more seriously than others.
Second, they establish a common standard. A major barrier to climate action is a sense of distrust between nations; no nation wants to expend the effort to protect the environment if another country on the other side of the world burns fossil fuels with impunity. Therefore, it is in the best interests of every country to enforce a common standard in order to give them the reassurance that other countries are similarly obliged to follow it.
Third, it is the appropriate response to the most serious crisis facing the planet and individuals. Rather than responding to the symptoms of climate breakdown, the world must deal with the causes of it. Treating the symptoms means using an ad hoc approach where climate policies are challenged by invoking tangential rights. For example, invoking the right to life and security (article 3 of the UDHR) or food and housing (article 25). Though these rights may well be engaged by the effects of climate breakdown, they do not appropriately label the cause. Human rights, on the other hand, provide a crucial link between individuals, scientific modelling, and Government targets. Azadeh Chalabi, in a recent piece for the Human Rights Law Review, argued that the right to environment is more than just an amalgamation of other rights. Rather, it is a “composite” right. This means that it recognises the bigger picture – something that is so important to understanding the environmental crisis. Therefore, it enables the courts to draw links between CO2 emissions and indirect consequences such as food insecurity or forced migration.
Fourth, the particular way that human rights law operates is uniquely suited to this sort of litigation. In Britain, s.4 of the Human Rights Act 1998 entitles a court to make a declaration of incompatibility if it is satisfied that a piece of Parliamentary legislation is incompatible with a Convention right. If the European Convention on Human Rights (ECHR) recognised the right to a healthy environment, then British courts would be able to scrutinise legislation and issue a s.4 declaration if it was incompatible with the right. This would act as a shark rebuke if the Government legislated in environmentally damaging ways. This could respond to legislation such as the Offshore Petroleum Licensing Bill 2023-24 that provided for the Government to grant new oil and gas licenses.
Case study: the Climate Fund case
The Brazilian Supreme Court handed down judgment in 2022 in the landmark case of PSB et al. v. Brazil (better known as the Climate Fund case). The case was a judicial review challenge of the Brazilian Federal Government’s failure to properly operate the Climate Fund – a UN fund set aside for projects to protect the environment.
The most significant part of the judgment came where the Court recognised that the “constitutional right to a healthy environment” is of a “supralegal character”. What this means in practice is that it takes precedence over existing domestic law. This was confirmed by Justice Barroso, who held that “there is no legally valid option of simply omitting to combat climate change.” The judgment offers a tantalising indication of how human rights law might transform climate change litigation.
How would human rights operate to protect the environment
Some rights impose predominantly negative obligations. For example, the prohibition of torture (article 5 of the UDHR). Whereas others impose mainly positive obligations, such as the right to an effective remedy for violation of rights (article 8). The important question for the right to a healthy environment is whether it would give individuals a defensive measure to preserve the existing environment or whether it would also give them a proactive tool to require governments to act to promote the environment. I suggest that the most urgent priority is the defensive one. We must urgently stabilise the planet before we can start to restore it. Therefore, in the short term, the defensive approach will be more useful. This should then have a view to, in the long term, transition to using the right as a way of reversing the damage that has been done to the planet.
In order to properly take advantage of the right to a healthy environment, there must be a form of international coordination. This requires the UN to clearly articulate precisely how the right should be defined. Without doing so, the idea of a common standard that can be enforced across the world will be impossible. The best way to implement this would be through an international court with jurisdiction over member states. Unfortunately, this is unlikely to be politically acceptable for many countries. Therefore, the UN must deploy all of its diplomatic power to encourage countries to impose powerful domestic legislation.
Conclusion
It is very promising that human rights law is being mobilised in the fight against the climate crisis. Much work is remains be done in defining the precise scope of the right. Human rights law has tackled formidable challenges in the past – it protects us against state brutality, upholds democracy, and enables us to work towards a more just society. The climate crisis is the most serious opponent that human rights law has faced; we must work to ensure that it is up to the challenge.
Author:
Ben Sheridan
Bibliography
‘What is the Right to a Healthy Environment?’ United Nations Development Programme (2022)
Chalabi, ‘A New Theoretical Model of the Right to Environment and its Practical Advantages’ HRLR (2023) 23(4): 1–19
PSB et al. v Brazil
Universal Declaration of Human Rights