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UNGA recognizes the right to a healthy environment

On 28 July 2022, the UN General Assembly adopted a Resolution (A/RES/76/300, not yet published) recognizing the human right to a clean, healthy and sustainable environment. The Resolution recognizes the human right to a clean, healthy and sustainable environment, and its relationship with other human rights and existing norms of international law. It passed without opposition, with 161 States voting in favor and 8 abstentions.

Image courtesy of @UN_News_Centre

The draft of this Resolution was spearheaded by five States (Costa Rica, the Maldives, Morocco, Slovenia and Switzerland), and it was ultimately co-sponsored by over 100 countries as well as enjoying support from numerous civil society organizations and indigenous peoples’ groups. The opposition was led by Russia, and also included Belarus, Cambodia, China, Ethiopia, Iran, Kyrgyzstan, and the Syrian Arab Republic.

This development follows a similar recognition by the UN Human Rights Council in October 2021 (A/HRC/RES/48/13). In its Resolution recognizing this right, the Human Rights Council called on the UNGA to take up the issue. The UNGA’s Resolution responds to this call by taking on a triple planetary crisis: climate change, pollution, and biodiversity loss. It recognizes the right to a clean, healthy and sustainable environment as a human right, and calls for greater global efforts to protect that right. It calls for full implementation of multilateral environmental treaties, and urges international organizations, corporate actors and other stakeholders to adopt policies, enhance international cooperation, strengthen capacity-building and share good practices to ensure a clean, healthy and sustainable environment for all.

This Resolution is not legally binding. As noted by John Knox, the former UNSR for human rights and the environment, “by itself, it will change no policies, enact no new laws, save no forests, stop no pollution. But it can be a powerful catalyst.” This development follows a lengthy struggle to achieve international recognition of this right, which is missing from the main international human rights treaties. Treaty bodies have instead resorted to the “greening” of existing rights to recognize the nexus between environmental protection and the enjoyment of human rights. The recognition of this right by the UNGA not only serves to underscore this nexus, but reflects domestic legal developments in a large number of jurisdictions, especially the constitutional recognition of this right in many countries. It also reflects the recognition of this right in regional instruments such as the African (Banjul) Charter on Human and People’s Rights, the San Salvador Protocol, the Aarhus Convention, and the Arab Charter on Human Rights.

More information:

For a statement by the UN Special Rapporteur on Human Rights and the Environment, David R. Boyd, click here.

For more on delegates’ comments, see here.

A livestream of the UNGA’s meeting is available here.

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IPCC Sixth Assessment Report – Working Group III: Mitigation of Climate Change

On 4 April 2022, the Intergovernmental Panel on Climate Change (IPCC) released the third part of its 2022 Sixth Assessment Report (AR6) titled “Climate Change 2022: Mitigation of Climate Change”, following the first two contributions on the physical science basis (August 2021) and on impacts, adaptation and vulnerability (February 2022, see also our blog post here). 

The Working Group III contribution assesses various mitigation pathways based on current national reduction measures and developments. It closely examines the sources of greenhouse gas (GHG) emissions and explores the potential of different sectors as well as climate governance to advance climate protection. Its broad and detailed analysis of mitigation options for the first time also addresses the social aspects of mitigation.

On a positive note, the Report shows that climate protection has found its way onto the political agenda of many States, e.g. through mitigation policies and laws, reduction targets and market instruments. Low-emission technologies have become more cost-efficient and hence globally available due to innovation policy packages.

Notwithstanding this progress, the IPCC however makes clear that immediate and comprehensive structural changes are needed in order to halt global warming. Average annual GHG emissions have reached a new high in the last decade and existing mitigation policies will not suffice to limit warming to 1.5 degrees Celsius. Rather, reaching the 1.5 or 2 degrees Celsius target requires rapid, deep and sustainable emission reductions across all sectors.

While the Report stresses that the time to act is now, as this decade will be decisive, it simultaneously demonstrates that action is both feasible and affordable. There are mitigation options available in every sector across all regions that can halve emissions by 2030. Possible mitigation measures include transitioning to net-zero CO2 energy systems, increasing resource efficiency, infrastructure development, demand-side management, as well as carbon dioxide removal methods. Accelerated and equitable climate action can furthermore be conducive to sustainable development.

In its final section, the Report explains how institutions, governance and socio-cultural factors influence mitigation policies by providing frameworks through which diverse actors interact. Here, the Report also addresses the role of climate litigation. It notes a growing number of climate-related cases and, by reference to high agreement in academia, recognizes their potential to affect the outcome and ambition of climate governance. Cases appear either in the form of systemic climate litigation, through which claimants aim for more ambitious governmental action against climate change, or they challenge state authorization of high-emitting projects. Also, private corporations and financial institutions are being sued for their direct or indirect contribution to global GHG emissions. More and more cases are based on human rights claims with courts showing increasing receptivity towards such arguments. The IPCC takes this trend into account in the context of structural factors shaping climate governance. To what extent litigation actually results in new climate regulations and policies requires further investigation.

Written by Violetta Sefkow-Werner (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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UN Human Rights Council appoints new UN Special Rapporteur on Human Rights and Climate Change

On 1 April 2022 the United Nations (UN) Human Rights Council appointed Ian Fry as the world’s first UN Special Rapporteur on the promotion and protection of human rights in the context of climate change. The mandate for a new special rapporteur on climate change was established by the Council in its 48th session (on 8 October 2021) where it also adopted a landmark resolution recognising the human right to a safe, clean, healthy, and sustainable environment (A/HRC/RES/48/13). Fry, who will be holding this position for three years, is an expert in international environmental law and policy with extensive experience in climate negotiations as a representative of Tuvalu.

This appointment marks the success of an over a decade-long campaign for the Council to establish a thematic mandate for a new special rapporteur on human rights and climate change. This campaign was widely supported by civil society organizations as well as several developing countries. The role that UN Special Rapporteurs (UNSR) can play in mainstreaming human rights in environmental policy and decision-making at sub-national, national and international levels cannot be underestimated. With respect to climate change specifically, the UNSR on human rights and the environment, the UNSR on extreme poverty and human rights, the UNSR on human rights of migrants, the UNSR on the rights of indigenous peoples, and the UNSR on the rights of internally displaced persons have identified the link between the adverse short-term and long-term effects of climate change on the enjoyment of different human rights, and indicated that this results in special obligations towards certain protected groups. In the climate litigation space, the UNSR on human rights and the environment has filed several amicus interventions, including in the Portuguese Youth case pending before European Court of Human Rights (along with the UNSR on toxics and human rights), the Torres Strait Islanders case pending before the UN Human Rights Committee, the Sacchi case before the UN Committee on the Rights of the Child, as well as domestic climate cases in Ireland, Norway and Brazil.

It is also worth recalling that in October 2014, 27 UNSRs and independent experts intervened during the negotiations for the Paris Agreement by way of an open letter to the Parties to the UN Framework Convention on Climate Change. Here, they urged that the new treaty must recognise that climate change adversely affects human rights, that the obligation to adopt climate change mitigation measures to keep the global average temperature from rising above a level that is safe (2° C, if not lower) has a basis in human rights law, and that states must respect human rights in the formulation and implementation of climate policy. Unfortunately, the only reference to human rights in the Paris Agreement appears in the preamble, which notes that Parties must respect their respective human rights obligations when taking action to address climate change (para. 11). The negotiations under the umbrella of the UN Framework Convention on Climate Change have not sufficiently addressed the human rights implications of climate change or framed climate mitigation as a human rights obligation. With this background, the work of the special rapporteur on climate change is likely to have even more salience.

Outside of the standard (albeit important) functions performed by holders of thematic mandates, the new rapporteur’s ability to hold states accountable for the protection of human rights is especially crucial in relation to climate action. In this regard, it is worth noting that the mandate of the special rapporteur on climate change includes identifying challenges and making recommendations with respect to “States’ efforts to promote and protect human rights while addressing the adverse effects of climate change…including in the context of the design and implementation of mitigation and adaptation policies, practices, investments and other projects” (A/HRC/RES/48/14, para. 2(b)). This can be done by highlighting good practices of states with reference not just to domestic mitigation and adaptation measures, but also states’ ‘nationally determined contributions’ under the Paris Agreement and contributions towards international support and capacity building. This is a challenging task that needs to be executed carefully in accordance with the principle of common but differentiated responsibility, which is central to international climate change law and equity in climate action. At the same time, the urgency of the existential threat that is climate change lends particular importance to the new office of the special rapporteur.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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Inter-American Commission on Human Rights’ ground-breaking resolution on the ‘Climate Emergency’

On 4 March 2022, the Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights published a resolution titled ‘Climate Emergency: Scope of Inter-American human rights obligations.’ In the Inter-American Human Rights system, this is the first document dedicated exclusively to the issue of climate change. The resolution was adopted by the IACHR pursuant to its mandate to make recommendations to governments of member States of the American Convention on Human Rights for the adoption of progressive measures in favour of human rights, as well as their observance (Article 41(b)).

The resolution not only recognises the link between climate change and the enjoyment of individual and collective human rights, but also attempts to systematize and concretely describe the human rights obligations of States in the context of the climate crisis. The operative part of the resolution is organized into nine chapters, which contain both normative guidance and concrete policy recommendations.

Interestingly, the resolution offers novel recommendations by bridging international human rights law with international environmental law. For instance, it states that those member States which have made international commitments to develop and update Nationally Determined Contributions (NDCs) (climate-related targets communicated under the Paris Agreement) ‘must incorporate a human rights approach into their construction and implementation’ (paragraph 2). More generally, it recommends that, for procedural and substantive compliance with the ‘right to a healthy environment,’ States must interpret in good faith the principles of environmental law (e.g. prevention, precaution, and so on) in order to seek harmonization and consistency with the principles of international human rights law (paragraph 10).

Most importantly, the resolution affirms that the obligation to take appropriate measures for mitigation of greenhouse gases, implementation of adaptation measures and remediation of climate-relate damages should not be neglected because of the ‘multi-causal nature of the climate crisis’ (paragraph 15). It does so by reading human rights law in accordance with the principle of common but differentiated responsibilities. Moreover, the resolution reiterates findings in the Inter-American Court on Human Rights’ (IACtHR) advisory opinion no. 23 regarding extra-territorial obligations under international human rights law, and applies them in the context of States’ greenhouse gas emissions. The relevant paragraph is worth quoting in whole:

‘39. States are tasked with implementing human rights obligations that are intertwined with those of international environmental law in the contexts of polluting activities within their jurisdiction, or under their control, so that they do not cause serious harm to their environment or that of other countries or areas outside the limits of national jurisdiction. At the same time, the rule of customary international law of “doing no harm” would be breached as a result of greenhouse gas emissions and thus the increase in frequency and intensity of meteorological phenomena attributable to climate change, which, regardless of their origin, contribute cumulatively to the emergence of adverse effects in other States.

The resolution also dedicates separate chapters to individuals and groups in situations of vulnerability or who have been historically and systematically discriminated against, as well as indigenous peoples, tribal groups, Afro-descendants and those working in rural areas, requiring States to account for the disparate impact that climate change and climate response measures may have on the lives and interests of such individuals and groups.

Judged by the tenor of its language and its coverage of a multitude of issues under international human rights law that relate to climate change, the resolution is ground-breaking. Its normative relevance in the Inter-American Human Rights system is promising, considering the approach of the IACtHR in valuing soft-law instruments arising out of the system for interpretive guidance (see for e.g. OC-23/17, OC-22/16). It remains to be seen how member States receive the resolution and respond to it.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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The IPCC’s Sixth Assessment Report – Working Group II Report Released

On 27 February 2022, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its sixth assessment report entitled “Climate Change 2022: Impacts, Adaptation, and Vulnerability”. The Working Group II report is the second installment of the IPCC’s Sixth Assessment Report (AR6), which will be completed this year. Approved by 195 member governments of the IPCC, the Working Group II report focuses more strongly on solutions and adaptions to climate change than earlier reports. By introducing and using several new components, such as an atlas to present data and findings on observed climate change impacts and risks, some of Working Group II’s key findings were as follows:

  • Climate change is a threat to human welfare and the health of the planet. The observed impacts, projected risks, magnitude, and trends of vulnerability indicate that global action for climate-resilient development is more urgent than previously assessed in the IPCC’s fifth assessment report (AR5) of 2014. 
  • Causing dangerous and widespread damage to nature and people, climate change has already led to some irreversible impacts as human systems and ecosystems are pushed beyond their ability to adapt.  
  • Across sectors and regions, it is observed that climate change disproportionately affects the most vulnerable people. As a result, about 3.3 to 3.6 billion people, mainly living in developing countries, are highly vulnerable to climate change.  
  • The report expects that regions dependent on glaciers and snowmelt are expected to experience seasonal reductions in water supply of up to 50 percent. 
  • With rising temperature levels, losses and damages will increase and additional human and natural systems are highly likely to reach adaptation limits. If temperatures rise more than 2 degrees, many measures will lose their effect, making adaptions to climate change almost impossible. 
  • Compared to higher warming levels, near-term actions limiting global warming to close to 1.5 degrees Celsius would substantially reduce losses and damages related to climate change to both humans and ecosystems, but cannot eliminate them all. 
  • Adaption progress is likely to be unevenly distributed, with observed adaption gaps. By prioritizing immediate and near-term climate risk reduction, the opportunity for needed transformational adaptation is reduced. 
  • Enabling conditions, including, for example, political commitment, institutional frameworks, and mobilization of adequate financial resources, are key to the implementation, acceleration, and sustainability of adaption in natural and human systems.  

Written by Nicole Lüthi (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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Russia vetoes UN Security Council Resolution linking climate change to peace and security

On 13 December, Russia vetoed a UN Security Council Resolution that would have framed climate change as a a threat to international peace and security. The draft Resolution, which was spearheaded by Ireland and Niger and was co-sponsored by 113 UN member States, would have called the Security Council to incorporate “information on the security implications of climate change” into its work on peace and security.

The UN Security Council has been discussing the security risks linked to climate change since 2007, and past resolutions have mentioned the destabilizing effects of climate change in specific contexts, for example in Iraq. The draft resolution’s text would have called on the UN Secretary-General to make security risks linked to climate change a “central component” of efforts to prevent conflict. The Resolution was premised on the understanding that climate change can “lead…to social tensions…, exacerbating, prolonging, or contributing to the risk of future conflicts and instability and posing a key risk to global peace, security, and stability”. It recognized the need for “a comprehensive, whole of UN approach to address climate change and its effects”.

A zero draft of the resolution was circulated after a 23 September high-level open debate on climate and security, organised by Ireland. No vote was held on that draft text due to resistance from Russia, China and the United States. On 13 December, India also voted against the Resolution, while Russia used its veto power and China abstained from the vote. According to the representatives of these States, the issue of climate change and its security implications should more appropriately be discussed in the context of other efforts, for example the Framework Convention on Climate Change to avoid ‘politicizing‘ the question.

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The UN Recognizes the Human Right to Healthy Environment

On Friday, 8 October 2021, the UN Human Rights Council issued its Resolution 48/13, which recognizes the human right to a safe, clean, healthy and sustainable environment. On the same day, in its Resolution 48/14, the Human Rights Council also established the office of a Special Rapporteur on the promotion and protection of human rights in the context of climate change.

The recognition of the human right to a healthy environment in Resolution 48/13 has been hailed as a major success for efforts to ensure that human rights law can adequately respond to environmental harms, and especially to the harms associated with climate change. The succinct resolution ‘[r]ecognizes the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights’ (§ 1), notes its interrelationship with other human rights (§ 2), and encourages States to capacity-build, cooperate, share good practices, adopt policies, and continue to take into account their environmental human rights obligations and commitments (§ 3).

In addition, the Human Rights Council’s Resolution 48/14 has simultaneously created the office of the Special Rapporteur on the promotion and protection of human rights in the context of climate change for a period of three years. The Special Rapporteur, who has not yet been appointed, will study the adverse effect of climate change on human rights, identify challenges, synthesize knowledge, promote and exchange views and best practices, raise awareness, seek views and contributions from States and other relevant stakeholders, facilitate the exchange of technical assistance, capacity-building and cooperation, coordinate with other actors, conduct country visits, participate in relevant events, integrate a gender-responsive, age-sensitive, disability inclusive and social-inclusion perspective, participate in the creation of standards for corporate actors, coordinate closely with other Special Rapporteurs in related thematic areas, and report to the Human Rights Council annually. The Resolution also requests the Advisory Committee of the Human Rights Council to prepare a report, in close cooperation with the new Special Rapporteur, on the impact of new climate protection technologies on human rights.

On the EJIL:Talk! Blog, Annalisa Savaresi has summarized these developments, discussing the various advantages of the recognition of the human right to a healthy environment. This includes improved access to justice, a strengthened basis for activism and the foundation for legislative protections of environmental interests. Overall, the recognition of this right is also described as drawing increased attention to environmental harms and issues.

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Draft Protocol on the Right to Healthy Environment at the Council of Europe

On 29 September 2021, the Parliamentary Assembly of the Council of Europe (PACE) proposed a new additional protocol to the European Convention on Human Rights which would recognize the right to a safe, clean, healthy and sustainable environment within the Council of Europe system. The proposal, which is based on a report by PACE member Simon Moutquin (Belgium SOC),  can be found here, and it also proposes the adoption of a parallel additional protocol to the European Social Charter.

The Assembly’s proposal will now be considered by the Council of Europe Committee of Ministers, which will decide whether to draft a corresponding protocol. Several previous attempts to recognize the right to a healthy environment within the Council of Europe have failed, and a similar recommendation by PACE from 2009 did not lead to the adoption of a corresponding optional protocol by the Committee of Ministers. PACE announced that this new instrument would would give the European Court of Human Rights “a non-disputable base for rulings concerning human rights violations arising from environment-related adverse impacts on human health, dignity and life”.

For more on this, see the press release from the Council of Europe.

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The Right to a Healthy Environment goes to Geneva

The UN Human Rights Council’s 48th Session commenced today, on 13 September 2021, in Geneva. At this session, which will last until 8 October, a “Core Group” of States – Costa Rica, Maldives, Morocco, Slovenia and Switzerland – are advocating for the adoption of a UN Resolution recognising the right to a healthy environment. Over 60 governments have co-sponsored the Core Group’s call for the UN to recognise this human right.  

The joint statement by the Core Group, which can be found here, notes the linkages between human rights and the environment, and the fact that more than 155 countries now recognize the right to a clean, safe, healthy and sustainable environment in some form. They note the global consensus on the degradation of the environment and its consequences on human life. Citing human dignity, non-discrimination and the well-being of future generations, they call for an ‘open, transparent and inclusive dialogue with all States and interested stakeholders’ on the right’s potential international recognition.

This development stands against the background of a call for the recognition of the human right to a healthy environment signed by over 1,100 civil society organisations and Indigenous Peoples’ groups.

In a similar vein, there is currently an initiative in the Council of Europe to enshrine the right to a healthy environment in a new Protocol to the European Convention on Human Rights (ECHR). Similar efforts to enshrine this right in the ECHR have, however, failed in the past.

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Launch of the World Lawyer’s Pledge on Climate Action

Today marks the launch of the World Lawyer’s Pledge on Climate Action. The Pledge is addressed at all members of the legal profession, not just environmental lawyers, and it calls for the mainstreaming and integration of climate concerns into all areas of the law and legal activity. CRRP project lead Prof. Helen Keller is one of the Leading Signatories of the Pledge.

The Pledge’s authors seek to mobilise all members of the legal profession to ‘be a climate lawyer in their own respective fields.’ The Pledge consists of a common chapeau text, reproduced below, along with pledges specific to different branches of the legal profession (legal educators, law students, legal practitioners, judges, lawmakers and civil servants, and legal scholars). Its aim is to harness the potential of lawyers to ‘help realize the full potential of the law as a progressive and transformative force in the climate crisis’, and to ‘recognize our professional responsibility to guide, assist, support, and promote, to the best of our abilities, such legal efforts at all levels—global, regional, national, and local.’ This is not or no longer a political position, they argue, but ‘an objective and existential threat that cuts across any social, political, ideological, or other strata, interests, allegiances, or grievances.’

Here is the text of the Pledge:

We, the undersigned, as concerned members of the legal community, commit ourselves to taking action against climate change. To this end, we will take personal and institutional responsibility, to the best of our abilities and within our respective fields of activity and expertise. We will cultivate a heightened awareness of the relevance of our activities to climate change and vice versa, and seek to integrate, address, and mitigate climate concerns throughout our professional life. We call upon the global legal community—including practicing lawyers, judges, academics, civil servants, law students, lawmakers, and all others working in and with the law—to join us in this vital endeavour. Together, we can initiate, foster, and sustain the change necessary to avert climate catastrophe, and transition our societies and laws towards a sustainable future.

To sign the pledge, click here.

For more on this, see the post on EJIL!Talk, Völkerrechtsblog and Verfassungsblog by Saskia Stucki, Dr Guillaume Futhazar, Tom Sparks, Erik Tuchtfeld and Hannah Foehr.