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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.

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New Publication: Article by Birgit Peters on climate change and the ECHR in the ‘Archiv des Völkerrechts’

The most recent issue of the ‘Archiv des Völkerrechts’ contains a new article by Birgit Peters on ‘Zur Anwendbarkeit der Europäischen Menschenrechtskonvention in Umwelt- und Klimaschutzfragen‘ (On the Applicability of the European Convention on Human Rights to Environmental and Climate Protection Issues).

Here is the abstract:

The protection of the environment has been a long standing issue before the European Court of Human Rights. The jurisprudence of the Court is vast and complex. The Court is now confronted with applications concerning damages arising from climate change. Yet, the protection offered by the European Convention on Human Rights (ECHR) is not unlimited. The Convention can only be invoked by present generations, which claim to have been a victim of a current and immediate threat to rights protected by the Convention. Also the right to a clean and healthy environment is not protected per se by the Convention. This contribution assesses the possibilities and limitations concerning the application of the ECHR in environmental and climate change cases. In addition, it refers to possible future developments – taking into account current case-law from national and international (human rights) courts.

The same issue also contains a contribution by Michael von Landenberg-Roberg, on ‘Die Operationalisierung der ‘Ambitionsspirale’ des Pariser Klimaschutzabkommens‘ (The Operationalization of the ‘Spiral of Ambition’ of the Paris Climate Agreement).

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IPCC’s Sixth Assessment Report Released

On 9 August 2021, the Intergovernmental Panel on Climate Change (IPCC) released its sixth assessment report. Entitled ‘Climate Change 2021: the Physical Science Basis’, the report contains cutting-edge climate science findings from the IPCC’s 6th assessment report (AR6) reporting cycle, which will be completed in 2022. The report, which was approved by the 195 member governments of the IPCC, notes that the effects of climate change are intensifying, and that all parts of the planet are experiencing worsening weather events due to greenhouse gas emissions. Combining climate modelling and new evidence and methods, the report reaches the following conclusions (among others):

  • Human influence has unequivocally warmed the atmosphere, ocean and land. Global warming has caused widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere. This type of warming last occurred 125,000 years ago.
  • Global surface temperature has increased more rapidly since 1970 than in any other 50-year period over at least the last 2000 years.
  • The scale of recent changes across the climate system as a whole and the present state of many aspects of the climate are unprecedented over many centuries to many thousands of years.
  • The report estimates that 1.5°C of global warming will be reached in the early 2030s.
  • Human-induced climate change is already affecting many weather and climate extremes in every region across the globe. Evidence of greater extremes such as heatwaves, heavy precipitation, droughts, and tropical cyclones, and, in particular, their attribution to human influence, has strengthened since AR5.
  • Global surface temperature will continue to increase until at least the 2050s under all of the emissions scenarios currently considered. Global warming of 1.5 degrees Celsius and 2 degrees Celsius will be exceeded during the 21st century unless deep reductions in CO2 and other greenhouse gas emissions occur in the coming decades.
  • Increasing global warming causes increases in the frequency and intensity of hot extremes, marine heatwaves, tropical cyclones, and heavy precipitation. It also causes agricultural and ecological droughts in some regions, as well as reductions in Arctic sea ice, snow cover and permafrost.
  • Many changes due to past and future greenhouse gas emissions are irreversible for centuries to millennia, especially changes in the ocean, ice sheets and global sea level.
  • With further global warming, every region of the globe is projected to increasingly experience concurrent and multiple changes in climate. These changes would be more widespread at 2 degrees Celsius compared to 1.5 degrees Celsius global warming and even more pronounced for higher warming levels.
  • From a physical science perspective, limiting human-induced global warming to a specific level requires limiting cumulative CO2 emissions, reaching at least net zero CO2 emissions, along with strong reductions in other greenhouse gas emissions. Strong, rapid and sustained reductions in CH4 (methane) emissions would also limit warming and improve air quality.
  • Every tonne of CO2 emissions adds to global warming.
  • Temporary emission reductions in 2020 associated with measures to counter the COVID-19 pandemic had led to a small and positive net radiative effect (i.e. effect on warming influence). However, the report finds that the effects of this are minor given the temporary nature of these emission reductions.

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Interview on Climate Litigation with Prof. Dr. Helen Keller

CRRP project coordinator Prof. Dr. Helen Keller recently spoke to Katrin Schregenberger of Higgs.ch about the potential and pitfalls of climate litigation. The interview covers the rising number of climate cases based on human rights arguments, corporate responsibility for climate change, and the argumentation in the Klimaseniorinnen case pending before the European Court of Human Rights.

The full interview (in German) is available here.

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Online Workshop on the Legal Aspects of the Right to a Healthy Environment

On 7 July 2021, at 14h CEST, the Geneva Human Rights Platform will hold an online workshop on the legal aspects of the right to a safe, clean, healthy and sustainable environment. This workshop will take place as a side event to the 47th session of the United Nations Human Rights Council – co-organized with the Permanent Missions of Costa Rica, Maldives, Morocco, Slovenia and Switzerland to the UN in Geneva and co-sponsored by the Permanent Missions of Austria, Cabo Verde, Cyprus, Ecuador, Fiji, Germany, Mexico, Monaco, Panama, Portugal, Uruguay; OHCHR, UNEP, Center for International Environmental Law, Earthjustice, Franciscans International and Universal Rights Group. It will discuss the legal aspects of the right to a safe, clean, healthy and sustainable environment, the scope of the right, the legal aspects of a potential resolution on this right, as well as how it would contribute to address the global environmental crisis.

For more information, click here.

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Samvel Varvastian, ‘The Advent of International Human Rights Law in Climate Change Litigation’

Samvel Varvastian has published ‘The Advent of International Human Rights Law in Climate Change Litigation’, 38(2) Wisconsin International Law Journal (2021), pp. 369-425. The abstract is below. For a link to the full text, click here.

Abstract

Despite growing concerns over climate change and the proliferation of national climate laws, global greenhouse gas emissions keep rising, while the impacts of climate change are increasingly becoming an existential threat to many human communities around the globe. In response to failing governmental action, the affected communities and nongovernmental organizations (NGOs) have turned to national and regional courts, as well as regional and international quasi-judicial human rights treaty bodies (hereinafter treaty bodies), to argue that inadequate responses to climate change violate internationally recognized human rights. Following the first attempts to bring claims based on international or regional human rights law (hereinafter human rights law) in climate change litigation in the first decade of the twenty-first century, the use of human rights law in climate cases has been on the rise over the last several years. This article provides a comprehensive assessment of human rights claims and their viability in climate cases decided by national and regional courts, and international and regional treaty bodies as of January 1, 2021. So far, human rights law has been used with mixed success: while some courts and treaty bodies have explicitly acknowledged that inaction on climate change violates or can potentially violate human rights, others have been much more hesitant to take this approach. However, in the latter case, the courts’ and treaty bodies’ interpretations of the applicability of human rights law in the context of climate change and environmental degradation appear to be flexible and open to further development. Coupled with the growing number of such cases globally and their increasing internationalization, these positive developments are likely to lay the foundation for a greater chance of success in future litigation.

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Call for Papers: ‘Climate Change and the Rule of Law’, ECR session, 31 March-1 April 2022

The UCL Centre for Law and the Environment will hold a major conference on ‘Climate Change and the Rule of Law’ on Thursday 31 March and Friday 1 April 2022. The organisers have issued a call for papers for a session devoted to the work of early career researchers.

The full call for papers is available here.