Category: Right to a healthy environment

Categories
2018 Biodiversity Domestic court Emissions reductions/mitigation Imminent risk Margin of appreciation Nepal Paris Agreement Right to a healthy environment Right to health Right to life Right to subsistence/food

Padam Bahadur Shrestha v. Office of Prime Minister and Others

Summary:
The petitioner, Padam Bahadur Shrestha, had applied to the concerned authorities in Nepal to enact a separate law on climate change in August 2018, but did not receive a response. He thus filed a petition with the Supreme Court of Nepal alleging that the situation in Nepal is marked by absence of a special climate change legislation, inadequacies in existing environmental legislation in addressing climate change, and poor implementation of the State’s climate change policy. He argued that this suffices to establish a violation of the right to life, right to live in a healthy and clean environment, right to health care and right to food found in Articles 16, 30, 35, and 36 of the Nepali Constitution.

Date of decision:

25 December 2018

Court’s decision:

The Supreme Court of Nepal found that an amendment to the existing laws and introduction of a new consolidated law that addresses climate change was necessary and issued detailed directions on what features the new law must contain. It based this order on the reasons that such would facilitate Nepal’s compliance with its obligations under international law, including the Paris Agreement and that climate mitigation and adaptation directly concern fundamental rights including the right to life, right to have nutritious food and the right to a clean environment. It further held that although the Environmental Protection Act of 1997 addressed environmental protection along the dimension of climate change, its provisions were inadequate regarding climate change mitigation and adaptation.

Status of the case:

Decided.

Suggested case citation:

The Supreme Court of Nepal, Padam Bahadur Shreshta v Office of the Prime Minister and Others, NKP, Part 61, Vol. 3, judgment of 25 December 2018.

Case documents:

For the judgment of the Supreme Court of Nepal (in Nepali), click here.

For an unofficial English translation of the judgment (authored by Hardik Subedi), click here.

Categories
Inter-American Human Rights System Right to a healthy environment

The IACtHR’s 2017 Advisory Opinion on the Right to a Healthy Environment

Summary:
In this advisory opinion, requested by Colombia, the Inter-American Court of Human Rights recognized that the right to a healthy environment is a human right for a first time, and affirmed that human rights are dependent on a healthy environment. The Court stated that the adverse effects of climate change, as well as environmental degradation, have an adverse effect on human rights. The advisory opinion finds that States have an obligation to take measures to prevent environmental harms both within their borders, and in transboundary scenarios and thus extraterritorially.

While the right to a healthy environment had previously been recognized in Article 11 of the Protocol of San Salvador, this right is not subject to individual petition. In its advisory opinion, the Court recognized a justiciable right to a healthy environment by finding that this right is part of the right to progressive development in Article 26 of the American Convention. This includes protection of the environment as such, with the Court noting in para. 62 of its advisory opinion that “as an autonomous right, the right to a healthy environment, unlike other rights, protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals.”

In addition, the Court engaged with the obligations of the State with regard to the principles of prevention, and precaution, duties of cooperation and the procedural rights derived from obligations to respect and to ensure human rights.

Date:
15 November 2017.

Full text:
Click here to read the full text of the advisory opinion.

Suggested citation:
IACtHR, Advisory Opinion OC-23/17 on the Right to a Healthy Environment of 15 November 2017.

Recommended reading:
For more on this advisory opinion, see for example:

Maria Antonia Tigre and Natalia Urzola, ‘The 2017 Inter-American Court’s Advisory Opinion: changing the paradigm for international environmental law in the Anthropocene’, 12(1) Journal of Human Rights and the Environment (2021), available here.

Categories
2018 Adaptation Domestic court Farming Human dignity Pakistan Public trust doctrine Right to a healthy environment Right to life

Leghari v. Pakistan

Summary:
In Leghari v. Pakistan, Asghar Leghari, whose family owns a farm in the Punjab province of Pakistan, claimed that his fundamental rights, including the right to life, the right to a healthy environment and human dignity, had been violated by the failure to take action against climate change, which was already impacting Pakistan in the form of floods and other climactic changes. The High Court of Lahore granted his claims in 2015, finding that the government had failed to implement its own Climate Change Policy and the corresponding implementation framework. The Court created a Climate Change Commission to monitor the government’s response.

Arguments by the applicant:
The applicant submitted that the domestic National Climate Change Policy of 2012 and the Framework for its implementation had not been implemented. Absent strategies to transition to heat resilient crops or to conserve water, he argued, he would not be able to sustain his livelihood as a farmer. He submitted that this inaction had violated his fundamental rights, in particular, Article 9 (right to life, including the right to a healthy and clean environment) and Article 14 (human dignity) of the Constitution, along with the constitutional principles of social and economic justice. In doing so, he also invoked the principles of public trust, sustainable development, the precautionary principle and the principle of intergenerational equity. The most immediate and serious threat to Pakistan, he argued, concerned water, food and energy security.

Findings:
The High Court of Lahore granted Mr. Leghari’s claims on 4 September 2015, finding that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens.” It ordered the government to nominate “climate change focal persons” to help ensure the implementation of the domestic legal Framework and to identify action points. To monitor the government’s progress, it also created a Climate Change Commission made up of government representatives, NGOs, and technical experts. A supplemental decision of 14 September 2015 nominated 21 Commission members and granted this body various powers. On 25 January 2018, the Court considered a report from the Climate Change Committee finding that, until January 2017, 66% of the Framework for Implementation Climate Change Policy’s priority actions had been implemented. The Court accordingly dissolved the Climate Change Commission, creating a Standing Committee on Climate Change in its place.

In the 2018 judgment, the Court considered the need for environmental, climate and water justice, and the need for both mitigation and, in the specific case of Pakistan, adaptation measures in response to climate change. It noted that “we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change.” (para. 12). It held, too, that “[f]rom Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice.” (para. 20).

Further reading:
Birsha Ohdedar, ‘Climate Change Litigation in India and Pakistan: Analyzing Opportunities and Challenges’, in Ivano Alogna, Christine Bakker, and Jean-Pierre Gauci (eds), Climate Change Litigation: Global Perspectives (Brill | Nijhoff 2021), 103-123,  https://doi.org/10.1163/9789004447615_006.

Ivan Mark Ladores, ‘In the Name of Climate Change: How Leghari v Federation of Pakistan is Instrumental to the Pursuit of the Right to Life in the Philippines’, 5(2) Groningen Journal of International Law (2017), https://doi.org/10.21827/5a6af9f49574a.

Emily Barritt and Boitumelo Sediti, ‘The Symbolic Value of Leghari v Federation of Pakistan: Climate Change Adjudication in the Global South’ 30(2) King’s Law Journal (2019) 203-210, 10.1080/09615768.2019.1648370.

Suggested citation:
Lahore High Court, Asghar Leghari v. Pakistan, Case W.P. No. 25501/2015, Judgment of 25 January 2018.