1) What is the UN mandate on human rights and the environment?
In March 2012, the UN Human Rights Council decided to appoint an independent expert to a three-year mandate on human rights and the environment. The terms of the mandate are set out in Resolution 19/10. Among other things, the resolution requests the independent expert to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and to identify, promote and exchange views on best practices relating to the use of human rights obligations to support environmental policymaking.
In March 2015, the Human Rights Council renewed the mandate for another three years, until March 2018, through the consensus adoption of Resolution 28/11. Resolution 28/11 changed the title from Independent Expert to Special Rapporteur. In addition to asking the mandate to continue to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and to identify, promote and exchange views on good practices in the use of such obligations, the two principal components of the original mandate, the new resolution encourages the mandate to promote and report on the realization of such human rights obligations, to emphasize practical solutions in their implementation, and to identify challenges and obstacles to their full realization.
2) What is the relationship of the Special Rapporteur to the Human Rights Council?
The Human Rights Council often appoints independent experts or special rapporteurs to examine particular issues. The experts report to the Council and they are supported by the Office of the UN High Commissioner for Human Rights, but the experts decide independently how to carry out their mandates. Their activities can include carrying out country visits, holding consultations, and issuing public reports. For more information, see the UN page on Special Procedures of the Human Rights Council.
3) Is there a human right to a healthy environment?
More than 90 countries have adopted a constitutional right to a healthy, safe, satisfactory or sustainable environment. The right is also found in many regional human rights instruments, including the 1981 African Charter on Human and Peoples’ Rights, the 1988 Additional Protocol to the American Convention on Human Rights, the 2004 Arab Charter on Human Rights, and the Human Rights Declaration adopted by the Association of Southeast Asian Nations in November 2012. In contrast to these developments at the national and regional levels, no global agreement sets out an explicit right to a healthy (or safe, satisfactory, or sustainable) environment.
Instead, United Nations human rights bodies have tended to focus on “greening” human rights – that is, examining and highlighting the relationship of existing human rights to the environment. This effort, as well as similar efforts in other forums, has identified two sets of rights closely related to the environment: (a) rights whose enjoyment is particularly vulnerable to environmental degradation; and (b) rights whose exercise supports better environmental policymaking.
4) Which human rights are vulnerable to environmental degradation?
In a real sense, all human rights are vulnerable to environmental degradation, in that the full enjoyment of all human rights depends on a supportive environment. In his first report, the Independent Expert stated that one “firmly established” aspect of the relationship between human rights and the environment is that “environmental degradation can and does adversely affect the enjoyment of a broad range of human rights” (A/HRC/22/43, para. 34). However, some human rights are more susceptible than others to certain types of environmental harm. Regional human rights tribunals have explored ways that environmental pollution can interfere with rights to health and property, for example, as well as the right to private and family life.
Some types of environmental harm may affect many rights. The Human Rights Council and many special rapporteurs have underlined that climate change has a wide range of implications for the effective enjoyment of human rights, including the rights to life, health, food, water, housing and self-determination.
5) Which human rights are relevant to environmental policymaking?
In general, the rights whose implementation is vital to environmental policymaking are those rights whose free exercise makes policies more transparent, better informed and more responsive. They include rights to freedom of expression and association, rights to receive information and participate in decision-making processes, and rights to legal remedies. When directed at environmental issues, the exercise of such rights results in policies that better reflect the concerns of those most concerned and, as a result, that better safeguard their rights to life and health, among others, from infringement through environmental harm.
6) What obligations does human rights law place on States with respect to environmental protection?
Over the first two years of the mandate, the Special Rapporteur (then Independent Expert) undertook an extensive research project to map the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. The mapping project produced 14 separate reports drawing from four major categories of sources: (a) United Nations human rights bodies and mechanisms; (b) global human rights treaties; (c) regional human rights systems; and (d) international environmental instruments. The conclusions of the project are presented in a report to the Human Rights Council, which he presented on 11 March 2014. The reports are available here and here.
The reports explain that international bodies have increasingly applied human rights law to environmental issues as our knowledge of the dangers of environmental degradation has grown. The result is a large and growing number of legal statements describing how human rights norms relate to the environment. Despite the diversity of the sources from which these statements arise, the statements are remarkably coherent. Taken together, they provide strong evidence of converging trends towards greater uniformity and certainty in the human rights obligations relating to the environment. These trends are further supported by State practice, reflected in the Universal Periodic Review process and international environmental instruments.
Specifically, the mapping project found strong agreement among the sources reviewed that human rights law imposes certain procedural obligations on States in relation to environmental protection. They include duties: (a) to assess environmental impacts and make environmental information public; (b) to facilitate public participation in environmental decision-making, including by protecting the rights of expression and association; and (c) to provide access to remedies for harm. These obligations have bases in civil and political rights, but they have been clarified and extended in the environmental context on the basis of the entire range of human rights at risk from environmental harm.
In addition, the mapping exercise also describes States’ substantive obligations to adopt legal and institutional frameworks that protect against environmental harm that interferes with the enjoyment of human rights, including harm caused by private actors. The obligation to protect human rights from environmental harm does not require the cessation of all activities that may cause any environmental degradation. For example, the European Court of Human Rights has held that States have discretion to strike a balance between environmental protection and other issues of societal importance, such as economic development and the rights of others. But the balance cannot be unreasonable, or result in unjustified, foreseeable infringements of human rights. In deciding whether a balance is reasonable, national and international health standards may be particularly relevant. Another relevant factor in deciding whether an environmental law meets human rights obligations is whether it is retrogressive. Moreover, after a State has adopted environmental standards into its law, it must implement and comply with those standards.
7) What are the obligations relating to the protection of members of groups in vulnerable situations, including women, children and indigenous peoples?
The human rights obligations relating to the environment include a general obligation of non-discrimination in their application. In particular, the right to equal protection under the law, which is recognized in the Universal Declaration of Human Rights and many human rights agreements, includes equal protection under environmental law. States have additional obligations with respect to groups particularly vulnerable to environmental harm, including women, children and indigenous peoples. For example, States have specific duties to indigenous peoples, including a duty to recognize their rights in the territory that they have traditionally occupied, and a general duty not to allow resource extraction within their territory without their free, prior and informed consent.
8) What is the relationship of human rights obligations and best practices?
Resolution 19/10 requested the Independent Expert to address the human rights obligations relating to the environment and the best practices in the use of human rights obligations to improve environmental policymaking, in consultation with interested actors in all areas. In other words, the resolution encouraged the Independent Expert to examine the use of rights-based approaches to environmental protection through a wide lens. Human rights obligations relating to the environment may fall along a spectrum, from duties that are generally binding on all States, to those that bind a smaller number of States that have accepted them through regional agreements or that have adopted them in their own constitutions or other laws. Obligations that bind only some States may nevertheless be worthy of consideration by other States as possible best, or good, practices.
Throughout the first three years of the mandate, the Independent Expert identified and compiled good practices in the use of human rights obligations to improve environmental policymaking. In March 2015, he presented his findings to the Human Rights Council in a report that describes more than one hundred good practices of Governments, international organizations, civil society organizations, corporations and others in the use of human rights obligations relating to the environment. The practices include implementation of: (a) procedural obligations to make environmental information public, to facilitate public participation in environmental decision-making, to protect rights of expression and association, and to provide access to legal remedies; (b) substantive obligations, including obligations relating to non-State actors; (c) obligations relating to transboundary harm; and (d) obligations relating to those in vulnerable situations.
9) How does the Special Rapporteur plan to carry out the mandate until March 2018?
Resolution 28/11widens the focus of the mandate from a purely conceptual mandate that aims to clarify obligations and good practices, to include greater emphasis on the practical implementation and realization of such obligations. This is a sign of the continuing evolution and maturity of this area of human rights law. One step in this process will be an expert seminar, called for by Resolution 28/11, which will take place in Geneva in the fall of 2015.
Like other special rapporteurs with broad mandates, this mandate will concentrate on one or two main themes in each year, as well as continuing to keep up with a wider array of issues within the scope of the mandate. In 2015, in particular, it seems appropriate to devote particular attention to issues relating to climate change, in light of the importance of the Paris conference in December. Other areas of focus in coming years are likely to include addressing biodiversity and human rights and protection of children from environmental harm.