For the first time in history, the UN Human Rights Council has recognized the right to a clean, healthy and sustainable environment as a fundamental human right. A decade ago, 149 out of 193 countries had included environmental rights or responsibilities in their national constitutions. Additionally, dozens of apex judiciaries around the world had recognized a fundamental right to a healthy environment. Recognition of this human right by the UN Human Rights Council will now put it beyond doubt that it is indeed a universally recognized human right.
The newly recognized human right can be asserted in a variety of contexts, from micro-environments that have been adversely affected to national parks under threat by illegal poachers and loggers. However, a right which cannot be protected or enforced when violated would not be worth the paper on which it is written. Having a remedy available when a right is violated is what allows that right to become real and meaningful. As the old Latin maxim states ubi jus ibi remedium; where there is a right there is a remedy.
The right to a clean, healthy, and sustainable environment when coupled with the human right to a remedy, guaranteed by Article 8 of the Universal Declaration of Human Rights, becomes a powerful tool for change and transformation. Violations of environmental rights or supporting environmental procedures and standards are increasingly allowing those affected to obtain remedies through judiciaries, as well as through non judicial mechanisms. The number of environment-related complaints reaching grievance redress and accountability mechanisms of international financial institutions and multilateral development banks has increased. Human rights violations, including the violation of the human right to the environment have begun to show up in some of these complaints.
Human right due diligence has been incorporated into the environmental and social safeguards framework of many institutions, including the Green Climate Fund (GCF). The Revised Environmental and Social Policy of the GCF states that “All activities supported by GCF will be designed and implemented in a manner that will promote, protect and fulfil universal respect for, and observance of, human rights for all recognized by the United Nations. GCF will require the application of robust environmental and social due diligence so that the supported activities do not cause, promote, contribute to, perpetuate, or exacerbate adverse human rights impacts” (emphasis added). Several other provisions in the Policy fortify these due diligence requirements both for the GCF as well as its accredited entities (financial intermediaries).
The United Nations Development Programme recently released a set of materials on training staff to conduct human rights due diligence. These materials furnish a good starting point for institutions, and even business, for ensuring human rights are respected in their projects and operations. The UN Guiding Principles on Business and Human Rights (2011), provide yet more guidance to origanisations that want to translate their policy commitments in to concrete action.
The newly recognized human right to a clean, healthy and sustainable environment should provide a renewed impetus for protection and preservation of the environment, especially in the light of the existential threat that climate change poses.
Article by Dr Lalanath de Silva