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MEA Bulletin - Guest Article No. 87 - Thursday, 4 March 2010
The New Future of Human Rights and Environment: Moving the Global Agenda Forward – High Level Experts Meeting
By Christopher Holmes, Intern, Division of Environmental Law and Conventions, UNEP*
Full Article

The relationship between a safe and healthy environment and human rights has been on the global agenda since the preparations for the 1972 Stockholm Conference on the Human Environment, when the 45th session of the Economic and Social Council noted the effect of environmental factors on “the condition of man, his physical and mental well-being, his dignity and his enjoyment of basic human rights in developing as well as developed countries”. This idea was reflected in principle 1 of the 1972 Stockholm Declaration, which stated that man’s natural and self-made environment is “essential to his well-being and to the enjoyment of basic human rights and the right to life itself”. Despite this strong statement, such a human rights based argument has not been followed in subsequent environmental declarations, such as the 1992 Rio Declaration. Instead, these declarations have linked human well-being to the state of the environment without any explicit reference to human rights.

The link between human rights and the environment has developed in a fragmented manner across national, regional and international levels in case law, regulations and international agreements. As a result, much of the linkage between human rights and environmental law has been highlighted through decisions of national courts and regional human rights bodies. This has resulted in rapid development of jurisprudence, but the piecemeal development has lacked a comprehensive framework linking human rights and the environment. This has resulted in a number of gaps in our understanding of the linkage between the two concepts.

In general, there are three broad approaches to linking human rights and the environment. The first is to view a quality environment as an underlying precondition for the enjoyment of existing human rights, rather than a specific right in itself. This approach is being increasingly followed in the decisions of regional human rights bodies relying on, for example, the right to life and the right to privacy. The European Court of Human Rights has progressively adopted this approach over the last 10 years, in cases such as Guerra, Lopez, Ostra, Oneryildiz, Taskin and Fadeyeva.1

The second approach involves focusing on the procedural rights of people in relation to control over their environment, such as rights to participation in environmental decision-making and access to justice. The UNECE Aarhus Convention provides an example of a regional treaty that takes this approach. 

The final, and most contested, approach involves a substantive justiciable right to a certain quality of environment. Provisions to this effect are found in some national constitutions, such as those of South Africa, the Russian Federation and Spain, and in the African Charter on Human and Peoples’ Rights. South African jurisprudence and the Ogoniland decision of the African Commission on Human and Peoples’ Rights outline how these provisions, even when qualified or limited, can still impose a minimum standard on States to protect the environment.2

Several efforts have sought to clarify the linkage between these important concepts at the international level. In 1994, a draft declaration on Principles on Human Rights and the Environment (E/CN.4/Sub.2/1994/9) was prepared by a group of experts, and it was presented before the UN Commission on Human Rights in 1995. This declaration proposed a substantive right to “a secure, healthy, and ecologically sound environment” and included the concept of intergenerational equity. However, both the Commission and States (particularly the United States and European countries) did not favour this approach, and thus no further progress was made.3

In 2002, the UN Commission on Human Rights invited the United Nations Environment Programme (UNEP) and the Office of the High Commissioner for Human Rights (OHCHR) to convene an experts meeting on Human Rights and the Environment in Geneva. The Commission was further prompted to consider the issue by a report of the Secretary-General entitled Human rights and the environment as part of sustainable development (E/CN.4/2005/96). Following these activities, the Commission on Human Rights adopted Resolution 2005/60, which invited the relevant UN Agencies to “continue to coordinate their efforts in activities relating to human rights and the environment” across various aspects of the development agenda. This resolution focused on increasing consideration of the impact on the environment within other areas.4 Despite this, momentum on this issue has been hard to gather, particularly following the replacement of the Commission of Human Rights by the Human Rights Council in 2006, after which the topic was not readdressed.

Recently, growing recognition of the human impact on environmental problems and the spectre of unstoppable climate change have placed this issue on the international agenda once more. Key to moving this process forward has been the landmark 2009 resolution (10/4) of the Human Rights Council, which for the first time acknowledged at the international level that climate change has both direct and indirect effects on the enjoyment of Human Rights. This resolution has served to underline again the close linkages between human rights and environment and the need to clarify these linkages at the international level.

A group of 40 distinguished scholars, experts, and representatives of intergovernmental organisations met for two days in Nairobi, from 30 November-1 December 2009, to discuss the link between Human Rights and the Environment. This High Level Expert Meeting on the New Future of Human Rights and Environment: Moving the Global Agenda Forward was co-organised by UNEP and OHCHR. The goal of the meeting was to provide guidance to both organisations on how best to move forward on this issue, and how to clarify the linkages between the two concepts on the international level.

At the meeting, the experts took note of the three approaches identified above to linking human rights and the environment.  There was a lively discussion regarding which approach was preferable among the experts and, while not expressing a preference for a particular path, the experts provided an assessment of the advantages and disadvantages of each approach. In particular, the experts noted that, given that the first two approaches (the environment as precondition for human rights and procedural rights over the environment) involve the application of existing obligations, they may provide a quicker and easier path than developing a new human right, particularly given the disputes over the justiciability and definition of a substantive right.

As well as considering the nature of the link, the experts also considered the best strategies to move the global agenda forward, and outlined four strategies for consideration by OHCHR and UNEP to help bring greater coherence to this area: pursuing an international declaration; seeking a UNEP Governing Council or Human Rights Council resolution; mandating an expert group to produce a comprehensive outline of the law in the area; or appointing a Special Rapporteur on human rights and the environment. There was general agreement between all parties that whatever strategy was pursued, there was an urgent need to conduct a review of international, national and regional case law and practice, to clarify how the linkages between human rights and a certain quality of environment have already been demonstrated and implemented.

The need to be both ambitious and realistic in approaching these strategies was emphasised by many experts. They noted that, while an intergovernmental declaration might be the most authoritative way to address the linkages, this process could take many years, undermining the urgency for action in this area. On the other hand, while expert reports can be developed faster, they are less authoritative instruments. The experts noted that, given how much international law has already been developed in this area, any process forward should concentrate on obligations that governments have already agreed to and address gaps in a consistent manner, rather than attempt to develop entirely new obligations.

The second day of the meeting addressed specific emerging issues on the linkage between human rights and the environment. Participants discussed the issues of strengthening existing procedural rights, intergenerational equity, climate change and human rights, toxic wastes and human rights, and indigenous peoples’ rights.  The relationship between indigenous peoples’ rights and environmental protection generated a lot of discussion, with experts noting that environmental problems in developing countries almost always involve this dimension. In particular, the experts noted the urgent need for UN-REDD programmes to consider indigenous peoples’ rights. This also highlighted a need for greater integration of Human Rights into the UN environmental agenda, both within agencies such as UNEP and UN-HABAITAT and UN Country Programmes, as well as a greater awareness of environmental issues within UN human rights bodies.

The discussions resulted in an ambitious yet realistic roadmap for the future of Human Rights and the Environment, which advises UNEP and OHCHR on how to move forward and outlines what further work is required. The first proposed step is a Joint Report between OHCHR and UNEP on the topic of Human Rights and Environment. Other areas of cooperation are also being identified. This experts’ meeting provided a clear outline of the various pathways that could be followed to carry the global agenda forward and the advantages and disadvantages of each. It is now up to the international community to step up to the challenge.

Further information about the meeting, including the concept note, outcome document, meeting report and papers presented, is available online.

Other useful links and background information:
UNECE Aarhus Convention
UN OHCHR - Human Rights and the Environment Background Papers (2002)
UN OHCHR - Human Rights and Climate Change (2008)
1 For more information on these cases, see A. Boyle, “Human Rights and the Environment: A Reassessment”, paper presented at High Level Experts Meeting on the New Future of Human Rights and the Environment: Moving the Global Agenda Forward, Nairobi, 30 Nov-1 Dec 2009, p. 15.
2 A. Boyle, ibid, p. 4.
3 A. Boyle, ibid, p. 12.
4 D. Shelton, “Human Rights and Environment: Past, Present and Future Linkages and the Value of a Declaration”, paper presented at High Level Experts Meeting on the New Future of Human Rights and the Environment: Moving the Global Agenda Forward, Nairobi, 30 Nov-1 Dec 2009
* This article reflects the views of the author; it does not present the official views of the UN or UNEP.
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