Human Rights and the Environment

(1) General Developments

This report summarizes some of the highlights of the year, mainly concerning the United Nations (UN) and its human rights bodies, as well as the European Court of Human Rights (ECHR) in the field of the recognition of the interrelatedness of human rights and environmental issues. This year’s report focuses mainly on reports from the UN special rapporteurs, general comments, and case law of the human rights treaty bodies related to human rights and the environment. It should be noted that the nature of the report is not an analytical study but merely a descriptive (but not an exhaustive) list and an overview of some selected important recent developments in the field of human rights and the environment.

Climate change impacts on human rights continued to be one of the central environmental human rights themes this year. On 20 March, the Intergovernmental Panel on Climate Change (IPCC) released its Synthesis Report of the Sixth Assessment Report, documenting unprecedentedly large and rapid changes in the environment caused by the anthropocentric climate change and calling for immediate and strong mitigation measures in order to meet the targets of the Paris Agreement (IPCC, Synthesis Report of the Sixth Assessment Report (2023) <https://www.ipcc.ch/ar6-syr/>). At the twenty-eighth Conference of the Parties (COP-28) of the United Nations Framework Convention on Climate Change (UNFCCC), held in Dubai, United Arab Emirates (30 November–12 December), UN High Commissioner for Human Rights, Volker Türk, stated that ‘for decades we have failed to do enough.’ He said that the widespread harms already caused by climate change and the accelerating existential threat it poses to the future of all human life on our planet can only be overcome if global climate negotiations and action are guided by human rights. He called for urgent action ‘in solidarity, collectively and boldly—with human rights at the core—to remedy the deep damage that has already been done’ (Office of the High Commissioner for Human Rights, press release (15 November 2023) <https://www.ohchr.org/en/press-releases/2023/11/turk-calls-human-rights-guide-action-stop-climate-crisis-cop28-set-open>).

As pointed out by Lara Ibrahim, although the need to respect human rights obligations when taking action to address climate change was reiterated in the COP-28 decision, no COP decision nor climate change treaty has yet acknowledged that the failure to take sufficient action to address climate change may itself constitute a human rights violation. This recognition, according to Ibrahim, among others, would force governments to agree to and comply with more stringent obligations in order to respect their obligations under both international environmental law and international human rights law (Lara Ibrahim, ‘COP28 and Its Shortcomings: The Inadequate Protection of Human Rights’ (3 January 2024) <https://www.ohrh.law.ox.ac.uk/cop28-and-its-shortcomings-the-inadequate-protection-of-human-rights/>).

As shown by the UN Environment Programme (UNEP) document entitled Global Climate Litigation Report: 2023 Status Review, climate change litigation is increasing and broadening in geographical reach. As reminded by the report, it has become clear, and also recognized by the IPCC, that inclusive approaches to climate litigation that also address the human rights of the most vulnerable groups in society can contribute in meaningful ways to compel governments and corporate actors to pursue more ambitious climate change mitigation and adaptation goals (UNEP, Global Climate Litigation Report: 2023 Status Review, XIV <https://www.wedocs.unep.org/bitstream/handle/20.500.11822/43008/global_climate_litigation_report_2023.pdf?sequence=3>). As argued by this report, climate litigation represents a frontier solution to change the dynamics of the fight against climate change. People are increasingly turning to the courts to combat the climate crisis, and governments and private sector entities are being increasingly challenged and held to account (ibid., IX). Moreover, litigants around the world continue to expand the range of theories under which defendants are obligated to take climate-related action (ibid., 4).

As of the beginning of this year, the Sabin Center’s Climate Change Litigation Databases reported 2,180 cases filed in sixty-five jurisdictions and international or regional courts, tribunals, quasi-judicial bodies, or other adjudicatory bodies, including special procedures of the UN and arbitration tribunals (ibid.; also, see Sabin Center for Climate Change Law <https://climatecasechart.com/>).

One emerging trend is the international recognition of the interlinkages between climate change, business, and human rights. In August, the UN Human Rights Council Advisory Committee released a report entitled Impact of New Technologies Intended for Climate Protection on the Enjoyment of Human Rights (10 August 2023). At the end of this year, the UNEP Finance Initiative and the International Labour Organization, with support from more than forty banks, insurance companies, international financial institutions, and academic and civil society organizations, published a report entitled Just Transition Finance: Pathways for Banking and Insurance (<https://www.unepfi.org/wordpress/wp-content/uploads/2023/11/Just-transition-finance_Pathway-for-Banking-and-Insurance.pdf>). The report outlines the social and economic impacts of the low-carbon transition and encourages and supports banks and insurance companies to partake in the achievement of a just transition. Moreover, it provides financial institutions with practical recommendations and examples of emerging practices on how to embed just transition considerations in financial products and business operations that are aligned with the Paris Agreement’s objectives and human rights frameworks (<https://www.unepfi.org/publications/just-transition-finance-pathways-for-banking-and-insurance/>).

This year marked a year-long UN initiative, ‘Human Rights 75,’ which culminated in a high-level event in December that announced global pledges and ideas for a vision for the future of human rights (<https://www.ohchr.org/sites/default/files/hr75-what-it-is.pdf>). The seventy-fifth anniversary of the 1948 Universal Declaration of Human Rights was intended to invigorate the Declaration, showing the ways it meets the needs of our time and advancing its promise of freedom, equality, and justice for all (<https://www.ohchr.org/en/human-rights-75>). Environmental human rights was one of the agenda items at the high-level event that hosted a round table discussion entitled ‘The Future of Human Rights, the Environment and Climate: Advancing the Right to a Healthy Environment, Including a Safe and Stable Climate, for All’ (<https://www.ohchr.org/sites/default/files/udhr/publishingimages/75udhr/HR75-high-level-event-Healthy-nvironment-think-Piece%20.pdf>). In the discussion, it was reiterated that the human right to a healthy environment, recognized by the UN General Assembly in 2022, has since been reaffirmed by references to the right to a healthy environment in the work of human rights treaty bodies, the Kunming-Montreal Global Biodiversity Framework, the outcome of COP-27 of the UNFCCC, and the Bonn Declaration for Global Sustainable Management of Chemicals and Waste (ibid.). The discussions called for urgent and decisive action, since the impacts of the triple planetary crisis (pollution, loss of biodiversity, and climate change) continue to affect the rights of people around the world—not just their enjoyment of the right to a healthy environment but also an array of rights, including the right to food, adequate housing, health, and even the right to life (ibid.).

In the European context, in May, the fourth Summit of Heads of State and Government of the Council of Europe gathered in Reykjavik. In the Reykjavik Declaration, the states and governments of the Council affirmed that human rights and the environment are intertwined and that a clean, healthy, and sustainable environment is integral to the full enjoyment of human rights by present and future generations (Reykjavik Declaration, Appendix V, 20 <https://www.rm.coe.int/4th-summit-of-heads-of-state-and-government-of-the-council-of-europe/1680ab40c1>). Many non-governmental organizations tried to lobby states to draft an additional environmental rights protocol to the European Human Rights Convention; however, this did not happen (<https://www.ciel.org/right-to-a-healthy-environment-council-of-europe/>).

Due to limited space, this year’s report does not review in detail the case law of the Inter-American Human Rights System. However, it is important to note that significant developments in the field of environmental rights also occurred in the Inter-American Commission and Court. In January, Chile and Colombia requested an advisory opinion from the Inter-American Court of Human Rights on the scope of state obligations for responding to the climate emergency under the frame of international human rights law and, particularly, under the American Convention on Human Rights (<https://www.climatecasechart.com/non-us-case/request-for-an-advisory-opinion-on-the-scope-of-the-state-obligations-for-responding-to-the-climate-emergency/>). Chile and Colombia asked the court to provide more clarity in regard to the grounds and scope of human rights affected by climate change. More precisely, they encompassed a wide range of legal issues related to climate mitigation and adaptation as well as loss and damage. The request for an advisory opinion asks for clarification concerning obligations of the states that relate to the role of common but differentiated responsibilities and cooperation between states. Additionally, it asks the court to clarify the scope of the obligations as they relate to vulnerable groups, including children, women, Indigenous groups, future generations, and environmental defenders (ibid.).

(2) United Nations

(A) UN Human Rights Council

On 4 April, the UN Human Rights Council (UNHRC) adopted its new resolution (Doc. A/HRC/52/L.7) following the recognition by the General Assembly of the United Nations of the universal right to a clean, healthy, and sustainable environment on 28 July 2022 (<https://www.digitallibrary.un.org/record/4007326?v=pdf#files>). The reaffirmation of this universal right also follows the General Assembly’s earlier request on 29 March for an advisory opinion from the International Court of Justice on states’ obligations to address climate change (<https://www.altadvisory.africa/2023/03/30/un-general-assembly-requests-advisory-opinion-from-international-court-of-justice-on-states-obligations-to-address-climate-change/>). One of the themes of emphasis of the new resolution of the UNHRC is the responsibility of business enterprises to respect the human right to the environment. Another theme of the resolution is to encourage stakeholders to explore ways to incorporate information on human rights and the environment—including climate change, biodiversity, pollution, ocean degradation, and ecosystem services—in school curricula, in order to teach current and future generations to act as agents of change, including by taking into account the traditional knowledge of Indigenous peoples (<https://www.digitallibrary.un.org/record/4007326?v=pdf#files>).

Following the requests of the UNHRC, several different UN special rapporteurs published annual reports this year with a variety of themes related to human rights and the environment. In January, the UN special rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable development, David R. Boyd, released a report entitled Women, Girls and the Right to a Clean, Healthy and Sustainable Environment. The special rapporteur summarizes how the triple planetary crisis, combined with systemic gender-based discrimination, patriarchal norms, and inequality, is imposing disproportionate and specific harms on women and girls, thereby threatening and violating their human rights, including the right to a clean, healthy, and sustainable environment. According to this report, in order to achieve gender equality and ecological sustainability, states must tackle gender-based discrimination and environmental injustices with urgent, gender-transformative, and rights-based climate and environmental action. The special rapporteur describes state obligations, business responsibilities, and the potential benefits of achieving gender equality and ecological sustainability. Furthermore, the special rapporteur makes recommendations related to dismantling systemic discrimination, empowering women and girls as climate and environmental leaders, and ensuring that women and girls are able to fully enjoy their rights to a clean, healthy, and sustainable environment (ibid., Summary).

In July, Boyd also published a report entitled Paying Polluters: The Catastrophic Consequences of Investor–State Dispute Settlement for Climate and Environment Action and Human Rights. This report presents compelling evidence that a secretive international arbitration process called investor–state dispute settlement has become a major obstacle to the urgent actions needed to address the planetary environmental and human rights crises. Foreign investors use the dispute settlement process to seek exorbitant compensation, with the fossil fuel and mining industries already winning over $100 billion in awards. As shown by the special rapporteur, these cases create regulatory chill. The special rapporteur identifies specific actions and recommendations that states should take to avoid future claims under the investor–state dispute settlement process and fulfil their human rights obligations (ibid., Summary).

The special rapporteur on the promotion and protection of human rights in the context of climate change, Ian Fry, conducted two annual reports this year. The first of them, published in April, deals with providing legal options to protect the human rights of persons displaced across international borders due to climate change. In the report, the special rapporteur considers various international, regional, and national legal and policy approaches to address people displaced across international borders due to climate change. He concludes that there is a deficit in legal protection for such people. He makes a number of recommendations on how this legal deficit can be resolved, including his recommendation for the development of an optional protocol to the Convention relating to the Status of Refugees to protect the human rights of persons displaced across international borders due to climate change (ibid., Summary).

The second report, published in July, is entitled Promotion and Protection of Human Rights in the Context of Climate Change. Fry reviews current efforts by governments to include human rights considerations in climate change-related legislation. Furthermore, he reviews the application of human rights obligations in climate change litigation and explores the various limitations of litigation owing to substantive and procedural blockages (ibid., Summary).

In addition to the above-mentioned reports, human rights and the environment are interlinked with the following reports: by the special rapporteur on toxics and human rights (The Toxic Impacts of some Proposed Climate Change Solutions and Shipping, Toxics and Human Rights <https://www.ohchr.org/en/special-procedures/sr-toxics-and-human-rights>); by the special rapporteur on the human rights to safe drinking water and sanitation (Human Rights to Safe Drinking Water and Sanitation of Indigenous Peoples: State of Affairs and Lessons from Ancestral Cultures; Human Rights to Safe Drinking Water and Sanitation of People Living in Impoverished Rural Areas; Fulfilling the Human Rights of those Living in Poverty and Restoring the Health of Aquatic Ecosystems: Two Converging Challenges; and Water as an Argument for Peace, Twinning and Cooperation <https://www.ohchr.org/en/special-procedures/sr-water-and-sanitation#:∼:text=Pedro%20Arrojo%2DAgudo%20is%20the,safe%20drinking%20water%20and%20sanitation>); and by the special rapporteur on Indigenous peoples (Green Financing: A Just Transition to Protect the Rights of Indigenous Peoples <https://www.ohchr.org/en/special-procedures/sr-indigenous-peoples>).

(B) UN Human Rights Treaty Bodies

Throughout the years, UN human rights treaty bodies have made several general comments and case law and other observations recognizing the interlinkage between human rights and the environment. In January, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 26 (2022) on Land and Economic, Social and Cultural Rights (<https://www.documents.un.org/doc/undoc/gen/g23/000/35/pdf/g2300035.pdf?token=4rl0M1dDgyAKMS3VTc&fe=true>). The general comment explores how land plays an essential role in the realization of a range of rights under the International Covenant on Economic, Social and Cultural Rights. For instance, secure and equitable access to, use of, and control over land for individuals and communities can be essential to eradicating hunger and poverty and to guaranteeing the right to an adequate standard of living. On the other hand, the sustainable use of land is essential to ensuring the right to a clean, healthy, and sustainable environment and to promoting the right to development, among other rights (ibid., para. 1). The general comment recommends that state parties should ensure that they have administrative and judicial systems in place to effectively implement policy and legal frameworks relating to land and that their administrative and judicial authorities act in accordance with the state’s obligations under the Covenant (ibid., para. 60).

In August, the Committee on the Rights of the Child adopted General Comment No. 26 (2023) on Children’s Rights and the Environment with a Special Focus on Climate Change (<https://www.tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FC%2FGC%2F26&Lang=en>). The general comment calls for the application of a child rights-based approach to the environment that requires the full consideration of all children’s rights under the Convention on the Rights of the Child and the Optional Protocols thereto. A clean, healthy, and sustainable environment is both a human right itself and necessary for the full enjoyment of a broad range of children’s rights—hence, the exercise by children of their rights to freedom of expression, peaceful assembly and association, information, and education; to participate and be heard; and to effective remedies can result in more rights-compliant, and therefore more ambitious and effective, environmental policies (ibid., paras 6 and 8).

(3) Selected Environmental Cases in European Court of Human Rights

The case of Locascia and Others v Italy (European Court of Human Rights, Application no. 35648/10, <https:www//hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7779300-10780043%22]}>) concerned the crisis over refuse collection, treatment, and disposal in the Campania region and pollution from a landfill site that was in an area near the homes of the applicants—nineteen residents who lived in the municipalities of Caserta and San Nicola La Strada. The court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of eleven of the applicants, finding that the authorities had failed to take all the measures necessary for the effective protection of the applicants’ right to respect for their homes and private lives (European Court of Human Rights, Factsheet: Environment and ECHR (2023) 25–6 <https://www.echr.coe.int/documents/d/echr/FS_Environment_ENG>).

In the case of Bryan and Others v Russia (European Court of Human Rights, Application no. 22515/14 (2023) <https://www.hudoc.echr.coe.int/fre-press#{%22itemid%22:[%22003-7686664-10605423%22]}>), two Greenpeace activists who participated in the protest at the Russian offshore oil-drilling platform Prirazlomnaya climbed the platform after launching dinghies from a vessel called the Arctic Sunrise, which had been sailing under the flag of the Netherlands. On arriving at Murmansk, the activists were arrested and their detention ordered on charges of piracy. Later, the charges were reclassified to hooliganism, and the proceedings against them were discontinued under an amnesty. The applicants claimed that their arrest and pretrial detention had been arbitrary and illegal and that the Russian authorities had unlawfully interfered with their freedom of expression. In its decision, the court found that the period during which the Arctic Sunrise had been under Russian control, and up until its arrival in Murmansk, had amounted to a deprivation of the activists’ liberty. This period of detention was unrecorded and therefore amounted to a grave violation of their rights under Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to liberty and security). The court also held that there had been a violation of Article 10 (right to freedom of expression) of the convention (European Court of Human Rights, Factsheet: Environment and ECHR (2023) 28–9).

There are several pending environmental and climate change cases in the European Court of Human Rights. In 2022, the court relinquished, in favour of the Grand Chamber, the climate cases of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (Application no. 53600/20). The application was lodged with the European Court of Human Rights on 26 November 2020. The European Court of Human Rights held a Grand Chamber hearing on 29 March 2023 (<https://www.hudoc.echr.coe.int/fre-press#{%22itemid%22:[%22003-7610087-10470692%22]}>), Carême v France (Application no. 7189/21). The application was lodged with the European Court of Human Rights on 28 January 2021. The Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber on 31 May 2022 (Duarte Agostinho and Others v Portugal and Others (Application no. 39371/20)). The application was lodged with the European Court of Human Rights on 7 September 2020. The Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber on 28 June 2022 (<https://www.hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7374717-10079435%22]}>). Between September 2022 and February 2023, the court held a series of procedural meetings in respect of climate change applications other than those pending before its Grand Chamber (European Court of Human Rights, Factsheet: Climate Change, 2 <https://www.echr.coe.int/Documents/FS_Climate_change_ENG.pdf>).