Clifford Chance

On 8 October 2021, the UN Human Rights Council (UNHRC) passed Resolution 48/13 A/HRC/48/L.23/Rev.1 recognising for the first time in the UN human rights system the right to a safe, clean, healthy and sustainable environment and inviting the General Assembly (UNGA) to consider the matter.

Resolution 48/13 sets out key recommendations for States, including:

• to build capacities for efforts to protect the environment in order to fulfil their human rights obligations and commitments and to enhance cooperation with the UNHRC, other States and a number of stakeholders; and
• to adopt policies for the enjoyment of the right to a safe, clean, healthy and sustainable environment, as appropriate (with specific mention of biodiversity and ecosystems, including in the implementation of the Sustainable Development Goals).

On the same day, the UNHRC adopted Resolution 48/14 A/HRC/48/L.27 to establish a Special Rapporteur on the promotion and protection of human rights in the context of climate change.

The Growing Links Between Human Rights, Climate Change and Environmental Issues

The interplay between human rights and the environment has been a focus of the UNHRC for a decade. During this time, the UNHRC mandated the appointment of an Independent Expert and two Special Rapporteurs, Professor John Knox and Dr David Boyd, to examine the links between human rights and the environment.

In his 2019 report to the UNHRC, Right to a healthy environment: good practices, Dr David Boyd reported that the right to a healthy environment is recognised by 80 percent (156 out of 193) of UN Member States. In mapping the existence of this right in domestic legal systems, Dr Boyd drew from research led by Clifford Chance and the Vance Center, working alongside other lawyers across the globe. In his report, Dr Boyd concluded that, were the UNHRC to adopt a resolution recognising this right, it would be a "positive catalyst" to accelerate efforts to ensure its enjoyment.

Resolution 48/13 is non-binding. However, some commentators have argued that Resolution 48/13 may add to growing momentum recognising such a right in domestic legislation and in other fora. For example, the European Parliament, in its June 2021 report on the EU Biodiversity Strategy for 2030, stated that the right to a healthy environment should be recognised in the Charter of Fundamental Rights of the EU and that the EU should take the lead in recognising a similar right internationally. Elsewhere, the Parliamentary Assembly of the Council of Europe, which maintains the legal framework of the European Convention on Human Rights (ECHR), also passed a resolution recommending that its Member States (which include the European Union) build a legal framework for the recognition of the right to a safe, clean, healthy and sustainable environment.

The UNHRC's decision to recognise a human right to a safe, clean, healthy and sustainable environment also comes at a time when there is growing attention to the potential for using human rights as the basis for action on climate change and environmental issues, including in claims before national courts.

A right to a healthy environment in the courts

An interesting question is whether and how the UNHRC resolution could be used in disputes relating to climate and environmental considerations. In jurisdictions where such a right already exists, this resolution may provide a basis for clarifying the scope of that right. Where such a right does not exist, the resolution may act as a starting point in defining how such a right might take shape.

Litigation involving human rights and climate and environmental issues is becoming increasingly commonplace. In the Urgenda case, for example, the Supreme Court of the Netherlands held that Articles 2 (right to life) and 8 (right to respect for private and family life) of the ECHR oblige contracting States to take action to prevent dangerous climate change (see our briefing).

In several countries, a right to a healthy environment has been relied upon successfully in the highest courts. In a 2019 case, for example, the Chilean Supreme Court found that failures by governmental entities to prevent air pollution violated the constitutionally protected rights to life, health, and a pollution-free environment.

In other jurisdictions courts have been more cautious – for example, in the United States even sympathetic courts to-date have been reluctant to recognize such a right, although there has been movement at the individual State level including a successful ballot measure in New York on 2 November 2021.

Resolution 48/13 has already been cited in a complaint against a State. On 25 October 2021, five young Australians and the NGO Environmental Justice Australia submitted a complaint to three Special Rapporteurs, including the UN Special Rapporteur on Human Rights and the Environment, referencing and relying on the resolution, claiming infringements by the Australian government in failing to act to meaningfully reduce greenhouse gas emissions by 2030.

What steps should companies take now?

Against the background of such cases, the UNHRC resolution has again focused attention on human rights considerations relating to the environment. Alongside this development within the UN human rights system, there is also significant focus on human rights due diligence initiatives with an environmental component. A legislative proposal from the European Commission to introduce EU-wide mandatory due diligence requirements for businesses to in relation to adverse human rights and environmental impacts is expected in December 2021. The UNHRC resolution (or any subsequent UNGA resolution), which further clarifies the link between environmental issues and adverse impacts on human rights may bolster proposals for the human rights due diligence framework to be used to address corporate governance of environmental impacts. At this stage, corporates should continue to assess current policies and processes to ensure that they are consistent with applicable frameworks which assist corporates to manage the negative impacts of environmental issues and climate change effects on human rights such as the UN Guiding Principles, OECD MNE Guidelines and other international standards.