The emerging law of environmental human
rights is clearer than ever before
Written by Professor John H. Knox, UN Independent Expert on Human Rights and the
Environment
22nd April 2014
On the last day of its 25th session in March 2014, the Human Rights Council adopted by
consensus a historic resolution on human rights and the environment. For the first time, the
Council explicitly recognised that ‘human rights law sets out certain obligations on states which
are relevant to the enjoyment of a safe, clean, healthy and sustainable environment.’
This resolution builds on the Council’s consideration of the topic since March 2012, when it
decided to appoint an Independent Expert to study the human rights obligations relating to the
enjoyment of a safe, clean, healthy and sustainable environment. I had the honour of being
appointed to that position the following July.
In accordance with my mandate, in March I presented a report to the Council that maps human
rights obligations relating to the environment. The report was based on an extensive review of
statements by human rights bodies, including treaty bodies, regional human rights tribunals, and
special rapporteurs, as well as UN resolutions, the UPR process, and international environmental
instruments. The mapping report found that these sources had all come to remarkably similar
conclusions about the duties that human rights law imposes on states to protect human rights
from environmental harm.
As interpreted by the human rights bodies, states have obligations to assess environmental
impacts on the enjoyment of human rights and to make environmental information public, to
facilitate participation in environmental decision-making, and to provide access to remedies for
environmental harm. The obligation to facilitate public participation includes duties to safeguard
the rights to freedom of expression and association against threats, harassment and violence. In
addition to these procedural obligations, states have substantive obligations to adopt legal and
institutional frameworks that protect against environmental harms that may interfere with the
enjoyment of human rights, including harm caused by private actors. States also have a general
requirement of non-discrimination in the application of environmental laws, and may have
additional obligations to members of groups particularly vulnerable to environmental harm, such
as women, children and indigenous peoples.
In its March 2014 resolution, the Council picked up on these points. It stated that the enjoyment
of human rights can be facilitated by ‘assessing environmental impacts, by making environmental
information public, and by enabling effective participation in environmental decision-making
processes,’ and that ‘good practice includes adopting, strengthening and implementing laws and
other measures to promote and protect human rights and fundamental freedoms in the context of
environmental legislation and policies.’ It reaffirmed the duty of states to protect against human
rights abuse within their territory and/or jurisdiction by third parties, including business
enterprises, as provided in the Guiding Principles on Business and Human Rights. It also
reaffirmed the importance of non-discrimination in the application of environmental laws, and ‘of
paying due attention to the members of groups particularly vulnerable to environmental harm,
bearing in mind that environmental damage is felt most acutely by those segments of the
population already in vulnerable situations.’
Perhaps most importantly, the Council urged states to comply with their human rights obligations
when developing and implementing environmental policies.
Although the emerging law of environmental human rights is clearer than ever before, much
remains to be done. The norms governing transboundary responsibility are in particular need of
attention, especially in light of the increasingly grave threats posed by climate change to the
enjoyment of human rights. Although some communities, such as those living in small island
states, other coastal regions, the Sahel, and the Arctic, are especially vulnerable, climate change
will have devastating effects on the entire planet if we do not change course.
Whereas the application of human rights norms to environmental protection is clear, more must
be done to close the gap between aspiration and implementation. One important avenue is the
on-going negotiation of the new Sustainable Development Goals, which should take human
rights into account in a pervasive, meaningful manner.
Another specific area that calls out for greater attention is the situation of environmental human
rights defenders, those who try to protect the environmental rights of others. During the Council’s
March session, the Universal Rights Group hosted a conference of environmental activists at
which it became abundantly clear that many of these defenders risk harassment, violence and
even death. A report this week by Global Witness finds that nearly 1000 environmental defenders
were killed in the last decade, and that the number of deaths has increased, on average, to two
every week. As bad as this figure is, it is almost certainly understated, since many deaths go
unreported or are attributed to random crime. States and international organisations must do
much more to safeguard those who try to defend the rights to life, health, and property against
the untrammelled exploitation of natural resources.
In the coming months, I will examine good practices in the use of human rights obligations
relating to environmental policymaking. Working with the United Nations Environment
Programme, I will hold a series of consultations aimed at identifying and exchanging views on
good practices, and asking interested stakeholders to provide more information about such
practices. Our aim is to go beyond the minimum standards set by human rights law, to find
practices by states and others that successfully bring a rights-based approach to bear on
environmental challenges. The results will be presented to the Council in March 2015.
Professor John H. Knox
UN Independent Expert on Human Rights and the Environment
Henry C. Lauerman Professor of International Law, Wake Forest University School of Law
*This article was published on the Universal Rights Group’s web blog.