Konstantia Koutouki 1 and Frederic Perron-Welch 2
2 Environmental human rights obligations
2.1 Introduction
The then Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Professor John H.
Knox, presented the Framework Principles to the Human Rights Council (HRC) in March 2018. These 16 principles are not novel human rights, but rather ‘reflect the application of existing human rights obligations in the environmental context.’10 The HRC took note with appreciation of the report presenting the Framework Prin-ciples, and called upon states ‘to implement fully their obligations to respect and ensure human rights without distinction of any kind, including in the application of environmental laws and policies.’11 The first report of the Special Rapporteur to the UN General Assembly was submitted in July 2018 and recommended that the Geral Assembly recognize the human right to a safe, clean, healthy and sustainable en-vironment, building on the human rights norms elaborated upon in the Framework Principles.12 In his report to the General Assembly, the Special Rapporteur noted that the human rights obligations that apply in the environmental context are both procedural13 and substantive.14 These distinct types of obligations are discussed in the two sub-sections below.
2.2 Procedural environmental human rights obligations
The procedural obligations on states identified in the Framework Principles include:
respecting and protecting rights to freedom of expression, association and peaceful assembly in relation to environmental matters;15 providing for education and public
9 ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’, UN Doc. A/HRC/37/59 (2018), Annex.
10 Ibid. para. 8.
11 HRC, ‘Human Rights and the Environment’, UN Doc. A/HRC/RES/37/8 (2018), para 3; John H.
Knox, ‘The Past, Present and Future of Human Rights and the Environment’, 53 Wake Forest Law Review (2018) 649-665 at 656.
12 ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment: Note by the Secretary-General’, UN Doc A/73/188 (2018).
13 Donald K Anton and Dinah Shelton, Environmental Protection and Human Rights (Cambridge Univer-sity Press, 2011) at 356: ‘those rights whose enjoyment could be considered a prerequisite to effective environmental protection.’
14 Ibid. at 436: ‘Substantive rights… place limits on the outcome of the process, ensuring that those in power do not abuse their dominant position to discriminate or cause environmental degradation at a level that infringes on the enjoyment of guaranteed human rights.’
15 Framework Principles, Principle 5.
in the Convention on Biological Diversity
awareness on environmental matters;16 providing public access to environmental in-formation by collecting and disseminating inin-formation and by providing affordable, effective and timely access to information to any person upon request;17 requiring the prior assessment of the possible environmental impacts of proposed projects and policies, including their potential effects on the enjoyment of human rights;18 pro-viding for and facilitating public participation in decision-making related to the en-vironment, and taking the views of the public into account in the decision-making process;19 and, providing access to effective remedies for violations of human rights and domestic laws relating to the environment.20
2.3 Substantive environmental human rights obligations
The substantive obligations of states identified in the Framework Principles in-clude: ensuring a safe, clean, healthy and sustainable environment in order to re-spect, protect and fulfil human rights;21 respecting, protecting and fulfilling hu-man rights in order to ensure a safe, clean, healthy and sustainable environment;22 prohibiting discrimination and ensuring equal and effective protection against dis-crimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment;23 establishing and maintaining substantive environmental standards that are non-discriminatory, non-retrogressive and otherwise respect, protect and fulfil human rights;24 ensuring the effective enforcement of environmental stand-ards against public and private actors;25 cooperating with other states to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights;26 taking additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities;27 ensuring compliance with obligations to indigenous peoples and members of traditional communities;28 and, respecting, protecting and fulfilling human rights in actions taken to address environmental challenges and pursue sustainable development.29
16 Principle 6.
17 Principle 7.
18 Principle 8.
19 Principle 9.
20 Principle 10.
21 Principle 1.
22 Principle 2.
23 Principle 3.
24 Principle 11.
25 Principle 12.
26 Principle 13.
27 Principle 14.
28 Principle 15.
29 Principle 16.
2.4 The link between human rights and biodiversity
These procedural and substantive rights apply to biodiversity as a natural extension of minimizing environmental harm and protecting human life and human health.
In his report on human rights obligations relating to the conservation and sustaina-ble use of biodiversity, Professor Knox explained that:
[t]he full enjoyment of human rights, including the rights to life, health, food and water, depends on the services provided by ecosystems. The provision of ecosystem services depends on the health and sustainability of ecosystems, which in turn depend on biodiversity. The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights.30
The right to life was first recognized in the Universal Declaration of Human Rights (UDHR),31 and buttressed by the ICCPR.32 The right to health is also recognized in the UDHR,33 and the ICESCR.34 In addition, the right to food is recognized in the UDHR35 and the ICESCR,36 and has been interpreted to include the adequacy and sustainability of food availability and access.37 While the right to water is not explicitly mentioned in these human rights instruments, it has been determined to be implicit in the ICESCR through the rights to an adequate standard of living, and the highest attainable standard of health.38 It has also been determined to contain an obligation to protect water sources from, amongst other things, pollution and inequitable extraction.39
The CBD is the global framework convention addressing biodiversity loss. Although the CBD does not explicitly mention the term ‘human rights’, it does incorporate provisions that provide some of the substantive and procedural environmental hu-man rights mentioned in the Framework Principles. However, given the CBD’s
em-30 ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. Note by the Secretariat’, UN Doc. A/HRC/34/49 (2017). (SR Biodiversity Report)
31 Universal Declaration of Human Rights, UNGA Res. 217A of 10 December 1948, Art. 3: ‘Everyone has the right to life, liberty and security of person’.
32 ICCPR, Art. 6: ‘Every human being has the inherent right to life. This right shall be protected by law…’
33 UDHR, Art. 25(1): ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family…’
34 ICESCR, Art. 12(1): ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’
35 UDHR, Art. 25(1): ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food…’
36 ICESCR, Art. 11(1): ‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food…’
37 Committee on Economic, Social and Cultural Rights, ‘General Comment 12: The right to adequate food (Art. 11)’, UN Doc. E/C.12/1999/5 (1999), para. 7.
38 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant)’ UN Doc. E/C.12/2002/11 (2003).
39 Ibid. at para. 23.
in the Convention on Biological Diversity
phasis on state sovereignty found in Article 3,40 these obligations are formulated in ways that grant significant latitude to states in terms of their implementation. These procedural and substantive environmental human rights and the relevant provisions of the CBD are discussed in the following section.