Right To A Healthy Environment: Citizen's Right Vs State's Obligation

May 23, 2024

Do we have the right to a clean, healthy and sustainable environment? One of the most obvious questions, even the cycle of heat waves engulfing India this summer, has been missing during the largest democratic practices as 834 million Indians are voting in the 2024 General Elections. Ironically, the election manifestos of both national and regional political parties have failed to commit to ensuring the right to a healthy environment for all Indians if they are elected to power on June 4, 2024. At best, environmental well-being is a non-issue in this General Election. Can Indian voters, especially new and future voters, afford such lapses of the right to a healthy and sustainable environment as a non-governance issue?    

While we are just completing the hottest decade of the centuries, is there any prime-time debate in electronic media on provisions of the right to a healthy climate? Merely adjusting a question or two on climate change while speaking to young voters on the sidelines may not ensure the prominence of the urgency of the topic. We know the Earth is experiencing multiple crises reinforcing each other: climate change, water scarcity, biodiversity loss, pollution, pandemics, war and conflict, leading to widening poverty and inequality. Among all these, climate change is the defining crisis of our generation. It is faster than we project, predict and prepare. Neither humankind nor other living beings nor this Planet is immune to such crises.   

In a historic, bold, transformational intervention between people and the Planet, in July 2022, the UN General Assembly (UNGA) adopted a resolution on 'the right to a clean, healthy and sustainable environment as a human right'. Among 193 member countries, no one opposed this resolution, and while 161 voted for it, eight countries, including India and Kyrgyzstan, abstained from voting. It doesn't matter if India and Kyrgyzstan abstained, as the Supreme Court of India and the Constitution of Kyrgyzstan have already spelt out the right to a healthy environment for its citizens. More than 85 percent of the UN member countries have recognised the right to a healthy environment.  

A healthy environment and human rights are interdependent and complementary to each other. Without one, the other is inadequate. Without a healthy environment, protecting, advocating and preserving various recognised human rights is incomplete and unattainable. But, neither the Universal Declaration of Human Rights (1948) nor any other UN human rights instruments like the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted in 1966 by UNGA, were not able to spell out the environmental rights. In 1995, the UN Commission of Human Rights refused to embrace 'the right to a secure, healthy and ecologically sound environment'.

Intergovernmental institutions like the World Bank, the European Bank for Reconstruction and Development (EBRD) and the Asian Development Bank (ADB) have maintained a stubborn reluctance to accept environmental rights as human rights in their respective institutional policy documents. In the draft Environmental and Social Framework (2023), the ADB, despite recognising the human rights of indigenous people and restricting child labour in unhealthy working conditions, have distanced itself from acknowledging the 2022 UNGA resolution of the obligation to provide the right to a healthy environment Similarly, the EBRD in its 2019 Environment and Social Safeguard Policy have neither acknowledged of a clean and sustainable environment nor recognised the rights as human rights. Now, it is time for all intergovernmental agencies to follow the UNGA resolution of a healthy environment to desist from lending projects that are detrimental to the environment.

Interestingly, over 50 years of UN environmental summit declarations have not successfully linked environmental rights to human rights. The UN had come close to pronouncing the environmental rights in Principle 1 of the 1972 Stockholm Declaration (first UN Conference on Human Environment) as the 'fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being'. In the 1992 Earth Summit, the Rio Declaration avoided mentioning any environmental rights due to developed countries.

Nevertheless, the gradual codification of environmental rights as substantive rights in the form of safe climate, healthy ecosystems and biodiversity, safe and sufficient water, healthy and sustainable food and non-toxic environment has been emerging from regional treaties like the African Charter on Human and Peoples' Rights (1981), the American Convention on Human Rights (1988), the Arab Charter on Human Rights (2004), the ASEAN Declaration on Human Rights (2012). Simultaneously, explicit provisions of the right to a healthy environment in more than 100 national constitutions and judicial interventions and interpretations from more than 30 countries, like in India, linking environmental issues to the rights to life and health, have strengthened environmental rights. In addition, inclusion in multilateral environmental agreements (MEAs) of rights of access to information, public participation, and access to justice as in the 1998 Aarhus Convention and protecting environmental defenders in the 2018 Escazú Agreement as procedural rights in environmental issues has widened the environmental rights regime.

Some of the recent judicial pronouncements related to petitions on the right to a healthy environment and climate change have drawn substantial attention. In August 2023 in Montana, the US, the Court ruled in favour of young people that the state must protect the right to a healthy environment for present and future generations. The Supreme Court of India on April 5, 2024, for the first time, recognised the right against the adverse impacts of climate change, saying it is intertwined with the right to life (Article 21) and equality (Article 14) that are Fundamental Rights guaranteed by the Constitution of India. In the same month, the European Court of Human Rights, an international Court, ruled that Switzerland had violated the rights of a group of older Swiss women to 'family life' as the country has failed to comply with its duties to stop climate change. In March 2024, the Inter-American Court of Human Rights found the Peruvian government responsible for violating the right to a healthy environment, among other rights, of residents of La Oroya, a town exposed to toxic pollution from a mine and smelter complex. Nearly 40 such climate change litigations exist in the various national and international courts. Further, the UN Committee on the Rights of the Child issued new guidance in August 2023 that calls for governments to protect boys and girls in the face of the deepening climate crisis.

Despite no consensus on what constitutes a healthy environment, the right to a healthy, clean and sustainable environment has been positioned to re-evaluate the state's obligations towards its citizens. While the modern states are distancing from their sole obligations to protect every citizen from a hazardous environment by using lofty national ideals, this historic resolution will protect the unsung heroes as environmental defenders and amplify the role of environmental defenders in citizens in protecting the environment. Criminalising environmental defenders needs to be revisited. Although it is not enforceable nor legally binding, it provides innovative tools to challenge ecologically destructive policies and projects. The right to a healthy environment encourages the obligation of co-protection, co-conservation, co-preservation and co-management of the ecosphere by the government and citizens. Finally, a metaphorical umbilical cord links the Planet and the people.

Author Note
Avilash Roul (PhD) is a Senior Fellow at the Society for the Study of Peace and Conflict, New Delhi.