By: Robert Keilson, November 3, 2022
On October 8th, 2021, the United Nations Human Rights Council recognized a “safe, clean, healthy, and sustainable environment” as a human right for the first time in its history. Proposed by Costa Rica, the Maldives, Slovenia, and Switzerland, Resolution 48/13 was supported by “more than 1,300 civil society organizations and indigenous peoples’ groups, as well as 15 UN agencies, young activists and business groups.” Environmental activists celebrated the Resolution as a potential landmark in climate change litigation across the world.
First, Resolution 48/13 raises awareness of the human consequences of climate change. By placing climate change law within the human rights paradigm, the Resolution “announces that it is at the same level of importance as other rights considered necessary to human dignity, equality, and freedom.” By recognizing the right to a healthy environment as a human right, the moral, ethical, or human content of environmental issues are “‘no longer dispersed or fragmented across a range of rights,’” but rather “‘come together under a single normative frame.’” Consequently, Resolution 48/13 “helps to foreground the human beings most affected by environmental harm, who are often marginalized and disempowered.” Indeed, while the Resolution may reinforce “thinking about the environment in terms of its benefits to human beings only,” as former Special Rapporteur on human rights and the environment John Knox notes: “the more we understand the ways in which humans are dependent on a healthy environment, the less gap there is between a human-centered and an ecocentric approach to environmental protection. We can’t really have a healthy environment unless the environment is healthy for everything that lives here as well.”
Second, Resolution 48/13 will help make human rights-based environmental litigation more efficient and effective. Recognizing a healthy environment as a human right provides a “minimum basis of interpretation, a hermeneutic floor” to domestic and international climate change issues. Because environmental disputes tend to implicate a range of human rights, a international body like the HRC placing them under a single human rights framework provides a much clearer legal basis for individuals to bring claims and for courts to review them. It is “much easier to make your case in court if you can say your rights are being violated because someone’s destroying the environment on which your community depends, than if you have to indirectly argue that your right to health, for instance, is affected by environmental destruction.” In effect, Resolution 48/13 may reduce litigation costs, decrease delays, and minimize “risks associated with pursuing other judicial remedies.”
Lastly, Resolution 481/3 provides an additional legal tool “to challenge state and corporate actors,” on both domestic and international levels, “for failing to take prompt and adequate action” to address climate change. Thus, Resolution 48/13 may spur new global agreements or regional treaties that provide the public “stronger rights…to receive environmental information from their government, [more ability] to participate in environmental decision making, and [more] access to domestic remedies for environmental harm.”
Nevertheless, as catastrophic climate change becomes seemingly more and more inevitable, one might reasonably conclude that Resolution 48/13 accomplishes little. The Resolution is not legally binding on UN Member States. Furthermore, the Resolution does not guarantee that the UN General Council—and key member states in the fight against catastrophic climate change, like the United States—will recognize the right to a healthy environment in the near and critical future. That said, legal developments need not be authoritative to be meaningful, and as the climate crisis itself instructs, a relatively minor change can cause a major impact over time. Through this lens, Resolution 48/13 may be quite significant.