For more than 50 years, the ability to live in a healthy environment has been recognised as fundamental to human rights.

And while the UN only enshrined the right to a healthy environment two years ago, people around the world — led by those in the global south — have stepped up their advocacy by taking the issue to the world's highest court.

In 2023, Vanuatu and 17 other countries succeeded in getting a resolution through the UN General Assembly to seek an advisory opinion from the International Court of Justice to clarify the obligations of countries under international law with respect to climate change.

The court is expected to give its decision in early 2025. And while climate advocates keenly await that decision, it’s a good time to reflect on how far this relatively new human right has come already.

A landmark declaration

It's been just over two years since the United Nations General Assembly declared that a clean, healthy and sustainable environment is a fundamental human right.

While that was a landmark resolution, it's not legally binding: it hasn't been included in any of the international human rights treaties, so it can't be enforced through international courts or tribunals.

Some might say that it is more of a motherhood statement than a legal obligation.

But even without the legal clout of a human rights treaty, the right to a healthy environment is a powerful advocacy tool.

And while it's not legally recognised within the United Nations, the right to a healthy environment has gained recognition in the national laws of many countries.

In the global south in particular, such as Indonesia, Thailand, Pakistan and Colombia, the right has been used in important legal cases to challenge government policies on climate change, logging, mining and other environmentally destructive activities.

These cases are helping to raise the profile of this right and advocates hope they might eventually create an internationally binding precedent.

Roots in the ‘70s

This isn't a new idea.

One of the earliest articulations of the right was the Stockholm Declaration on the Human Environment, adopted in 1972.

That document acknowledged "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". But the Declaration had limited impact and took a backseat to the UN's work on sustainable development throughout the 1980s and '90s.

The UN's 1994 Draft Declaration on Human Rights and the Environment, which similarly recognised that everyone has the right to a secure, healthy and ecologically sound environment, also failed to gain traction .

Meanwhile, nations were taking their own steps to protect environmental rights.

In 2008, Ecuador rewrote its constitution guaranteeing everyone "the right to live in a healthy environment that is ecologically balanced, pollution-free and in harmony with nature".

The constitution also recognises the right of nature itself (Pacha Mama) to "integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes".

Ecuador wasn't alone as a wave of constitutional change swept the global south. In some cases, countries were following the lead of regional bodies in Africa and Latin America, which had adopted environmental rights into their regional human rights treaties in the '80s.

In other instances, newly independent countries were responding to the environmental harms wrought by colonisation and oppressive regimes. Given the opportunity to create their own legal frameworks, many former colonies chose to include environmental rights and duties in their new constitutions.

The constitution of Timor-Leste adopted in 2002 states: "All have the right to a humane, healthy, and ecologically balanced environment and the duty to protect it and improve it for the benefit of the future generations."

The number of countries which recognise a constitutional right to a healthy environment has grown to around 100. Another 50 recognise that governments or citizens have obligations to protect the environment.

These rights and duties use various different language and enforcement processes, but the magnitude of this collective constitutional protection has formed a powerful force for change.

In July 2022, the UN General Assembly resolution was adopted following many years of advocacy by civil society organisations, indigenous groups and others.

See you in court

Given the climate crisis, the backlash against human rights and slow progress on the UN's Sustainable Development Goals, the recognition of the right to a healthy environment represents the possibility of positive change.

And while the General Assembly resolution isn't legally binding, there have been attempts to litigate environmental rights .

The global south has led the way and some of the most exciting developments have been the result of collective advocacy of these countries.

Vanuatu's case in the International Court of Justice is just one example. The advisory opinion was the brainchild of a group of young climate activists, the Pacific Island Students Fighting Climate Change.

Simultaneously, the Inter-American Court of Human Rights is also compiling an advisory opinion on the impact of climate change on human rights, following a request from Colombia. These legal opinions promise to provide much needed clarity on the way human rights obligations are implicated by climate change.

At the national level, cases are also underway in Thailand, Indonesia, South Korea, Pakistan and many other jurisdictions.

This movement of climate litigation has also influenced Australia jurisprudence.

Torres Strait Islanders continue their litigation against the federal government, arguing that it has violated their rights by failing to protect their land and sea country against the impacts of climate change.

And in the 2022 case Waratah Coal v Youth Verdict, a group of young Queenslanders successfully challenged billionaire Clive Palmer's plans for a coal mine on the basis that its contribution to climate change would violate their human rights.

Where to from here?

Past and pending climate litigation shows it is possible to hold governments accountable even without an explicit right to a healthy environment.

But if the right becomes legally recognised at the international level, this would strengthen the ability of human rights law to tackle some of our biggest environmental challenges.

It would enshrine a healthy environment as a human right for its own sake, and not only because of the role it plays in supporting other human rights.

It would also consolidate the important work that countries in the global south have done in recognising the right in their own legal systems.

It remains to be seen how the International Court of Justice will approach this issue in its upcoming advisory opinion.

One thing's for sure: The mere fact the case is happening is a testament to the leadership and advocacy of climate campaigners throughout the global south.

Dr Bridget Lewis is an Associate Professor in the School of Law at Queensland University of Technology, and director of the Environmental and Social Governance Research Centre. Her work focuses on environmental rights, climate change and intergenerational justice.

Originally published under Creative Commons by 360info™.

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