A group of 40 distinguished academics, experts, international lawyers, and representatives of the ILC, ICC , World Bank, and UN Global Compact recently met for two days in Nairobi from 30 November 2009 to discuss the link between human rights and the environment. The High Level Expert Meeting on the New Future of Human Rights and Environment: Moving the Global Agenda Forward was co-organised by the United Nations Environment Programme (UNEP) and the Office for the High Commissioner of Human Rights (OHCHR) to provide guidance to both organisations on how best to move forward on this issue. Over the two days, the experts clarified the different pathways that have been used to link human rights and the environment, and provided guidance on strategies that could be used to formalise the linkage between these two important concepts.
Early in the discussions at the meeting, experts agreed that much of the development of the linkages between human rights and environmental law had already been highlighted by national courts and regional human rights bodies, rather than by any single international agreement. They also noted the growing trend in international and regional courts and tribunals to consider human rights issues when adjudicating on environmental disputes. However, the law in this area suffered from a lack of coherence, which had lead to a need to take stock of what has been done and identify the gaps and issues within this emerging area of human rights.
Through a lively debate, the experts identified three complementarily pathways to link the human rights and the environmental agendas. The first approach involves the use of civil and political rights to provide access to information and fair processes for environmental assessment and protection, as set out in the Aarhus Convention. The second approach involves the enforcement of human rights for environmental protection purposes, for example, via the right to life, the right to health or the right to water. The third approach, adopted in many national constitutions and in the African Charter of Human and Peoples’ Rights, involves providing a substantive right to a decent or healthy environment. While not identifying a particular approach as preferable, the experts provided an assessment of the advantages and disadvantages of each approach.
As well as considering the nature of the link, the experts also identified four strategies to move the global agenda forward, and help bring greater coherence to this area:
(1) pursuing an international declaration;
(2) seeking a UNEP Governing Council or Human Rights Council resolution;
(3) mandating an expert group to produce a comprehensive outline of the law in the area; or
(4) proposing the appointment of a Human Rights Council Special Rapporteur on human rights and the environment. There was general agreement among the experts that whatever strategy was pursued, it would be important to conduct a review of international, national and regional case law and practice, to clarify how linkages between human rights and environmental linkages have already been demonstrated and implemented.
The need to be both ambitious and realistic in approach these strategies was emphasised by many experts. The experts noted that given the level of development of international law in this area, any process forward should concentrate on clarifying and promoting consistency in the existing body of obligations and international law, rather to rather than attempting to develop and negotiate new obligations. Furthermore any gaps that are identified should be addressed in a manner consistent with existing international law and principles.
The second day of the meeting addressed specific emerging issues on the linkage between Human Rights and the Environment. The issues of strengthening existing procedural rights, intergenerational equity, climate change and human rights, toxic wastes and human rights, and indigenous peoples’ rights were discussed. The relationship between indigenous peoples’ rights and environmental protection generated a lot of discussion, with experts noting that environmental problems in developing countries almost always involve this dimension. In particular, the experts noted the need for Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD) programmes to consider indigenous peoples’ rights. This also highlighted a need for greater integration of human rights into the broader UN Environmental agenda as well as a need for greater awareness of environmental issues within UN human rights bodies
In their recommendations, the experts set out elements of a roadmap for moving forward work on human rights and the environment, including a proposal that UNEP and OHCHR consider preparing a joint publication on human rights and the environment. The experts noted that ongoing climate change negotiations underlined the importance of considering the balance between development, the environment and human rights. As part of this process, experts stressed the need to further clarify the intuitive and self-evident linkages between human rights and the environment within the international community.