UN human rights bodies unequivocally confirm the link between climate change, a healthy environment and human rights

Climate change has been on the agenda of the various UN human rights mechanisms, namely the Human Rights Council and the Special Procedures, for more than a decade. Despite several reports,1 resolutions2 and statements3 Recognizing climate change as a fundamental human rights issue, Geneva authorities have long failed to persuade states to reduce carbon emissions, provide climate finance, and develop adaptation and recovery plans. mitigation consistent with human rights standards and principles.

As businesses are increasingly required to respond to the climate emergency and take action to ensure the transition to a sustainable future, it would be a mistake to believe that the current crisis makes UN decisions irrelevant. for the private sector.

In recent weeks, UN human rights bodies have issued a number of far-reaching decisions and resolutions on climate change, a healthy environment and human rights. In doing so, they confirm that they are increasingly willing to view the dangers of climate change as a human rights issue. Businesses need to look for ways to stay ahead and take a bottom-up, human rights-based approach to adaptation and mitigation, based on participation, equality, non-participation. discrimination and responsibility. The private sector cannot sit idly by and wait for national law to dictate its behavior – it must be proactive in preventing human rights abuses caused by climate change.

Human Rights Council: Right to a clean, healthy and sustainable environment

The Human Rights Council recognized Friday, October 8 for the first time that having a clean, healthy and sustainable environment is a human right. Resolution 48/13 was adopted with 43 votes in favor and 4 abstentions – from Russia, India, China and Japan.4 According to the World Health Organization, nearly a quarter of all deaths worldwide are linked to the environment, due to risks such as air pollution and exposure to chemicals. NGOs have already presented the resolution as an important step in the fight against environmental pollution. Although a Human Rights Council resolution does not give the right to a healthy environment the same status under international law as the rights enshrined in existing human rights treaties, it does confirm that more and more States believe that this right exists. This will increase the invocation of this right at the national level and make it increasingly difficult for states to deny the existence of a right to a clean, healthy and sustainable environment. In fact, the Special Rapporteur for the Environment recommended that the right be formally recognized by the Human Rights Council, as explicit recognition could enable individuals, NGOs and the judiciary to enforce implementation. and law enforcement.5

Human Rights Council: Special Rapporteur on human rights and climate change

In resolution A / HRC / 48 / L.27, adopted by 42 votes in favor, 1 against and 4 abstentions, the Council decided to appoint a special rapporteur on the promotion and protection of human rights in the context of climate change, whose mandate includes an annual report to the Human Rights Council. This appointment is an example of the wide recognition among states that there is a link between human rights and climate change.

Groundbreaking reports on this issue have been published by David Boyd and his predecessor John Knox, United Nations special rapporteurs on human rights and the environment. Reports are often cited in litigation related to climate change, including the Urgende Case. With the appointment of a dedicated rapporteur on this issue, it is likely that such reports, country visits and interventions will follow. A study by the Brookings Institution in 2011 found that special procedures (for example, special rapporteurs and independent experts) were one of the most effective tools in the international human rights system, playing a “valuable role. and, in some cases, decisive in bringing attention to chronic and emerging human rights issues and catalyzing improvements in respect for human rights on the ground, including direct support to victims.6

Committee on the Rights of the Child: a state can be held responsible for the negative impact of its carbon emissions on children’s rights both inside and outside its territory

In proceedings brought by 16 children from 12 countries against Argentina, Brazil, France, Germany and Turkey, the Committee on the Rights of the Child determined that these states had effective control over the broadcasts on their children. territories which, in turn, could contribute to reasonably foreseeable harm to children outside their territory. . It concluded that a sufficient causal link had been established between the harm alleged by the 16 children and the acts or omissions of the five States for the purposes of establishing jurisdiction, and that the children had sufficiently substantiated that the harm they had personally suffered was important.

The Committee was ultimately unable to rule on the merits, as the complaints procedure requires that complaints be admissible only after complainants have seized the national courts and have already exhausted the legal remedies that may be available. available and effective in the countries concerned before filing a complaint with the Committee.

Nonetheless, the Committee’s findings will be a blow to the defense – advanced in climate change litigation around the world – that there is not sufficient causal link between emissions in one state and damage in one state. other states.

Human Rights Committee: Failure to prevent toxic pollution violates obligations related to the right to home and the right to culture (as protected by Articles 17 and 27 of the ICCPR).

In another landmark decision, the UN Human Rights Committee concluded on October 13 that Paraguay’s inability to prevent and control toxic contamination of traditional lands, due to the intensive use of pesticides by neighboring commercial farms, violates the rights of the indigenous community and its sense of “home”. . “

This is the Committee’s first decision to assert that, in the case of indigenous peoples, the notion of “home” must be understood in the context of the special relationship between them and their territories, including their livestock, cultures and their way of life, such as hunting, foraging, and fishing.

Since the human rights concerned are generally considered to be part of the international bill of rights considered relevant to the application of the United Nations Guiding Principles on Business and Human Rights, the decision has implications. Direct ramifications for companies whose activities or the activities of business partners affect the way of life of Indigenous peoples.

Why are these decisions important to businesses?

Multilateral United Nations forums and international cooperation are essential for solving interconnected global problems such as climate change, providing international solutions and advancing the development of international law. Despite their pitfalls, there is no doubt that the Geneva-based United Nations human rights bodies exert a major influence on global efforts to strengthen human rights protection. International human rights law remains the legal basis against which human rights cases are assessed, political positions taken, and states and businesses are held to account.

Many of the standards, decisions and recommendations generated by Geneva-based institutions have a profound influence on policy changes at the national level. They help create a political space for national actors to lobby for the implementation of state human rights obligations – “translating local issues into human rights terms and concepts. of human rights in approaches to local problems ”7 – and provide them with the leverage to do so. Many regional and national judicial bodies cite the decisions and recommendations of these United Nations mechanisms as authoritative interpretations of international obligations.

For example, in 2018, following a petition filed by the Organization of Indigenous Nations of Guyana (ONAG), with the support of international NGOs based in Geneva, the United Nations Committee for the Elimination of Racial Discrimination (CERD) adopted an “early warning”, asking France to obtain the consent of indigenous communities affected by the controversial mining project the mountain of gold (Montagne d’Or).8 A few months after the decision, the French authorities announced that they had abandoned the mining project. In this case, the emergency procedure allowed France to suspend quickly less than two months after the filing of the request.

Litigators in climate change proceedings are increasingly using human rights arguments and human rights organizations to advocate climate inaction. One of the first successful examples of such an invocation of human rights in relation to climate change was the Urgende case, which was recently followed by similar judgments in Germany, Belgium and France. More recently, NGOs have also started to sue companies for climate inaction. In these proceedings, human rights arguments are essential: companies are not bound by the objectives of the Paris Agreement, but there are compelling arguments to be made that companies are bound to respect rights. human rights under many non-binding international instruments such as the United Nations Guiding Principles (UNGP) and the OECD Guidelines on Responsible Business Conduct (OECD Guidelines). The recognition of the human right to a healthy and sustainable environment clearly shows that companies also have their obligations with regard to sustainability and human rights.

Companies wishing to adhere to the UNGP and the OECD Guidelines should start looking at their greenhouse gas emissions and negative environmental impacts from a human rights perspective, rather than looking at them. consider it a simple matter of compliance.

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