The United Nations Human Rights Council recognizes universal human rights. Human right to a clean and healthy environment. This may have an impact on Australian courts as well as decision-makers. It is also important to understand how corporations view their role in protecting human right and contributing to sustainable economic activity.
Snapshot
- The UNHRC voted 8 October 2021 that the universal human right to a healthy, safe, and sustainable environment was recognized.
- The UNHRC’s resolution is not legally binding and does not directly change Australian law. However, it underscores the importance of environmental issues and, by framing them squarely as a human rights issue, it elevates environmental matters as relevant in a range of additional contexts (such as the UNHRC’s periodic review and complaint processes).
- Companies might want to examine how their sustainability and human rights policies and practices relate to each other, taking into account the interdependency of these issues.
The Resolution
A major global milestone was achieved on 8 October 2021 with the UNHRC formally recognising “the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights”.1This resolution is significant in that it directly links environment and human rights. As the preamble says, environmental issues are now “some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights”.
The Australian Position
The UNHRC’s resolution may be an international breakthrough, but there are only three Australian States or Territories that have passed laws formally recognising human rights. None of them explicitly mention a right to a healthy and safe environment.
Victoria’s approach is in the Charter of Human Rights and Responsibilities Act 2006., which protects well established civil and political rights, such as the right to life or equality before the law. The Australian Capital Territory and Queensland go slightly further — they also recognise some economic, social and cultural rights in the 2004 Human Rights Act(ACT) and 2019 Human Rights Act (Qld) respectively.
Australia does not have a bill on rights at the federal level. Instead, we have a framework where all Bills must be accompanied by a Statement of Compatibility with human rights, and a Parliamentary Joint Committee on Human Rights which reviews the human rights impact of new laws including by reference to Australia’s international treaty obligations.2
The UNHRC’s resolution does not change how this framework currently works, but it demonstrates a recognition that rights which are within the purview of the parliamentary committee (such as those in the Convention on the Rights of the ChildClimate change and environmental damage can have a significant impact on the health of children. Indeed, the UN Committee on the Rights of the Child is currently drafting a General Comment on children’s rights and the environment with a special focus on climate change.3The General Comments provide authoritative guidance for interpreting the Convention on the Rights of the Child. This illustrates the potential for human rights treaties that Australia is already a part of to be interpreted in a way that protects the environment.4
Most Australian States and Territories also have some form of ‘general environmental duty’, which requires persons to undertake their activities in a way that minimises harm to the environment. However, this duty is often enforced through regulator actions and Australian environmental litigation has tended not to focus on challenges of project approvals or negligence claims.
Australia’s new trend is for parties argue that human rights considerations should be considered when deciding on projects. In particular, they can invoke human rights arguments regarding climate change-related environmental damage (such the right to life or the rights of Indigenous peoples).5 For example, there has been ongoing human rights litigation over the approval of Waratah Coal’s thermal coal mine in Queensland.6A court referral of objections to a Queensland limestone mine expansion was also a consideration of human rights.7 However, Australia’s limited human rights laws mean that we may not see decisions like the Hague District Court’s judgment in May 2021 that Royal Dutch Shell has a duty to protect the human rights of Dutch citizens by reducing its carbon emissions.8
The Future
The UNHRC’s resolution highlights a global trend towards viewing environmental issues through a ‘human rights lens’ — as the UNHRC notes, “more than 155 States have recognised some form of a right to a healthy environment in, inter alia, international agreements or their national constitutions, legislation or policies”.
Australia is not required by the resolution to implement new legislation. However, the interpretations of existing human rights agreements could lead to formal obligations for other countries to adopt measures (such a new legislation) in order to protect human rights when it comes to climate change and other environmental concerns.
Holistic Approach
International recognition of a human rights to a clean, healthy, and sustainable environment underscores the importance of companies considering ESG considerations. Companies should consider the complex interactions between laws and standards in this area.
- Examine the sustainability policies and practices of your company:Companies that have implemented sustainability and human rights policies and practices might want to review these and evaluate whether the interaction between human rights, environmental issues, and their operations is properly addressed. For instance, this may include considering how environmental considerations are addressed in investment and project decisions, reviewing how public commitments and statements on sustainability and human rights are operationalised in practice, and considering whether these commitments are appropriate in light of how they interact with the UNHRC’s resolution.
- Avoid silos in corporate ESG oversight: Some companies may delegate the management of environmental issues to a particular function, while other teams manage human rights issues. The UNHRC’s resolution is a timely reminder that holistic ESG risk management integrates both aspects. The human rights implications of issues like emissions, pollution, and land clearance are becoming more prominent.
- In regulatory decision-making and in the interpretation of legal obligations, environmental considerations are consideredEven though they are not legally implemented in domestic legislation, international environment law and international rights law can influence government decision making and the interpretation of legislation by courts. The UNHRC’s resolution could be influential in this regard, particularly if relied on in UNHRC periodic reviews or the assessment of complaints. The resolution’s influence could increase if it is used in other international contexts such as the interpretation of existing agreements. This can be done in the contexts of climate change but also across a range of environmental concerns such as loss of biodiversity and clean water, and rehabilitation / remediation.
