Human rights and environmental rights – making the connection

By Cecilia Riebl

By Cecilia Riebl. This article is part of our August theme, which focuses on the environment and human rights. Read more articles on this theme.

The link between human rights and environmental rights is gaining recognition in Australia and internationally. For example, one of our “inalienable” rights under the International Covenant on Civil and Political Rights (ICCPR), the right to life, has been acknowledged as extending to the “bare necessities of life” – including clean water, food, basic health care and indigenous/cultural rights.

Not only does this demonstrate the overlap of “first-generation” civil and political rights with “second-generation” economic, social and cultural rights – it also reflects the inherent relationship between human and environmental wellbeing. That is, basic human needs are easily undermined as a result of environmental damage; conversely, a clean and healthy environment is key to ensuring that basic human rights are upheld.

The Australian Government has gone some way to recognising this relationship in the context of its climate change policy, by referring to climate change as a “human rights concern of the general community”. It has proposed that this concern be addressed via its Clean Energy Future plan which, by regulating carbon emissions, will better protect the human rights of Australians, including by improving air quality, and mitigating temperature rises, sea level rises and the likely increases in extreme weather and health impacts.

However, the Clean Energy Future plan is not a catch-all for addressing the human rights implications of climate change. Importantly, it is not sufficient to achieve the Government’s five per cent emissions reduction target – further actions need to be taken to achieve this. Further, it does nothing to address the human rights implications of environmental damage more broadly (i.e. beyond climate change), such as threats to the right to life including clean water supply and basic health care.

Another important right enshrined in the ICCPR which has a strong bearing on environmental rights is the right to participate in public life.[1] Of particular importance is the dissemination of information, providing opportunities to participate in decision-making processes and providing effective access to judicial and administrative proceedings. While Commonwealth and state environmental legislation currently goes some way to protecting third party rights to participate in decisions affecting the environment, it could go much further in ensuring that decisions are made in a transparent, accountable and participatory manner.

For example, it remains the case that better resourced organisations (generally business and other interest groups) retain the upper hand over community groups in influencing decisions that affect the environment. This could be addressed by better securing access to justice, via legal aid, to groups and individuals seeking to protect the environment in the public interest. It may also assist to develop legislation in all states and territories that prevents litigation being commenced for an improper purpose, sometimes referred to as “strategic litigation against public participation”, or “SLAPP suits”.[2]

In parallel with the growing recognition in international, comparative and domestic law of the application of environmental rights to human rights is the emergence of the concept of “environmental justice”. This reflects the idea that “all people and communities are entitled to the equal protection of environmental and public health laws and regulations”. Put another way, the distribution of environmental harms and the ability to participate in decisions that impact on (and potentially damage) the environment should not be dependent on income, race or geography.

The concept of environmental justice is gaining traction in Australia and has the potential to provide a helpful framework for addressing both environmental conservation and quality of life issues in Australian society. Ultimately, it reflects a bigger-picture shift towards recognising the inherent and necessary connections between human wellbeing and the environment in which we live. Later this year the UN Human Rights Committee (UNHRC) will undertake its  sixth periodic review of Australia’s compliance with its obligations under the ICCPR. This should extend to a consideration of how environmental harms are undermining basic human rights. The UNHRC should adopt an expansive approach to its periodic review that reflects this shift towards environmental justice.

Cecilia Riebl is a Law Reform Lawyer at the Environment Defenders Office (Victoria).

[1] In particular disseminating information, providing opportunities to participate in decision-making processes and providing effective access to judicial and administrative proceedings.  See for example Principles 10, 20 and 22 of The 1992 Declaration on Environment and Development (Rio Declaration). See also the Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters (Aarhus Convention), the most comprehensive international instrument in procedural environmental rights, and widely considered to represent international best practice in this area.

[2] For example, the Protection of Public Participation Act 2008 (ACT) allows a court to order a plaintiff seeking damages against a group or individual to pay a financial penalty if the case was commenced for an improper purpose, ss 6, 9.