In a historical resolution on 28 July 2022, the United Nations General Assembly (UNGA) formally recognised the right to a clean, healthy and sustainable environment as a human right. This declaration followed United Nations Human Rights Council (HRC) resolution 48/13 of 8 October 2021 that earlier recognized the right to a healthy environment as a “human right that is important for the enjoyment of human rights.”
Australia was one of the 160 states that voted in favour of the UNGA declaration. However there’s much work to be done to implement and realise a right to a healthy environment in this country.
50 years of advocacy
The historical UNGA and HRC resolutions were the outcome of five decades of advocacy and activism to have this right acknowledged at the international level. The right to a healthy environment was not recognized in the Universal Declaration on Human Rights or either of the two Covenants. However, in 1972 the Stockholm Declaration recognised that humanity ‘has 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’.
In the late 1980s the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed a Special Rapporteur, Fatma Zohra Ksentini, to study the relationship between the environment and human rights, and she also prepared some draft principles, but the Commission on Human Rights declined to adopt or endorse these draft principles for over a decade. There was a long institutional hiatus until 2012 when the Human Rights Council established a mandate and appointed an independent expert, John Knox, to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.
In his final report in January 2018 John Knox proposed 16 ‘framework principles’ on human rights and the environment that affirm the mutually reinforcing nature of environmental protection and human rights promotion. During 2020 momentum built for the recognition of such a right, with the High Commissioner for Human Rights in July declaring ‘it is time for global recognition of the human right to a healthy environment’. This was boosted by leadership from countries such as Costa Rica, the Maldives, Morocco, Slovenia and Switzerland, and strong advocacy by almost 1,000 civil society organisations who argued #TheTimeIsNow for universal recognition of the right to a healthy environment.
During these five decades there was also a “greening” of human rights: a growing acceptance of the fact that a healthy environment is a necessary enabling condition for the full enjoyment of human rights, that environmental degradation interferes with human rights, and that measures to protect the environment must be rights compliant.
Over that period we’ve seen the right to a healthy environment adopted in regional human rights instruments, including the African Charter of Human and Peoples’ Rights, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, the Arab Charter of Human Rights’ and the Association of Southeast Asian Nations’ ‘Human Rights Declaration’.
The right was also recognized domestically in countries around the world, in constitutions or other legislative instruments. Now over 80% of countries — 156 out of 193 UN member states — recognise the right to a healthy environment either through regional human rights treaties, national constitutions or domestic legislation.
Australia’s lack of human rights protections leaves us on the back foot
Australia is in the minority of countries that do not yet explicitly recognise the right to a healthy environment. We’re an anomaly internationally in relation to our paucity of federal human rights protections and, specifically, our lack of explicit domestic law implementation of the right to a healthy environment. Australia does not formally recognise the right in domestic law at either the Commonwealth, state or territory level with the exception of the Australian Capital Territory which has committed to legislating for this within its Human Rights Act 2004 in 2023.
There is increasing community engagement around the intersection of the environment and human rights, particularly in relation to climate change. There’s also growing political pressure for Australia to adopt concrete measures to recognise and respond to this interdependence, further fuelled by landing the dubious honour of being the first country found to be in breach of its international human rights obligations by the United Nations Human Rights Committee for its failure to protect Torres Strait Islanders from the impacts of climate change.
The 2022 State of the Environment Report showed that the Australian environment is poor and has deteriorated over the past five years due to pressures of climate change, habitat loss, invasive species, pollution and mining. The 2020 Samuel Review highlighted how current environmental laws need fundamental reforms.
Australia is an anomaly internationally in relation to our paucity of federal human rights protections and, specifically, our lack of explicit domestic law implementation of the right to a healthy environment.
In 2022 the Environmental Defenders Office published a report which argued that “it is time to enshrine the right of all Australians to live in a clean, healthy and sustainable environment in law”. The report makes specific recommendations for how the Australian government should support recognition of the right to a healthy environment in international law and how all levels of government should enshrine the right to a healthy environment in Australian law.
As Australia has a federal system of government, different avenues for the domestic implementation of the right to a healthy environment in Australia are available at the Commonwealth, state and territory level. Only three Australian jurisdictions currently have human rights legislation: Victoria, Queensland and the ACT.
60,000 years of caring for Country
Given countries around the world have long recognised the right to a healthy environment, there are important lessons that Australia can learn from international experiences, but there are also factors that are distinctive to the Australian context. It’s crucial that all efforts to advance environmental justice in Australia engage with the complex questions raised by unceded Indigenous sovereignty on this continent.
Efforts to recognise the right to a healthy environment in the Australian context need to recognise Indigenous sovereignty and Indigenous laws, and the right to a healthy environment needs to be implemented in a way that promotes Indigenous cultural connection to land and supports Indigenous authority over land management decisions.
Complex systems of Indigenous laws establish obligations and relations to other living entities and the natural world and there are ongoing practices, that date back at least 60,000 years, of caring for Country. Efforts to recognise the right to a healthy environment in the Australian context need to recognise Indigenous sovereignty and Indigenous laws, and the right to a healthy environment needs to be implemented in a way that promotes Indigenous cultural connection to land and supports Indigenous authority over land management decisions.
The rights of humans v the rights of nature
There are also a number of reasons to perhaps be wary of the expansion of rights frameworks to protect the environment. Human rights frameworks have arguably been unable to address the root causes of environmental degradation. As Peter Burdon notes, “legal rights retains an individualistic perspective, which may be problematic when applied to integrated ecosystems”. Other scholars have highlighted that environmental rights remain an anthropocentric construct: the right to a healthy environment is fundamentally a right of humans to live in a healthy environment, not a right granted to the environment itself that affirms its right to exist and flourish.
Even though there’s an increased movement to recognise the rights of nature and in some cases recognise the legal personhood of natural entities such as forests and rivers, rights frameworks have been, and continue to be, “tools of human privilege and exceptionalism”. Therefore, some critical scholars have highlighted instead the need to focus on obligations, or forms of entanglements in more-than-human worlds, rather than rights.
These issues relating to humanity’s entangled relationship with the rest of the environment also raise questions around the intersections between the right to a healthy environment and the ‘rights of nature’. While the first has been described as necessarily anthropocentric, a relational approach to rights raises questions about the potential for these parallel developments to enable a broader ontological shift away from dualism.
Within the Australian context – particularly in jurisdictions like the ACT that already recognise the right to culture – it is arguably essential that this ontological shift does occur in order to ensure that the recognition of the right to a healthy environment does not undermine Indigenous rights grounded in an understanding of Country that includes humans.
The right to defend the environment
It’s worth noting that the Human Rights Council and General Assembly resolutions both refer to the right to a clean, healthy and sustainable environment, but that previous discussions had spoken about a right to a safe, clean, healthy and sustainable environment. The word “safe” was arguably removed because some countries worried it would imply protection of the rights of environmental defenders. Environmental defenders face intimidation, harassment, persecution and in some cases threats of violence or death for protecting lands and resources.
Global Witnesses has documented that 1733 defenders have been killed trying to protect their land and resources since 2012. Protecting the rights of protest and of environmental defenders is crucial to realising environmental rights. However, in Australia there has been an alarming trend of state governments seeking to further criminalise people protesting to protect the environment.
The NSW Roads and Crimes Legislation Amendment Act 2022 expanded protest offences and made them punishable by up to two years in jail and a $22,000 fine. The Victorian Forests Timber Amendment (Timber Harvesting Safety Zones) Act 2022 raises penalties on anti-logging protest offences to $21,000 or 12 months imprisonment.
On 2 December, Violet Coco, from Fireproof Australia, was sentenced to 15 months in custody with a non-parole period of eight months, before being released on bail over a week later, a sentence widely condemned by environmental and civil liberties groups and well as United Nations experts and yet another reminder of the lack of rights protections in this country.