Standing to enforce the right to a healthy environment: what are the barriers and do they matter?

By Bridget Lewis | 01 Mar 23
Burnt farmland Australia

The right to a healthy environment is recognised in over 150 countries and is gaining traction in Australia. At the international level, the United Nations General Assembly (UNGA) recently adopted a resolution recognising that all people have the right to a clean, healthy and sustainable environment and calling on states to scale up efforts to guarantee it.

Versions of the right to a healthy environment differ in terms of their anthropocentrism.  At the most anthropocentric end of the spectrum, a ‘healthy’ environment is defined as being good for human health or wellbeing. At the other end of the spectrum are more ecocentric definitions, which aim to guarantee an environment that’s healthy in its own right, independent from human welfare.  The definition and interpretation of the right will influence its enforceability because it determines what constitutes a breach and who might be considered a victim.

Enforcement of the right to a healthy environment is a somewhat vexed issue. With respect to the UNGA resolution, it’s likely that the non-binding character of the resolution is a key reason so many states were happy to support it. Across national jurisdictions, the right is sometimes supported by strong enforcement mechanisms, but is often expressed in terms that are more aspirational than mandatory.

Even an unenforceable right can still be a powerful tool for advocacy and action. But if the right to a healthy environment is not enforceable then its legitimacy and ultimately its effectiveness could be undermined.  A key issue for legal enforceability is standing: who is able to bring an action to enforce the right and for what sorts of harm?  It’s worth examining case law from different human rights jurisdictions and consider what we might learn in terms of enforcing the right to a healthy environment in Australia.

Standing in International Human Rights Law

Within international human rights law, standing is usually based on being a victim of a human rights violation. The UN Human Rights Committee (HRC) explained in E.W. v Netherlands that, to be a victim, a person must show either that their rights have already been adversely affected or that an impact is imminent. The European Court of Human Rights (ECtHR) uses a similar test, where the applicant must face a ‘serious, specific and imminent danger’ (Balmer-Schafroth et al v Switzerland).

Showing actual harm is usually fairly straightforward but claiming victimhood based on imminent harm is more difficult. In Teitiota v NZ, which involved the risk of harm from climate change if the applicant was deported back to Kiribati, the HRC said that an imminent harm must be more than a theoretical possibility. The ECtHR uses the language of the harm being ‘not speculative’ (Soering v UK).

There’s a potentially bigger question about how we define the right to a healthy environment. Can it protect the environment in an ecocentric sense, or does it only capture the anthropocentric value of the environment, that is, the way it supports the enjoyment of other human rights?

Relevantly to environmental issues, complaints can’t be brought on a public interest basis (sometimes called an actio popularis). The HRC confirmed this in Andersen v Denmark, explaining that a person can’t claim victimhood in ‘theoretical terms’ or on behalf of a collective interest – they must demonstrate specific consequences which personally affect them.

In 2019, the Committee on Economic, Social and Cultural Rights similarly found that claimants must show a personal impact, not just a general concern about the state’s action (S.C. & G.P. v Italy). While actio popularis claims are available in some national jurisdictions, this is less common and not an option at the international or regional levels.

What Does this Mean for the Right to a Healthy Environment?

This approach to standing can be distilled down to two key requirements. First, applicants must be particularly affected as individuals or members of a particular group. Second, the harm must have actually occurred or be imminent. Each of these requirements is potentially problematic for enforcing the right to a healthy environment.

The cases show that it’s fairly easy to show an individualised impact if a person lives near a polluted waterway or a toxic waste dump which harms their health. But if the problem is more general or remote, for instance the loss of habitat, or inappropriate development that threatens an ecosystem, then showing the necessary personal impact to establish standing will be more difficult.

The recent HRC decision in Billy et al v Australia helps illustrate these challenges. The HRC admitted the Torres Strait Islanders’ complaint, acknowledging that the loss of marine ecosystems from climate change affects them directly because of the cultural importance of those ecosystems and resources. Applying the test outlined above, the applicants could establish a personal impact arising from the environmental harm through the link to their culture and traditions. But absent that cultural connection it could be more difficult to show a direct or personal impact, and there is a risk that this sort of approach creates a burden for First Nations peoples to enforce the right to a healthy environment by linking it to their cultural rights.

The case also demonstrates the challenge of enforcing rights against anticipated environmental harms. Some parts of the claim were unsuccessful because the majority of the Committee felt that there was still time for Australia to take action to avoid the harm from rising seas. That is, the harm from climate change was not yet imminent.

Showing victim status for environmental claims may prove difficult because environmental harm isn’t always something that people experience personally and directly and because the harm, while it may be foreseeable or even anticipated, isn’t always imminent.

Does Standing Really Matter?

Clearly there are challenges if we try to use conventional approaches to standing to enforce the right to a healthy environment. However, some might ask whether enforceability really matters. The UNGA resolution has been widely celebrated despite not being legally binding. Certainly, the level of support for the resolution is a very significant statement (161 votes in favour, no votes against, eight abstentions). In a similar vein, perhaps the value of the right to a healthy environment lies in its symbolism of the inextricable relationship between the environment and human rights. 

However, if the right cannot be legally enforced, some might come to question its contribution and even its legitimacy. Successful environmental rights cases in the past have usually involved clear impacts on other rights, like the rights to culture, health, or private and family life. Without special rules for standing, we may struggle to enforce the right to a healthy environment as something distinct, and not just as a restatement of the environmental dimensions of other rights. If all it does is protect rights we already have, we could question its contribution.

This points to a potentially bigger question about how we define the right to a healthy environment. Can it protect the environment in an ecocentric sense, or does it only capture the anthropocentric value of the environment, that is, the way it supports the enjoyment of other human rights?

Confirming the importance of the environment to human rights is a huge contribution of the right to a healthy environment, but further work is needed on the question of enforcement. Without a broad basis for standing, we may find that the right is unable to live up to its potential.