Professor John Knox, a leading expert on international environmental and human rights law, is scheduled to present his final reports as Special Rapporteur on Human Rights and the Environment to the United Nations Human Rights Council this week. In July 2012, the United Nations Human Rights Council appointed Professor Knox to a three-year mandate as its first Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and in March 2015, his mandate was extended for three years and his title changed to Special Rapporteur. He also serves as the Henry C. Lauerman Professor of International Law at Wake Forest University School of Law.
The main report presents 16 Framework Principles on Human Rights and the Environment, which summarize the obligations of States under international human rights law relating to the environment, as they have been applied and clarified by human rights bodies. The obligations are based on a wide range of human rights, including rights to life and health. The role of human rights in international environmental law has expanded enormously over the last two decades (e.g., references to human rights in the Paris Agreement). And as Professor Knox notes, there is even more action in domestic law. More than 100 countries now have a constitutional right to a healthy environment (the United States is of course still a notable exception). Building on these developments, the report encourages the Human Rights Council to support recognition of the human right to a healthy environment for the first time in a global intergovernmental instrument, such as a resolution of the UN General Assembly.
Professor Knox summarized and briefly discussed the 16 Framework Principles in a series of tweets in his role as UN Special Rapporteur on Human Rights and the Environment (twitter @SREnvironment). With his permission, I’ve compiled them for readers below:
The first Framework Principle is overarching: “States should ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfill human rights.” It's a simple fact: we can't enjoy our rights to life, health, etc. without a healthy environment.
The second Principle is the converse of the first: “States should respect, protect and fulfill human rights to ensure a safe, clean, healthy and sustainable environment.” The exercise of rights to free expression, association, etc. is vital to environmental protection.
The first two Principles express the fundamental interdependence of human rights and the environment: we need a healthy environment to enjoy our human rights, and the exercise of human rights helps to protect the environment.
The third Framework Principle applies a basic human rights norm to environmental issues: States should prohibit discrimination and ensure equal and effective protection against discrimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment.
Discrimination may be direct or indirect. Direct discrimination in the environmental context includes failing to ensure that minorities have the same access as others to information about environmental matters, participation in decision-making, remedies for harm, etc.
Indirect discrimination includes measures such as authorizing hazardous facilities in minority communities. It is also prohibited unless it meets strict requirements of legitimacy, necessity and proportionality.
To address indirect as well as direct discrimination, States must recognize that environmental harm can both result from and reinforce existing patterns of discrimination, and take effective measures against the underlying conditions that cause or perpetuate discrimination.
The fourth Framework Principle on Human Rights and the Environment is that States should provide a safe and enabling environment in which those who work on human rights or environmental issues can operate free from threats, harassment, intimidation and violence.
As the Guardian has recently reminded us, environmental defenders are often harassed, attacked and even murdered - an average of 4 are killed every week. Members of indigenous peoples and traditional communities are especially at risk.
Because a healthy environment is necessary for the enjoyment of human rights, environmental defenders are human rights defenders, whether or not they identify themselves that way. States must do more to protect them and all other human rights defenders.
The fifth Framework Principle on Human Rights and the Environment is simple: States should respect and protect the rights to freedom of expression, association and peaceful assembly in relation to environmental matters.
States often fail to protect these rights when they are exercised in opposition to the State, but that's when protecting them is most important. States must never respond with force or detention, the misuse of criminal laws, or the threats of such acts.
The sixth Framework Principle is: States should provide for education and public awareness on environmental matters. Environmental education should help students appreciate and enjoy the natural world, and strengthen their capacity to respond to environmental challenges.
Increasing public awareness of environmental matters should continue into adulthood. States should make the public aware of environmental risks that affect them, and build their capacity to understand environmental challenges and policies.
Framework Principle 7: States should provide public access to environmental information by collecting and disseminating information and by providing affordable, effective and timely access to information to any person upon request.
Principle 8, which is closely related to Principle 7, says: States should require the prior assessment of the possible environmental impacts of proposed projects and policies, including their potential effects on the enjoyment of human rights.
The ninth Framework Principle on Human Rights and the Environment is that States should provide for and facilitate public participation in decision-making related to the environment, and take the views of the public into account in the decision-making process.
Ensuring that environmental decisions take into account the views of those who are affected by them increases public support, promotes sustainable development and helps to protect the enjoyment of rights that depend on a safe, clean, healthy and sustainable environment.
Principle 10: States should provide for access to effective remedies for violations of human rights and domestic laws relating to the environment.
Procedures must be impartial, independent, affordable, transparent and fair, and have the necessary expertise and resources.
Principle 11: States should establish and maintain substantive environmental standards that are non-discriminatory, non-retrogressive and otherwise respect, protect and fulfill human rights.
Limited resources may prevent immediate realization of standards that prevent all environmental interference with human rights. States have discretion to decide how to allocate their resources between environmental and other goals, but the discretion isn’t unlimited.
Substantive environmental standards must comply with obligations of non-discrimination, and there’s a strong presumption against retrogressive measures. The standards must not strike an unjustifiable or unreasonable balance between environmental protection and other goals.
Once environmental standards have been adopted, Framework Principle 12 says that States should ensure the effective enforcement of their environmental standards against public and private actors.
Businesses, too, have responsibilities to avoid causing or contributing to adverse human rights impacts through environmental harm, and to try to prevent or mitigate adverse human rights impacts directly linked to their operations, products or services.
Principle 13: States should cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights.
This includes not only negotiating and fulfilling environmental agreements, but also ensuring that other types of agreements, such as those on trade and investment, support, rather than hinder, human rights and a healthy environment.
Framework Principle 14: States should take additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities.
Those who may be especially at risk from environmental harm include women, children, persons living in poverty, members of indigenous peoples and traditional communities, older persons, persons with disabilities, ethnic, racial or other minorities and displaced persons.
Persons may be especially vulnerable because they are unusually susceptible to certain types of environmental harm, or because they are prevented from exercising their human rights, or both.
States should protect the most vulnerable from environmental harm, including by carefully assessing the impacts of proposals on them, developing effective environmental education and awareness programmes, and facilitating their informed participation in decision-making.
Framework Principle 15: States should comply with their obligations to indigenous peoples and traditional communities, including by recognizing their rights to the lands, territories and resources that they have traditionally owned, occupied or used.
States should consult with indigenous peoples and traditional communities and obtain their free, prior and informed consent before relocating them or taking other measures that may affect their relationship to their ancestral territories.
Principle 16: States should respect, protect and fulfill human rights in the actions they take to address environmental challenges and pursue sustainable development.
Even when States are taking steps to address environmental challenges or pursue sustainable development, they must still ensure that those actions are taken in accordance with their human rights obligations.
A human rights perspective informs and strengthens environmental policy-making. Ensuring that those most affected can obtain information, freely express their views and participate in decision-making makes policies more legitimate, coherent, robust and sustainable.
Along with these Framework Principles, the UN Human Rights Council will receive a companion report on the environment and rights of the child. It describes how environmental harm interferes with the ability of children to enjoy their rights and discusses the obligations of States to take measures to protect children from such interference.
My take - a terrible shortcoming of U.S. environmental law is the inequity it allows (and sometimes creates) in distributing pollution and environmental harms. Environmental law is about protecting life, human included. American law has the opportunity and need to expand our system of Constitutional protections to include human rights to basic environmental necessities - meaning equity and due process in providing safe drinking water, clean air to breathe, and healthy land and homes for dwelling.