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Community Symposium on the United Nations General Assembly’s Consideration of the Right to a Healthy Environment

The Right to a Healthy Environment and Physical and Mental Health

by Maha Husain

Introduction

On 28 July 2022, the United Nations General Assembly adopted a Resolution to recognise the right to a healthy environment with 161 votes in favour, 8 abstentions and 0 votes against the Resolution. The zero draft Resolution, which contains similar text to that adopted by the United Nations Human Rights Council (HRC) last year, recognises “the right to a clean, healthy and sustainable environment as a human right that is essential for the full enjoyment of all human rights.” It suggests that the right to a healthy environment “is inextricably related to the right to life and the right to the highest attainable standard of physical and mental health, as well as other rights.” It finally calls upon States “to adopt policies, to enhance cooperation and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.”

This article will examine the language of operative paragraph 2 of the zero draft Resolution, specifically focusing on the importance of including physical and mental health in the right to a healthy environment.

Operative Paragraph 2 of the Resolution

The second operative paragraph of the draft Resolution confirms that access to a clean, healthy and sustainable environment is linked to the right to life and the highest attainable standard of physical and mental health along with other rights. Though the reference to the highest attainable standard of physical and mental health may be overlooked as a given, with our current knowledge of the impact of climate change on human health, it must be recognised that this inclusion of human health was not always present in earlier discussions of the right.

The 1972 United Nations Conference on the Environment in Stockholm, the first instance where the link between human rights and the environment was recognised, made no explicit mention of human health. Instead, UN Member States agreed that people have a fundamental right to “an environment of a quality that permits a life of dignity and well-being”. While the inclusion of “well-being” in the text of the Stockholm Declaration could suggest a reference to human health, it was far from providing a framework on which detailed obligations on health and climate change could be formulated. While the 1992 United Nations Conference on Environment and Development in Rio de Janeiro referred to a “healthy and productive life in harmony with nature”, it avoided “rights” language, thereby being similarly nonjusticiable.  

Similarly, many regional human rights instruments, including the San Salvador Protocol to the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, the ASEAN Declaration and the Arab Charter, include the right to a healthy environment (in different terms) but make no explicit mention of human health in relation to the right to a healthy environment. One exception may be the Aarhus Convention which affirms “the right of every person of present and future generations to live in an environment adequate to his or her health and well-being”. However, the Aarhus Convention pertains exclusively to procedural rights such as access to information, public participation in decision-making and access to justice in environmental matters, limiting the use of its compliance mechanism to procedural violations as opposed to general breaches of the environmental right.

Climate Change and Physical Health

A healthy and safe environment is well-recognised as a precondition to human health. The IPCC has confirmed that climate change has adversely affected the physical health of people globally, and the 2021 Lancet Report identifies climate change threats to human health through different pathways. For example, exposure to extreme heat is a health hazard that can exacerbate cardiorespiratory illnesses, with individuals over 65, urban populations, and people with underlying health conditions especially at risk. Heat also increases the risk of kidney disease, especially for workers in low-income countries who work in hot conditions without adequate hydration. Additionally, increased exposure to smoke from wildfires, atmospheric dust, and aeroallergens has been associated with cardiovascular and respiratory distress. Extreme weather patterns can also prompt changes in vector ecology, leading to longer transmission seasons and an expanded geographical range of malaria, dengue, encephalitis and Lyme disease.

In 2007, the Special Rapporteur on the Right to Health released a report warning that “the failure of the international community to take the health impact of global warming seriously will endanger the lives of millions of people across the world.” Despite the Special Rapporteur’s recommendation to the UN HRC that the impact of climate change and human rights must urgently be studied, it was dealt with nonchalantly until 2021, when the UN HRC established the mandate for a Special Rapporteur on the promotion and protection of human rights in the context of climate change.

Climate Change and Mental Health 

The effect of the climate crisis on mental health is still under-recognised when compared to the harm to physical health from the climate crisis which is increasingly reported. It has been suggested that extreme weather events drive emotional turmoil through anticipatory fear in the early stages of an event, the trauma of the event itself, and outrage in the time following an event. People in disaster-prone regions experience deep anxiety from early warning signs of a disaster, sometimes termed ‘pre-traumatic stress’. Heatwaves also prompt psychological stress as rising temperatures often lead to increasing rates of aggression. High temperatures are also associated with declines in cognitive function, slowed response times and less sophisticated patterns of decision-making, which is increasingly problematic for those who work in the heat and cannot escape it. Increases in the occurrence of diseases can also lead to worry for the safety of oneself and their family, as was seen with the Zika virus. The magnitude of the mental health effects of an unsafe environment must be recognised and addressed on a widespread level. Mental health professionals must be supported as they tackle these growing challenges.

Implications of the Resolution

Despite the non-binding nature of the Resolution, including physical and mental health in its text is nonetheless instrumental as it places a moral obligation on States to recognise physical and mental health as integral to the right to a healthy environment. Global endorsement of the right will likely lead to greater coherence and clarity in this right, removing any doubt concerning the link between the environment and physical and mental health. It also goes beyond many existing rights as it specifies the right to “the highest attainable standard of physical and mental health”, clarifying it is not merely the absence of disease or infirmity but includes improvement of all aspects of the environment.

This Resolution will likely lead countries that have not yet integrated the right into their constitutions to do so and to adopt a similar language to that of the Resolution. As a result, international and national courts may break their relative silence on claims of a violation of the right to a healthy environment. Proving a violation of this right will likely become easier without the need to explain why health is one of the human rights violated by an unsafe environment, as this is evident in the text of the Resolution.  Cases like Future Generations v Ministry of the Environment and Others in Colombia may become easier to argue for Plaintiffs.

In Future Generations, a group of children and youth filed a tutela action (special human rights protection procedure in Colombia) before the District Court of Bogota against the federal government and local authorities. They sought to enforce the right to a healthy environment, which they claimed was threatened by deforestation of the Amazon. They argued that the right to health (violated by the rise in tropical and vector-borne diseases due to deforestation) was imperilled by violations of the right to a healthy environment. In this case, the Supreme Court recognised the causal link between climate change and adverse health effects on people in the territory. However, realising this link in the text of the Resolution may make it easier for such cases to be argued, removing the need to prove the link between health and a healthy environment. Given the rise of climate-related health cases around the world, this acceptance of a link will provide dividends if fully harnessed by climate litigation.

Finally, explicit reference to physical and mental health will bridge the divide between human rights and health disciplines. Projects like Our Planet, Our Health are already attempting to combine different fields to increase understanding of the effects of climate change on human health and define interventions necessary to respond in a way that protects human health. These efforts, however, must be carried out on a global scale, investing as many resources as possible. International recognition of the link between a healthy environment and human health is a step in the right direction to achieve this outcome.

Conclusion

Adopting the Resolution recognising the right to a healthy environment is undoubtedly a win for human rights and the environment that will prompt more significant action in the realm of human health risks posed by an unsafe environment.

Astrid Milena Bernal

By Astrid Milena Bernal

Astrid Milena Bernal Rubio is a Colombian LL.M student at Pennsylvania State University (concentrations in International Law and Energy and Environmental Law). She is a lawyer from the Universidad Católica de Colombia, Magister in Environmental Law from the Complutense University of Madrid and Specialist in human rights and critical legal studies from the Latin American Council of Social Sciences (CLACSO) Latin American School of Public Policy- ELAP.

As part of the technical team of GFLAC (climate finance group for Latin America and the Caribbean), she supported the creation of the MRV system (monitoring, reporting and verification) for climate finance in Colombia. In addition, she has been a consultant for the WRI (World Resources Institute) and The Access Initiative (TAI), working as the National researcher for the Environmental Democracy Index (EDI). Also, she has worked as a consultant for AVINA Foundation, The Bogotá’s drainage and sewerage company (EAAB). She has worked as a lawyer and researcher on issues associated with public participation, access to information, forests, carbon markets, rights of indigenous peoples and rural communities in Colombia.

Astrid was a volunteer for the Network for Environmental Justice in Colombia and promoted the creation and growth of the climate justice division at the Environment and Society Association (AAS) of Colombia. She worked as the Climate Justice division coordinator for five years. Astrid was a senior research coordinator in a joint research project with UNICEF to contribute to the fulfilment of the SDGs (6), focusing its work on guaranteeing the rights of access to sanitation for rural, indigenous and Afro-descendant populations in Colombia. She is also part of the founders of the Colombian NGO- CAMBIUM (Climate, Environment and Research-Action Uniting Worlds). This organization aims to, directly and indirectly, influence processes carried out by civil society and decision-makers related to climate change.

Currently, she works at the Global Forest Coalition as an associate for the Unsustainable Livestock Campaign. Astrid also supports the work of Pivot Point and the CLARA group (Climate, Land, Ambition and Rights Alliance), promoting the understanding and participation of CSOs to ensure higher ambition of NDC (Nationally Determined Contributions) in Spanish speakers countries.

Astrid is a research assistant at Penn State University identifying how different kinds of transboundary river basin organizations have written and used dispute resolution mechanisms in both the bilateral agreements between the US, Mexico and Canada (NAFTA-USMCA) and the Autonomous Binational Authority of the Basin of Lake Titicaca (Bolivia, Peru).

Astrid is member of the core team in the Global Network for Human Rights and the Environment (GNHRE), she is part of the global network of environmental lawyers (ELAW) and collaborates as a volunteer for The Capital Area Immigrants’ Rights Coalition- CAIR coalition.