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

Three Cheers for Evolving New Rights: A Healthy Environment, International Solidarity, and Climate Refugee Protection

by Magdalena Smieszek

In a historic resolution, the United Nations General Assembly (UNGA) stepped up on July 28, 2022 to recognize the human right to a clean, healthy, and sustainable environment. The significance of this recognition is manifold, serving the evolution of human rights as a whole, especially the advancement of “new” rights at the international level. Already recognized in numerous constitutions and regional treaties, this right is part of a grouping of “solidarity rights” that have had longstanding advocates dating back to the 1970s and earlier. We can now expect that the evolutionary achievement of UNGA’s resolution will promote related sets of rights that have been tenuous, such as international solidarity and protection for persons displaced by environmental factors including climate change.

Evolving International Solidarity Rights

The UNGA’s 161 votes in favour of a human right to a healthy environment, with zero against and eight abstentions, was a major step forward for international solidarity. The grouping of solidarity rights trace their beginnings to decolonization after WWII and a 1978 UNESCO report calling for the establishment of a new international economic order with the aim of supporting development in former colonies through the human rights framework. Even earlier, in 1972, the Stockholm Declaration proclaimed the need for “a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.” In the second principle, protection of the environment is related to the “well-being of peoples and economic development throughout the world…and the duty of all Governments.” An emphasis on “peoples” and socio-economic development, as well as calling for global cooperation, are all elements of solidarity rights.

Hence, on the fiftieth anniversary of the Stockholm Declaration, the recognition of a right to a clean, healthy and sustainable environment by an overwhelming majority of the UNGA makes way for other solidarity rights, even “the right to international solidarity” itself. While UNGA’s recognition of the right will be enormously impactful for legislating and litigating at the national levels, it also enhances mechanisms for upholding transnational responsibility. The Draft declaration on the right to international solidarity includes an obligation that “States shall implement a human rights-based approach to international cooperation and all partnerships in responding to global challenges such as those relating to,” inter alia, peace and security, environmental protection and climate justice, humanitarian relief and assistance, development assistance, health, and food and nutritional security (Article 9).

The climate justice claim is that persons and communities most vulnerable to climate change devastation live in the world’s poorest countries in the Global South, and that their vulnerability is directly linked to colonial exploitation by industrialized – primarily European – countries of the Global North. Climate justice advocates report that developing countries acutely experience the effects of environmental devastation, furthering social injustices and economic inequality that leads to hunger and displacement. This climate apartheid, where the richest 1% causes as much carbon emissions as the poorest 50 % in the countries that are the most vulnerable to climate change, is a form of disparity that results in denial of socio-economic rights to health, food, shelter, water, and climate change coping mechanisms.

Ultimately, an objective of the right to international solidarity is “preventing and removing the causes of asymmetries and inequities between and within States, and the structural obstacles and factors that generate and perpetuate poverty and inequality worldwide” (Article 3.a of Draft). Global North countries and inter-governmental organizations must bear greater responsibility for prevention of and response to climate change and displacement. That means holding a greater accountability when the human right to a healthy environment is violated. The UNGA process, in recognizing this right, empowers states and people in the Global South.

In fact, the creation of new rights by full membership of the UNGA begins to make up for the lack of representation of many Global South countries, almost all of Africa, when the Universal Declaration of Human Rights came into place in 1948. In advance of the COP26 climate talks in Glasgow in 2021, the Global Citizens Assembly stated in the People’s Declaration for the Sustainable Future of Planet Earth, that “the right to a clean, healthy, and sustainable environment must be included in the Universal Declaration of Human Rights and protected at multiple levels of law; we should raise awareness and citizen engagement on human rights in relation to climate and the environment” (Article 4). This transnational citizen’s assembly included a diversity of voices with equitable representation from around the world.

Evolving Climate Refugee Protection

Another legal shift that can be expected is a more prevalent recognition of refugee status for people seeking protection outside of their countries due to climate displacement and a violation of a right to a clean, healthy and sustainable environment. These rights may be increasingly referred to by courts and tribunals nationally and internationally in recognition of climate refugees. The initial milestone was achieved in the Teitiota v. New Zealand case in January 2020 when the UN Human Rights Committee stated that persons displaced across borders as a result of climate change and natural disasters should not to be returned to a country where they would face a serious risk of irreparable harm to their right to life. The Committee stated that absence of “robust national and international efforts” responding to adverse effects of climate change could create health risks that expose individuals to a violation of their rights, triggering non-refoulement obligations of receiving countries to not send back an asylum applicant. While such claims are limited, there is already precedent around the right to a clean and healthy environmental – in France in 2020, an appellate court ruled that an asylum claimant with a respiratory medical condition should not be returned to Bangladesh because the air pollution there would have extremely serious consequences on his health.

In March 2022, the UN refugee agency (UNHCR) and the UN human rights agency (OHCHR) issued a joint briefing on Climate Change, Displacement, and Human Rights. They noted the significance of the Human Rights Council’s recognition of the right to a healthy environment in October 2021. They reflected on the impact of climate change and environmental degradation that undermines the enjoyment of the human rights to life, water, food, sanitation, health and adequate housing of millions of vulnerable people around the world, further exacerbated in situations of displacement. The briefing affirms that in some cases international refugee or human rights law based on the principle of non-refoulement may apply, prohibiting return of a person to a country where they have a real risk of serious or irreparable harm.

Refugee law scholar Jane McAdam has written that although adverse climate change impacts are harmful, it’s difficult to show how it amounts to “persecution” as currently understood in international and national laws, in that there may be a lack of a “persecutor.” However, McAdam also suggests that the persecutor in such cases could be the “international community” and industrialized states. That is, the countries to where “climate refugees” would go are possibly the ones that failed to cut greenhouse gas emissions, leading to the inability of the displaced person to enjoy their rights. Issues around causality and attribution are difficult, but new freestanding rights may compel new accountability mechanisms.

Because marginalized groups around the world are facing social injustices disproportionately due to climate change, the argument can be made that acts and omissions causing climate change that leads to displacement could amount to persecution because they are discriminatory towards particular groups, such as Indigenous populations. Taking into consideration global inequalities, climate-based persecution could very well be found on the basis of race, religion, nationality, and membership of a particular group (ie. based on gender), falling within the parameters of international refugee law. There is also a cogent case for a new human right to “climate protection” that can broaden the scope of rights-holders and duty-bearers.

International solidarity and these new rights will also impact international policies on climate migration more broadly. For example, the European Parliamentary Assembly in its September 2021 resolution on Climate and Migration stated that “new human rights protection instruments are necessary for an effective implementation of the human right to a safe, clean, healthy and sustainable environment, which could also protect migrants moving in search of such a safe, clean, healthy and sustainable environment.” This “new generation” human right, the Assembly states, should also be embedded in international instruments that influence migration, such as those on disaster preparedness, climate adaptation, economic development, energy production and trade. The Assembly further recommends a legal status and protection policies for people displaced or migrating for climate-related reasons. Likewise, in Europe, a transnational citizen assembly came up with the Palermo Climate Declaration in October 2021 that included a provision saying “Everyone should have the right to choose their place of home, and climate asylum should be recognized” – essentially an advocacy for climate refugees, as well as a right to migration that does not currently exist.

The step forward by UNGA could mean more universal recognition of asylum claims based on environmental factors, and even new climate protection rights. Moreover, advocacy can be amped up for accountability mechanisms towards international solidarity to prevent, minimize, and respond to climate injustice and displacement of the most vulnerable communities, even propelling new rights of solidarity. There is an evolution underway – three cheers for that.

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.