In World Court, Countries Question ‘Right To A Healthy Environment’

For the first two weeks in December, the International Court of Justice held oral hearings for its Advisory Opinion relating to the Obligations of States in respect of Climate Change. At the request of the United Nations General Assembly, the ICJ will determine the existing financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. In response to questions posed by judges at the conclusion of the hearings, parties are in disagreement as to whether there is an existing right to a “clean, healthy and sustainable environment in international law.”

The ICJ was established in 1945 through the UN Charter to handle legal disputes between nations. Known as the World Court, it is an outlet for countries to settle civil disputes through a neutral court. The ICJ is composed of 15 judges elected by the UNGA and UN Council to serve a term of nine years. A country may only have one judge serving on the ICJ at a time.

On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development.

On December 2, Vanuatu and the Melanesian Spearhead Group opened the hearings giving, in essence, an opening argument. Over 100 countries and parties presented oral statements in 30 minute increments from December 2 to 13.

While the majority of the legal argument revolved around the Paris Agreement and obligations of countries to reduce GHG emissions, a parallel question arose as to whether there exists a human right to a clean environment.

Developing countries argue that the UNCCC and the Paris Agreement are a starting point, but that the impacts of climate change violate human rights under international common law and the Universal Declaration of Human Rights. As a result, those countries that contribute to climate change, through the production of fossil fuels and GHG emissions, should pay reparations to low lying and developing nations that are “adversely impacted” by climate change.

This argument has found success in other international courts. In April 2024, the European Court of Human Rights ruled that protection against the impacts of climate change are a human right. That right was found in the European Convention on Human Rights in conjunction with the Paris Agreement.

In May, the International Tribunal on the Law of the Sea found that countries have a duty to prevent climate change to “protect the marine environment.” That decision was based on tying the Paris Agreement with the obligations found in United Nations Convention on the Law of the Sea. Currently, 168 states and the European Union have signed the Convention.

At the conclusion of the ICJ hearings, four judges posed questions: Judge Sarah Cleveland of the US, Judge Dire Tladi of South Africa, Judge Bogdan-Lucian Auresco of Romania, and Judge Hilary Charlesworth of Australia. Parties had until December 20 to file an answer.

The question posed by Judge Auresco addressed whether there is a right to a healthy environment.

Judge Bogdan-Lucian Auresco

Romania

“Some Participants have argued, during the written and/or oral stages of the proceedings, that there exists the right to a clean, healthy and sustainable environment in international law. Could you please develop what is, in your view, the legal content of this right and its relation with the other human rights which you consider relevant for this advisory opinion?”

Noteworthy Responses:

United States

“No treaty of global application provides for a right to a healthy environment, nor is such a right supported by the extensive and virtually uniform State practice and opinio juris necessary to establish a rule of customary international law. While select regional treaties, domestic laws, and non-binding sources reflect a growing appreciation by the international community of the importance of a healthy environment to the enjoyment of human rights, these sources are not sufficient evidence of the crystallization of a new rule of customary international law.

Efforts to develop or define a new human right to a healthy environment must comport with the established rules for the creation of international law. The United States remains open to participating in a transparent process in which States have an opportunity to provide input on the scope and content of such a right and to indicate their consent to be bound.”

United Kingdom

“In response to the question put by Judge Aurescu, the UK refers to its position, set out in its Written Comments, that there is no existing customary international law right to a clean, healthy and sustainable environment.”

Thailand

“In Thailand’s view, as it stands, the right to CHASE (clean, healthy and sustainable environment) is based upon, and necessarily implied by, other relevant existing human rights because the meaningful enjoyment of the latter presupposes the former.

“To begin, to effectively enjoy the right to the highest attainable standard of physical and mental health requires an environment that is clean, healthy and sustainable…

“Similarly, to enjoy the right to life – ‘and in particular life with dignity’ – a person must be able to live in a safe environment without any life-threatening harm, as the Human Rights Committee recognised.”

Sri Lanka

“Although the right to a clean, healthy and sustainable environment may, at first glance, seem to be derived from the treaty-based right to health, it is in fact a right that has evolved later within customary international law. Its emergence may be traced back to the 1948 Universal Declaration of Human Rights which recognized the right to a standard of living adequate for the health and well-being of himself and of his family. Consequently, the 1972 Stockholm Declaration recognized that ‘Man has the fundamental right to freedom, equality and adequate conditions of life, including an environment of a quality that permits a life of dignity and well-being’. Half a century later, the right to a clean, healthy and sustainable environment was recognized by the UNHRC and, thereafter, by the UNGA. Therefore, whilst it is an autonomous right of and in itself, it is also intrinsically related to the right to health, the right not be deprived of subsistence and the overarching right to life.”

Samoa

“The legal content of the right to a clean, healthy and sustainable environment (RTHE) is tied to the achievement of its status as a standalone universal human right. While States have for some time been obliged under various human rights norms to ensure that individuals enjoy a clean, healthy and sustainable environment, a specific and standalone right to a clean, healthy and sustainable environment has emerged. This distinct right has evolved as a norm of customary international law or else as a right that is derived from other human rights.”

Russian Federation

“We reiterate our position expressed during the public hearings in the Court. We believe that the ‘right to a clean, healthy and sustainable environment’ has not crystallized in customary international law.”

Organisation of African, Caribbean and Pacific States

“The OACPS affirms that the right to a clean, healthy, and sustainable environment (right to a healthy environment) is firmly established as a human right, indispensable for the enjoyment of the rights to life, health, food, water, housing, culture, and self- determination, among others. This right, affirmed by UN General Assembly Resolution 76/300 and Human Rights Council Resolution 48/13, has deep roots, including in regional treaties and instruments2 and national constitutions across the globe. As many participants have submitted, the right has now crystallised into a norm of customary international law. It also exists as a general principle of law recognised by the community of nations.”

Mexico

“In its initial written statement submitted to the Court, Mexico asserted that the human right to a healthy environment embodies both substantive and procedural elements, reflecting its unique legal content and its interrelation with other human rights.

“Substantively, this right encompasses clean air, access to safe water, sustainable food production, and healthy ecosystems, all of which are essential for the enjoyment of life, health, and personal integrity. Procedurally, it requires access to environmental information, public participation in decision-making, and access to effective remedies.”

Kuwait

“Insofar as the right to a clean, healthy and sustainable environment has been stated in recent resolutions of the United Nations General Assembly12 and the Human Rights Council, such resolutions cannot impose legally binding obligations on States related to the climate system or otherwise. Member States at the adoption of General Assembly resolution 76/300 also were clear they did not intend to create legally binding obligations.”

Germany

“The right to a clean, healthy, and sustainable environment, was perceived in this legally non- binding instrument as constituting a specific manifestation of other previously established human rights. The right was understood as deriving from, and inherent in, already existing international human rights obligations, in particular under the ICCPR and the ICESCR. It must, just like other environment-related human rights, be interpreted in line with the obligations States have undertaken under international environmental law. A growing number of States recognize a right to a healthy environment in national legislation and it forms part of an ongoing legal debate in different human rights contexts. However, in Germany’s view, it does not form part of current customary international law.”

European Union

“The European Union submits that, regardless of a formal recognition of this right as a self- standing norm of customary international law (and until then), the right to a clean, healthy and sustainable environment already exists as an expression of the necessary systemic integration between international human rights and climate change. The content of this right can and should thus be determined on this basis.

“It is essentially based on the principle of systemic integration that regional human rights courts as well as UN and regional bodies have increasingly recognised that existing human rights also entail obligations to protect the environment. Notably, the European Court of Human Rights (ECtHR) has in effect derived a human right to a clean, healthy and sustainable environment from existing human rights under the European Convention on Human Rights (ECHR). In particular, the ECtHR found that the right to respect for private and family life 21 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.”

African Union

“All life depends on a safe, clean, healthy and sustainable environment. First recognized in the 1972 Stockholm Declaration, and reiterated in the 1992 Rio Declaration, the right to a clean, healthy, and sustainable environment has recently been acknowledged as a universal human right by the UN General Assembly (“UNGA”) and the UN Human Rights Council (“HRC”). The judges of this Court have also referred to the right…

“The African Union submits that the right to a clean, healthy and sustainable environment finds recognition in treaties and it is also consolidating in customary international law.”