The Hard Expectations of Soft Law

American envoy Eleanor Roosevelt called it “the International Magna Carta.” As head of a UN commission, she chaired the drafting and led the negotiation of the 1948 Universal Declaration of Human Rights, which recognizes that “equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” The declaration proclaims that human rights should be both foundational and structural elements of UN members’ legal systems. Among its 30 provisions and articles is the right to life. But there is no provision recognizing that life depends on a safe and healthy environment. The time for that had not yet come.

When in the 1970s it became clear that pollution and resource degradation were jeopardizing well-being, international environmental law rapidly emerged, but mostly as a distinct field from human rights law. As with many of the newly emerging domestic systems of environmental protection, international measures tended to focus on technology-based problem solving—while ensuring the rights of countries to develop economically.

But there was a different strand of law emerging in many member states, more robust with each passing year. The judiciary in countries as diverse as the Netherlands, India, and the Philippines began connecting environmental health with the right to life. And many national constitutions eventually came to recognize a healthy environment as a distinct right. The stage had been set for the world community as a whole to recognize environmental rights as basic.

The spur was international environmental law’s failure to require forceful action and enforceable obligations on states in response to climate change. That lack encouraged many diplomats to pursue an environmental rights agenda that could achieve real action in reducing climate-forcing emissions. After all, what is more basic to the already established right to life than a stable climate. That applies to property rights as well. And climate change clearly requires a worldwide response. The result was an international measure of—potentially—breathtaking importance.

Last October, the UN Human Rights Council, successor to the body that Roosevelt had chaired, adopted Resolution 48/13, recognizing that the “right to a safe, clean, healthy, and sustainable environment is a human right that is important to the enjoyment of human rights.” The resolution is a resounding reminder that the primary responsibility of legal systems is to protect human rights. It states that environmental human rights are related to “other rights in accordance with existing international law,” including civil, political, economic, social, and cultural rights. Importantly, one of these is the right to development, as already recognized in various international instruments.

By now placing environmental human rights as among the pantheon, the resolution has reaffirmed that states have an “obligation to respect, protect, and promote human rights, including in all actions undertaken to address environmental challenges, and to take measures to protect the rights of all,” including taking “additional measures . . . for those who are particularly vulnerable to environmental harm.” Resolution 48/13 calls upon states to build capacity toward the achievement of the right to environmental health through multi-scalar programs and initiatives. It references the 2015 Sustainable Development Goals as guiding principles. It also calls upon business enterprises to respect human rights, including those of environmental human rights defenders.

While the UN Human Rights Council retains jurisdiction, it also “invites the General Assembly to consider the matter” and make environmental human rights subject to international law. The resolution passed the council with 43 of its members voting in favor, and four abstaining: Russia, India, China, and Japan. The United States was not at the time one of the UN member states with a seat on the rotating council.

The resolution is potentially a milestone for environmental rights advocates, who for years have lamented the lack of express recognition of environmental protection in international human rights documents—especially in the face of fractured international action on critical issues such as climate change. The instrument is an implicit nod not only to the nearly 155 countries that have directly or indirectly recognized a right to a clean environment in their domestic law, but also to the increasing expanse of climate rights litigation the world over. From a legal perspective, however, the question remains whether the resolution adds any significant value to effectively address the myriad of environmental problems, particularly since some international environmental agreements already recognize a right to a safe and healthy environment, although not in an enforceable manner. The answer is as complicated as the foundations and fundamental principles of international environmental law.

Like many other aspirational international measures, the UN Human Rights Council’s resolutions are soft law—not legally binding. The council is a subsidiary organ of the General Assembly. Seats are open to all UN states, but with only 47 elected members representing all geographical areas serving on it at a time. The primary function of the body is to strengthen human rights within the United Nations system and in member states, as well as to “make recommendations to the General Assembly for the further development of international law in the field of human rights.” Responding to the council’s adoption of Resolution 48/13, the assembly could alternatively or additionally recommend to members actions they may pursue, in this manner solidifying the legalness of the right to a clean environment in national systems.

The new resolution is firmly within the traditional mechanics of foreign relations. International resolutions, declarations, and other soft law instruments are designed and adopted to encourage incremental changes in state behavior. This method of strengthening international norms and rules is especially preferred in international law because issues such as human rights and environmental protection are complex and diverse—socially, politically, economically, and culturally. The principles, norms, values, and goals articulated in resolutions such as 48/13 are not themselves legally binding, but could strengthen the development of binding international laws, including treaties and customary international law, which is like the common law among nations. They can also “internationalize” domestic law through direct incorporation, say, by judicial interpretation or legislation.

Thus, the new resolution is significant in at least two ways. First, it could reset the normative framework of international environmental law, which has focused on sustainable development. Second, it could strengthen the infusion of rights into members’ domestic environmental law, particularly in regard to climate rights legislation and litigation.

Resolution 48/13 is an important reboot to international environmental agreements that have recognized environmental human rights only tentatively. The first modern international environmental law instrument, the 1972 Declaration of the UN Conference on the Human Environment, did recognize environmental human rights. Known as the Stockholm Declaration, it proclaims that humankind has “the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” And society has “a solemn responsibility to protect and improve the environment for the present and future generations.” In debates preceding the conference, nations generally agreed that “the requirements of clean air, water, shelter, and health were undeniable needs and rights of man.” Similarly, and notably, the 1998 Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters—the Aarhus Convention—adopted rules to foster procedural environmental rights. It recognizes “that adequate protection of the environment [is] essential to human well-being and the enjoyment of basic human rights, including the right to life itself.”

However, over the last three decades, there has actually been a steady dilution of environmental human rights, beginning with the follow-up conference to the Stockholm Conference, the 1992 UN Conference on Environment and Development—the Earth Summit of heads of state and government. Nations adopted the Rio Declaration on Environment and Development, which shifted the normative focus to sovereign rights over natural resources and the right to development, entirely discarding human rights language. Although Agenda 21, also adopted at UNCED, recognizes environmental human rights, it serves as an action plan for the United Nations and other multilateral organizations rather than as a general international instrument endorsing environmental human rights.

The shift in international legal semantics from human rights to development and sovereign rights is also evident in another instrument to come out of the Earth Summit: the United Nations Framework Convention on Climate Change, which reiterated the sovereign right of nations to sustainable development. The world community seemingly accepted the subversion of human rights as a legitimate articulation of the stance of developing nations, despite historical reports, notably The Limits of Growth, published twenty years before the climate convention, which demonstrated through traditional models of trade and development the fallacy that sustainable development alone implicitly and directly promotes human rights.

A decade after UNCED, the world community adopted the Johannesburg Declaration on Environment and Development, signed at the 2002 World Summit on Sustainable Development. This document demurs entirely from the use of human rights language, focusing instead on development rights and goals. Most international environmental treaties developed since the Earth Summit also focus on sovereign rights of nations to develop, and to a much lesser extent on environmental human rights, which today are generally and narrowly confined to Indigenous peoples’ rights.

However, no issue has highlighted the inseparability of the right to a healthy environment and traditionally accepted rights more than climate change. As nations falter, millions of people around the world stand to lose property, livelihoods, even life itself. Instead of poor countries achieving sustainable development, most face unequal outcomes and a growing threat of their sovereign rights going underwater, literally. The citizens of island nations, for instance Tuvalu and Kiribati, raised alarm about the gap in international human rights law in addressing these wrongs, for instance under the 1951 Refugee Convention. Specifically, the convention obligates member states to grant migrant status only to political refugees, which means people displaced by climate change have no legal rights to migrate, even if entire territories and their homes submerge­. This has recently set into motion the increasing inclusion of rights language in climate change accords. The Paris Agreement on climate acknowledges that climate change warrants focus on human rights and directs parties to “consider their respective obligations on human rights,” which the Glasgow Climate Pact reiterated last fall. Even so, no concrete obligation is created by these soft law agreements.

The new resolution therefore comes at an important moment, when climate change threatens numerous rights of millions of people globally. Whereas the firm shift from human rights to developmental rights in international environmental law has rendered a right to sound environmental protection primarily a national matter, the resolution has the potential to elevate a personal right to the international level. It is a starting point to examine numerous human rights arising from climate change particularly, and not just rights of displaced persons. It is a resounding reminder that the primary responsibility of modern states’ legal systems is to protect human rights.

The resolution could thus strengthen domestic environmental rights, particularly in the context of ongoing climate rights litigation world over—much of it still pending. Over the past decade, there has been an exponential growth in the number of climate rights cases filed in domestic courts in different regions of the globe. In excess of sixty cases have been filed world over as of December 2021, with plaintiffs claiming that inadequate state action to mitigate or adapt to climate change violates their human rights. While the actual details of each suit are different, many—including in courts in Europe, the United States, and Asia—claim that state inaction infringes their right to life. Other rights violations have also been raised. For instance, in the United States litigants have also asserted violation of property rights under the Constitution’s Due Process Clause. In some jurisdictions, notably India, domestic courts, including specialized environmental courts, have suo motu, i.e., on their own motion, held that inadequate government action violates constitutional rights, by interpreting the right to life to include the right to environmental protection.

Whereas earlier lawsuits made expansive arguments in claiming constitutional violations, the new generation of climate rights litigation challenges even routine regulatory actions that dilute climate mitigation efforts. For instance, petitioners in Thomas & De Freites v. Guyana have challenged government issuance of permits for fossil fuel projects. In ClientEarth v. Belgian National Bank, petitioners have challenged under human rights law the validity of governments buying bonds from fossil fuel companies. In Urgenda Foundation v. The State of Netherlands and in In re Climate Resilience Bill, plaintiffs have challenged the adequacy of the Dutch and French governments’ climate legislation or policies in safeguarding constitutional human rights.

Regional and international human rights instruments and institutions have also become conduits of climate change litigation. Of these channels, the Inter-American Commission on Human Rights, Inter-American Court on Human Rights, and the European Union Court of Human Rights, as well as European human rights laws, predominate in climate rights litigation. Although one of the earliest petitions filed before the Inter-American Court, seeking relief from human rights violations resulting from global warming caused by acts and omissions of the United States, was dismissed, several have since followed. The Athabaskan people have filed a petition seeking relief from violation of their rights resulting from a rapid warming of the Arctic caused by black carbon emissions from Canada. Haitian children have requested the judiciary to review the impact of climate change-exacerbated trash problems on their health. NGOs have requested review of climate change impacts on rights of Indigenous groups. Jurisdiction of the Inter-American Court of Human Rights has also been triggered by Colombia, which filed a request for advisory opinion on the duties and obligations of states vis-à-vis climate change under the American Convention on Human Rights. These cases demonstrate the beginning of deliberate efforts to hold governments accountable to their constitutional obligations and simultaneously signal a loss of faith in their ability to craft traditional technical solutions.

Most human rights litigation has been filed in the European Union. These cases draw on a wide range of EU directives and the European Convention on Human Rights. They pursue different forum choices, from domestic courts to the European Court of Human Rights to the European Court of Justice. In Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, for instance, petitioners invoked the jurisdiction of the European Court of Human Rights under the European Convention of Human Rights, after exploring domestic remedies before Swiss courts under Swiss laws, including the Swiss Constitution. Plaintiffs also represent myriad groups, individuals, or NGOs. In Commune de Grande-Synthe v. France, a municipality filed a lawsuit against the French government, asserting climate inaction threatened human rights of its community under the European Convention of Human Rights.

Climate rights plaintiffs have also filed requests for action on environmental rights violations within the United Nations system. Notably, several youth plaintiffs have filed the Petition to the United Nations Secretary-General to Declare a Climate Emergency and Mobilize a Comprehensive UN Response, under the climate convention, the Paris Agreement, and the UN Convention on the Rights of the Child. Getting such a declaration passed by the General Assembly would essentially make climate change a priority for all UN organs. In Rights of Indigenous People in Addressing Climate-Forced Displacement, a group of Native American tribes has filed a complaint with several UN special rapporteurs against the United States for its failure to protect their communities from climate-induced violation of human rights.

The outcomes in these cases are as diverse as the lawsuits and other actions themselves. Many cases have been filed quite recently and are pending adjudication. Of the decided cases, some courts have dismissed the suits either on procedural grounds or on substantive grounds. In the United States, Juliana v. United States exemplifies the procedural minefield of climate rights litigation; it has been dismissed numerous times for procedural reasons, and plaintiffs, who initially filed the lawsuit in 2014, continue to litigate over procedural matters through the present. It also likely will face potentially insurmountable doctrinal hurdles.

A good number of cases have also been dismissed on substantive grounds. For instance, in Plan B Earth and Others v. Secretary of State for Transport, the U.K. Supreme Court dismissed a human rights claim brought against the government’s policy statement supporting expansion of Heathrow Airport on the grounds that the United Kingdom’s commitments under the Paris Agreement did not automatically become part of its domestic policy under the Planning Act. In Friends of the Irish Environment v. Ireland, the Irish Supreme Court held that the plaintiffs had failed to establish a separate right to environmental protection upon which standing could be granted.

On the other of end of the spectrum, some courts have granted resounding success to climate right plaintiffs. Notably, in Urgenda v. the State of Netherlands, the landmark case on climate rights, the Supreme Court of the Netherlands upheld the lower courts’ ruling that the Dutch government had an obligation to reduce its emissions by at least 25 percent by 2020. Similarly, in Legari v. Federation of Pakistan and Ali v. Federation of Pakistan, the Lahore High Court granted petitioner’s motion and ordered the government to speedily implement its specified climate policies.

At this moment, when Resolution 48/13 has just been passed, many climate rights cases are pending. Considered in light of the number of cases dismissed on procedural or substantive grounds, and the reasoning in cases upholding a right to efficacious climate action, the new resolution is especially significant. It reaffirms a basic tenet that climate rights plaintiffs have sought to have explicated: a right to a clean, safe, and healthy environment as a distinct right. Such reaffirmation could be critical for judges seeking a rationale for upholding climate rights claims.

However, the resolution’s legally non-binding character does undercut its normative strength, particularly in jurisdictions such as the United States that have traditionally balked not only at the idea of environmental rights, but also ratifying international human rights treaties or referencing non-domestic courts or instruments. The United States has rejected explicitly placing rights at the center of environmental protection efforts. Further, abstention from the Resolution 48/13 vote by some member states signals reservation to environmental human rights norms. While the constitutional right to environmental protection recognized in India is robust, its abstention is a clear indication of its reluctance to see the development of a similar international norm. Similarly, even though China and Russia have enacted laws recognizing environmental rights, their abstentions reflect a similar sentiment against international environmental human rights norms. Only Japan remains an outlier in this regard. Nevertheless, abstention is not a signal for domestic courts to per se reject the resolution, and thus, even in abstaining countries, the judiciary could potentially consider the resolution as strengthening environmental rights adjudication.

As mentioned briefly at the outset of this essay, Resolution 48/13 is an important step in two ways. Let’s conclude by looking at them again. One is to begin the important process of resetting the focus on environmental protection from sustainable development to human rights. Sustainability is a key goal but it has not triggered the changes in technology and norms that we need. Second, it could strengthen the infusion of rights into members’ domestic environmental law, particularly in regard to climate rights legislation and litigation. Environmental human rights norms that have gained traction in climate litigation helped to trigger the adoption of the resolution; that may in turn strengthen ongoing judicial review of government inaction. Resolution 48/13 is not another brick in the edifice of international environmental human rights. Rather, it is an essential foundation for further progress. TEF