The International Court of Justice (ICJ) is tackling a crucial issue: the human right to a clean, healthy environment. This question isn’t just about legal debates; it affects real lives, especially those of marginalized communities facing the worst impacts of climate change. The ICJ will determine if this right exists under international law, meaning all countries would have a responsibility to protect it.
In December, during public hearings in The Hague, over 60 countries supported recognizing this right. Only ten nations, including Australia and the US, argued against it, claiming the UN’s acknowledgment is merely a political statement and lacks legal weight. But in the face of severe climate challenges—like extreme weather and pollution—this issue demands urgent attention.
As the UN Special Rapporteur on this topic, I aim to explain why the ICJ should affirm that the right to a healthy environment is a customary part of international law.
International law creates obligations in two main ways: through treaties and customs. In this instance, custom is key. For a custom to be considered law, it must be two things: a widespread practice among states and accepted as a legal obligation.
Since the 1970s, many countries have acknowledged the right to a healthy environment. The UN Human Rights Council and General Assembly have passed resolutions supporting this, and the ICJ has recognized the environment’s essential link to human well-being. Various human rights committees have stated that a healthy environment is vital for enjoying rights like life and health.
Globally, 164 countries now include this right in their legal frameworks, and developments continue at the national level. In the US alone, states like New York and California have taken steps to recognize this right, and even more recently, the Australian Capital Territory has joined them.
But it’s not just about recognition; there’s also a growing acceptance that this right is mandatory. Numerous court rulings worldwide affirm that states have obligations to respect, protect, and fulfill the right to a healthy environment. This widespread practice meets the criteria needed for it to be considered customary law.
The ICJ has an opportunity to clarify that a clean environment is a recognized human right. While some countries may oppose this, it’s important to note that not all states need to agree for a norm to become customary. Just as with other rights, like protection against torture, the ICJ’s recognition would still reflect a significant global consensus.
So, what does this right entail? Over decades, it has developed to encompass both procedural and substantive elements. Procedural aspects include access to information and public participation, while substantive aspects cover areas like clean air, safe water, and biodiversity. This right aims to protect both current and future generations, ensuring a sustainable planet.
By officially recognizing the right to a healthy environment under international law, the ICJ would make strides in protecting future generations from the worsening climate crisis. This acknowledgment could inspire countries that haven’t yet recognized this right to take action, aligning with the growing global understanding of our environmental responsibilities.
While challenges remain, the ICJ’s potential decision could set a powerful precedent, advancing the conversation on human rights and environmental protection. As we navigate this critical moment, the impact of this decision could resonate for years to come.
This article was written by Astrid Puentes Riaño, UN Special Rapporteur on the human right to a clean, healthy, and sustainable environment.
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