Green Human Rights and Common Interest
The establishment and further development of environmental human rights is an important component of international law. Yet, a human rights-based approach to global environmental protection is not the only and, arguably, not the most feasible way to make claims for the common interest of humankind in a healthy environment. Human rights are individualistic in nature. Claiming environmental human rights in international and national adjudication fills the gap left by international inter-State dispute settlement in regard to multilateral environmental agreements but can only have limited effect due to the need to demonstrate significant individual harm. Advisory opinions, while not legally binding, may serve as another tier to have courts and tribunals elaborate upon obligations by States under international environmental law, taking into account multilateral environmental agreements as well as human rights. Green human rights and advisory opinions on legal obligations by States concerning the protection of the environment do not exclude but may re-enforce one-another.
As a reaction to the landmark UN General Assembly resolution 76/300, which was adopted on 28 July 2022, on “The human right to a clean, healthy and sustainable environment”, many open questions concerning the concept, content, scope, legal character, implementation and enforcement can and will be addressed. This short contribution asks more generally, if human rights claims by the individual are a viable means to address the common interest of humankind in a healthy environment. It does so by, first, discussing the common interest of humankind in the environment as stated by multilateral environmental agreements and, second, assessing a human rights-based approach to environmental protection. It goes on to elaborate on benefits and shortcomings of such an approach before discussing the requests for advisory opinions at international courts and tribunals as a potential way forward.
1/ Common Interest in Multilateral Environmental Agreements
For more than 50 years the international community has been actively engaged in environmental treaty-making to formulate and pursue a common interest of humankind in a healthy and productive environment. Since global environmental problems depend upon cooperation and joint efforts, law-making on the international level primarily relied upon treaties. The first wave of multilateral environmental law-making dates back to the aftermath of the UN Conference on the Human Environment (UNCHE) in Stockholm in 1972. Notwithstanding the efforts in agreeing upon international environmental treaties before and after the UNCHE, a second landmark conference, the 1992 Rio Conference on the Environment and Sustainable Development (UNCED), coincides with the preparation, adoption and further negotiation of multilateral environmental agreements, such as the Framework Convention on Climate Change (UNFCCC), the Convention on Biological Diversity (CBD) and the Convention to Combat Desertification. Reading the preambles of these and other environmental treaties, it is apparent that the “common concern”, the “concern of the international community”, the need to protect the environment for this and future generations as well as the need for cooperation to achieve such common or shared objectives feature prominently throughout multilateral treaties. Protecting the global environment is not an individualistic concept.
The fact that Principle 1 of the Rio Declaration places humans at the centre of sustainable development does not contradict this finding. While formulating the “entitlement” of humans to a healthy and productive life in harmony with nature, the Declaration does not specify by what means this is to be achieved. Moreover, it is not the individual human being but rather humanity that is addressed. It can, however, be argued that a human rights-based approach finds its roots in this entitlement. At the same time, agreement on multilateral legal standards in treaties to achieve the common interest in a healthy environment shared by all humankind can equally be based upon the anthropocentric notion of putting humans at the centre of concern and the recognition of entitlement. The same applies to broad notions of a common heritage of humankind.
2/ A Human Rights-Based Approach to environmental protection
Despite the recent success in adopting the new Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement) and the ongoing negotiations on a global treaty to combat plastic pollution, particularly of the marine environment, the state of the global environment indicates that environmental treaty-making alone is hardly the only or most feasible way to address global environmental issues. Treaties are important tools to address issues of common environmental interest on the diplomatic level and to obtain recognition of objectives and general principles. However, the need for compromise and law-making by consensus of States has the effect that often the treaty law itself is formulated in vague terms, needs interpretation, and lacks enforceability. A lot of responsibility is thus transferred to the level of implementation by national legislators who demonstrate varying degrees of ambition, if the standards on the international level are weak. With the ongoing deterioration of our planet and the apparent inability to either agree upon, implement, or enforce viable standards in international environmental law to mitigate climate change, prevent further loss of biological diversity, reduce pollution, and address other pressing global environmental problems, the debate has turned to human environmental rights and relevant litigation on the national and international level as means to induce the necessary transformation.
In essence, a human rights-based approach to environmental protection employs the rights of the individual to protect the global commons. Not being a full subject of public international law, the means by which the individual person can aim to have an influence on international environmental legal standards and their implementation and compliance is likewise limited. The individualization of dealing with global environmental degradation seems a reaction to the lack of effectiveness of those international treaties and soft-law instruments that were adopted to inter alia reduce pollution, stop the loss of biological diversity and curb greenhouse gas emissions. In light of the shortcomings of treaty-making, more general calls for a “human rights-based approach to environmental protection” are often made without specifying what such an approach would entail and what the shortcomings may be. Notwithstanding that the destruction of the environment can either be limited to cause local or regional hardship or that global problems can manifest themselves in particular local effects, one may question, if, in general, individualistic human rights are the best suited instrument to deal with the large-scale and fundamental environmental degradation we experience today. Regarding the protection of the ocean such an approach has been marked as “insufficient”.
Reliance upon human rights, e.g., the right to life or physical integrity, when the destruction of the environment significantly impacts human health, is not a new phenomenon. It is a recognized and well-established pathway to protect the individual from environmental hazards that have such a negative effect as to cross a threshold of significance and therefore amount to a human rights violation. It is beyond any doubt that the state of the global, regional, and local environment negatively affects humans and, hence, necessarily impacts rights which are guaranteed by different human rights instruments, including the two Covenants, the Convention on the Rights of the Child and regional human rights instruments such as the African Charter on Human and Peoples Rights. The broader notion of a right to a clean, healthy, and sustainable environment or, even more generally, “green human rights”, aims to go beyond that. The recognition implies that the individual is entitled to a clean, healthy, and sustainable environment, even if the standards of a violation of current first or second-generation human rights, e.g., the right to life, are not met. Reference to the objectives of multilateral environmental treaties in shaping green human rights make it clear that they seek to entitle the individual more broadly and more strongly focus upon the common interest of humanity as it manifests itself in the rights of the individual member. Despite the importance and benefits of this development, there are certain shortcomings as well.
3/ Benefits and shortcomings
In light of current climate change litigation before national and international courtsa human rights-based approach to achieve a common environmental interest seems to fill a gap that is left by most multilateral environmental agreements: access to a court, tribunal, or other competent human rights body, which either issues a legally binding decision or gives a legal recommendation. Initiated by an individual or group of individuals and based upon the claim to have been violated in environmental human rights, courts and tribunals around the world can contribute to shaping such rights, interpret treaties with respect to more concrete obligations and hold governments accountable. In contrast, multilateral environmental treaties typically lack viable means for clarifying the vaguely formulated obligations of governments. While all treaties call for peaceful settlement of disputes, they typically address only disputes between States over the interpretation and implementation of the agreement. Moreover, environmental agreements typically do not integrate obligatory dispute settlement.Cases, which are settled in court and concern multilateral environmental agreements are relatively rareand can hardly be considered the only feasible means to hold States accountable.
Human rights, however, have the inherent limitation that they rely upon the individual effect. They are not designed to promote the common interest in a healthy environment. Moreover, violations must be claimed against one particular State. Human rights oblige the State to guarantee their relevant content, i.e., to either achieve a certain result or make a particular effort towards a result. This can also refer to legislative performance regarding international environmental efforts, i.e., implementation of standards. Influence on the agreement of stricter standards on the international level is, however, necessarily limited and one can argue that this is not the purpose of human rights. Whether claimants rely upon human rights law against the State of residence or nationality or whether they file suits under national constitutional law or national tort law against private entities, all approaches have in common that the common interest in solving a global problem – climate change, pollution, biodiversity loss – needs to be “individualized”. It is no longer “humanity” or “nature” that has an urgent interest in integrity and protection of the environment or parts thereof but one particular human being or a group of individuals whose rights are focused upon. If the claimant fails to demonstrate an individual violation, i.e., the crossing of a relatively high threshold of personal harm, or if the State can show that it has done what was required to protect individuals, the claim will fail, despite the worrying state of the environment. What such claims really seek to do, however, is to hold States accountable to meet their obligations towards the common interest and to implement feasible standards for the protection of the regional or global environment as such and for the benefit of all.
4/ The way forward: advisory opinions by international courts and tribunals
Green human rights and their enforceability are certainly an important element of raising awareness and clarifying States obligations in the context of environmental degradation and standard setting for better protection of the common interest in the environment. They may be a relevant part due to the lack of more suitable means but – due to the inherent limitations as discussed in the previous section– they cannot be the only means to shape standards on an international level.
One way forward to clarify questions beyond individual violations seems to lie in the request for advisory opinions. The request for advisory opinions from international courts and tribunals is by no means a new instrument. The ICJ and, before it, the Permanent Court of International Justice have a long history of addressing relevant legal questions brought by organs of the League of Nations and the UN, respectively. Although advisory opinions are not binding, they enjoy a high degree of legitimacy and respect as an authoritative interpretation of public international law.
Already the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons focused on the common interest in environmental protection as an element of proportionality in warfare, citing the Rio Declaration and further provisions on protecting the environment during armed conflict. Three advisory opinions related to climate change have more recently been brought to the ICJ, the ITLOS and the Inter-American Court on Human Rights. The requests to the ICJ and ITLOS do not focus upon the individual as a means to initiate proceedings. Rather they aim to clarify concrete obligations of States in respect of climate change without the need to prove individual damage. Asking for specific obligations, with regard to obligations concerning greenhouse gas emissions and the protection of the marine environment, they take the rights of current and future generations into account but do not rely upon individualization. The request for an advisory opinion by the governments of Chile and Colombia to the Inter-American Court of Human Rights is particularly relevant in the context of green human rights. It bridges the gap between the disadvantage of demonstrating individual violations and a more general interpretation of States’ obligations towards the environment as a common interest of humans under the Inter-American Convention on Human Rights. The Court has shown in the past that advisory opinions are a particularly viable means to shape and develop the right to a healthy environment. In these proceedings the Inter-American Court of Human Rights found that a healthy environment is a human right and took note that the adverse effects of environmental degradation and climate change both affect human rights. Although this opinion also paved the way for lawsuits in regard to individual harm, the findings concerning the responsibility of governments for significant environmental damage go beyond what an individual person may claim.
The documents collected for the advisory proceedings at the ICJ and the written statements in the ITLOS advisory opinion clearly demonstrate that standards in multilateral environmental agreements as well as human rights norms are considered relevant to be taken into consideration by the Tribunal when specifying States’ obligations. This comes considerably closer to pursuing the common interest formulated by the relevant agreements if compared to the need to rely upon individual harm.
The interplay between advisory opinions at international courts and tribunals concerning States’ obligations and responsibility on the one hand and individual human rights claims on the other can mutually re-enforce one another. The common interest by humanity in a healthy environment can be better served, if courts and tribunals can decide upon States’ obligations without the need to show that an individual person suffers from the consequences of climate change, pollution, or loss of biodiversity. At the same time, individual harm shall not be questioned and access to human rights courts and other competent bodies is an important tool to hold governments accountable in specific cases. Green human rights have only just begun to become powerful tools and it remains to be seen in what different ways they can be used to set more feasible standards for States’ obligations and their implementation. A different question, which can form a third tier, would be, if rights of nature on the international level could viably overcome the anthropocentric notion of a human rights-based approach.
 Konrad Ott/Colin von Negenborn/Nele Matz-Lück, Ethics, Justice and Human Rights – Normative Considerations in Marine Environmental Change, in: Paul Harris (ed), Handbook of Marine Governance and Global Environmental Change, 2022, 299.
 Supreme Court of the Netherlands, Stichting Urgenda v. The State of the Netherlands (Ministry of Economic Affairs and Climate Policy), 20 December 2019, No 19/00135; German Federal Constitutional Court, Order of the First Senate, 24 March 2021, 1 BvR 2656/18, Climate Change; ECHR, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20); European Court of Justice, Carvalho and others v. The European Parliament and the Council, CASE T-330/18 (People’s Climate Case).
 The UN Convention on the Law of the Sea (UNCLOS) with its part XII on the protection of the marine environment is an exception because the establishment of compulsory dispute settlement at either the ITLOS, the ICJ or an arbitral tribunal is not mirrored by MEAs.
 Of the five environmental cases which were brought to the ICJ between 2006 and 2011, only one – Whaling in the Antarctic – resulted from the dispute settlement clause in a multilateral agreement; Pulp Mills on the River Uruguay (Argentina v. Uruguay), (2010); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), (2015); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), (2015); Aerial Herbicide Spraying (Ecuador v. Colombia), (2008); see Anne Coulon, The International Court of Justice and the Protection of the Environment, in: Edgardo Sobenes et al (eds), The Environment through the Lens of International Courts and Tribunals, 2022, 37, 43.