This article belongs to the debate » Comparative Climate Litigation in North-South Perspective
22 March 2022

A Climate Warrior for the Global South

Will the new human right to live in a healthy environment succeed?

As the global average temperature rises, the number of human rights violations, too, will increase. In the Anthropocene epoch, protecting human rights is a clarion call for all States to fulfill their climate change commitments. In this regard, the recognition of the human right to a safe, clean, healthy and sustainable environment by the United Nations Human Rights Council (UNHRC) on 5 October 2021 was a historic landmark resolution. Though non-binding, the resolution contains strong political commitments to support global efforts in addressing climate change. Even though more than 155 States have recognised a right to a healthy environment it remains a gloomy fact that 90% of the world population still breathe polluted air. Against this background, we seek to evaluate and compare the role of the right to a healthy environment in climate cases in the Global South. The term ‘Global South’, in this post, aligns with its broader understanding in international environmental and climate law scholarship, distinguishing developing and developed countries based on Annex I of the United Nations Framework Convention on Climate Change. Why is the right to live in a healthy environment significant for climate change litigation? How could the UNHRC’s resolution increase the right’s potential to succeed in future climate claims?

Africa

The human rights treaty in this region, the African Charter on Human and Peoples’ Rights, provides a right to a general satisfactory environment favourable to development. In 2016, the first African climate case, Thabametsi, challenged an environmental authorisation granted to build a 1200MW coal-fired power station in the Limpopo Province of South Africa. Under section 24 of the National Environmental Management Act (NEMA), an environmental impact assessment is needed when seeking an environmental authorisation. The South African High Court set aside the authorisation decisions and directed to undertake a climate change impact assessment. The constitutional right to a healthy environment did not play a major role, although it has to be ensured that this right should not be affected while interpreting section 24 of NEMA. In Philippi Horticultural Area, the Court had to consider climate change and water scarcity impacts of a proposed aquifer. Again, the right to a healthy environment played only a minor role in this case, while the Court noted that NEMA is the primary legislative instrument that gives effect to the environmental rights enshrined in section 24 of the South African Constitution.

Subsequently, in the case of Khanyisa Water Tribunal, the violation of the right to an environment that is not harmful to health or well-being stood as one of the main issues in deciding the issuance of a Water Use License for the Khanyisa Project. Nevertheless, the Court held that this right was not violated as the proposed measures were reasonable and would not necessarily lead to significant water pollution or environmental degradation. Despite the right to a healthy environment not playing a crucial role, the license was set aside due to inadequate public participation in the assessment of the climate change impacts on water. The following are the pending cases highlighting the right to a healthy environment’s role. The link between the human right to a clean and healthy environment and the State’s duty as a public trustee to ensure that the atmosphere is free from pollution for the present and future generations (Articles 39 and 237 of the Ugandan Constitution) was highlighted in the Mbabazi case. This is a straightforward case against the Ugandan government to mitigate climate change due to violating the human right to a healthy environment and the public trust duty.

Interestingly, in Center for Food and Adequate Living Rights et al. filed in 2020 at the East African Court of Justice, the applicants challenged the construction of the East African Crude Oil Pipeline and pleaded to conduct both a climate change and human rights impact assessment. Concurrent with the Thabametsi case, in 2021, for the first time, a government’s approval of a natural gas power plant was challenged by the South Durban Community Environmental Alliance and groundWork for not following and conducting a proper environmental and climate change impact assessment. However, the applicant only quoted the right to a healthy environment as one of the environmental principles to be considered. Although the right to live in a healthy environment was not invoked directly, the African courts were careful in checking that the right was unaffected while determining whether the climate change impact assessment was conducted properly. Therefore, climate litigation in the African region is keen on conducting a climate change impact assessment for specific projects such as mentioned above, except for the Mbabazi case, where the State’s duty to mitigate climate change was linked to the protection of the right to a healthy environment. Additionally, the UNHRC resolution may strengthen the constitutional right to a healthy environment’s role to strictly mandate conducting both climate change and human rights impact assessments before authorising a project.

Asia-Pacific

Unlike Africa, this region lacks a regional human rights treaty. While the Indian Constitution  guarantees the right to a healthy environment as part of the right to life under Article 21, India has not seen many or successful climate change cases. On its own motion, the Indian Green Tribunal directed the government of Himachal Pradesh to implement measures reducing pollution, especially the black carbon emissions, to ultimately reduce the glacial melting. While not holding the government responsible, the right of the Indian citizens to a wholesome, clean and decent environment was highlighted. Another case was filed on behalf of a nine-year-old girl for experiencing the adverse impacts of climate change and rising global temperatures, arguing that children and future generations have the right to a healthy environment under the principle of intergenerational equity. The National Green Tribunal dismissed the case by observing that ‘there is no reason to presume that Paris Agreement and other international protocols are not reflected in the policies of the Government of India or are not taken into consideration in granting environment clearances’ with a reckless attitude. As for China, only prospects for climate litigation can be witnessed. To our dismay, overall climate actions by India and China are still rated highly insufficient. It is even more disheartening to see them as the only two countries from the Global South to abstain from voting for the UNHRC resolution.

Pakistan’s Leghari case challenged the government’s failure to carry out their Climate Change Policy. The right to a healthy and clean environment, included within the right to life and as part of their environmental jurisprudence, was mobilized to combat the prevailing climate change effects. Further, a violation of the right to a healthy environment, as part of the right to life (under Article 9 of Pakistan’s Constitution), was alleged by Rabab Ali and Sheik Asim Farooq for approving a coal field development plan in the Thar desert region that affects the climate system, and for failure to implement the Climate Change Policy by not managing the trees and forests in Punjab respectively. While the former case is pending, the Lahore High Court gave instructions resulting in the preparation of the first-ever Urban Trees Plantation Policy for the plantation of trees in the latter case. Also, the right to a healthy environment for women and future generations was claimed to be violated in the climate case filed by a women coalition raising voice against the Pakistan government’s climate inaction.

A significant decision by the Nepal Supreme Court made the government enact a new and adequate climate change law and held that maintaining a healthy and clean environment is part of the government’s climate change duties. As part of climate efforts, in 2020, the South Korean government was sued for wrongly classifying biomass generation as renewable, which affected constitutional environmental rights, including the right to a healthy environment. While this case is still pending, another complaint claiming a violation of the citizen’s environmental rights, including the right to a healthy and pleasant environment, invoked the South Korean government’s obligation to prevent climate disasters and protect them from climate change effects. This decision is awaited. In Indonesia, a case was filed for ignoring climate change impacts, where Greenpeace Indonesia contended, inter alia, a violation of the right to a good and healthy environment under the Indonesian Constitution and of national laws due to environmental permits granted to expand a coal-fired power plant in Celukan Bawang.

The Philippines has a unique legal remedy specifically for the legal enforcement of the constitutional right to a balanced and healthful ecology (section 16), called the Writ of Kalikasan. Based on this writ, an action was filed against various government departments to take steps to prevent and combat the consequences of climate change. The case was settled by a Memorandum of Understanding with a work plan to undertake the necessary measures.

In a first attempt, the Pacific Island nation, Vanuatu, will be requesting the International Court of Justice for an advisory opinion on the rights of present and future generations to be protected from climate change. The UNHRC resolution can strengthen Vanuatu’s claims in requesting the Court’s opinion. It is ironic that several jurisdictions in the Asia-Pacific region have recognised the right to a healthy environment but have failed to properly utilise it for enforcing climate claims. With the least number of successful climate cases, this region is in the budding stage to effectively use the right to a healthy environment for addressing climate change. For the necessary implementation of this right, as guaranteed in many Constitutions of the Asia-Pacific, the UNHRC resolution could be a useful catalyst to invoke climate claims.

Latin America

Article 4 of the American Convention on Human Rights (ACHR) recognises the right to life under which the right to a healthy environment has been recognized by the Inter-American Court of Human Rights, where it noted the nexus between environmental degradation, climate change and the enjoyment of human rights. Further, Article 11 of the San Salvador Protocol to the ACHR provides the State Parties’ citizens with the right to live in a healthy environment. The other regulatory body under this Convention, the Inter-American Commission on Human Rights (IACHR), has regularly received climate claims grounded on this established right to a healthy environment as follows. A pending petition filed by Haitian children sought redressal for human rights violations, including the guaranteed right to live in a healthy environment under the ACHR and the Protocol. They claimed that the climate crisis has worsened due to the unsanitary waste disposal in the residential district of Cité Soleil, caused by compromised water and sanitation infrastructure that has magnified the adverse environmental conditions and resulted in more cases of waterborne diseases. Another pending climate change hearing urged the States to stop activities that threaten the effective enjoyment of human rights, including the right