UN Special Rapporteur urges Council of Europe to recognise the right to a healthy environment

The European Court for Human Rights condemned Switzerland for violating the rights of elderly women by not acting sufficiently against the climate crisis. A landmark ruling that could reshape international law. KEYSTONE/© KEYSTONE / JEAN-CHRISTOPHE BOTT

The landmark ruling that condemned Switzerland for climate inaction has had a ripple effect on international law. UN Special Rapporteur on Human Rights and the Environment David R. Boyd speaks to SWI swissinfo.ch on what this means for the UN and on accountability for states.

Is climate protection becoming a new human right? Last week, Switzerland became the first country in the world to be sentenced for climate inaction by an international court. In its judgement, delivered on April 9, the European Court of Human Rights (ECHR) ruled that the country was violating elderly women’s fundamental human rights.

The decision, which is binding, sets a precedent for all European countries and could reshape international environmental law. Since the verdict, over 400 NGOs and research institutes have called to enshrine the right to a clean, healthy and sustainable environment within the European ConventionExternal link on Human Rights, by adopting an additional protocol.

This right has already been recognised by the Human Rights Council and the United Nations General Assembly in 2021 and 2022 respectively. The International Court of Justice, the principal judicial organ of the United Nations, will soon rule on states’ obligations in respect to climate changeExternal link, in an advisory jurisdiction. How will the recent verdict in Strasbourg influence international law?  

SWI swissinfo.ch interviewed Canadian environmental lawyer and activist David R. Boyd, the UN Special Rapporteur on Human Rights and the Environment, via email, while he was travelling on his last diplomatic mission, as his mandate ends on May 1. 

SWI swissinfo.ch: Last week the ECHR condemned Switzerland for violating the rights of elderly women by not implementing sufficient climate policies. How does this ruling clarify the right to a healthy environment? 

David R. Boyd: This is a landmark judgement. It marks the first time that an international court has held a state responsible for violating human rights by failing to take adequate steps to address the climate emergency. This precedent will guide climate lawsuits in Europe and across the world that seek urgent, ambitious and equitable climate action. 

However, because the European human rights system does not recognise the right to a healthy environment, the court did not explicitly address this issue. This is a glaring and problematic omission that should be swiftly rectified by the Council of Europe, for instance by adopting an additional protocol on the matter. There is no excuse for Europe having the only regional human rights system in the world that fails to recognise the right to a healthy environment. All Council of Europe states voted in favour of the UN resolution recognising this right in 2022.

David R. Boyd is the UN Special Rapporteur on Human Rights and the Environment. (c) UN SR Environment

SWI: What does this decision mean for international environmental law and for the United Nations? 

D.R.B: The Achilles heel of international climate law, including the Framework Convention on Climate Change and the Paris Agreement, is a lack of effective accountability mechanisms. States can (and have) consistently failed to meet their climate commitments, but have rarely been held accountable. This is exactly what has happened in Switzerland. 

The European Court’s decision in the Senior Women for Climate Protection case builds on decisions at the national level (e.g. Urgenda in the Netherlands, Neubauer in Germany) that relied on human rights to achieve accountability in the context of inadequate climate action. The decision is a crucial step towards holding states accountable, demonstrating the essential importance of human rights-based approaches to the climate crisis. 

SWI: How can the right to a healthy environment be concretely implemented and regulated internationally? 

D.R.B: The right to a healthy environment should be recognised in law by all states through domestic constitutions and legislation (at present 161 out of 193 UN member states do so). Then measures must be implemented to fulfil the substantive elements of the right to a healthy environment, including: 

• reduce greenhouse gas emissions 

• improve air quality 

• ensure access to safe and sufficient water 

• ensure access to healthy and sustainably produced food 

• reduce and eliminate exposures to toxic substances 

• conserve, protect and restore biodiversity 

Also important are procedural elements of the right to a healthy environment, requiring access to environmental information, public participation in decision-making, access to justice with effective remedies and protection for environmental human rights defenders. These are obligations for states, not options. I have outlined the detailed steps in a series of six reports to the UN on air, water, food, toxics, biodiversity and climate. My successor, Astrid Puentes, will continue to monitor and report on the implementation of these obligations. 

SWI: The ECHR’s ruling sets a precedent for all European countries. Are courts ready to face that many lawsuits? 

D.R.B: The climate emergency is an existential threat to the future of humanity, so these cases are of paramount importance. The number of climate lawsuits has been, and will continue to be, a tiny fraction of the total number of cases adjudicated by courts. It is important to emphasise that if states and businesses fulfilled their human rights and climate/environmental obligations, there would be no more need for climate lawsuits! 

SWI: What if the population through elections rejects stronger environmental regulations? 

D.R.B: The majority of the public everywhere supports action to protect the environment, but governments have done a poor job of designing and implementing climate and environmental policies. A more popular, equitable and effective focus would target the businesses and super wealthy who generate a disproportionate share of greenhouse gas emissions. It is estimated that the richest 1% of people generate the same volume of emissions as the poorest 66%. Genuinely implementing a human rights-based approach to climate and environmental policy would target the rich and protect the poor. For example, ban private jets and yachts, while providing rebates on carbon taxes for low- and middle-income households. 

SWI: Denmark, France and New Zealand have abandoned stronger regulations on fossil fuel explorations due to litigation fears filed by companies. How can we reconcile stronger environmental laws with the economic interests of companies? 

D.R.B: The specific fears in the cases of Denmark, France and New Zealand involved threats of investor-state dispute settlement cases using international arbitration [a closed-door arbitration mechanism between governments and companies]. As I explained in a reportExternal link to the UN General Assembly, this system needs to be eliminated, returning foreign investors to a level playing field with domestic investors in national court systems. Otherwise states will continue to be held to ransom for hundreds of billions of dollars, merely for taking action to address the climate and environmental crisis. The cases of the Netherlands and Germany paying billions of euros to foreign investors because of decisions to phase out coal-fired electricity illustrate the disastrous and perverse nature of this system. Instead of making polluters pay, states are paying polluters! Governments must put human rights, health and the environment ahead of profit and private interests. 

SWI: You are flying off to your last country mission as a Special Rapporteur. After six years on the job, you have seen the UN recognise the right to a healthy environment, but also the climate crisis worsen. What is your view on the current situation? 

D.R.B: I remain optimistic! Society is undergoing profound transformations, such as the transition from fossil fuels to renewable energy. Coal-fired plants are being closed or cancelled in the majority of states. Solar and wind electricity generation are growing exponentially, at speeds that exceed even the most optimistic projections. On my missions to Portugal and Chile I learned about their outstanding renewable energy progress. On my mission to Botswana, I found the government receptive to my proposal for them to become a solar superpower, taking advantage of their immense potential. The structure of cities is evolving to put people ahead of private vehicles after a century of catastrophic car culture. This progress is happening despite the ferocious opposition of powerful private interests, but the transformation is inevitable and will improve our quality of life. 

Edited by Virginie Mangin/ts