Our existence on earth as human beings has, and always will be, dependant on our environment. In India, as discussed in our previous dialogue, the Constitution does not list the “environment” as a subject of concern (as discussed in our previous dialogue). In the international arena, it was only in October of 2021 when the United Nations Human Rights Council (“UNHRC”), the United Nations (“UN”) human rights watchdog body, passed a resolution that recognised the “Right to a clean, healthy and sustainable environment” as a universal right.
In this dialogue, we dive into the UNHRC’s resolution for the right to a healthy environment and what it means for India, and the rest of the world.
UN Resolutions
The UNHRC consists of select UN member nations, elected by the General Assembly (“GA”). Resolutions are authored or “sponsored” by one or several members, and then voted on. Approved resolutions are not binding and hence, members are not legally required to ratify or translate these into domestic laws.[1] Only Security Council resolutions have the potential to be legally binding.[2] For example, in 2015 India voted in favour of the protection of human rights for rural and peasant workers. Following this, however, no implementing action has been taken.
If a UNHRC resolution is adopted, the next procedural step in most cases is for the GA to consider and pass its own resolution. If passed, the text of the resolution could become a multilateral treaty, which can be signed and ratified by the members. Its own domestic laws determine how each country translates these treaties into domestic law. In India, the Parliament has not enacted rules that dictate the procedure for the country entering into treaties or even implementing them. This sort of ambiguity around the world, and the lack of UN follow-up, has resulted in multiple resolutions, including those from the Security Council, remaining unimplemented and hence, ineffective.
Our right to a healthy environment
The recognition of the “Right to a clean, healthy and sustainable environment” is the first formal recognition as a global right. It was noted that this right is paramount to the enjoyment of other human rights and, climate change was acknowledged as the main contributor to environmental disasters. The resolution also encourages members to recognise this right, adopt environmental protection policies and build capacities to support it. The resolution was proposed by Costa Rica, Maldives, Morocco, Slovenia, and Switzerland, all countries that are especially susceptible to climate change. While it has been in the making since the 1990s, it appears that the shock of the COVID-19 pandemic has helped get the resolution to the finish line. Its major criticism is its tardiness because, at the time of passing this resolution, over 80% of the UN members had already recognised this right either through national legislations, policies, or judicial. proclamations.
India’s position
India is one such nation. India’s judiciary has expanded the reach of Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty to every person residing in India, regardless of citizenship.[4] The Supreme Court has liberally interpreted this Article in its Constitution to cover environmental concerns, including, among others, the right to a wholesome environment and enjoyment of pollution-free water and air.[5] [6] [7] [8] This sort of judicial construction has also led to the introduction of international environmental law principles, helped to hold authorities accountable for pollution-abatement measures, and paved the way for the establishment of the National Green Tribunal in 2010, which is a quasi-judicial body that deals exclusively with environmental issues.[9] [10] [11]
The Indian Constitution, however, still falls short by not explicitly referring to environmental rights as a fundamental right. Currently, environmental concerns are decided by both State and Central governments based on the specific issue, which can create inefficiencies and delays. Reliance on judicial interpretations causes even more delays. Constitutional clarity would ensure that economic development decisions are informed by environmental concerns and that our human rights are protected.
Effectiveness of a UN Resolution
With regard to the UNHRC resolution, the next step is to pass through the GA, which would involve more members and have more symbolic power. GA resolutions are known to carry political weight and thereby, influence contemporary international law. Even though it is late in the day, the UNHRC’s resolution is being hailed as a landmark victory. Resolutions are generally effective as having an indirect and long-term impact as they instigate changes in the law or adoption of best practice policies by each member country. They also help to focus the international community’s attention on pressing issues, provoke dialogue and have the potential to be triggers for other UN bodies. In most cases, these resolutions are an assessment of the members’ degree of willingness to discuss an issue and the political commitment to resolve it. Countries who have not adopted this right will feel pressure to do so, while other countries could use this to strengthen their resolve to fight for a cleaner environment. For instance, in 2010 the UN’s recognition of the right to water served as a catalyst for governments to add this right into their own laws.
It is generally acknowledged that due to its complex nature, most international law is weak and unenforceable. This is particularly true for UN resolutions. In any event, this resolution serves as a reminder that the environment is very much linked to human health and our rights extend to having a healthy, clean and sustainable environment.
How does this resolution further India’s environmental protection efforts? Will the GA pass this resolution? If not, will countries use the momentum from this UNHRC resolution to implement changes in their home countries? Will the UN ever be able to change its policies to enable enforcement of its resolutions? Let us know your thoughts below.
References
1 Resolution No. 48/13
[1] A review of the General Assembly’s authority in the United Nations Charter suggests that GA resolutions are merely recommendations and are not legally binding on the member nations
[2] Article 25 of UN Charter
[4] “No person shall be deprived of his life or personal liberty except according to procedure established by law”
[5] Subhash Kumar v State of Bihar AIR 1991 SC 420
[6] Maneka Gandhi v Union of India AIR 1978 SC 597
[7] Charan Lal Sahu & Ors. v Union of India & Ors. (1991) 4 SCC 584
[8] Subhash Kumar v State of Bihar AIR 1991 SC 420
[9] Vellore Citizens Welfare Forum v Union of India & Ors. AIR 1996 SC 2715
[10] Subhash Kumar v State of Bihar AIR 1991 SC 420
[11] MC Mehta vs. Union Of India (1991) AIR SC 813