Soo Kyung Jung
In July 2022, the United Nations’ General Assembly adopted a historic resolution declaring that the right to a clean, healthy and sustainable environment is a fundamental human right. Despite such a landmark move, Australia still lacks a legislative framework and enforcement regime to implement the right in reality.
The right to a clean, healthy and sustainable environment
The universal recognition of the right to a clean, healthy and sustainable environment arose from a growing interest on the part of some states to address the interconnections between climate change and human rights and to fully implement the UN’s 2030 Agenda for Sustainable Development. Building on the 2021 resolution of the Human Rights Council the UN General Assembly declared the right to a healthy environment a universal right in 2022.
The General Assembly resolution addresses growing environmental injustices, including for those in vulnerable situations such as children, youth, women and indigenous peoples, and facilitates States implementing their human rights and environmental commitments. The resolution reaffirmed that States have the obligation to protect human rights in addressing environmental challenges.
Status of the right to a healthy environment in Australia
Despite the global consensus that the right to a clean, healthy and sustainable environment is fundamental to the enjoyment of human rights, Australia is one of the UN Member States which does not expressly recognise the right to a clean, healthy and sustainable environment domestically. More than 150 countries recognise this right through their ‘constitutions, national laws, judiciaries or ratification of international instruments’.
One of the factors that contribute to Australia’s inaction is the fact that Australia lacks a national bill of rights or legislation at the federal level that would allow for recognition of this right. At the state and territories level, only Queensland, Victoria, and the Australian Capital Territory (ACT) have human rights legislation. The ACT Legislative Assembly passed a motion to include the human right to a healthy environment in the Human Rights Act 2004 and the ACT Government confirmed that in 2023 further progress will be made toward achieving this. While the first steps had been taken in ACT, other states and territories in Australia have not yet acted to establish the independent right to a healthy environment.
Implementing the right to a healthy environment in Australia
Legal recognition of the right to a healthy environment in Australia can be progressed in various ways including via human rights legislation at the national or state and territory level.
However, legal recognition will need to be followed by an effective process to implement the right. This may involve recognition of the standing to bring a case challenging that the right to a healthy environment has been violated.
The UN’s framework principles on human rights and the environment provide that ‘standing should be construed broadly, and States should recognize the standing of Indigenous peoples and other communal landowners to bring claims for violations of their collective rights’. For example, the question of whether NGOs have standing to bring a claim for environmental impacts for the fulfilment of human rights arose in the case of Friends of the Irish Environment CLG v. Fingal County Council, where the Irish High Court found that there was a lack of standing.. Also, there also remains a question as to whether the right can effectively be relied on by the courts. In the case of Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy, the Court upheld the government’s issuing of deep-sea extraction licences despite the right to an environment that is conducive to health recognised by the Norwegian Constitution.
Conclusion
The global movement for advocating the right to a healthy environment has seen unprecedented developments in the past few years. For Australia to adequately reflect the UNGA resolution, a legislative guarantee that makes the protection of the human right to a healthy environment will be integral to addressing human rights issues impacted by the global environmental crisis. Also, compliance with international law should evolve consistently with Indigenous rights and views in the Australian context, given that successful implementation of the right to a healthy environment also depends on being responsive to people in vulnerable situations.
Soo Kyung Jung was an intern with the Australian Journal of Human Rights in Term 2, 2023.