Human Rights and the Environment: The UN Human Rights Committee Affirms the Duty to Protect

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Recently, the Human Rights Committee published its views in the case Portillo Cáceres v. Paraguay (currently available only in Spanish). In this landmark decision, the Committee dealt, for the first time, with the question of the States’ duty to protect individuals from environmental degradation under articles 6 (right to life) and 17 (protection of the family) of the International Covenant on Civil and Political Rights (ICCPR). In doing so, the Committee followed the lead of several regional human rights institutions. The decision might help in strengthening the recognition of environmental protection as an element of human rights protection.

A brief summary of the case: The Communication was brought to the Committee against Paraguay by two peasant families who had been poisoned by high amounts of pesticide and insecticides used by neighbouring industrial farms. Whereas legal regulations existed that prohibited this conduct, no significant steps had been taken by the State to enforce the existing laws. As a result of the poisoning, one family member died, the others were hospitalized. Furthermore, the families suffered a loss of fruit trees, the death of various farm animals and severe crop damage. The families claimed that the State had failed in its duty to provide protection inasmuch as it has not exercised due diligence.

Protection of the Environment as a Human Right

Questions regarding the role of environmental protection in the context of human rights protection have recently been brought before several human rights mechanisms. Recently, the Inter-American Court of Human Rights (IACHR) has had the chance to define the role of environmental protection in its system (see this advisory opinion). It has not only found that there is an autonomous right to a healthy environment, but also stated that any right can be affected by environmental harm (paras. 63, 64).

Whereas the approach of the IACHR has been rather broad, the European Court of Human Rights (ECtHR) has been more restrictive (e.g. López Ostra v. Spain, Dubetska and others v. Ukraine and recently Cordella and others v. Italy). It has continuously stated that under the European Convention on Human Rights there is no general right to nature preservation (Fadeyeva v. Russia, para. 68; Dubetska and others v. Ukraine, para. 105), and granted the States a wide margin of appreciation.

By taking up elements of the existing regional jurisdiction and referring to it, the Human Rights Committee has now taken a first step towards finding an international standard for the scope of the States’ duty to protect the environment in order to comply with their human rights obligations.

Protection of Life

In October 2018, the Human Rights Committee adopted General Comment No. 36 on the Right to Life. The purpose of a General Comment is not only to summarise existing jurisprudence of the Committee; it further tries to give a complex interpretation guide even for such cases that have yet to be brought to the Committee. Of course, this then can open up new legal discussions (see on other interesting elements of General Comment No. 36 here).

Concerning the States’ obligations under article 6 ICCPR to protect people from environmental harm, General Comment No. 36 states:

26. The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include […] degradation of the environment […]

62. Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. Obligations of States parties under international environmental law should thus inform the contents of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law. Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors. States parties should therefore ensure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment, provide notification to other States concerned about natural disasters and emergencies and cooperate with them, provide appropriate access to information on environmental hazards and pay due regard to the precautionary approach.

While the Committee referenced the African Court of Human and People’s Rights, as well as various UN Documents here, it did not make reference to any previous findings by the Committee itself. This is due to the fact that until now, there had been no explicit jurisprudence by the Committee concerning the States’ duty to protect the environment, and thus defining the scope of such a duty.

In Portillo Cáceres v. Paraguay, the Committee took up the guidelines of General Comment No. 36, and made reference to the recent developments of regional human rights institutions. The Committee used strong language, stating that international tribunals have found an “undeniable link” between environmental protection and human rights, thus following the approach of the IACHR, and called their practice “established” (paras. 7.3, 7.4).

Having alluded to these international legal documents, the Committee concluded with its own understanding of the State’s duty to protect. Recalling that States are required to take positive action to fulfil their obligation to protect the rights recognized in the Covenant (para. 7.3), the Committee concludes that the State has to take all appropriate measures to protect its people from any threat that is “reasonably foreseeable” (para. 7.5).

In conclusion, the Committee has made use of the existing activities of regional human rights institutions as a basis of this decision. Although the Human Rights Committee primarily refers to the practice of the European Court of Human Rights in the footnotes of this case, its approach seems to be significantly broader. While the ECtHR has continuously emphasised that there is no general right to nature preservation, and has given weight to the States’ margin of appreciation concerning competing interests, the Human Rights Committee does not consider relevant whether the State of Paraguay had a legitimate interest in not intervening, nor has it suggested that environmental harm may only exceptionally trigger a State’s duty to protect.

It has further not only found a violation of the right to life for the case of the deceased Mr. Rubén Portillo Cáceres, but also for the surviving authors of the communication (para. 7.5), thus strengthening its statements in General Comment No. 36 and putting an emphasis on article 6 ICCPR as the right to life with dignity (GC 36, paras. 3, 26).

Protection of the Home and Private and Family Life

In the present case the Committee also found a violation of article 17 ICCPR, referencing explicitly the practice of the ECtHR. This is especially interesting as it seems that in the past, the Committee had not been willing to take up existing regional practice and had avoided answering the question of the role of environmental harm within the scope of article 17 ICCPR (see Poma Poma v. Peru).

However, although in Portillo Cáceres the Committee referenced the ECtHR’s jurisprudence, it did not seem to follow the Court’s view that environmental pollution can only exceptionally trigger a State’s duty to protect. The Committee found a breach of Paraguay’s duty to protect the authors’ private and family life based on only two criteria: That the pollution has a direct impact on an individual’s private and family life, and that the impact is serious (para. 7.8).

Whereas concerning the right to life, the Committee had had some basis for its decision having adopted General Comment No. 36, this part of the decision could not be based on the Committee’s own practice. But also the linkage to the jurisprudence of regional human rights institutions is less clear.

Different from its considerations under the right to life, the Committee did not refer to the Advisory Opinion by the IACHR which found that any right can be affected by environmental harm. It thus seems that the Committee did not want to go this far. At the same time, it did not stress the exceptional nature of a human rights violation in the context of a State’s duty to protect from environmental harm as does the ECtHR.

Given the Committee’s earlier reference to the IACHR, stating that there is generally an undeniable link between the protection of the environment and the realization of human rights (thus not limiting this link to a certain right or group of rights), it will be interesting to see how the Committee will deal with alleged violations of other rights in the context of environmental harm.

The Committee’s Contribution

By building its decision on the practice of several regional human rights institutions, the Committee’s decision in this case has the potential to help strengthen the recognition of environmental protection as an element of human rights protection.

It is striking, however, that the Concluding Observations on Paraguay which were adopted during the same session as this individual communication do not contain any reference either to pollution or to the State’s failure to implement existing protection laws in general, although, as the authors of the communication indicate, the present case is not an isolated one.

Even though the link between environmental protection and human rights is “undeniable”, the scope of the States’ duty is not yet sufficiently clear. As is true for many other human rights issues, the Human Rights Committee should use its global coverage to contribute to a coherent and transparent practice that helps establish clear guidelines for States.

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Riccardo Pavoni says

September 9, 2019

Many thanks for such a timely post! I do agree that the decision is a crucial (so far missing) piece of the 'human rights and the environment' puzzle. I don't believe that the ECtHR case law may be interpreted as saying that environmental harm may only exceptionally constitute a violation of the ECHR. There's no real formal difference between the HR Committee relevant dicta and ECtHR case law on this matter (save the absence of any reference to the States' margin of appreciation/discretion in the HRComm's treatment of the right to private life). The real difference is substantive. Just compare the ECtHR's Cordella judgment of last January, where the Strasbourg Court inexplicably decided to examine the case under the right to private life, rather than the right to life, even though Cordella notoriously involved e.g. cancers and other lethal diseases arising from the ILVA factory's massive pollution in and around the city of Taranto. On the other hand, the issue of the correct approach to reparations remains unsettled in environmental litigation before HRs bodies (see again the striking decision of the ECtHR not to award any moral damages to the successful applicants in Cordella); hopefully, the HR Committee will be able to provide guidance in this area.
Finally, I wholly agree that this decision is very promising as to future applications to further ICCPR rights. Think especially about procedural environmental rights (information, public participation and access to justice) and e.g. Arts 19 and 25 ICCPR.

@MartinScheinin says

September 10, 2019

It is a great case and a great blog post, thank you. That said, I'd like to take issue with the title of the blog post and any other occasions where the notion of "duty to protect" is used in this context. My comment is of conceptual nature.

As the English version of the Committee's Final Views are not yet out, we have to satisfy ourselves with that the Committee refers in Spanish to "la omisión del Estado en su deber de proteger" in para. 7.2 when moving to the merits under ICCPR article 6, but closes its assessment in para. 7.5 with a general finding of a violation of the right to life (article 6).

Recent General Comment No. 36 does use the notion of "the duty to protect life" in the heading of Section III (before paragraph 18) but then uses "the duty to protect the right to life by law" and "obligation for States parties to adopt any appropriate laws or other measures in order to protect life" in the text that follows.

The treaty basis for positive State obligations under the right to life is expressed in the "to respect and to ensure" formula of article 2 (see also General Comment No. 31, in particular its paragraph 8) and in article 6 itself ("This right shall be protected by law.") Under these provisions there is a legally binding positive obligation for the State to provide protection "by law" against action by private or other actors that would endanger human life.

The non-qualified notion of a "duty to protect" may be read as a moral, rather than legal, duty. Due to the paramount place of the right to life in the moral foundations of human rights law, it is not wrong to refer to an underlying moral duty. But it would be wrong to use "duty to protect" as a shorthand expression for the positive State obligations under the right to life. They are legal obligations, not only moral duties.

"Duty to protect" has a very different and established meaning in international law and politics. It refers to one effort towards the moral justification of humanitarian intervention without Security Council authorisation. As the argument is presented as one of moral and political justification, it is correct to use the word "duty" in that context, to make clear that no suggestion is made of a legal obligation.

Does this conceptual exercise matter? I think it does: Norma Portillo Cáceres et al. v. Paraguay is not a case that establishes for States a positive obligation under the right to life in respect of life-threatening environmental harm resulting from action by third (private) parties. It is a case that addresses and clarifies what the proper test is under a well-established legal obligation.