Climate change has been on the agenda of the various UN Human Rights mechanisms, namely the Human Rights Council and special procedures, for over a decade. Despite several reports,1 resolutions2 and statements3 recognising climate change as a fundamental issue for human rights, Geneva bodies have long failed to persuade states to reduce carbon emissions, provide climate financing and develop adaptation and mitigation plans compliant with human rights standards and principles.

As businesses are increasingly required to respond to the climate emergency and take steps to transition towards a sustainable future, it would be a mistake to believe that the current crisis makes UN decisions irrelevant to the private sector.

In the past few weeks, UN human rights bodies have issued a number of far-reaching decisions and resolutions on climate change, a healthy environment and human rights. In doing so, they confirm they are increasingly willing to consider the dangers of climate change a matter of human rights. Businesses should seek ways to be ahead of the curve and take a bottom-up and human rights-based approach to adaptation and mitigation, based on participation, equality, non-discrimination and accountability. The private sector cannot sit by and wait for national legislation to dictate their behaviour – they must be proactive in preventing human rights harms caused by climate change.

Human Rights Council: Right to a clean, healthy and sustainable environment

The Human Rights Council recognised on Friday, 8 October for the first time that having a clean, healthy and sustainable environment is a human right. Resolution 48/13 was passed with 43 votes in favour and 4 abstentions – from Russia, India, China and Japan.4 According to World Health Organization, almost a quarter of all global deaths are linked to the environment, due to risks such as air pollution and chemical exposure. NGOs have already heralded the resolution as an important step in the fight against the pollution of the environment. Although a resolution by the Human Rights Council does not give the right to a clean environment the same status under international law as rights enshrined in existing human rights treaties, it confirms that more states increasingly think the right exists. This will increase invocation of such right at national level, and will make it increasingly difficult for states to deny the existence of a right to a clean, healthy and sustainable environment. In fact, the Special Rapporteur for the Environment recommended that the right be officially recognised by the Human Rights Council, because explicit recognition could enable individuals, NGOs and the judiciary to enforce implementation and enforcement of the right.5

Human Rights Council: Special Rapporteur on Human Rights and Climate Change

In resolution A/HRC/48/L.27, adopted by a vote of 42 in favour, 1 against and 4 abstentions, the Council decided to appoint a Special Rapporteur on the promotion and protection of human rights in the context of climate change, whose mandate includes reporting annually to the Human Rights Council. The appointment is an example of the broad recognition among states that there is a link between human rights and climate change.

Groundbreaking reports on this issue have been published by David Boyd and his predecessor John Knox, UN Special Rapporteurs on human rights and the environment. The reports are often cited in climate change litigation, most notably the Dutch Urgenda case. With the appointment of a dedicated rapporteur on this issue, it is likely more such reports, country visits and interventions will follow. A study by the Brookings Institution found in 2011 that the Special Procedures (eg the Special Rapporteurs and Independent Experts) represented one of the most effective tools of the international human rights system, playing a “valuable and, in some cases, decisive role in drawing attention to chronic and emerging human rights issues and in catalysing improvements in respect for human rights on the ground, including direct support to victims.”6

Child Rights Committee: A state can be held responsible for the negative impact of its carbon emissions on the rights of children both in and outside its territory

In proceedings brought by 16 children from 12 countries against Argentina, Brazil, France, Germany and Turkey, the Child Rights Committee determined that these states had effective control over emissions in their territories that in turn could contribute to reasonably foreseeable harm to children outside their territories. It concluded that a sufficient causal link had been established between the harm alleged by the 16 children and the acts or omissions of the five states for the purposes of establishing jurisdiction, and that the children had sufficiently justified that the harm they had personally suffered was significant.

The Committee was ultimately unable to adjudicate the case on the merits, as the complaints procedure requires that petitions are only admissible after the complainants have taken the claim to the national courts and already exhausted legal remedies that may be available and effective in the countries concerned before bringing their complaint to the Committee.

Nevertheless, the Committee’s findings will be a considerable blow to the defence – put forward in climate change litigation around the globe – that there is no sufficient causal link between emissions in one state and harm in other states.

Human Rights Committee: Failure to prevent toxic pollution breaches obligations related to right to home and right to culture (as protected under ICCPR Art. 17 & 27).

In another landmark decision, the UN Human Rights Committee on 13 October found that Paraguay’s failure to prevent and control the toxic contamination of traditional lands, due to the intensive use of pesticides by nearby commercial farms, violates the indigenous community’s rights and sense of “home.”

This is the Committee’s first decision to affirm that, in the case of indigenous people, the notion of “home” should be understood within the context of the special relationship between them and their territories, including their livestock, crops and their way of life such as hunting, foraging and fishing.

Given that the human rights involved are generally considered to be part of the international bill of rights considered relevant for application of the United Nations Guiding Principles on Business and Human Rights, the decision has direct ramifications for business whose activities or activities of business partners affect the way of life of indigenous people.

Why do these decisions matter to businesses?

UN multilateral forums and international cooperation are critical to solving inter-connected global problems such as climate change, providing international solutions and advancing the development of international law. Despite their pitfalls, there is no question that Geneva-based UN Human Rights bodies exert a major influence over global efforts to strengthen human rights protection. International human rights law remains the legal basis against which human rights records are assessed, political positions taken and states and businesses are held to account.

Many of the norms, decisions, and recommendations generated by Geneva-based institutions have a profound influence on policy changes at national level. They help build a political space for domestic actors to press for implementation of state human rights obligations –“translating local problems into human rights terms and human rights concepts into approaches to local problems”7 – and provide them with leverage for doing so. Many regional and national judicial bodies cite the decisions and recommendations of these UN mechanisms as authoritative interpretations of international obligations.

For example, in 2018, following a petition filed by the Organization of the Native Nations of Guiana (ONAG), with the support of international NGOs based in Geneva, the UN Committee on the Elimination of Racial Discrimination (CERD) adopted an “early warning,” asking France to secure the consent of indigenous communities affected by the controversial mining project la montagne d’or (Mountain of Gold).8 A few months after the decision, the French authorities announced they had abandoned the mining project. In this case, the urgent procedure allowed for a rapid deferral of France less than two months after the petition was filed.

Litigators in climate change proceedings are increasingly using human rights arguments and human rights bodies to litigate over climate inaction. One of the first successful examples of such invocation of human rights in respect of climate change was the Dutch Urgenda case, which has recently been followed by similar judgments in Germany, Belgium and France. Most recently, NGOs have also started to bring proceedings against businesses for climate inaction. In these proceedings, human rights arguments are essential: businesses are not bound by the targets of the Paris Agreement, but there is a compelling case to be made that businesses are required to respect human rights under numerous international soft law instruments such as the United Nations Guiding Principles (UNGP) and the OECD Guidelines on Responsible Business Conduct (OECD Guidelines). The recognition of the human right to a healthy and sustainable environment makes it clear that companies have their obligations in respect of sustainability and human rights too.

Companies that want to adhere to the UNGP and the OECD Guidelines must start looking at their greenhouse gas emissions and adverse impacts on the environment from a human rights angle, rather than considering them a mere compliance issue.