Following this landmark vote, Lawyers Weekly spoke to both the Environmental Defenders Office and Australian Lawyers for Human Rights about the significance of this decision and what it means moving forward.

Nicole Sommer, director of the healthy environment and justice program at the Environmental Defenders Office — which is set to release a report on the human right to a healthy environment in the near future — said that the vote was cause for celebration.

“The human right to a safe, clean and healthy environment simply recognises what we already know — we depend on our natural environment for our wellbeing. The 2021 State of Environment Report released last month demonstrates that human health and wellbeing are intrinsically linked to the environment, with wellbeing indicators being used for the first time,” she told Lawyers Weekly.

“Evidence from decades of experience in other countries that already recognise the right to a healthy environment shows that express recognition of the right to a healthy environment will be a catalyst for a number of important benefits.

“One of the strongest benefits is that recognition of the right contributes to better human rights and wellbeing outcomes through improved environmental performance, including cleaner air, enhanced access to safe drinking water, and reduced greenhouse gas emissions.”

Nations with the right to a healthy environment in their constitutions have smaller ecological footprints, rank higher on comprehensive indices of environmental indicators, are more likely to ratify international environmental agreements and have made faster progress in reducing emissions of sulphur dioxide, nitrogen oxides and greenhouse gases.

“The result is that many millions of people are breathing cleaner air, have gained access to safe drinking water, have reduced their exposure to toxic substances, and are living in healthier ecosystems,” Ms Sommer explained.

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This resolution follows months of mobilisation by civil society organisations and draws on a Human Rights Council resolution that recognised this right in October 2021, accompanied by the appointment of a new UN special rapporteur on human rights and climate change, Australia’s Dr Ian Fry.

Australian Lawyers for Human Rights president Kerry Weste called the decision a “historic victory”, for both Australia and the rest of the world.  

“The UNGA’s adoption of a resolution recognising a standalone human right to a clean, healthy, and sustainable environment is a major international development and an historic victory for the health of all people and our planet. It represents a compelling global consensus that a healthy and sustainable environment is integral to the full enjoyment of almost every other human right currently protected within the core UN Human Rights Treaties,” she said.

“We all deserve to live with security, safety and dignity. It’s time for our governments to recognise that law and policy and legislation are enhanced when human rights are at the centre of decision-making.”

Whilst the UNGA resolution is not legally binding, it will help to shape new international norms around environmental action from governments. At the UN level, Ms Weste explained, the vote provided a foundation for an “obvious next step”; a comprehensive international instrument on the right to a healthy environment and other environmental rights.

“Climate litigation is a growing field of practice and this resolution is a major step towards a human rights-based approach to that litigation. We have seen this before with the 2010 UNGA resolution recognising the right to clean water and sanitation being used in successful litigation,” she said.

“These developments should serve as a catalyst for action in Australia. Our nation’s climate and environmental crisis must be approached from within a human rights framework. Our laws should recognise that a healthy environment is a prerequisite for the enjoyment of all Australians’ fundamental human rights. This is the only way that we can ensure those most vulnerable to the impacts of climate change and environmental degradation are not left behind.”

The next step for Australia, Ms Sommer added, was legal recognition of the resolution — but said there is currently “a big gap in Australian law”.

“Australia does not have a human rights charter or bill of rights. There should be one — this is important to implement our international obligations. 

“Of the three states and territories — Victoria, Queensland and the ACT have Human Rights Act — none of these recognises this human right. The ACT government is the first jurisdiction considering implementing this right in its human rights legislation, with a discussion paper out for consultation at the moment,” she said.

“Governments should act on the impetus of the UNGA resolution, and implement the human right to a healthy environment in domestic legislation at both the national and subnational levels.”

In terms of why this is an important issue for the legal profession, Ms Weste said that “lawyers stand in a unique position” when it comes to advancing the domestic implementation of international human rights obligations.

“Their training and practice give [lawyers] a keen awareness of how the law impacts in our daily lives and everyone’s ability to live with freedom, equality and dignity. As such, the legal community is one of the best placed sectors to champion human rights,” she said.  

“Lawyers should be looking toward strategic environmental litigation options that incorporate references to international standards and norms such as this resolution. We have a significant role to play in both political advocacy toward enhanced policy, legislation and mechanisms for the scrutiny of government decision-making to protect the environment in a way that is consistent with human rights.”

Similarly, Ms Sommer said that “all members of the Australian legal profession have a role to play to ensure that Australian governments take action to recognise the human right to a healthy environment”, particularly in terms of including the human right to a healthy environment in our human rights advocacy.

“Lawyers play a vital role in taking action on climate change and environmental degradation. Given the environmental and climate crisis we face, human rights to the environment are all the more important and should be front of mind for all of us as legal professionals. This human right recognises the fact that the environment is not confined to the practice of environmental law per se, and we can start as legal professionals thinking about human rights and the environment in all fields of legal practice,” she said.

“Further, it is a matter that is relevant to the growing field of business and human rights, and it is an issue that lawyers will be increasingly important in advising public and private clients.

“This is a defining moment for human rights and the environment, and the impetus behind this change is substantial. Now is the time for Australian governments to implement our human right to a safe, clean and healthy environment in law, to protect the health and wellbeing of all Australians.”