Original HRC document

PDF

Document Type: Final Report

Date: 2018 Jan

Session: 37th Regular Session (2018 Feb)

Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

GE.18-01090(E)



Human Rights Council Thirty-seventh session

26 February–23 March 2018

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the report of

the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of

a safe, clean, healthy and sustainable environment, John H. Knox, in which he presents

framework principles on human rights and the environment, addresses the human right to a

safe, clean, healthy and sustainable environment and looks ahead to the next steps in the

evolving relationship between human rights and the environment.

United Nations A/HRC/37/59

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment

I. Introduction

1. The present report is the final report of the Special Rapporteur to the Human Rights

Council. It presents framework principles on human rights and the environment, addresses

the human right to a healthy environment and looks forward to the next steps in the

evolving relationship between human rights and the environment.

2. The mandate was established in March 2012 by the Council in its resolution 19/10,

in which it decided to appoint an independent expert with a mandate to study the human

rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable

environment and to identify and promote best practices relating to the use of human rights

obligations and commitments to inform, support and strengthen environmental

policymaking. John H. Knox was appointed to the position in August 2012. In his first

report, presented to the Council in March 2013, he emphasized that human rights and the

environment are interdependent (A/HRC/22/43). A safe, clean, healthy and sustainable

environment is necessary for the full enjoyment of a vast range of human rights, including

the rights to life, health, food, water and development. At the same time, the exercise of

human rights, including the rights to information, participation and remedy, is vital to the

protection of the environment.

3. Over the first two years of the mandate, the Independent Expert sought to map the

human rights obligations relating to the environment in more detail. He held a series of

regional consultations around the world and, with the help of attorneys and academics

working pro bono, reviewed hundreds of statements of treaty bodies, regional human rights

tribunals, special procedure mandate holders and other human rights authorities that had

applied human rights norms to environmental issues. He described the statements in 14

reports, each of which addressed one source or set of sources. He found that despite the

diversity of the sources, their views on the relationship of human rights law and the

environment were remarkably coherent. His second report, presented in March 2014,

summarized these views (A/HRC/25/53). Virtually every source reviewed identified human

rights whose enjoyment was infringed or threatened by environmental harm, and agreed

that States had obligations under human rights law to protect against such harm. The

obligations included procedural obligations (such as duties to provide information, facilitate

participation and provide access to remedies), substantive obligations (including to regulate

private actors) and heightened obligations to those in particularly vulnerable situations.

4. On the basis of his research and regional consultations, the Independent Expert also

identified good practices in the use of these obligations, and in his next report to the

Council, presented in March 2015, he described more than 100 such good practices

(A/HRC/28/61). He published more detailed descriptions of each of the good practices on

the website of the Office of the United Nations High Commissioner for Human Rights

(OHCHR), and made them available in a searchable database at

http://environmentalrightsdatabase.org/.

5. In March 2015, in its resolution 28/11, the Human Rights Council decided to extend

the mandate of John H. Knox as a special rapporteur on the issue of human rights

obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment

for a period of three years. The Council encouraged him to continue to study the human

rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable

environment and to identify and promote good practices relating to those obligations. He

has submitted reports on specific aspects of that relationship, including a report on climate

change and human rights in 2016 (A/HRC/31/52), a report on biodiversity and human

rights in 2017 (A/HRC/34/49), and a report on children’s rights and the environment to the

current session of the Council (A/HRC/37/58).

6. In resolution 28/11, the Council also encouraged the Special Rapporteur to promote

and report on the realization of human rights obligations relating to the enjoyment of a safe,

clean, healthy and sustainable environment, to disseminate his findings by continuing to

give particular emphasis to practical solutions with regard to their implementation and to

work on identifying challenges and obstacles to the full realization of such obligations. The

Special Rapporteur presented a report in March 2016 with specific recommendations on

implementation of the human rights obligations relating to the environment

(A/HRC/31/53). In his second term, he has promoted implementation of the obligations in

many ways, including by partnering with the United Nations Environment Programme on a

series of judicial workshops on constitutional rights to a healthy environment, supporting

the United Nations Institute for Training and Research in the development of an online

course on human rights and the environment and working with the Universal Rights Group

to develop a website for environmental human rights defenders, https://www.environment-

rights.org/, as well as by undertaking country visits and receiving communications on

violations.

II. Framework principles on human rights and the environment

7. To facilitate implementation of the human rights obligations relating to the

enjoyment of a safe, clean, healthy and sustainable environment, the Special Rapporteur

was urged to develop and disseminate guidance that clearly describes the relevant norms

and is easy to understand and apply (see A/HRC/31/53, para. 69). In October 2017, the

Special Rapporteur published draft guidelines on human rights and the environment and

invited written comments. He also held a public consultation and an expert seminar, which

included representatives of Governments, international organizations, civil society

organizations and academics. He took into account the input received at the consultation

and the seminar, as well as more than 50 written comments, in preparing the framework

principles on human rights and the environment that are annexed to the present report.

8. The 16 framework principles set out basic obligations of States under human rights

law as they relate to the enjoyment of a safe, clean, healthy and sustainable environment.

Each framework principle has a commentary that elaborates on it and further clarifies its

meaning. The framework principles and commentary do not create new obligations. Rather,

they reflect the application of existing human rights obligations in the environmental

context. As the Special Rapporteur stated in the mapping report (A/HRC/25/53), he

understands that not all States have formally accepted all of these norms. While many of

the obligations described in the framework principles and commentary are based directly on

treaties or binding decisions from human rights tribunals, others draw on statements of

human rights bodies that have the authority to interpret human rights law but not

necessarily to issue binding decisions.1

9. The coherence of these interpretations, however, is strong evidence of the

converging trends towards greater uniformity and certainty in the understanding of human

rights obligations relating to the environment. These trends are further supported by State

practice, including in international environmental instruments and before human rights

bodies. As a result, the Special Rapporteur believes that States should accept the framework

principles as a reflection of actual or emerging international human rights law. He is

confident that, at a bare minimum, States will see them as best practices that they should

move to adopt as expeditiously as possible.

1 To avoid making the document too long and unwieldy, the framework principles and commentary do

not cite all of the human rights sources on which they rely. A more complete list of sources is

available on the OHCHR website. Although the framework principles and commentary do not attempt

to restate obligations in areas other than human rights law, they do take into account relevant

international environmental sources, such as the Guidelines for the Development of National

Legislation on Access to Information, Public Participation and Access to Justice in Environmental

Matters (the Bali Guidelines), adopted by the Governing Council of the United Nations Environment

Programme in 2010.

10. After consideration, the Special Rapporteur chose the name “framework principles”

because he thought that it best reflected the nature of the document. The framework

principles and commentary provide a sturdy basis for understanding and implementing

human rights obligations relating to the environment, but they are in no sense the final

word. The relationship between human rights and the environment has countless facets, and

our understanding of it will continue to grow for many years to come. These framework

principles do not purport to describe all of the human rights obligations that can be brought

to bear on environmental issues today, much less attempt to predict those that may evolve

in the future. The goal is simply to describe the main human rights obligations that apply in

the environmental context, in order to facilitate their practical implementation and further

development. To that end, the Special Rapporteur urges States, international organizations

and civil society organizations to disseminate and publicize the framework principles, and

to take them into account in their own activities.

III. The human right to a safe, clean, healthy and sustainable environment

11. An unusual aspect of the development of human rights norms relating to the

environment is that they have not relied primarily on the explicit recognition of a human

right to a safe, clean, healthy and sustainable environment — or, more simply, a human

right to a healthy environment. Although this right has been recognized, in various forms,

in regional agreements and in most national constitutions, it has not been adopted in a

human rights agreement of global application, and only one regional agreement, the African

Charter on Human and Peoples’ Rights, provides for its interpretation in decisions by a

review body.

12. Treaty bodies, regional tribunals, special rapporteurs and other international human

rights bodies have instead applied human rights law to environmental issues by “greening”

existing human rights, including the rights to life and health. As the mapping report

explained and the framework principles demonstrate, this process has been quite successful,

creating an extensive jurisprudence on human rights and the environment. In retrospect, this

development is not as surprising as it may have seemed when it first began, over two

decades ago. Environmental harm interferes with the full enjoyment of a wide spectrum of

human rights, and the obligations of States to respect human rights, to protect human rights

from interference and to fulfil human rights apply in the environmental context no less than

in any other.

13. Explicit recognition of the human right to a healthy environment thus turned out to

be unnecessary for the application of human rights norms to environmental issues. At the

same time, it is significant that the great majority of the countries in the world have

recognized the right at the national or regional level, or both. Based on the experience of

the countries that have adopted constitutional rights to a healthy environment, recognition

of the right has proved to have real advantages. It has raised the profile and importance of

environmental protection and provided a basis for the enactment of stronger environmental

laws. When applied by the judiciary, it has helped to provide a safety net to protect against

gaps in statutory laws and created opportunities for better access to justice. Courts in many

countries are increasingly applying the right, as is illustrated by the interest in the regional

judicial workshops held by the United Nations Environment Programme and the Special

Rapporteur.

14. On the basis of this experience, the Special Rapporteur recommends that the Human

Rights Council consider supporting the recognition of the right in a global instrument. A

model could be the rights to water and sanitation, which, like the right to a healthy

environment, are not explicitly recognized in United Nations human rights treaties but are

clearly necessary to the full enjoyment of human rights. In 2010, in its resolution 64/292,

the General Assembly recognized “the right to safe and clean drinking water and sanitation

as a human right that is essential for the full enjoyment of life and all human rights”. The

General Assembly could adopt a similar resolution that recognizes the right to a safe, clean,

healthy and sustainable environment, another right that is essential for the full enjoyment of

life and all human rights.2

15. States may be understandably reluctant to recognize a “new” human right if its

content is uncertain. To be sure that a right will be taken seriously, it is important to be

clear about its implications. The Special Rapporteur notes that one of the primary goals of

his work on the mandate has been to clarify what human rights law requires with respect to

environmental protection, including through the mapping project and these framework

principles. As a result, the “human right to a healthy environment” is not an empty vessel

waiting to be filled; on the contrary, its content has already been clarified, through

recognition by human rights authorities that a safe, clean, healthy and sustainable

environment is necessary for the full enjoyment of the human rights to life, health, food,

water, housing and so forth. Here, too, the right is similar to the rights to water and

sanitation, whose content had been addressed in detail by the Committee on Economic,

Social and Cultural Rights and Catarina de Albuquerque, the first Independent Expert on

the issue of human rights obligations related to access to safe drinking water and sanitation,

before the General Assembly acted in 2010.

16. Even without formal recognition, the term “the human right to a healthy

environment” is already being used to refer to the environmental aspects of the entire range

of human rights that depend on a safe, clean, healthy and sustainable environment. The use

of the term in this way — and, for that matter, the adoption of a resolution recognizing the

right — does not change the legal content of obligations that are based on existing human

rights law. Nevertheless, it has real advantages. It raises awareness that human rights norms

require protection of the environment and highlights that environmental protection is on the

same level of importance as other human interests that are fundamental to human dignity,

equality and freedom. It also helps to ensure that human rights norms relating to the

environment continue to develop in a coherent and integrated manner. Recognition of the

right in a General Assembly resolution would further strengthen all of these benefits.

IV. Looking forward

17. Although the relationship of human rights and the environment has evolved rapidly

over the past two decades, and even more so over the past five years, much remains to be

done to clarify and implement the human rights obligations relating to a safe, clean, healthy

and sustainable environment. The Special Rapporteur encourages the Human Rights

Council to continue to be actively involved in the development of this relationship,

including by renewing the mandate.

18. For example, more work is necessary to clarify how human rights norms relating to

the environment apply to specific areas, including issues of gender and other types of

discrimination, the responsibilities of businesses in relation to human rights and the

environment, the effects of armed conflict on human rights and the environment, and

obligations of international cooperation in relation to multinational corporations and

transboundary harm.

19. More work, too, can be done to institutionalize support for capacity-building,

including by instituting an annual forum on human rights and environmental issues; holding

conferences for national human rights institutions on environmental matters; continuing to

hold judicial workshops on human rights and the environment; instituting similar

workshops for officials at environmental, mining and other agencies; strengthening

2 A resolution by the General Assembly is not the only possible instrument through which a right to a

healthy environment could be formally recognized. The Special Rapporteur notes that at the seventy-

second session of the General Assembly, the Government of France presented for consideration a

Global Pact for the Environment, article 1 of which indicates that “Every person has the right to live

in an ecologically sound environment adequate for their health, well-being, dignity, culture and

fulfilment”. However, a resolution may be adopted more quickly and easily than an international

agreement.

accountability mechanisms for human rights violations in connection with conservation

activities; and mainstreaming human rights into the work of international institutions

working on development and environmental issues. In this last respect, the Special

Rapporteur applauds the recent announcement by the United Nations Environment

Programme of a new “environmental rights initiative”, designed in part to support

environmental human rights defenders. He encourages OHCHR and the United Nations

Environment Programme to continue to build on their partnership.

20. As Victor Hugo famously said, it is impossible to resist an idea whose time has

come. The interdependence of human rights and the environment is an idea whose time is

here. Over the past five years, the Special Rapporteur has made over 50 trips, to

approximately 25 countries. Everywhere he has gone, he has met people who are bringing

human rights to bear on environmental threats, often at great personal risk. From attorneys

in Mexico to park rangers in Mongolia, from professors in China to community activists in

Madagascar, from a mother who founded an environmental organization in Kenya to

conservationists in Sweden to judges in Costa Rica, from indigenous leaders in Brazil to

climate negotiators in Paris to international civil servants in Geneva and Nairobi, people in

every country are striving for a world in which everyone can enjoy the human rights that

depend upon a safe, clean, healthy and sustainable environment. It has been a great honour

to support them in their efforts.

Annex

Framework principles on human rights and the environment

1. Human beings are part of nature, and our human rights are intertwined with the

environment in which we live. Environmental harm interferes with the enjoyment of human

rights, and the exercise of human rights helps to protect the environment and to promote

sustainable development.

2. The framework principles on human rights and the environment summarize the main

human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable

environment. They provide integrated and detailed guidance for practical implementation of

these obligations, and a basis for their further development as our understanding of the

relationship of human rights and the environment continues to evolve.

3. The framework principles are not exhaustive: many national and international norms

are relevant to human rights and environmental protection, and nothing in the framework

principles should be interpreted as limiting or undermining standards that provide higher

levels of protection under national or international law.

Framework principle 1

States should ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfil human rights.

Framework principle 2

States should respect, protect and fulfil human rights in order to ensure a safe, clean, healthy and sustainable environment.

Commentary on framework principles 1 and 2

4. Human rights and environmental protection are interdependent. A safe, clean,

healthy and sustainable environment is necessary for the full enjoyment of human rights,

including the rights to life, to the highest attainable standard of physical and mental health,

to an adequate standard of living, to adequate food, to safe drinking water and sanitation, to

housing, to participation in cultural life and to development, as well as the right to a healthy

environment itself, which is recognized in regional agreements and most national

constitutions.1 At the same time, the exercise of human rights, including rights to freedom

of expression and association, to education and information, and to participation and

effective remedies, is vital to the protection of the environment.

5. The obligations of States to respect human rights, to protect the enjoyment of human

rights from harmful interference,2 and to fulfil human rights by working towards their full

realization3 all apply in the environmental context. States should therefore refrain from

violating human rights through causing or allowing environmental harm; protect against

harmful environmental interference from other sources, including business enterprises,

1 See Convention on Access to Information, Public Participation in Decision-Making and Access to

Justice in Environmental Matters, art. 1; African Charter on Human and Peoples’ Rights, art. 24;

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social

and Cultural Rights, art. 11; Arab Charter on Human Rights, art. 38; and ASEAN Human Rights

Declaration, art. 28. More than 100 States have recognized the right at the national level.

2 See, for example, Human Rights Committee, general comment No. 6 (1982) on the right to life, para.

5.

3 See, for example, Committee on Economic, Social and Cultural Rights, general comment No. 14

(2000) on the right to the highest attainable standard of health, para. 33.

other private actors and natural causes; and take effective steps to ensure the conservation

and sustainable use of the ecosystems and biological diversity on which the full enjoyment

of human rights depends. While it may not always be possible to prevent all environmental

harm that interferes with the full enjoyment of human rights, States should undertake due

diligence to prevent such harm and reduce it to the extent possible, and provide for

remedies for any remaining harm.

6. At the same time, States must fully comply with their obligations in respect of

human rights, such as freedom of expression, that are exercised in relation to the

environment. Such obligations not only have independent bases in human rights law; they

are also required in order to respect, protect and fulfil the human rights whose enjoyment

depends on a safe, clean, healthy and sustainable environment.

Framework principle 3

States should prohibit discrimination and ensure equal and effective protection against discrimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment.

Commentary

7. The obligations of States to prohibit discrimination and to ensure equal and effective

protection against discrimination4 apply to the equal enjoyment of human rights relating to

a safe, clean, healthy and sustainable environment. States therefore have obligations, among

others, to protect against environmental harm that results from or contributes to

discrimination, to provide for equal access to environmental benefits and to ensure that

their actions relating to the environment do not themselves discriminate.

8. Discrimination may be direct, when someone is treated less favourably than another

person in a similar situation for a reason related to a prohibited ground, or indirect, when

facially neutral laws, policies or practices have a disproportionate impact on the exercise of

human rights as distinguished by prohibited grounds of discrimination. 5 In the

environmental context, direct discrimination may include, for example, failing to ensure

that members of disfavoured groups have the same access as others to information about

environmental matters, to participation in environmental decision-making, or to remedies

for environmental harm (framework principles 7, 9 and 10). In the case of transboundary

environmental harm, States should provide for equal access to information, participation

and remedies without discriminating on the basis of nationality or domicile.

9. Indirect discrimination may arise, for example, when measures that adversely affect

ecosystems, such as mining and logging concessions, have disproportionately severe effects

on communities that rely on the ecosystems. Indirect discrimination can also include

measures such as authorizing toxic and hazardous facilities in large numbers in

communities that are predominantly composed of racial or other minorities, thereby

disproportionately interfering with their rights, including their rights to life, health, food

and water. Like directly discriminatory measures, such indirect differential treatment is

4 For example, International Covenant on Civil and Political Rights, arts. 2 (1) and 26; International

Covenant on Economic, Social and Cultural Rights, art. 2 (2); International Convention on the

Elimination of All Forms of Racial Discrimination, arts. 2 and 5; Convention on the Elimination of

All Forms of Discrimination against Women, art. 2; Convention on the Rights of the Child, art. 2;

Convention on the Rights of Persons with Disabilities, art. 5. The term “discrimination” here refers to

any distinction, exclusion, restriction or preference which is based on any ground such as race, colour,

sex, language, religion, political or other opinion, national or social origin, property, birth or other

status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or

exercise by all persons, on an equal footing, of all rights and freedoms. Human Rights Committee,

general comment No. 18 (1989) on non-discrimination, para. 7.

5 See Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on non-

discrimination in economic, social and cultural rights, para. 10.

prohibited unless it meets strict requirements of legitimacy, necessity and proportionality.6

More generally, to address indirect as well as direct discrimination, States must pay

attention to historical or persistent prejudice against groups of individuals, recognize that

environmental harm can both result from and reinforce existing patterns of discrimination,

and take effective measures against the underlying conditions that cause or help to

perpetuate discrimination. 7 In addition to complying with their obligations of non-

discrimination, States should take additional measures to protect those who are most

vulnerable to, or at particular risk from, environmental harm (framework principles 14 and

15).

Framework principle 4

States should provide a safe and enabling environment in which individuals, groups and organs of society that work on human rights or environmental issues can operate free from threats, harassment, intimidation and violence.

Commentary

10. Human rights defenders include individuals and groups who strive to protect and

promote human rights relating to the environment (see A/71/281, para. 7). Those who work

to protect the environment on which the enjoyment of human rights depends are protecting

and promoting human rights as well, whether or not they self-identify as human rights

defenders. They are among the human rights defenders most at risk, and the risks are

particularly acute for indigenous peoples and traditional communities that depend on the

natural environment for their subsistence and culture.

11. Like other human rights defenders, environmental human rights defenders are

entitled to all of the rights and protections set out in the Declaration on the Right and

Responsibility of Individuals, Groups and Organs of Society to Promote and Protect

Universally Recognized Human Rights and Fundamental Freedoms (Declaration on Human

Rights Defenders), including the right to be protected in their work and the right to strive

for the protection and realization of human rights at the national and international levels. To

that end, States must provide a safe and enabling environment for defenders to operate free

from threats, harassment, intimidation and violence. The requirements for such an

environment include that States: adopt and implement laws that protect human rights

defenders in accordance with international human rights standards;8 publicly recognize the

contributions of human rights defenders to society and ensure that their work is not

criminalized or stigmatized; develop, in consultation with human rights defenders, effective

programmes for protection and early warning; provide appropriate training for security and

law enforcement officials; ensure the prompt and impartial investigation of threats and

violations and the prosecution of alleged perpetrators; and provide for effective remedies

for violations, including appropriate compensation (see A/71/281, A/66/203 and

A/HRC/25/55, paras. 54–133).

6 Ibid., para. 13.

7 Ibid., para. 8.

8 See Model Law for the Recognition and Protection of Human Rights Defenders, at

www.ishr.ch/sites/default/files/documents/model_law_full_digital_updated_15june2016.pdf.

Framework principle 5

States should respect and protect the rights to freedom of expression, association and peaceful assembly in relation to environmental matters.

Commentary

12. The obligations of States to respect and protect the rights to freedom of expression,

association and peaceful assembly9 encompass the exercise of those rights in relation to

environmental matters. States must ensure that these rights are protected whether they are

being exercised within structured decision-making procedures or in other forums, such as

the news or social media, and whether or not they are being exercised in opposition to

policies or projects favoured by the State.

13. Restrictions on the exercise of these rights are permitted only if they are provided by

law and necessary in a democratic society to protect the rights of others, or to protect

national security, public order, or public health or morals. These restrictions must be

narrowly tailored to avoid undermining the rights. For example, blanket prohibitions on

protests surrounding the operations of mining, forestry or other resource extraction

companies are unjustifiable (see A/HRC/29/25, para. 22). States may never respond to the

exercise of these rights with excessive or indiscriminate use of force, arbitrary arrest or

detention, torture or other cruel, inhuman or degrading treatment or punishment, enforced

disappearance, the misuse of criminal laws, stigmatization or the threats of such acts. States

should never hinder the access of individuals or associations to international bodies, or their

right to seek, receive and use resources from foreign as well as domestic sources.10 When

violence occurs in an otherwise peaceful assembly or protest, States have a duty to

distinguish between peaceful and non-peaceful demonstrators, take measures to de-escalate

tensions and hold the violent individuals — not the organizers — to account for their

actions. The potential for violence is not an excuse to interfere with or disperse otherwise

peaceful assemblies (see A/HRC/29/25, para. 41).

14. States must also protect the exercise of these rights from interference by businesses

and other private actors. States must ensure that civil laws relating to defamation and libel

are not misused to repress the exercise of these rights. States should protect against the

repression of legitimate advocacy by private security enterprises, and States may not cede

their own law enforcement responsibilities to such enterprises or other private actors.

Framework principle 6

States should provide for education and public awareness on environmental matters.

Commentary

15. States have agreed that the education of the child shall be directed to, among other

things, the development of respect for human rights and the natural environment. 11

Environmental education should begin early and continue throughout the educational

process. It should increase students’ understanding of the close relationship between

humans and nature, help them to appreciate and enjoy the natural world and strengthen their

capacity to respond to environmental challenges.

16. Increasing the public awareness of environmental matters should continue into

adulthood. To ensure that adults as well as children understand environmental effects on

their health and well-being, States should make the public aware of the specific

environmental risks that affect them and how they may protect themselves from those risks.

9 See Universal Declaration of Human Rights, arts. 19–20; International Covenant on Civil and

Political Rights, arts. 19 and 21–22.

10 See Declaration on Human Rights Defenders, arts. 9 (4) and 13.

11 See Convention on the Rights of the Child, art. 29.

As part of increasing public awareness, States should build the capacity of the public to

understand environmental challenges and policies, so that they may fully exercise their

rights to express their views on environmental issues (framework principle 5), understand

environmental information, including assessments of environmental impacts (framework

principles 7 and 8), participate in decision-making (framework principle 9) and, where

appropriate, seek remedies for violations of their rights (framework principle 10). States

should tailor environmental education and public awareness programmes to the culture,

language and environmental situation of particular populations.

Framework principle 7

States should provide public access to environmental information by collecting and disseminating information and by providing affordable, effective and timely access to information to any person upon request.

Commentary

17. The human right of all persons to seek, receive and impart information12 includes

information on environmental matters. Public access to environmental information enables

individuals to understand how environmental harm may undermine their rights, including

the rights to life and health, and supports their exercise of other rights, including the rights

to expression, association, participation and remedy.

18. Access to environmental information has two dimensions. First, States should

regularly collect, update and disseminate environmental information, including information

about: the quality of the environment, including air and water; pollution, waste, chemicals

and other potentially harmful substances introduced into the environment; threatened and

actual environmental impacts on human health and well-being; and relevant laws and

policies. In particular, in situations involving imminent threat of harm to human health or

the environment, States must ensure that all information that would enable the public to

take protective measures is disseminated immediately to all affected persons, regardless of

whether the threats have natural or human causes.

19. Second, States should provide affordable, effective and timely access to

environmental information held by public authorities, upon the request of any person or

association, without the need to show a legal or other interest. Grounds for refusal of a

request should be set out clearly and construed narrowly, in light of the public interest in

favour of disclosure. States should also provide guidance to the public on how to obtain

environmental information.

Framework principle 8

To avoid undertaking or authorizing actions with environmental impacts that interfere with the full enjoyment of human rights, States should require the prior assessment of the possible environmental impacts of proposed projects and policies, including their potential effects on the enjoyment of human rights.

Commentary

20. Prior assessment of the possible environmental impacts of proposed projects and

policies is generally required by national laws, and the elements of effective environmental

assessment are widely understood: the assessment should be undertaken as early as possible

in the decision-making process for any proposal that is likely to have significant effects on

the environment; the assessment should provide meaningful opportunities for the public to

participate, should consider alternatives to the proposal, and should address all potential

12 See Universal Declaration of Human Rights, art. 19; International Covenant on Civil and Political

Rights, art. 19.

environmental impacts, including transboundary effects and cumulative effects that may

occur as a result of the interaction of the proposal with other activities; the assessment

should result in a written report that clearly describes the impacts; and the assessment and

the final decision should be subject to review by an independent body. The procedure

should also provide for monitoring of the proposal as implemented, to assess its actual

impacts and the effectiveness of protective measures.13

21. To protect against interference with the full enjoyment of human rights, the

assessment of environmental impacts should also examine the possible effects of the

environmental impacts of proposed projects and policies on the enjoyment of all relevant

rights, including the rights to life, health, food, water, housing and culture. As part of that

assessment, the procedure should examine whether the proposal will comply with

obligations of non-discrimination (framework principle 3), applicable domestic laws and

international agreements (framework principles 11 and 13) and the obligations owed to

those who are particularly vulnerable to environmental harm (framework principles 14 and

15). The assessment procedure itself must comply with human rights obligations, including

by providing public information about the assessment and making the assessment and the

final decision publicly available (framework principle 7), facilitating public participation by

those who may be affected by the proposed action (framework principle 9), and providing

for effective legal remedies (framework principle 10).

22. Business enterprises should conduct human rights impact assessments in accordance

with the Guiding Principles on Business and Human Rights, which provide that businesses

“should identify and assess any actual or potential adverse human rights impacts with

which they may be involved either through their own activities or as a result of their

business relationships”, include “meaningful consultation with potentially affected groups

and other relevant stakeholders”, “integrate the findings from their impact assessments

across relevant internal functions and processes, and take appropriate action” (see Guiding

Principles 18–19).

Framework principle 9

States should provide for and facilitate public participation in decision- making related to the environment, and take the views of the public into account in the decision-making process.

Commentary

23. The right of everyone to take part in the government of their country and in the

conduct of public affairs 14 includes participation in decision-making related to the

environment. Such decision-making includes the development of policies, laws,

regulations, projects and activities. Ensuring that these environmental decisions take into

account the views of those who are affected by them increases public support, promotes

sustainable development and helps to protect the enjoyment of rights that depend on a safe,

clean, healthy and sustainable environment.

24. To be effective, public participation must be open to all members of the public who

may be affected and occur early in the decision-making process. States should provide for

the prior assessment of the impacts of proposals that may significantly affect the

environment, and ensure that all relevant information about the proposal and the decision-

making process is made available to the affected public in an objective, understandable,

timely and effective manner (see framework principles 7 and 8).

25. With respect to the development of policies, laws and regulations, drafts should be

publicly available and the public should be given opportunities to comment directly or

13 United Nations Environment Programme, Environmental Impact Assessment and Strategic

Environmental Assessment: Towards an Integrated Approach (2004), p. 42.

14 See Universal Declaration of Human Rights, art. 21; International Covenant on Civil and Political

Rights, art. 25.

through representative bodies. With respect to proposals for specific projects or activities,

States should inform the affected public of their opportunities to participate at an early

stage of the decision-making process and provide them with relevant information, including

information about: the proposed project or activity and its possible impacts on human rights

and the environment; the range of possible decisions; and the decision-making procedure to

be followed, including the time schedule for comments and questions and the time and

place of any public hearings.

26. States must provide members of the public with an adequate opportunity to express

their views, and take additional steps to facilitate the participation of women and of

members of marginalized communities (framework principle 14). States must ensure that

the relevant authorities take into account the expressed views of the public in making their

final decisions, that they explain the justifications for the decisions and that the decisions

and explanations are made public.

Framework principle 10

States should provide for access to effective remedies for violations of human rights and domestic laws relating to the environment.

Commentary

27. The obligations of States to provide for access to judicial and other procedures for

effective remedies for violations of human rights15 encompass remedies for violations of

human rights relating to the environment. States must therefore provide for effective

remedies for violations of the obligations set out in these framework principles, including

those relating to the rights of freedom of expression, association and peaceful assembly

(framework principle 5), access to environmental information (framework principle 7) and

public participation in environmental decision-making (framework principle 9).

28. In addition, in connection with the obligations to establish, maintain and enforce

substantive environmental standards (framework principles 11 and 12), each State should

ensure that individuals have access to effective remedies against private actors, as well as

government authorities, for failures to comply with the laws of the State relating to the

environment.

29. To provide for effective remedies, States should ensure that individuals have access

to judicial and administrative procedures that meet basic requirements, including that the

procedures: (a) are impartial, independent, affordable, transparent and fair; (b) review

claims in a timely manner; (c) have the necessary expertise and resources; (d) incorporate a

right of appeal to a higher body; and (e) issue binding decisions, including for interim

measures, compensation, restitution and reparation, as necessary to provide effective

remedies for violations. The procedures should be available for claims of imminent and

foreseeable as well as past and current violations. States should ensure that decisions are

made public and that they are promptly and effectively enforced.

30. States should provide guidance to the public about how to seek access to these

procedures, and should help to overcome obstacles to access such as language, illiteracy,

expense and distance. 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. All those pursuing remedies must be protected against

reprisals, including threats and violence. States should protect against baseless lawsuits

aimed at intimidating victims and discouraging them from pursuing remedies.

15 See, for example, Universal Declaration of Human Rights, art. 8; International Covenant on Civil and

Political Rights, art. 2 (3).

Framework principle 11

States should establish and maintain substantive environmental standards that are non-discriminatory, non-retrogressive and otherwise respect, protect and fulfil human rights.

Commentary

31. To protect against environmental harm and to take necessary measures for the full

realization of human rights that depend on the environment, States must establish, maintain

and enforce effective legal and institutional frameworks for the enjoyment of a safe, clean,

healthy and sustainable environment. Such frameworks should include substantive

environmental standards, including with respect to air quality, the global climate,

freshwater quality, marine pollution, waste, toxic substances, protected areas, conservation

and biological diversity.

32. Ideally, environmental standards would be set and implemented at levels that would

prevent all environmental harm from human sources and ensure a safe, clean, healthy and

sustainable environment. However, limited resources may prevent the immediate

realization of the rights to health, food, water and other economic, social and cultural rights.

The obligation of States to achieve progressively the full realization of these rights by all

appropriate means 16 requires States to take deliberate, concrete and targeted measures

towards that goal, but States have some discretion in deciding which means are appropriate

in light of available resources.17 Similarly, human rights bodies applying civil and political

rights, such as the rights to life and to private and family life, have held that States have

some discretion to determine appropriate levels of environmental protection, taking into

account the need to balance the goal of preventing all environmental harm with other social

goals.18

33. This discretion is not unlimited. One constraint is that decisions as to the

establishment and implementation of appropriate levels of environmental protection must

always comply with obligations of non-discrimination (framework principle 3). Another

constraint is the strong presumption against retrogressive measures in relation to the

progressive realization of economic, social and cultural rights.19 Other factors that should

be taken into account in assessing whether environmental standards otherwise respect,

promote and fulfil human rights include the following:

(a) The standards should result from a procedure that itself complies with human

rights obligations, including those relating to the rights of freedom of expression, freedom

of association and peaceful assembly, information, participation and remedy (framework

principles 4–10);

(b) The standard should take into account and, to the extent possible, be

consistent with all relevant international environmental, health and safety standards, such as

those promulgated by the World Health Organization;

(c) The standard should take into account the best available science. However,

the lack of full scientific certainty should not be used to justify postponing effective and

proportionate measures to prevent environmental harm, especially when there are threats of

serious or irreversible damage. 20 States should take precautionary measures to protect

against such harm;

16 See International Covenant on Economic, Social and Cultural Rights, art. 2 (1).

17 See Committee on Economic, Social and Cultural Rights, general comment No. 3 (1990) on the

nature of States parties’ obligations.

18 See, for example, European Court of Human Rights, Hatton and others v. United Kingdom (application No. 36022/97), judgment of 8 July 2003, para. 98. See also Rio Declaration on

Environment and Development, principle 11.

19 See Committee on Economic, Social and Cultural Rights, general comment No. 3, para. 9.

20 See Rio Declaration on Environment and Development, principle 15.

(d) The standard must comply with all relevant human rights obligations. For

example, in all actions concerning children, the best interests of the child must be a primary

consideration;21

(e) Finally, the standard must not strike an unjustifiable or unreasonable balance

between environmental protection and other social goals, in light of its effects on the full

enjoyment of human rights.22

Framework principle 12

States should ensure the effective enforcement of their environmental standards against public and private actors.

Commentary

34. Governmental authorities must comply with the relevant environmental standards in

their own operations, and they must also monitor and effectively enforce compliance with

the standards by preventing, investigating, punishing and redressing violations of the

standards by private actors as well as governmental authorities. In particular, States must

regulate business enterprises to protect against human rights abuses resulting from

environmental harm and to provide for remedies for such abuses. States should implement

training programmes for law enforcement and judicial officers to enable them to understand

and enforce environmental laws, and they should take effective steps to prevent corruption

from undermining the implementation and enforcement of environmental laws.

35. In accordance with the Guiding Principles on Business and Human Rights, the

responsibility of business enterprises to respect human rights includes the responsibility to

avoid causing or contributing to adverse human rights impacts through environmental

harm, to address such impacts when they occur and to seek to prevent or mitigate adverse

human rights impacts that are directly linked to their operations, products or services by

their business relationships. Businesses should comply with all applicable environmental

laws, issue clear policy commitments to meet their responsibility to respect human rights

through environmental protection, implement human rights due diligence processes

(including human rights impact assessments) to identify, prevent, mitigate and account for

how they address their environmental impacts on human rights, and enable the remediation

of any adverse environmental human rights impacts they cause or to which they contribute.

Framework principle 13

States should cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights.

Commentary

36. The obligation of States to cooperate to achieve universal respect for, and

observance of, human rights23 requires States to work together to address transboundary and

global threats to human rights. Transboundary and global environmental harm can have

severe effects on the full enjoyment of human rights, and international cooperation is

21 See Convention on the Rights of the Child, art. 3 (1).

22 For example, a decision to allow massive oil pollution in the pursuit of economic development could

not be considered reasonable in light of its disastrous effects on the enjoyment of the rights to life,

health, food and water. See African Commission on Human and Peoples’ Rights, Social and

Economic Rights Action Centre and Centre for Economic and Social Rights v. Nigeria,

communication No. 155/96 (2001).

23 See Charter of the United Nations, arts. 55–56; International Covenant on Economic, Social and

Cultural Rights, art. 2 (1).

necessary to address such harm. States have entered into agreements on many international

environmental problems, including climate change, ozone depletion, transboundary air

pollution, marine pollution, desertification and the conservation of biodiversity.

37. The obligation of international cooperation does not require every State to take

exactly the same actions. The responsibilities that are necessary and appropriate for each

State will depend in part on its situation, and agreements between States may appropriately

tailor their commitments to take account of their respective capabilities and challenges.

Multilateral environmental agreements often include different requirements for States in

different economic situations, and provide for technical and financial assistance from

developed States to other States.

38. Once their obligations have been defined, however, States must comply with them in

good faith. No State should ever seek to withdraw from any of its international obligations

to protect against transboundary or global environmental harm. States should continually

monitor whether their existing international obligations are sufficient. When those

obligations and commitments prove to be inadequate, States should quickly take the

necessary steps to strengthen them, bearing in mind that the lack of full scientific certainty

should not be used to justify postponing effective and proportionate measures to ensure a

safe, clean, healthy and sustainable environment.

39. States must also comply with their human rights obligations relating to the

environment in the context of other international legal frameworks, such as agreements for

economic cooperation and international finance mechanisms. For example, they should

ensure that agreements facilitating international trade and investment support, rather than

hinder, the ability of States to respect, protect and fulfil human rights and to ensure a safe,

clean, healthy and sustainable environment. International financial institutions, as well as

State agencies that provide international assistance, should adopt and implement

environmental and social safeguards that are consistent with human rights obligations,

including by: (a) requiring the environmental and social assessment of every proposed

project and programme; (b) providing for effective public participation; (c) providing for

effective procedures to enable those who may be harmed to pursue remedies; (d) requiring

legal and institutional protections against environmental and social risks; and (e) including

specific protections for indigenous peoples and those in vulnerable situations.

Framework principle 14

States should take additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities.

Commentary

40. As the Human Rights Council has recognized, while the human rights implications

of environmental damage are felt by individuals and communities around the world, the

consequences are felt most acutely by those segments of the population that are already in

vulnerable situations.24 Persons may be vulnerable because they are unusually susceptible

to certain types of environmental harm, or because they are denied their human rights, or

both. Vulnerability to environmental harm reflects the “interface between exposure to the

physical threats to human well-being and the capacity of people and communities to cope

with those threats”.25

41. Those who are at greater risk from environmental harm for either or both reasons

often include women, children, persons living in poverty, members of indigenous peoples

and traditional communities, older persons, persons with disabilities, ethnic, racial or other

24 See Human Rights Council resolution 34/20. 25 United Nations Environment Programme, Global Environment Outlook 3 (2002), p. 302.

minorities and displaced persons.26 The many examples of potential vulnerability include

the following:

(a) In most households, women are primarily responsible for water and hygiene.

When sources of water are polluted, they are at greater risk of exposure, and if they travel

longer distances to find safer sources, they are at greater risk of assault (see A/HRC/33/49).

Nevertheless, they are typically excluded from decision-making procedures on water and

sanitation;

(b) Children are vulnerable for many reasons, including that they are developing

physically and that they are less resistant to many types of environmental harm. Of the

approximately 6 million deaths of children under the age of 5 in 2015, more than 1.5

million could have been prevented through the reduction of environmental risks. Moreover,

exposure to pollution and other environmental harms in childhood can have lifelong

consequences, including by increasing the likelihood of cancer and other diseases (see

A/HRC/37/58);

(c) Persons living in poverty often lack adequate access to safe water and

sanitation, and they are more likely to burn wood, coal and other solid fuels for heating and

cooking, causing household air pollution;

(d) Indigenous peoples and other traditional communities that rely on their

ancestral territories for their material and cultural existence face increasing pressure from

Governments and business enterprises seeking to exploit their resources. They are usually

marginalized from decision-making processes and their rights are often ignored or violated;

(e) Older persons may be vulnerable to environmental harm because they are

more susceptible to heat, pollutants and vector-borne diseases, among other factors;

(f) The vulnerability of persons with disabilities to natural disasters and extreme

weather is often exacerbated by barriers to receiving emergency information in an

accessible format, and to accessing means of transport, shelter and relief;

(g) Because racial, ethnic and other minorities are often marginalized and lack

political power, their communities often become the sites of disproportionate numbers of

waste dumps, refineries, power plants and other polluting facilities, exposing them to higher

levels of air pollution and other types of environmental harm;

(h) Natural disasters and other types of environmental harm often cause internal

displacement and transboundary migration, which can exacerbate vulnerabilities and lead to

additional human rights violations and abuses (see A/66/285 and A/67/299).

42. To protect the rights of those who are particularly vulnerable to or at risk from

environmental harm, States should ensure that their laws and policies take into account the

ways that some parts of the population are more susceptible to environmental harm, and the

barriers some face to exercising their human rights related to the environment.

43. For example, States should develop disaggregated data on the specific effects of

environmental harm on different segments of the population, conducting additional research

as necessary, to provide a basis for ensuring that their laws and policies adequately protect

against such harm. States should take effective measures to raise the awareness of

environmental threats among those persons who are most at risk. In monitoring and

reporting on environmental issues, States should provide detailed information on the threats

to, and status of, the most vulnerable. Assessments of the environmental and human rights

impacts of proposed projects and policies must include a careful examination of the impacts

on the most vulnerable, in particular. In the case of indigenous peoples and local

communities, assessments should be in accord with the guidelines adopted by the

Conference of Parties to the Convention on Biological Diversity.27

26 Many persons are vulnerable and subject to discrimination along more than one dimension, such as

children living in poverty or indigenous women.

27 The Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact

Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on,

44. States should develop environmental education, awareness and information

programmes to overcome obstacles such as illiteracy, minority languages, distance from

government agencies and limited access to information technology, in order to ensure that

everyone has effective access to such programmes and to environmental information in

forms that are understandable to them. States should also take steps to ensure the equitable

and effective participation of all affected segments of the population in relevant decision-

making, taking into account the characteristics of the vulnerable or marginalized

populations concerned.

45. States should ensure that their legal and institutional frameworks for environmental

protection effectively protect those who are in vulnerable situations. They must comply

with their obligations of non-discrimination (framework principle 3), as well as any other

obligations relevant to specific groups. For example, any environmental policies or

measures that may affect children’s rights must ensure that the best interests of children are

a primary consideration.28

46. In developing and implementing international environmental agreements, States

should include strategies and programmes to identify and protect those vulnerable to the

threats addressed in the agreements.29 Domestic and international environmental standards

should be set at levels that protect against harm to vulnerable segments of the population,

and States should use appropriate indicators and benchmarks to assess implementation.

When measures to safeguard against or mitigate adverse impacts are impossible or

ineffective, States must facilitate access to effective remedies for violations and abuses of

the rights of those most vulnerable to environmental harm.

Framework principle 15

States should ensure that they comply with their obligations to indigenous peoples and members of traditional communities, including by:

(a) Recognizing and protecting their rights to the lands, territories and

resources that they have traditionally owned, occupied or used;

(b) Consulting with them and obtaining their free, prior and informed

consent before relocating them or taking or approving any other measures that may

affect their lands, territories or resources;

(c) Respecting and protecting their traditional knowledge and practices in

relation to the conservation and sustainable use of their lands, territories and

resources;

(d) Ensuring that they fairly and equitably share the benefits from activities

relating to their lands, territories or resources.

Commentary

47. Indigenous peoples are particularly vulnerable to environmental harm because of

their close relationship with the natural ecosystems on their ancestral territories. The United

Nations Declaration on the Rights of Indigenous Peoples and the International Labour

Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), as well as

other human rights and conservation agreements, set out obligations of States in relation to

the rights of indigenous peoples. Those obligations include, but are not limited to, the four

highlighted here, which have particular relevance to the human rights of indigenous peoples

in relation to the environment.

Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local

Communities.

28 See Convention on the Rights of the Child, art. 3 (1).

29 See, for example, Minamata Convention on Mercury, art. 16 (1) (a), annex C.

48. Traditional (sometimes called “local”) communities that do not self-identify as

indigenous may also have close relationships to their ancestral territories and depend

directly on nature for their material needs and cultural life. Examples include the

descendants of Africans brought to Latin America as slaves, who escaped and formed tribal

communities. To protect the human rights of the members of such traditional communities,

States owe them obligations as well. While those obligations are not always identical to

those owed to indigenous peoples, they should include the obligations described below (see

A/HRC/34/49, paras. 52–58).

49. First, States must recognize and protect the rights of indigenous peoples and

traditional communities to the lands, territories and resources that they have traditionally

owned, occupied or used, including those to which they have had access for their

subsistence and traditional activities.30 The recognition of the rights must be conducted with

due respect for the customs, traditions and land tenure systems of the peoples or

communities concerned. 31 Even without formal recognition of property rights and

delimitation and demarcation of boundaries, States must protect against actions that might

affect the value, use or enjoyment of the lands, territories or resources, including by

instituting adequate penalties against those who intrude on or use them without

authorization.32

50. Second, States must ensure the full and effective participation of indigenous peoples

and traditional communities in decision-making on the entire spectrum of matters that

affect their lives. States have obligations to consult with them when considering legislative

or administrative measures which may affect them directly, before undertaking or

permitting any programmes for the exploration or exploitation of resources pertaining to

their lands or territories and when considering their capacity to alienate their lands or

territories or otherwise transfer their rights outside their own community.33 States should

assess the environmental and social impacts of proposed measures and ensure that all

relevant information is provided to them in understandable and accessible forms

(framework principles 7–8). Consultations with indigenous peoples and traditional

communities should be in accordance with their customs and traditions, and occur early in

the decision-making process (framework principle 9).

51. The free, prior and informed consent of indigenous peoples or traditional

communities is generally necessary before the adoption or implementation of any laws,

policies or measures that may affect them, and in particular before the approval of any

project affecting their lands, territories or resources, including the extraction or exploitation

of mineral, water or other resources, or the storage or disposal of hazardous materials.34

Relocation of indigenous peoples or traditional communities may take place only with their

free, prior and informed consent and after agreement on just and fair compensation and,

where possible, with the option of return.35

52. Third, States should respect and protect the knowledge and practices of indigenous

peoples and traditional communities in relation to the conservation and sustainable use of

their lands, territories and resources.36 Indigenous peoples and traditional communities have

the right to the conservation and protection of the environment and the productive capacity

of their lands, territories and resources, and to receive assistance from States for such

30 See ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), arts. 14–15; United Nations

Declaration on the Rights of Indigenous Peoples, arts. 26–27.

31 See United Nations Declaration on the Rights of Indigenous Peoples, art. 26 (3). 32 See ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), art. 18.

33 Ibid., arts. 6, 15 and 17.

34 See United Nations Declaration on the Rights of Indigenous Peoples, arts. 19, 29 (2) and 32. See also

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits

Arising from Their Utilization to the Convention on Biological Diversity, arts. 6–7 (consent required

for access to genetic resources and traditional knowledge).

35 See ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), art. 16; United Nations

Declaration on the Rights of Indigenous Peoples, art. 10.

36 See Convention on Biological Diversity, arts. 8 (j) and 10 (c).

conservation and protection.37 States must comply with the obligations of consultation and

consent with respect to the establishment of protected areas in the lands and territories of

indigenous peoples and traditional communities, and ensure that they can participate fully

and effectively in the governance of such protected areas.38

53. Fourth, States must ensure that indigenous peoples and traditional communities

affected by extraction activities, the use of their traditional knowledge and genetic

resources, or other activities in relation to their lands, territories or resources fairly and

equitably share the benefits arising from such activities.39 Consultation procedures should

establish the benefits that the affected indigenous peoples and traditional communities are

to receive, in a manner consistent with their own priorities. Finally, States must provide for

effective remedies for violations of their rights (framework principle 10), and just and fair

redress for harm resulting from any activities affecting their lands, territories or resources.40

They have the right to restitution or, if this is not possible, just, fair and equitable

compensation for their lands, territories and resources that have been taken, used or

damaged without their free, prior and informed consent.41

Framework principle 16

States should respect, protect and fulfil human rights in the actions they take to address environmental challenges and pursue sustainable development.

Commentary

54. The obligations of States to respect, protect and fulfil human rights apply when

States are adopting and implementing measures to address environmental challenges and to

pursue sustainable development. That a State is attempting to prevent, reduce or remedy

environmental harm, seeking to achieve one or more of the Sustainable Development

Goals, or taking actions in response to climate change does not excuse it from complying

with its human rights obligations.42

55. Pursuing environmental and development goals in accordance with human rights

norms not only promotes human dignity, equality and freedom, the benefits of fulfilling all

human rights. It also helps to inform and strengthen policymaking. Ensuring that those

most affected can obtain information, freely express their views and participate in the

decision-making process, for example, makes policies more legitimate, coherent, robust and

sustainable. Most important, a human rights perspective helps to ensure that environmental

and development policies improve the lives of the human beings who depend on a safe,

clean, healthy and sustainable environment — which is to say, all human beings.

37 See United Nations Declaration on the Rights of Indigenous Peoples, art. 29 (1).

38 See ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), art. 15 (1).

39 Ibid., art. 15 (2); Convention on Biological Diversity, art. 8 (j); Nagoya Protocol, art. 5; United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought

and/or Desertification, Particularly in Africa, art. 16 (g).

40 See United Nations Declaration on the Rights of Indigenous Peoples, art. 32 (3).

41 Ibid., art. 28.

42 See Paris Agreement, eleventh preambular para.