By Megan Donald
In recent years it has become impossible to ignore the extent of environmental challenges and their consequences for the enjoyment of human rights. Such challenges include the climate crisis and its many related effects, the problems of limited natural resources, degradation of ecosystems, loss of biodiversity, and the prevalence of pollution and plastics in the environment. These environmental problems cause harm to most human rights, including the rights to life, health, housing, water, and food. Addressing these challenges requires new perspectives on human rights and the environment. For example, the UN Human Rights Council and General Assembly have both recognized the human right to a clean, healthy and sustainable environment, acknowledging the critical role of the environment in the realisation of human rights.
Economic, social and cultural rights (‘ESCRs’) are particularly affected by environmental degradation and climate change. However, the use and exploitation of natural resources, which is often tied to environmental harm, can be critical for the enjoyment of ESCRs. To address these challenges, we need to reconsider how we think about the environment, the use of natural resources and human rights. The Committee on Economic, Social and Cultural Rights (‘the Committee’ or ‘CESCR’) is developing a general comment on the environmental dimension of sustainable development. In October 2024 the draft text was made available for public comment, receiving 64 submissions from states, national human rights institutions, civil society, human rights organisations and academia by January 2025. This public commenting period was also preceded by a series of online consultations on the topic of sustainable development and the International Covenant on Economic, Social and Cultural Rights (‘the Covenant’). This blog provides a brief introduction to some noteworthy features of the draft general comment.
THE ENVIRONMENT IN THE CESCR’S WORK
The draft general comment’s exploration of the relationship between ESCRs and the environment is an important development in the Committee’s practice. Nevertheless, it is useful to note that this is not a new subject area for the Committee. In the past, it has published statements about sustainable development and climate change, and its general comments on water, food and land (among others) consider the relevance of the environment and natural resources for the enjoyment of ESCRs. Concerns related to the environment, climate change, pollution and natural resources also often feature in the Committee’s concluding observations.
The draft general comment builds on the Committee’s practice and deals with these challenges in a more systematic way, addressing the environment and ESCRs in the following areas:
- the general obligations in Article 2 of the Covenant,
- the implications of environmental challenges for the different rights in the Covenant, and
- the rights of certain groups in vulnerable situations (specifically future generations, Indigenous peoples, and peasants and those living or working in rural areas).
DEVELOPING THE GENERAL OBLIGATIONS IN ARTICLE 2
I will outline some new and noteworthy aspects of the draft general comment related to the evolution of the general obligations in Article 2 of the Covenant. Article 2 sets out general obligations on states parties that apply to all Covenant rights, including obligations of the use of maximum available resources, progressive realisation, non-discrimination, international assistance and cooperation as well as core obligations and extraterritorial obligations. The obligations in Article 2 are described in detail in General Comment No. 3 of 1990. Although these general obligations have evolved since then, this latest draft general comment contains perhaps the most substantial development in the Committee’s interpretation of these obligations since 1990, ensuring that this living instrument keeps up with present-day environmental challenges.1 I have written more on the need for ‘greening’ the obligations in Article 2(1) here.
The draft general comment affirms that environmental harm exacerbates inequalities and that those who are already in vulnerable situations are also those most at risk from the human rights impacts of such harm. In the context of climate change, the draft text emphasizes that those most affected by climate change have contributed least to the crisis. States are expected to prioritise the needs of the most marginalised and disadvantaged when pursuing sustainable development and environmental protection.
The draft text recognizes that while the Covenant requires states to use the maximum of available resources, the unlimited use and exploitation of the environment and natural resources is detrimental to the enjoyment of ESCRs. Acknowledging that exploiting natural resources is critical for realizing ESCRs in some contexts, the draft stresses that revenue from natural resource exploitation should benefit the population of the state and improve their enjoyment of ESCRs. Due to the impacts of environmental harm on ESCRs, the draft affirms that using the maximum of available resources for ESCRs must include allocating necessary resources for environmental protection.
Core obligations have been an important part of the Committee’s doctrine and practice since General Comment No. 3. The draft general comment stresses the importance of a healthy environment for the fulfilment of these core obligations. It notes that there are basic environmental conditions necessary for the most fundamental aspects of ESCRs. These core environmental conditions require particular priority and protection.
With respect to progressive realisation, the draft underscores the importance of a long-term view of rights fulfilment, linking this to sustainability and the rights of future generations. The draft explains that the goal of progressive realisation, i.e., the full realisation of ESCRs, has a limit or ceiling that is determined by environmental conditions. This echoes the concepts of planetary boundaries and doughnut economics. One important implication is that removing benefits that are enjoyed beyond that human rights ceiling would not be considered retrogressive. This could be understood as a reasonable constraint on unsustainable consumption and production to enable the enjoyment of human rights on a planet with finite resources.
TOWARDS A GREENER ICESCR
Human rights treaties are living instruments that must evolve according to changing circumstances, responding to present-day challenges and adapting to the needs of rights-holders. Given the prevalence of environmental threats to human rights, this draft general comment is a much-needed development towards a ‘greener’ Covenant that confronts these challenges. Unfortunately, the draft has not yet been finalized and approved by the Committee. It is crucial that the Committee adopts the general comment as soon as possible to guide states in tackling urgent environmental crises. Once adopted, the general comment should not be seen as the final or definitive word on the relationship between the Covenant and the environment, but rather as a point of departure for the further evolution and adaptation of the Covenant to rapidly-changing environmental conditions and their effect on human rights.
Dr. Megan Donald is a post-doctoral researcher at the Danish Institute for Human Rights.
- On human rights treaties as living instruments: The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law Advisory Opinion OC-16/99, Series A No 16 (1999) IACtHR para 114; Judge v Canada Communication No 829/1998, CCPR/C/78/D/829/1998 (2003) UN HRComm para 10.3; Tyrer v United Kingdom Application Number 5856/72 (1978) ECtHR para 31. ↩︎