Judicial Protection on Right to Clean, Healthy and Sustainable Environment:South Asian Perspective on ICJ Advisory Proceedings
By Yohan Liyanage*
Introduction
We are living in a world which faces a triple planetary crisis. These three aspects can be summarised into climate change, pollution by toxic material and loss of biodiversity. On the one hand, we all have felt the intensifying nature of these three catastrophes and their other numerous forms of effects; on the other hand, there is also growing recognition for environmental needs to be re-prioritised and receive better protection. As the last line of defence, the judiciary has always been the focal point - both nationally and internationally - for enforcing the law, defending human rights, and protecting the rule of law when voluntary State action, political ideology and diplomacy have failed us.
As the principal judicial entity of the United Nations (UN), the International Court of Justice (ICJ) has increasingly been called on to interpret international principles concerning the environment, the rights of people and future generations with a view to clarifying State obligations under international law. 2024 was significant in recent history with three advisory proceedings initiated before the ICJ, the Inter-American Court of Human Rights and the International Tribunal for the Law of the Sea.
This blog post explores in particular the concept of judicial protection of the right to a clean, healthy and sustainable environment in light of the ongoing ICJ advisory proceedings and possible implications of their outcome on national judiciaries from a South Asian regional perspective.
Resolution 77/276 by the UN General Assembly and the Request to the ICJ
The ICJ has played a pivotal role in the development of international environmental law jurisprudence in recent years. Its advisory opinions provide authoritative interpretations of international legal principles which safeguard environmental rights.
The United Nations General Assembly, at its sixty-fourth plenary meeting held on 29 March 2023, adopted resolution 77/276 entitled “Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change”. The General Assembly decided to request the ICJ to render an advisory opinion pursuant to Article 65 of the Statute of the Court.
Question on the Right to a Clean, Healthy and Sustainable Environment
On 13 December 2024, at the end of the final public sitting of the ICJ in the oral proceedings concerning the request for an advisory opinion, four of the judges each posed a question to be answered by any interested participants to the oral proceedings.
The question put by Judge Aurescu was: “Some participants have argued, during the written and/or oral stages of the proceedings, that there exists the right to a clean, healthy and sustainable environment in international law. Could you please develop what is, in your view, the legal content of this right and its relation with the other human rights which you consider relevant for this advisory opinion?”
The right to a clean, healthy and sustainable environment has been notably acknowledged to be a precondition for the enjoyment of all other human rights. In the 1972 Stockholm Declaration, States recognised “the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. The United Nations Declaration on the Rights of Indigenous Peoples and the International Labor Organization’s Indigenous and Tribal Peoples Convention (ILO Convention No. 169) provide further important examples of the recognition of the relationship between human rights and environmental rights. An important milestone in the international recognition of a separate, universal right to a healthy environment was the UN General Assembly (UNGA) Declaration to that effect, which was accepted in 2022 by 161 votes in favour, no votes against and eight abstentions. Since the UNGA’s recognition of the right to a healthy environment, successive UNFCCC COP outcome documents have included a reference to this right in their preambles.
Based on common misconception, some States argued in their submissions that the right to a clean, healthy and sustainable environment does not have any binding content. However, with careful consideration it would not be difficult to identify common characteristics of the right in various systems such as the African Charter on Human and Peoples Rights and the American Convention on Human Rights. Indeed, many regional and international systems recognise an individual and autonomous right to a healthy environment. It would be correct to state that more than 160 countries in the UN have legally recognised the right and have binding duties for the governments of those States.
Therefore, this advisory opinion is vital for Asia as it bridges human rights and environmental sustainability, empowering Asian nations to combat ecological crises while safeguarding the wellbeing of millions of people.
Sri Lankan Perspective
As a region with rich history and abundant biodiversity, Sri Lanka together with other leading South Asian nations emphasised in the proceedings how individual countries have recognised the right within domestic legal frameworks. Article 27(1) of the 1978 Constitution of Sri Lanka states that the Directive Principles of State Policy shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society, and among these Directive Principles is the pledge that the State shall protect, preserve and improve the environment for the benefit of the community (Article 27(14)). Article 28 of the Constitution states that the exercise and enjoyment of rights and freedoms are inseparable from the performance of duties and obligations and, accordingly, one such duty is the duty of every person in Sri Lanka to protect nature and conserve its riches. While neither the right to a healthy environment, nor even the right to life is expressly recognised as a justiciable fundamental right in Sri Lanka’s Constitution, it is by an invocation of these Directive Principles, as well as the right to equality before the law and equal protection of the law enshrined in Article 12(1) that environmental rights have been embraced by domestic law.
The Supreme Court of Sri Lanka cited several principles of international environmental law in Watte Gedera Wijebanda v. Conservator-General of Forests, where it upheld a rejection of a license to mine a quarry for silica quartz on the grounds that:
“The right of all persons to the useful and proper use of the environment and the conservation thereof has been recognized universally and also under the national laws of Sri Lanka. The right to a clean environment and the principle of inter-generational [sic] equity with respect to the protection and preservation of the environment are inherent in a meaningful reading of Article 12(1) of the Constitution. Article 27(4) of the directive principles of state policy enjoins the state to protect, preserve and improve the environment. Article 28 refers to the fundamental duty upon every person in Sri Lanka to protect nature. Courts in Sri Lanka, have long since recognized that the organs of State are guardians to whom the people have committed the care and preservation of the resources of the people. This recognition of the doctrine of 'public trust', accords a great responsibility upon the government to preserve and protect the environment and its resources”.
In Kariyawasam v. Central Environmental Authority and others, the issue was alleged water contamination in an area surrounding a thermal power plant in respect of which no environmental impact assessment had been done. The Supreme Court of Sri Lanka extensively relied on the principles contained in the Rio Declaration and ultimately held that there was a breach of the fundamental rights of the Petitioners, including their right to clean water, and that the company operating the power plant was subject to the polluter pays principle:
“Article 12 (1) of the Constitution extends to environmental rights in appropriate circumstances, the Supreme Court of India has firmly declared that the people have a fundamental right to a clean environment as part of the right to life guaranteed by Article 21 of the Constitution of India. In ND JAYAL vs. UNION OF INDA the Supreme Court of India stated “In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right.”. When Article 12 (1) guarantees that “All persons are equal before the law and are entitled to the equal protection of the law”, it vests in the residents of the Chunnakam area a constitutionally guaranteed right to be protected by the provisions of the National Environmental Act to the same extent that residents elsewhere in the country would be protected by the same Act. This, in turn, grants the residents of the Chunnakam area the right to legitimately expect that the CEA and BOI will fulfil their duties under the Act. Access to clean water is a necessity of life and is inherent in Article 27 (2) (c) of the Constitution which declares that the State must ensure “the realisation by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities.”
India’s Approach
The Constitution of India guarantees the right to life, a crucial component of which is the right to a clean and healthy environment. A range of legislations including the Forest (Conservation) Act, 1980, Environment (Protection) Act, 1986, Biological Diversity Act, 2002, etc., have been enacted to safeguard and protect the environment. Policy action in India has evolved on the fundamental premise that development must be ecologically sustainable. To that end, in 2008, India adopted the National Action Plan on Climate Change (NAPCC), which embodied India’s vision of ecologically sustainable development and integrated climate action strategies in several sectors, such as energy, industry, agriculture, water, forests, urban spaces and the fragile mountain ecosystems. One of the principles of NAPCC is to protect the poor and vulnerable sections of society through an inclusive and sustainable development strategy, sensitive to climate change.
The Supreme Court of India in its recent 2024 judgment in M.K Ranjitsinh v Union of India highlighted that:
“it is imperative for states to address climate impacts through the lens of rights”.
In addressing the issue of rights, Chief Justice Chandrachud, highlighted the close relationship between Article 14 (Right to Equality) and Article 21 (Right to Life):
“The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality. This is better understood with the help of an example. If climate change and environmental degradation lead to acute food and water shortages in a particular area, poorer communities will suffer more than richer ones. The right to equality would undoubtedly be impacted in each of these instances.”
Bangladesh’s Position
The fundamental rights, the preamble or the state policies of the Bangladesh Constitution do not clearly provide for the right to a healthy and clean environment. But Article 31 of the Bangladesh Constitution provides that ‘every citizen has the right to protection from ‘action detrimental to the life liberty, body, reputation, or property’, unless these are taken in accordance with law. It added that the citizens and the residents of Bangladesh have the inalienable right to be treated in accordance with law. Article 32 stated that, "No person shall be deprived of life or personal liberty save in accordance with law". These two articles together incorporate the fundamental 'right to life'. Dr. M. Farooque v. Secretary, Ministry of Communication, Government of the People's Republic of Bangladesh and 12 Others was brought before the Supreme Court as public interest litigation that dealt with air and noise pollution in 1994. The Supreme Court accepted the argument presented by the petitioner that the constitutional ‘right to life’ does extend to include the right to a safe and healthy environment.
South Asian Commitment for Recognition of the Right
It is interesting to note that Sri Lanka further urged that full scope of this right be recognised in relation to the protection of the climate and to apply it in order to clarify that responsible States have preventative and remedial obligations. Further it was stated that State obligations corresponding to the right should be engaged to achieve cessation and reduction of future greenhouse gas emissions as well as to ensure the historical or ongoing breaches are effectively addressed.
This in fact is a strong appeal to the ICJ from a regional perspective as the national level judiciaries aforementioned have already developed comprehensive jurisprudence to the extent that some countries are now implementing ‘Environmental Rule of Law’ where legal frameworks, principles, and mechanisms ensure the protection and sustainable management of the environment through effective governance and enforcement of environmental laws. Recognising a full scope of the right would also mean States have positive obligations to implement just transitions from fossil fuel consumptions and exploitation. This would also mean that most of these countries in South Asia have started fulfilling substantive and procedural obligations to the content of the right.
As the most populous country globally and regionally, India is currently the home for 17.8% of the global population. However, India has contributed only about 4% to global cumulative emissions historically between 1850 and 2017. Even after 1990, entering a period of rapid economic growth, India’s contribution to global cumulative emissions has only been 4.9%. India took an ambitious voluntary target to reduce the emissions intensity of its GDP by 20%-25% by 2020 over 2005 levels, against which India’s emission intensity has reduced by 33% between 2005 and 2019 clearly showing an over-achievement of the voluntary target undertaken.
South Asian jurisprudence and the legislative developments suggest that existing human right protections in the region have been aligned directly or indirectly with the human right to a clean, healthy and sustainable environment. Therefore, the region is prepared in its response to address climate change through the course of human right protection.
Conclusion
The ICJ advisory opinion, therefore, would offer the opportunity to clarify State obligations under the international legal framework offering national judiciaries and legislature to understand, apply and interpret international principles in a consistent manner. The consistency eventually opens pathways for vulnerable and marginalised groups to seek protection from climate change impacts allowing countries to address procedural and policy matters robustly. The ICJ in 1996 took the approach that “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn”. At present, the ICJ is at a historical junction to further its earlier view by setting parameters to address causes of the triple planetary crisis and unambiguously lead the universal protection of the right to a clean, healthy and sustainable environment which has been recognised by the majority of the world for decades.
* Yohan Liyanage is a student at the University of Colombo in Sri Lanka, a Sri Lankan national, Director of the Seychelles Law Commission, and Former Judge of the High Court of Fiji
DISCLAIMER: The views expressed in the symposium’s blog posts are those of the author and do not represent the views of WYCJ. Furthermore, university chapters were prepared, edited, and approved by the respective universities; WYCJ cannot guarantee the level of scientific and legal inquiry, nor the content of blog posts.