Written reply of Saint Lucia to the questions put by Judges Cleveland, Tladi and Aurescu at the end of the hearing held on 13 December 2024

SAINT LUCIA’S RESPONSE TO QUESTIONS BY THE COURT
Saint Lucia takes this opportunity to thank the Court for the opportunity to address it once again
in the context of questions it has posed for consideration. Saint Lucia will only briefly address
Question 1.
Question 1 put by Judge Cleveland:
“During these proceedings, a number of participants have referred to the production of fossil
fuels in the context of climate change, including with respect to subsidies. In your view, what
are the specific obligations under international law of States within whose jurisdiction fossil
fuels are produced to ensure protection of the climate system and other parts of the
environment from anthropogenic emissions of greenhouse gases, if any?”
Saint Lucia reiterates arguments which it and other States have made in these proceedings, namely,
that States producing and subsidizing fossil fuels in full knowledge of the environmental
consequences have breached duties of prevention, due diligence, and the obligation to respect
human rights and the right to self-determination.1 By continuing to license, subsidize, and expand
fossil fuel production, these States have failed to meet the standard of stringent due diligence
required under international law2, including Part XII of UNCLOS. Such conduct is clearly contrary
to meeting the objectives of the Paris Agreement and the UNFCCC.3
The wrongful character of this conduct triggers the law of State responsibility. As Saint Lucia
highlighted in its oral pleadings before the Court, under these rules, cessation requires that fossil
fuel production causing ongoing harm must stop, that subsidies intensifying emissions must end,
and that systems enabling continued large-scale emissions must be dismantled. Saint Lucia further
noted during its oral submissions that although some may argue that such steps are unrealistic, the
first step essentially requires fossil fuel producers to face the markets without undue aid. The very
distortion generated by fossil fuel subsidies is a major obstacle to developing low-carbon or
carbon-free technologies; and States should cooperate and actively pursue action in other
1See for instance, WS Vanuatu, paras. 117-192
2 As set out in Saint Lucia’s previous submissions.
3 As to the divergence between the conduct required and the conduct observed, see generally WC Vanuatu, para. 110,
Table 1.
multilateral fora, including the World Trade Organization (WTO), where discussions on fossil fuel
subsidies and green trade policies are critical to global mitigation efforts.
The issue of fossil fuel subsidies has taken central stage in international trade because they affect
competitiveness and economic relations. The global energy market is worth trillions of dollars and
comprises a significant portion of international trade. This market is heavily subsidized, with an
estimated $5.2 trillion spent on fossil fuel subsidies in 2017 according to the IMF (2019),and more
recent estimates put the global figure at $7 trillion in 2022 or 7.1% of global GDP. 4 Fossil fuel
subsidies can take the form of direct, indirect, consumption, or production subsidies. They are
known to have detrimental environmental impacts, distort energy markets, encourage
overconsumption of fossil fuels, and discourage investment in climate-friendly alternatives.
Reducing or eliminating these subsidies can help promote the transition to renewable energy,
reducing carbon emissions and global warming.
Despite these negative impacts, the existing rules of the global trade system, particularly the WTO
Agreement on Subsidies and Countervailing Measures (ASCM), provide only general disciplines
against subsidies. To be disciplined, subsidies must meet specific criteria: they must constitute a
financial contribution, confer a benefit, be specific to an industry, and cause adverse effects on
other countries’ trade. Under the ASCM, prohibited subsidies include export subsidies and import
substitution subsidies, which are expressly prohibited under Article 3. Actionable subsidies are
those that cause adverse effects, including serious prejudice, material injury, or nullification or
impairment of benefits to other Members' trade interests, as defined under Article 5. If such effects
are established, the subsidy can be challenged, and the subsidizing Member may be required to
withdraw the subsidy or remove its harmful effects. Additionally, importing Members may impose
countervailing measures to offset the adverse impact of the subsidy. Many argue, however, that
current rules are insufficiently precise to address harmful fossil subsidies, as they often lack the
“specificity” requirement under the ASCM’s legal standard.5
4IMF Working Papers, “Global Fossil Fuel Subsidies: Overview and Update” (2019, 2022, 2023).
5See for instance, Magnezi, Nadav, Wigoda, Ari, Bensoussan, Alexander, and Friedman, Amichai. Challenging
Fossil Fuel Subsidies in the WTO: A Legal Analysis of Fossil Fuel Subsidies under the SCM Agreement. Journal of
International Economic Law, vol. 20, no. 3, 2017, pp. 557-586.
Recent discussions at the WTO have sought to increase the scope of disciplines on fossil fuel
subsidies to directly address their harmful environmental impacts.6 For instance, plurilateral
negotiations for Fossil Fuel Subsidy Reform, aimed at reducing these subsidies7 have already
started. Additionally, outside the WTO, the Agreement on Climate Change, Trade and
Sustainability (ACCTS) was recently concluded by a sub-set of WTO members and sets new legal
standards for fossil fuel subsidies. The ACCTS defines fossil fuel subsidies using the ASCM
framework but expands the scope by focusing on subsidies targeting fossil fuel generation,
transport, marketing, or consumption under Article 4.3(b). Parties are prohibited from introducing
or maintaining fossil fuel subsidies beyond a de minimis limit under Article 4.5, with specific
exceptions including subsidies aimed at low-income, remote, or vulnerable communities for
energy security under Article 4.6(2).
Even in the context of climate negotiations, there have been attempts to discipline fossil fuel
subsidies. In Decision 1/CMA.5 (2023), Parties recognized the need for deep, rapid, and sustained
reductions in greenhouse gas emissions in line with 1.5°C pathways. The Decision calls on States
to contribute to efforts including transitioning away from fossil fuels in energy systems in a just,
orderly, and equitable manner and accelerating action toward net-zero emissions by 2050,
consistent with scientific guidance.
This Court should recognize the current trajectory of international law – as evidenced in the Paris
Agreement, UNFCCC, WTO negotiations, and emerging trade agreements like the ACCTS –
which collectively demonstrate a global trend toward reducing fossil fuel subsidies and advancing
environmental and trade-related obligations.
6In academic circles, see also Villars Framework for a Sustainable Global Trade System, Chapter 4: Distinguishing
between Harmful and Beneficial Subsidies, available at: https://remakingtradeproject.org/villars-framework
7See Ministerial Statement on Fossil Fuel Subsidies, WT/MIN(21)/9/Rev.2 (10 June 2022).
RESPONSE TO QUESTION 2 BY JUDGE DIRE TIADI
“In their Wrien and Oral Pleadings, parcipants have generally engaged in an interpretaon
of the various paragraphs of Arcle 4 of the Paris Agreement. Many parcipants have on the
basis of this interpretaon come to the conclusion that to the extent that Arcle 4 imposes
any obligaons in respect of Naonally Determined Contribuons, these are procedural
obligaons. Parcipants coming to this conclusion have in general relied on the ordinary
meaning of the words, context and somemes some elements in Arcle 31(3) of the Vienna
Convenon on the Law of Treaes. I would like to know from the parcipants whether
according to them “the object and purpose” of the Paris Agreement and the “object and
purpose” of the climate treaty framework in general, has any effect on this interpretaon and
if so, what effect does it have?”
Answer:
1. Introducon
The object and purpose of the United Framework Convenon on Climate Change (UNFCCC)
and the subsidiary treaes such as the Paris Agreement, the Kyoto Protocol and its Doha
Amendment is essenally to prevent dangerous anthropogenic GHG gases from interfering with
he climate system, in accordance with the common but differenated responsibilies and
respecve capabilies (CBDR-RC) of Member States. The Oral Proceedings before the
Internaonal Court of Jusce from December 2-13, 2024, marks the culminaon of a process of
filing of Wri4en Statements and Wri4en Comments. Unfortunately, in both the wri4en and oral
pleadings of some of the major emi6ng States, there has been rampant disregard for this very
object and purpose which have led to breaches of correlave obligaons under the climate
regime and other parts of internaonal law. This answer posits that the obligaons of States
under Arcle 4 of the Paris Agreement must be interpreted with a view to remedying this
ongoing breach and restoring the balance which entails compliance with the relevant
substanve obligaons.
2. Background
The purpose of the Paris Agreement can be found in Arcle 2.1 which is “ holding the increase in
the global average temperature to well below 2 degrees cengrade above pre-industrial levels
and pursuing efforts to limit the temperature increase to 1.5 degrees cengrade above preindustrial
levels..” To achieve this long-term temperature goal, Arcle 4.1 of the Paris
Agreement provides for State Pares to aim to reach global peaking of GHG emissions as soon
as possible and to undertake rapid reducons therea8er to achieve a balance between GHG
emissions by sources and removals of sinks known as “net-zero” emissions by the end of the
century. To do this, Pares are required to communicate every five (5) years, a Naonally
Determined Contribuon (NDC) accompanied by informaon that enhances its clarity,
understanding and transparency and to account for it. These contribuons are naonally
determined rather than internaonally, and whilst the States are obliged to submit NDCs, it has
been argued especially by major emi6ng States that they are not obliged to achieve their
targets or objecves. However, it is contended that Pares must parcipate in an ambion cycle
which consists of providing informaon regarding how they track progress in implemenng and
achieving their NDCs as part of an enhanced transparency framework. This informaon flows
into a global stocktake which is scheduled every five years and into a facilitave implementaon
and compliance mechanism. These NDCs, though determined naonally, have a condion
whereby Pares are expected to ensure that every successive NDC represents a progression
from the last one reflected the State’s highest possible ambion and its CBDR-RC, in-keeping
with different naonal circumstances. More developed countries are however expected to
submit NDCs which reflect their leadership role in the climate regime.
3. The Issue Analysed
The core arguments which must be considered in answering this queson is that firstly (1) the
object and purpose of the Paris Agreement is intricately linked to the UNFCCC’s unmet
objecve. The Chapeau of the Paris Agreement in Arcle 2 refers to “enhancing the
implementaon” and this together with the reference to loss and damage in Arcle 8 and the
escalaon of emissions since the 1990s confirm that certain ststes have breached their
substanve obligaons under the UNFCCC.
(2) Secondly, While Arcle 4 of the Paris Agreement sets procedural bligaons e’g preparing
and communicang NDCs, these obligaons are inseparable from the substanve obligaons
arising from the climate regime and the other sources of internaonal law.
(3) Thirdly, Given that the ulmate objecve of the UNFCCC has not been achieved, and loss and
damage have already occurred, NDCs of responsible States must be seen as tools to encourage
cessaon and reparaon ensuring that these States reduce emissions substanally and
immediately!
(4) Fourthly responsible States are under heightened obligaons to provide developing
countries with finance, technology transfer and capacity-building to contribute to maximum
global climate acon inclusive of the kind of support necessary to fully implement condional
NDCs.
The “object and purpose of the UNFCCC and the Paris Agreement thus reinforce an
interpretaon of the Arcle 4 ( Paris Agreement) that demands ambious, immediate, sciencebased
acon and internaonal cooperaon to correct the on-going breach and prevent
further harm.
4. Conclusion
To win this fight against the vagaries of climate change the internaonal community hopefully
with proper clarificaon from this Honorable Court, will achieve the daunng task of aligning
norms, acons and actors towards creang a climate safe world for present and future
generaons.
The answer must be in cra8ing a more robust role for internaonal law in solving pressing
global challenges like climate change guided by a holisc purpose-driven interpretaon of the
Paris Agreement. This holisc interpretaon must recognize norms including non-binding ones
are all part of the enre corpus of internaonal law which can not be ignored. Together with an
objecve standard of due diligence, with standards of fairness, ambion and progression in
NDCs aimed at enhancing and strengthening the interpretaon of the object and purpose of the
Paris Agreement. There may sll be challenges in achieving this, but if internaonal law finds
itself understood as an interlocking chain of norms, pracces, instruments and resolve which
with unbridled hope, works seamlessly towards finding a soluon to this climate crisis, that
would be a marvelous achievement!
Submi4ed by Kate Wilson Legal Officer, Department of Sustainable Development, SAINT
LUCIA.
QUESTION 3 PUT BY JUDGE AURESCU:
“Some Par
cipants have argued during the wrien and /or oral stages of the proceedings,
that there exists the right to a clean, healthy and sustainable environment in interna
onal
law. Could you please develop what is in your view, the legal content of this right and its
rela
on, with the other human rights which you consider relevant for this Advisory Opinion?”
ANSWER:
I. Introducon
The United Naons General Assembly (UNGA) recognized the “human right to a clean, healthy
and sustainable environment” on July 28, 2022 (Resoluon A/76/300).1 This adopon was
preceded by the UN Human Rights Council Resoluon 48/13 of October 8, 2021, which had
recognized the human right to a clean, healthy and sustainable environment and commi(ed the
General Assembly to consider the recognion of that right2. Both Resoluons saw no opposing
votes from States, with only a few abstenons.3 Although, this right is by no means a new
human right, these resoluons cemented its recent recognion, at a global level.
During the Oral Hearings before the ICJ regarding an Advisory Opinion on climate change from
December 2-13, 2024, more than 50 Member States urged the Court to acknowledge the right
to a clean, healthy and sustainable environment as an integral part of the broader corpus of
internaonal human rights law which is intrinsic to the clarificaon of States obligaons as they
relate to climate change.
2. Status of the Right to a Clean, Healthy and Sustainable Environment
During the 27th. and 28th. Conferences of Pares (COPs) of the United Naons Framework
Convenon on Climate Change (UNFCCC) the Pares incorporated this right by consensus into
key outcome documents like the Sharm El-Sheikh Implementaon Plan and the First Global
1 The Human Right to a Clean, Healthy, Sustainable Environment, GA Res 76/300, UN GAOR, 76th. sess., Agenda
Item 74(b), UN Doc A/HRC/RES/76/300(1 August 2022 adopted 28 July 2022).
2 48th. sess. Agenda Item 3, UN Doc A/HRC/RES/48/13 (18 October 2021, adopted 8 October 2021).
3 At the HR Council in 2021, 43 votes in favor while only 4 countries (Russia, Japan, India and China) abstained; at
the UNGA in 2022, 161 voted in favor while 8 countries (Syria, Russia, Kyrgyzstan, Iran, Ethiopia, China, Cambodia
and Belarus) abstained. Kyrgyzstan later indicated by official le(er to the UN that it had abstained in error and
intended to vote in favor. Saint Ki(s-Nevis and the Seychelles also indicated that they had intended to vote in favor.
(Official Record of the 97th. Plenary Meeng of the 76th. Session A/76/PV/97, p.11).
Stocktake, through its inclusion in the preambular paragraph on human rights in the Paris
Agreement. A point highlighted by Saint Lucia in its oral submission to the ICJ.4
“Acknowledging that Climate Change is a common concern of humankind, Pares should, when
taking acon to address climate change, respect, promote and consider their respecve
obligaons on human rights, the right to a clean, healthy and sustainable environment, the
right to health, the rights of indigenous persons, local communies, migrants, children, persons
with disabilies and people in vulnerable situaons and the right to development as well as
gender equality, empowerment of women and intergeneraonal equity.”
Further, in 2022, again by consensus, this right was also included in the Kunming-Montreal
Global Biodiversity Framework5 and in 2023, in the Bonn Declaraon for a Planet Free of Harm
from Chemicals and Waste.6
At a regional level, this right is enshrined in the African Charter on Human and Peoples
Rights7;The San Salvador Protocol to the American Conven
on on Human Rights8, The Arab
Charter on Human Rights9and the Associa
on of South Asian Na
ons Human Rights
Declara
ons10and the Aarhus Conven
on11 and the Escazú Agreement12. Further, more than
140 member states are pares to these instruments.
On a naonal level, at least 164 States have recognized the right in law through their
constuons, legislaon, court decisions and incorporaon of regional treaes into domesc
law. Addionally, at the sub-naonal level this right is found in constuons and legislaon of
several countries.13 Overall, this right is supported by 93% of UN Member States (179 out of
193) providing much evidence that it should emerge as customary internaonal law.
3. The Content of the Right to a Clean, Healthy and Sustainable Environment
The right to a clean, healthy and sustainable environment has at least three (3) components
namely: (a) a substanve component (b) a procedural component (c) an intertemporal
4 Oral Submission of Ms. Kate Wilson, Legal Officer, Department of Sustainable Development, Saint Lucia
Delegaon, pgs. 5 and 11; December 10, 2024.
5 Paragraph 14.
6 Paragraph 17.
7 Arcle 14.
8 Arcle 11.
9 Arcle 38
10 Arcle 28 (f).
11 Preamble and Arcle 1 of the Convenon on Access to Informaon, Public Parcipaon in Decision-making and
Access to Jusce in Environmental Ma(ers.
12 Arcle 1and 4 of the Regional Agreement on Access on Informaon, Public Parcipaon and Jusce in
Environmental Ma(ers in Lan America and the Caribbean.
13 Argenna, Australia, Brazil, Canada, Mexico, Switzerland among others.
component. The substanve component describes the content of the right to the environment.
This right is linked to and is in part derived from the right to life. This right to life itself has many
components, the first of which is the right to live, that is to be alive and not dead.14 That
encompasses people not being deprived of their life without due process and according to law.
The right to life also involves the right to access and enjoy the necessies of life such as clean
water, air and healthy food and adequate sanitaon and courts around the world specifically
those in South Asia, have held that this right includes the right to enjoy the necessies of life
free from environmental hazards15. The Indian Supreme Court has held that “the right to life is
a fundamental right under Arcle 21 of the Constuon and it includes the right to enjoyment of
polluon-free water and air for full enjoyment of life.”16
The right to life was also held “to encompass within its ambit, the protecon and preservaon of
the environment, ecological balance, freedom from polluon of air and water and sanitaon,
without which life cannot be enjoyed.”17 Consequently, any acon that would cause
environmental polluon of land, air and water which are the sources of life, must be recognized
as amounng to a violaon to the right to life.
The right to life also extends to having access to and being able to enjoy those aspects of life
that enables one to flourish and funcon with dignity both as a person in family and private life
and as a cizen in society.
“a right to the environment that is consistent with the human dignity and well-being of cizens
at large is an essenal condion for the fulfillment of all human rights. It is an indispensable
existenal right that is enjoyed universally yet is vested personally.”18
In Juliana v United States19 the US District court held that the right to a climate system capable
of sustaining human life is fundamental to a free and ordered society stang: “Just as marriage
is the foundaon of the family, a stable climate system is quite literally, the foundaon of
society, without which there would be neither civilizaon, nor progress.”
The rights to life and a quality environment in which to live, depend on there being a healthy,
funconing and flourishing biosphere. This adds the dimension of ecological sustainability to
14 Human Rights Commi(ee, General Comment No. 36: Ar
cle 6: Right to life, 124th. sess. UN Doc CCPR/C/GC/36
(3 September 2019).
15 Farooque v. Government of Bangladesh (Supreme Court of Bangladesh, WP no. 891 of 1994, 15 July, 2001).
16 Subhash Kumar v State of Bihar (1991) AIR SC 420.
17 Virender Gaur v State of Haryana (1995) 2 SCC 577.
18 Friends of the Irish Environment CLG v Fingal County Council (High Court of Ireland, No. 344, JR 21 November,
2007).
19 217F Supp 3rd. 1224 (D Or 2016).
the content of the right to life. This means an environment that is not only healthy for humans
but is healthy in itself as a funconing and flourishing Earth system.
In 2015, the 2030 Agenda for Sustainable Development was adopted by many UN Member
States, seKng 17 Sustainable Development Goals (SDGs). Many of these SDGs reflect
components of the right to life and a healthy environment.20 At the core of the SDGs is the
concept of sustainable development as achieving the needs and human rights of the present
without compromising the ability of future generaons to do the same. This calls for ecological
sustainability and the stability of the earth system.
Climate change as the IPCCC Reports have determined is already having adverse impacts on
human health, human rights and livelihoods.21 In fact, the achievement of all human rights
depends on there being a safe climate.22 The release of GHG gases from the mining and burning
of coal was found by the Court to increase climate change impacts and breach the right to life,
the rights of First Naons People, rights of children, rights to property, privacy and home and
the right to equal enjoyment of human rights in the case of Waratah Coal Pty Ltd. V Youth
Verdict & Ors. (No. 6) (2023).23 Healthy ecosystems are essenal to regulate the earth’s climate,
filter air and water, recycle nutrients and migate the impacts of natural disasters and human
damage to the biosphere severely impacts human rights. The Inter-American Court on Human
Rights in 201724 highlighted the ecocentric element of the right to a healthy environment which
unlike other rights, protects the crical components of the environment such as forests, rivers
and seas, as legal interests in themselves.
The procedural component of the right to a clean, healthy and sustainable environment
encompasses the procedural rights recognized by Principle 10 of the Rio Declaraon on the
Environment and Development, the Aarhus Convenon, the Escazú Agreement and the
Maputo Protocol. These procedural rights are threefold: (1) Access to Environmental
informa
on (2) Public par
cipa
on in environmental decision-making (3) Access to Jus
ce to
enforce and uphold these procedural and other rights. SDG 16 recognizes these procedural
rights with the aim of “promong peaceful and inclusive sociees for sustainable development,
promote access to jusce for all and build effecve, accountable and inclusive instuons at all
levels.”
20 SDG 3,6, 13,14 and 15.
21 Warming of 1.5 degrees cengrade is unsafe for most naons, communies and sectors and poses significant
risks to natural and human systems as compared to the current 1 degree cengrade, IPCC Report 6th. October,
2018.
22 John Knox Special Report, February 1, 2016.
23 37 Australian Environmental Review, 126.
24 Advisory Opinion OC-23/17.
This procedural component is very necessary to enliven and enforce the right and have been
recognized by the Courts. Regarding Access to Environmental Informaon the Indian Supreme
Court held that the right to life to be operaonal and effecve, had to be publicized i.e. people
needed to be informed that they have that right and what it involved.25 Consequently
publicaon of the right to life, including the constuent right to a quality environment was
ordered in educaon curricula, in primary and secondary schools, in terary instuon such as
universies and even in cinemas as an opening documentary to a Bollywood blockbuster.
Public Parcipaon in Environmental Decision-making has also been upheld by the Courts but
as a component of another right. The Hawaiian Supreme Court26 held that a protected property
interest includes a benefit to which the claimant is legally entled. The right to a clean and
healthy environment as defined by laws relang to environmental quality is a protectable
property interest under the due process clause. Addionally, the South African High Court
27relying on evidence of customary knowledge from indigenous communies held that the grant
of an exploraon right which was awarded without meaningful consultaon with the
communies, constuted a violaon of the right to consultaon of the Applicant and therefore
was unlawful.
As for Access to Jusce as recognized in SDG 16 highlights that denial of access to Courts and
Tribunals to enforce the right to life or the right to a quality environment, is a denial of the right
itself. The failure of Governments to enforce Court decisions such as the right to life or the right
to a quality environment can also be a violaon of the right to a fair hearing.28
The Intertemporal Component of the right to a clean, healthy and sustainable environment
envisages that this right can only be enjoyed by people who are alive. This includes the present
generaon and the next generaon who are already born. The present generaon can enjoy
and enforce in the Courts that right, as well as our children, who represent the next generaon.
They too should be able to enjoy that right, not only today, but tomorrow and into the future.
The next generaon is oNen impeded by the law and legal system, from being able to enforce
that right e.g. children are unable to sue unless they have become of legal age. Fortunately,
some progressive courts29 have upheld the right of children to sue to protect this right to a
clean, healthy and sustainable environment and in so doing, have reinforced inter-generaonal
jusce between present and future generaons. In a recent decision, the UN Human Rights
Commi?ee30 upheld the rights of 8 Torres Strait people and their 6 children (representaves of
25 M.C. Mehta v Union of India, 22nd. November 1991.
26 Re. Applicaon of Maui Electric Company 408 P 3d. 1 (Haw Sup Ct, 2017)
27 Sustaining the Wild Coast NPC and Ors v Minister of Mineral Resources, Energy and Others [2022]
28 Okyay v Turkey ECHR 2005 -VII.
29 Minors Oposa v Factoran (1993) 296 Phil 694.
30 Torres Strait Islanders Pe  on (n36)[2.7-3.7]
the present and next generaon) that Australia had violated and connued to violate their
rights by taking inadequate acon to migate and adapt to climate change. The claimants
argued that the violaons stemmed from the Australian Government’s failure to implement
adequate policies and targets to reduce GHG emissions and provide adequate funding for
coastal defense and resilience measures such as sea walls for the Torres Strait Islands. The
Commi(ee also addressed the queson of remedies for such violaons and requested Australia
to adequately compensate the claimants for the harms suffered, engage in meaningful
consultaon with the communies affected, to assess their needs and connue to take
measures to secure the safe existence of the communies.
This right to a clean, healthy and sustainable environment, is also a right held by each child of
successive generaons once they are born. Whilst the unborn cannot yet hold that right, that
right is their birthright as it vests on their birth. Thus the present generaon must respect and
protect that right acng as custodians for the future generaons ensuring that they will be able
to enjoy those rights. This is a key component of sustainable development- development that
meets the needs of the present generaons without compromising the ability of future
generaons to meet their own needs.
The duty to respect, protect and fulfil the right to a clean, healthy and sustainable environment
imposes obligaons on States to refrain from conduct that can foreseeably cause or contribute
to significant climate and environmental degradaon and to take all necessary measures to
prevent conduct by others that foreseeably threaten this right. This includes both territorially
and extraterritorially. State obligaons related to respecng, protecng and fulfilling that right
are summarized in the Framework Principles on Human Rights and the Environment and
include making environmental informaon publicly available, facilitang public parcipaon in
environmental decision-making, and access to jusce with appropriate and effecve remedies
for environmental harm, providing a safe and enabling environment for human rights defenders,
requiring environmental impact assessments of proposed projects and policies, regulaon of
private sector acvies that impact the climate system and other parts of the environment,
implemenng and enforcing environmental standards based on the best available science,
providing environmental informaon, capacity building and forging greater internaonal
cooperaon and taking steps to leave no one behind especially vulnerable and marginalized
populaons.
Former UN Special Rapporteur on Human Rights and the Environment John H. Knox31 outlined
specific State obligaons in the context of climate change as an obligaon to cooperate to
achieve a low-carbon, climate resilient and sustainable future which encompasses the sharing of
informaon, the transfer of zero-carbon, low carbon and high efficiency technologies from
31 A/74/161 15th. July 2019 pr.68.
wealthy to less affluent States, increasing spending on research and development towards the
transion to clean and renewable energy resources, ensuring fair, legal and durable soluons
for migrants and displaced persons. Wealthier naons contribung towards the migaon and
adaptaon efforts of lower income naons in accordance with the principle of common but
differenated responsibilies and respecve capabilies (CBDR-RC) and climate finance being
grants and not loans with cumbersome qualifiers and high interest rates. In 2023, this also
included the recommendaon that wealthy States should accelerate the just and equitable
phase-out of fossil fuels beginning with coal.
This year, 2024 saw the most comprehensive descripon of the content of the right to a clean,
healthy and sustainable environment by a regional court in Inhabitants of La Oraya v Peru in
reference to clean air as an element of that right. The Inter-American Court of Human Rights
clarified that States are obligated to (a) establish air quality laws, standards, policies and
regulaons that prevent health risks. (b) monitor air quality (c) inform the populaon of
possible health risks (d) idenfy the main sources of air polluon (e) carry out acon plans to
control air quality (f) implement measures to enforce air quality standards. The Court also
added that this must be done in accordance with the best available science. The Court also
outlined similar State obligaons with respect to safe and sufficient water.
UN Treaty Bodies have also provided extensive guidance on the content of that right and
corresponding State obligaons. The Commi(ee on the Rights of the Child (CRC) has provided
the most recent in its General Comments 26 (2023) on the rights of the child in the context of
climate change. It held that the right of children to a healthy environment was implicit in the
Convenon on the Rights of the Child highlighng that the substanve elements of this right are
parcularly important for children since they include clean air, a safe and stable climate, healthy
ecosystems and biodiversity, safe and sufficient water, healthy and sustainable food and nontoxic
environments. The CRC urged States to take immediate acon to realize the rights by doing
the following: equitable phase out of coal, oil and natural gas, invest in renewable energy
resources and ensure a just transion and enable energy storage and efficiency to address the
climate crisis.
The applicaon and interpretaon of the right to a clean, healthy and sustainable environment
are guided by a series of principles drawn from internaonal human rights law and internaonal
environmental law including equity and non-discriminaon, prevenon, precauon, polluter
pays principle and non-regression. Climate change disproporonately harms people in
marginalized and vulnerable situaons including women and children, local communies and
indigenous persons, persons with disabilies, migrants and displaced persons, the elderly
among others, and States are obliged to priorize acons to assist these populaons in realizing
that right.
The principle of prevenon of significant environmental harm imposes due diligence obligaons
on States that are heightened according to the degree of risk, a key factor, given the existenal
threat posed by the climate crisis. The human rights obligaons of States become engaged
where serious harm and rights violaons are foreseeable, which clearly includes the climate
change context
4. Relaonship Between the Right to a Clean, Healthy and Sustainable Environment
and other Human Rights.
The right to a clean, healthy and sustainable environment is closely linked to the effecve
enjoyment of other human rights as human rights are interdependent, inalienable and
indivisible32. Many Courts have recognized that this right is in fact a pre-requisite to the full
enjoyment of other rights including the right to a life with dignity and is closely linked to the
rights to life, food, water, sanitaon, health, self-determinaon, cultural rights, rights of
indigenous persons and rights of the child.
The UN Human Rights Commi(ee in General Comment 3633 have posited that “environmental
degradaon, climate change and unsustainable development constute some of the most
pressing and serious threats to the ability of present and future generaons to enjoy the right to
life.” The Commi(ee also stated that “Implementaon of the obligaon to respect and ensure
the right to life and in parcular the right to dignity depends inter alia on measures taken by
State Pares to preserve the environment and protect it against harm, polluon and climate
change caused by public and private actors.”34
This Commi(ee has also indicated that the right to health extends to the underlying
determinants of health such as “food and nutrion, housing, access to safe and potable water
and adequate sanitaon, safe and healthy working condions and a healthy environment.”
Addionally, the Commi(ee has also held that the right to a healthy environment is implicit in
the Internaonal Convenon on Economic, Social and Cultural Rights and is linked to the full
range of these rights.35 The UN Commi(ee on the Rights of the Child also held that the right is
also implicit in the Convenon on the Rights of the Child and is related to, inter alia the right to
life, health, an adequate standard of living, play and educaon.36
32 Inter-American Court of Human Rights 2017 Advisory Opinion OC-23/17, at para. 64.
33 2019 Arcle 6 Right to life CCPR/C/GC/36 para.62.
34 Ibid.
35 General Comment 26. para.10.
36 General Comment 26. paras. 14-62 (2023).
The interrelaon between the right to a clean, healthy and sustainable environment and other
human rights impacted by climate change are reinforced through the work of other UN Special
Rapporteurs. These include Special Rapporteurs on the promoon and protecon of human
rights in the context of climate change, on the human rights of migrants, rights of Indigenous
Persons, right to freedom of peaceful assembly and associaon, the right to food, the right to
water and sanitaon, on cultural rights and extreme poverty and human rights.
5. Conclusion
UN Special Rapporteur on Human Rights and the Environment for 2018 -2024, David R. Boyd
has inmated that the evidence is clear that the right to a clean, healthy and sustainable
environment is fundamental to the wellbeing and survival of humanity, involves a safe and
livable climate, and is inmately interconnected with several other human rights being harmed
by the climate crisis and accordingly, it is imperave that the Internaonal Court of Jusce
recognize that this right is a key element of internaonal human rights law and the human
rights obligaons of States must inform much more urgent and ambious responses to the
global climate crisis.
The recognion of that right at the sub-naonal, naonal, regional and internaonal level, is an
important and imperave step in making peace with nature. The challenge however is in making
this right operaonal and effecve. The realizaon of that right can be achieved by adopng 4
steps namely (1) the immediate realiza
on of the inviolable element of the right being the
procedural component (2) immediate realiza
on of the minimum core obliga
ons of the
substan
ve component of the right (3) progressive realiza
on of the substan
ve component
of the right beyond the minimum core obliga
ons and (4) use of maximum available
resources to progressively realize that right.
This means that we need to delve deeper into what the right involves, recognize and explicate
the correlave dues to respect, protect and uphold that right and be proacve in creang
systemic and structural change in the laws, policies, instuons and governance systems of
States to achieve sustainable development.
The Inter-American Court of Human Rights highlights the importance of the right so eloquently:
“States have recognized the right to a healthy environment which entails an obliga
on to
protect it that concerns the interna
onal community as a whole. It is difficult to imagine
interna
onal obliga
ons with greater significance than those that protect the environment
from unlawful or arbitrary conduct that causes serious, extensive, long-las
ng and irreversible
damage to the environment in a climate crisis scenario that threatens the survival of species.
In view of the above, interna
onal protec
on of the environment requires the progressive
recogni
on of the prohibi
on of conduct of this type as a mandatory norm (jus cogens) that
gains the recogni
on of the interna
onal community as a norm that does not admit
deroga
on. This Court has pointed out the importance of the legal expressions of the
interna
onal community whose superior universal value is indispensable to guarantee
essen
al or fundamental values. In this sense, guaranteeing the interest of both present and
future genera
ons and the conserva
on of the environment against its radical degrada
on is
essen
al for the survival of humanity.”
Only if States adopt this 4-step progressive framework will the idenficaon of obligaons to
respect, protect and fulfil the right be clarified and how these obligaons can be effecvely
discharged to ensure the full realizaon of that right.
Submi(ed by Ms. Kate Wilson, Legal Officer, Department of Sustainable Development, SAINT
LUCIA. On December 20, 2024,
In responding to this ques
on, the author relied extensively on the wri
ngs of the following:
David H. Boyd , UN Special Rapporteur on Human Rights On the Environment.
Brian J. Preston, The Nature, Content and Realizaon of the Right to a Clean, Healthy and
Sustainable Environment, Journal of Environmental Law, 2024, 36, 159-185.
SIWI.org , The Human Right to a Safe, Clean, Healthy and Sustainable Environment: The Legal
Ni@y-Gri@y.
Yann Aguila , The Right to a Healthy Environment, IUCN, 29th October 2021.
A_HRC_ 49_ 53-EN pdf. Report of the Special Rapporteur on the Issue of Human Rights
Obligaons relang to the enjoyment of a Safe, Clean, Healthy and Sustainable Environment.