The Right to Health and the Climate Crisis: The Vital Role of Civic Space

Volume 23/2, December 2021, pp. 109-120  |  PDF

David W. Patterson

Abstract

Under the United Nations Framework Convention on Climate Change and its protocols, states have legal obligations to address the climate crisis. The principle of participation is increasingly acknowledged as central to the protection and promotion of human rights, including the right to health. This paper explores states’ obligations to address the climate crisis—and concomitant health crises—from a right to health perspective. The right to health lens provides a valuable opportunity for engaging diverse civil society constituencies in the response to the climate crisis. However, civic space must be protected if these actors are to participate meaningfully. The climate crisis discourse has lacked an explicit recognition of the interconnected nature of the right to health, environmental degradation and climate change, and civic space. There is also concern that restrictions on civic space will continue after the COVID-19 pandemic. While the public health community is an important constituency in the design and implementation of laws, policies, and programs to address climate change, the human rights literacy of this community remains to be strengthened. This paper addresses these lacunae within the context of the right to health as enshrined in United Nations human rights treaties and related international law.

Introduction

As of May 2021, estimated planned reductions in global net anthropogenic greenhouse gas emissions fell far short of what is required to limit global warming to the Paris Agreement target of well below 2°C, let alone 1.5°C, above pre-industrial levels.^[1] A pervasive “discourse of denial” continues while vested interests lobby for a slow transition away from fossil fuels, as the experience of Australia, the world’s largest exporter of coal and gas, exemplifies.^[2] In September 2021, the United Nations (UN) Secretary-General warned that the world was on a “catastrophic pathway” to 2.7°C of heating by the end of the century.^[3]

The present and likely impact of the climate crisis on the right to health is well documented.^[4] Climate change poses an existential threat to communities, states, and human health and life.^[5] Some commentators are already preparing for a postapocalyptic world. Paul Kingsnorth wrote in 2010, “Once we stop pretending the impossible can happen, we are released to think seriously about the future.”^[6] Carl Cassegård wrote in 2018 that “accepting [irreversible or unavoidable] loss as a fact may free the imagination to find new ways of adapting to the world.”^[7]

Although the imperative to reduce greenhouse gas emissions is clear, the most cost-effective and sustainable pathways to achieving net zero and adapting to the impact of climate change remain hotly contested. For example, there are sharply differing views on the role of nuclear energy as an alternative to fossil fuels during the transition to renewable energy sources.^[8] Civil society organizations—including organizations of young people and of indigenous peoples, environmental groups, labor unions, professional associations, faith communities, and community-based organizations—will continue to advocate for climate action, including through print and online media and through their democratic representatives. There will also be street demonstrations and other forms of visible, public dissent if governments are perceived not to be responding adequately to the scale and urgency of the climate crisis. The mobilization for climate action will increasingly involve public health actors who have not previously been engaged and whose efforts can benefit from a human rights perspective. As Alexandra Phelan noted in 2020, “framing climate change through a global health and human rights lens is a powerful catalyst for action to mitigate and adapt to the greatest threat to global health and human rights.”^[9]

It is well recognized that states have legal obligations to address the climate crisis under the United Nations Framework Convention on Climate Change (UNFCCC) and its protocols. This paper explores states’ obligations to address the climate crisis—and concomitant health crises—from a right to health perspective. In doing so, the paper notes the value of the evolving concept of civic space in international law. Until recently, civic space was an underexplored aspect of rights discourse on health and climate change. The right to health provides a valuable opportunity for engaging diverse constituencies in advocacy for climate action. However, civil and political rights, and notably civic space, must be protected if these actors are to participate meaningfully. The climate crisis discourse has lacked an explicit recognition of the interconnected nature of these issues. Further, human rights literacy in the context of climate change remains to be strengthened within the public health community. This paper addresses these lacunae within the context of the right to health in UN human rights treaties and related international law. Although the right to health is also addressed in regional human rights treaties, these obligations are not discussed here.

The first part of the paper explores the connections between the climate crisis and the right to health in international law. The paper then expands on the role of civil and political rights in the realization of the right to health, with a focus on the principle of participation in the context of the climate crisis. Next, the paper argues that civic space is an underexplored aspect of the principle of participation in human rights law and is under threat, with dire implications for climate action. The limitations of these evolving approaches are then discussed. The paper concludes that greater dialogue between human rights, public health, and environmental advocates offers rich possibilities for promoting healthy people and a healthy planet. While tracing the evolution of the right to health and the principles of participation and civic space in the context of the climate crisis, the paper draws on various sources of authority, including treaties, resolutions of intergovernmental bodies, commentary by treaty committees, independent scholarly comment, and the statements of UN experts, rapporteurs, and organizations.

The climate crisis and the right to health in international law

The seeds of the climate crisis were sown in the Western colonial period and the industrial revolution that followed. Air pollution related to the shift from artisanal to industrial production was already well recognized in 19th-century Europe.^[10] However, the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, makes no reference to the right to a healthy environment.^[11] The first mention of the environment in a UN treaty is in the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted in 1966, which affirms “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (the right to health), noting the importance of “the improvement of all aspects of environmental and industrial hygiene.”^[12]

Shortly afterward, the intersection between health and the environment began to be acknowledged in other intergovernmental forums. In 1972, the Stockholm Declaration and Action Plan for the Human Environment was adopted at the UN Conference on the Human Environment. The Convention on the Rights of the Child, adopted in 1989, notes the dangers of environmental pollution and the importance of child education to develop respect for the natural environment.^[13] The UNFCCC was opened for signature at the 1992 UN Conference on Environment and Development, which also adopted the Rio Declaration on Environment and Development. Two protocols followed the UNFCCC: the 1997 Kyoto Protocol and the 2015 Paris Agreement. The latter protocol includes an explicit reference to human rights, including the right to health, in its preamble. In 2021, the Human Rights Council issued a resolution recognizing “the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.” The resolution acknowledges that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights, including the right to life.”^[14]

UN treaty committees and other UN organs have also addressed the impact of the environment, including the climate crisis, on the right to health. In 2000, the Committee on Economic, Social and Cultural Rights, which monitors the implementation of the ICESCR, issued its General Comment 14 exploring states’ obligations in the context of the right to health. The general comment notes that “the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as … a healthy environment.”^[15] In 2016, the Office of the United Nations High Commissioner for Human Rights (OHCHR) explored the relationship between climate change and the right to health, noting the key impacts of climate change on health and the related obligations of states and other actors.^[16]

In 2018, the Committee on Economic, Social and Cultural Rights issued a statement on climate change and the ICESCR, noting that climate change constitutes a massive threat to the enjoyment of economic, social and cultural rights, including the right to health.^[17] In 2019, the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR), observed in its General Comment 36 that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.”^[18] The committee also noted that the duty to protect life implies that states should take measures to ensure access to essential goods and services, such as health care and adequate food, water, shelter, electricity, and sanitation. These goods and services are among the essential determinants of the full realization of the right to health. Hence, the rights to life and to health are both threatened by environmental degradation and climate change, reflecting again the indivisible nature of human rights.

UN independent experts and Special Rapporteurs have also addressed the impact of climate change on the right to health. In 2007, the then Special Rapporteur on the right to health, Paul Hunt, addressed global warming in the context of the underlying determinants of health. Hunt noted that despite disturbing climate trends, “the international community has not yet confronted the health threats posed by global warming. The failure of the international community to take the health impact of global warming seriously will endanger the lives of millions of people across the world.”^[19] In short, the foundations in international law are well established to address the climate crisis from a right to health perspective.

Civil and political rights, the principle of participation, and the climate crisis

The Universal Declaration of Human Rights states, “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”^[20] The 1987 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights were drafted by international law experts co-convened by the International Commission of Jurists. The Limburg Principles state that “a concerted national effort to invoke the full participation of all sectors of society is, therefore, indispensable to achieving progress in realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies.”^[21]

In 1993, UN member states affirmed in the Vienna Declaration and Programme of Action of the World Conference on Human Rights that “all human rights are universal, indivisible and interdependent and interrelated.”^[22] In other words, we cannot make progress toward achieving the highest attainable standard of physical and mental health for all without also respecting, protecting, and fulfilling the other human rights guaranteed in international law, including civil and political rights.

In 1990, the Committee on Economic, Social and Cultural Rights noted that while the ICESCR “provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect” irrespective of a state’s level of economic development.^[23] In 2000, the committee clarified in its General Comment 14 that even when resources are constrained, states’ core obligations include the adoption and implementation of a national public health strategy and plan of action that has been developed through a participatory and transparent process. According to the committee:

The formulation and implementation of national health strategies and plans of action should respect, inter alia, the principles of non-discrimination and people’s participation. In particular, the right of individuals and groups to participate in decision-making processes, which may affect their development, must be an integral component of any policy, programme or strategy developed to discharge governmental obligations under article 12 [of the ICESCR]. Promoting health must involve effective community action in setting priorities, making decisions, planning, implementing and evaluating strategies to achieve better health. Effective provision of health services can only be assured if people’s participation is secured by States.^[24]

General Comment 14 also highlights the importance of “participation of the population in all health-related decision-making at the community, national and international levels.” States are also enjoined from “preventing people’s participation in health-related matters.”^[25]

The principle of participation has also been addressed by the Human Rights Committee. Article 25 of the ICCPR refers to “the right of every citizen to participate in the conduct of public affairs” and includes “all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels.” In 1996, the Human Rights Committee issued General Comment 25, advising that

citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government … Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.^[26]

The general comment also highlights the importance of “free communication of information and ideas about public and political issues,” which “implies a free press and other media able to comment on public issues.”^[27] The committee has provided detailed guidance on the freedoms of opinion and expression and of peaceful assembly in General Comment 34 and General Comment 37, respectively.^[28] In 2008, Helen Potts argued that the active and informed participation of people and groups in all health-related decision-making is a core obligation of the right to health. Participation relies in part on other rights, such as the right to express views freely and the right to education. However, according to Potts, participation should be distinguished from education, informing, and consultation, although they clearly play an important role.^[29] The principle of participation rests squarely on the realization of civil and political rights. It is in turn central to the realization of other human rights, and hence to effective responses to the climate crisis.

In 2009, the Committee on the Rights of the Child, which monitors the implementation of the Convention on the Rights of the Child, issued General Comment 12, which affirms the importance of the child’s right to be heard, including in national and international settings.^[30]

In 2018, the OHCHR issued guidelines for states on the effective implementation of the right to participate in public affairs. The Human Rights Council took note with interest of the guidelines and presented them “as a set of orientations for States, as well as for, where appropriate, other relevant stakeholders in relation to the effective implementation of the right to participate in public affairs.”^[31] The guidelines offer a succinct, powerful justification for the principle of participation:

Participation enables the advancement of all human rights. It plays a crucial role in the promotion of democracy, the rule of law, social inclusion and economic development. It is essential for reducing inequalities and social conflict. It is also important for empowering individuals and groups, and is one of the core elements of human rights-based approaches aimed at eliminating marginalization and discrimination. While the responsibility and accountability for taking decisions ultimately rests with public authorities, the participation of various sectors of society allows the authorities to deepen their understanding of specific issues; helps to identify gaps, as well as available policy and legislative options and their impact on specific individuals and groups; and balances conflicting interests. As a consequence, decision-making is more informed and sustainable, and public institutions are more effective, accountable and transparent. This in turn enhances the legitimacy of States’ decisions and their ownership by all members of society.^[32]

Specifically in environmental matters, the principle of public participation in decision-making and access to information was first explicitly affirmed in principle 10 of the 1992 Rio Declaration on Environment and Development, which states:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available.^[33]

In 2012, the then UN independent expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment, John H. Knox, noted the relevance of both “rights whose enjoyment is particularly vulnerable to environmental degradation” (substantive rights) and “rights whose exercise supports better environmental policymaking” (procedural rights). Knox cited as examples of procedural rights the rights to freedom of expression and association, to information, to participation in decision-making, and to effective remedies.^[34] These rights have also been explicitly recognized in regional environmental treaties in Europe and the Americas. In 1998, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) was adopted under the auspices of the United Nations Economic Commission for Europe.^[35] In 2005, the state parties to the Aarhus Convention adopted guidelines on promoting the application of the principles of the convention in international forums.^[36] In 2014, the Economic Commission for Europe issued comprehensive recommendations under the Aarhus Convention on promoting effective public participation in decision-making in environmental matters.^[37] In 2018, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters was adopted in Escazú, Costa Rica, under the auspices of the Economic Commission for Latin America and the Caribbean.^[38]

Some commentators have noted the importance of the participation of specific groups. Ann Sanson and Susie Burke note that decisions about climate change today will determine the lives of children far into the future. They suggest that giving children “the opportunity to actively combat climate change can also provide important psychological protection” and build resilience. They also acknowledge the critical role that today’s children, as the next generation of adults, will play in shaping global responses to climate change.^[39]

The preamble and article 13 of the Paris Agreement also affirm the importance of public awareness, public participation, and public access to information. In 2019, the UN General Assembly stressed the importance of the empowerment and capacity-building of indigenous women and youth, including in decision-making processes in matters that affect them directly. Consequently, in 2019 the General Assembly expanded the mandate of the United Nations Voluntary Fund for Indigenous Peoples to assist representatives of indigenous peoples’ organizations and communities wishing to participate in the UNFCCC Conference of Parties.^[40] Also in 2019, the UN Special Rapporteur on the rights to freedom of peaceful assembly and association, Clément Nyaletsossi Voule, noted that

the effective adoption and implementation of integrated policies and plans towards inclusion, resource efficiency, mitigation and adaptation to climate change and disasters is wholly dependent on the participation of community and civil society actors, including women’s organizations, youth groups and indigenous communities.^[41]

Also in 2019, David R. Boyd, the current Special Rapporteur on human rights and the environment, published a study of good practices relating to both the procedural and the substantive elements of the right to a healthy environment. The procedural elements include access to information, public participation, and access to justice and effective remedies.^[42]

In 2020, the Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Committee on the Rights of the Child, and the Committee on the Rights of Persons with Disabilities issued a joint statement on human rights and climate change. In the statement, the committees emphasized that states must guarantee the right of women, children, and other persons, such as persons with disabilities, to participate in climate policymaking. They noted that “given the scale and complexity of the climate challenge, States must ensure that they take an inclusive multi-stakeholder approach that harnesses the ideas, energy and ingenuity of all stakeholders.” The committees reiterated the importance of public participation in the design and implementation of climate policies.^[43]

Based on the authoritative guidance of various UN treaties, the UN General Assembly, the Human Rights Council, treaty committees, UN Special Rapporteurs, and other respected scholars, this paper contends that civil and political rights—including the right to participate in the conduct of public affairs, the right of peaceful assembly, and the freedoms of opinion and expression—are integral to the full realization of the right to health, including in the context of climate change.

The principle of participation, civic space, and the climate crisis

As noted, the principle of participation in the conduct of public affairs, including environmental decision-making, has received substantial attention. Until recently, largely missing from this framing of the principle of participation was an overt acknowledgment of the importance of the conditions under which civil society can participate meaningfully. In 2016, Michel Forst, the UN Special Rapporteur on the situation of human rights defenders, addressed the issue of threats to environmental activists and advocates. He noted the importance of fundamental freedoms such as the rights to expression, privacy, association, and peaceful assembly. Forst also welcomed the development of legally binding regional instruments on access to information, public participation, and justice on environmental matters, such as the Aarhus Convention, noting that they would be an effective tool in responding to many challenges, including climate change.^[44]

The concept of “civic space” has been defined by the OHCHR as “the environment that enables civil society to play a role in the political, economic, and social life of our societies.”^[45] In 2018, Antoine Buyse described civic space as “the layer between state, business, and family in which citizens organise, debate and act.”^[46] Also in 2018, Knox proposed framework principles on human rights and the environment.^[47] The framework principles acknowledge the importance of civil and political rights, and specifically the rights of human rights defenders who strive to protect and promote human rights relating to the environment. Reflecting the 1998 Declaration on Human Rights Defenders, framework principle 4 notes, “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.”^[48] Civic space also implies access to public space—both physical, in print and online—in which to debate, demonstrate, and hold states to account.

Since the terrorist attacks in New York City in 2001 and subsequent similar atrocities, civic space has been increasingly constrained on security grounds in many countries. In 2017, Mattias Wahlstrom and Joost de Meer noted that civil society is faced with a double challenge: terrorism’s attack on liberal democracies on the one hand and authorities’ compromise of civil liberties for the sake of security on the other.^[49] There are profound implications for climate action: Håkan Thörn, Carl Cassegård, Linda Soneryd, and Åsa Wettergren have described how climate justice movements in the Global North have been constrained in this context.^[50] In 2019, Saskia Brechenmacher and Thomas Carothers noted the lack of conceptual and strategic clarity regarding threats to civic space, including siloed approaches to foreign policy agendas and development assistance, and government ambivalence in established democracies.^[51]

Since 2020, civic space has been further constrained in response to the COVID-19 pandemic, often beyond what is arguably justifiable on public health grounds. The International Center for Not-for-Profit Law notes that the trend, which started prior to the COVID-19 pandemic, is global and includes measures that impede the formation of civil society organizations, their ability to seek and secure resources, and the freedom to assemble peacefully.^[52] In 2020, writing in the context of the COVID-19 pandemic, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression noted that “freedom of opinion and expression goes hand-in-glove with public health.”^[53] Also in 2020, Buyse noted how the COVID-19 pandemic and related government restrictions have led to greater use of online media for social organizing and dissent.^[54] Maya Gros and Norman Eisen have also since noted how civil society has migrated online in response to limitations on physical civic space in the name of public health, such as quarantines and the prohibitions of in-person gatherings.^[55]

Today, civic space is as much digital as it is physical, and it is under threat. There is concern that restrictions on civic space will continue after the COVID-19 pandemic, with negative implications for civil society responses to other global challenges, including the climate crisis. In 2020, Voule noted that “active citizenship is key in times of crisis” and warned that “democracy cannot be indefinitely postponed.”^[56] Also in 2020, noting the “gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity” by unjustified limitations on civil and political rights, Stephen Thomson and Eric Ip warned that COVID-19 emergency measures may herald an “authoritarian pandemic.”^[57] In 2021, Voule directly addressed threats to the freedoms of peaceful assembly and of association in the context of the climate change and noted that “addressing the climate crisis and ensuring a just transition requires the existence of a vibrant and dynamic civic society.” He added that the freedoms of peaceful assembly and of association are inextricably linked with the right to take part in public affairs. His report challenges us to consider the limits of peaceful dissent in the face of state intransigence. Voule argues that states should recognize and provide space for civil disobedience and nonviolent direct action campaigns, “which are employed by many climate justice activists around the world who are following in the footsteps of other major transnational social movements.” He notes that “States must exercise great restraint on imposing restrictions on [these] forms of peaceful protest, including when taking decisions on whether to arrest, prosecute, impose pre-trial detention, convict or award damages against climate justice activists for engaging in such actions.”^[58]

As noted, responses to the climate crisis are hotly contested. To ensure the fullest participation of all stakeholders in the design and implementation of these responses, it is essential that civic space be maintained and extended.

Limitations of these evolving approaches

The concepts of participation and civic space in international human rights law are useful tools to address the climate crisis. However, potential gaps remain. In 2010, Conor Gearty noted that the focus on the rights of the human species to the exclusion of other living organisms—animals, plants, and, indeed, the planet—has been interpreted by some observers to imply that “human rights” may actually hinder environmental protection. Nonetheless, Gearty acknowledges the value of the civil and political rights to the environmental movement, noting that “the assertion of civil and political rights gives activists a universal language—understandable even to those who do not share their substantive concerns—with which to fight back against a state intent on silencing them.”^[59]

Also missing from the international human rights framework is empathy for the nonhuman world contained in the perspectives of indigenous peoples who have curated their environments for millennia. Angela Roothaan notes that indigenous peoples focus on “how the spirits tell them to maintain an environmental balance with specific local surroundings, out of respect and love for the actual living beings that make up those surroundings, on which human life depends, and which human life can help sustain.”^[60] One approach to addressing this gap is to ensure that UN human rights treaties are read alongside other UN treaties. For example, although still framed as important for meeting human needs, the Convention on Biological Diversity, the UNFCCC, and these treaties’ respective protocols all promote respect for planetary health and are important adjuncts to the international human rights framework.

A related concern is the issue of intergenerational rights, which are not yet clearly articulated in the human rights framework. In 2019, Samudu Atapattu and Andrea Schapper reviewed arguments that future generations also have rights, such as the right to clean drinking water, the right to health, and the right to adequate food. They argue that our actions today should not compromise the ability of future generations to enjoy these rights.^[61] Atapattu has explored these issues from the perspective of the Convention on the Rights of the Child within a framework of sustainable development and intergenerational equity, noting that some environmental treaties also embody the intergenerational principle.^[62] In 2020, Lydia Slobodian reviewed court cases brought on behalf of child plaintiffs and future generations in the United States.^[63] These arguments are gaining traction in diverse jurisdictions. In 2021, a German court upheld a complaint brought by children and others that the government’s climate change targets and annual emissions allowed until 2030 were incompatible with complainants’ fundamental rights, including their rights to health and to life.^[64] Also in 2021, the Committee on the Rights of the Child, responding to a complaint by 16 child complainants, found that a state party can be held responsible for the negative impact of carbon emissions originating within its territory, whatever the location of the harm, including outside its territory.^[65]

Conclusion

While cognizant of the above limitations, this paper contends that the right to health provides a valuable opportunity for engaging a broader range of advocates in the response to the climate crisis, including from the health sector, while warning that civil and political rights—and notably civic space—must be protected if these actors are to contribute meaningfully.

Civil and political rights—such as the rights to information, to participation, to freedom of association, and to peaceful assembly—are key. Current human rights perspectives acknowledge the importance of participation in advancing the right to health. However, the concept of civic space is not yet adequately developed as a central plank of the principle of participation. Perspectives from political science can enhance the framing of civic space, including in relation to climate change. This imperative is increasingly urgent as communities become more aware of the threats of climate change. Poonam Joshi urges us to rethink civic space in the context of climate change, noting that “the urgency to take action on climate will mean many more people involved in direct action, protest, advocacy, and litigation.”^[66] Even the postapocalyptic world of “decline, depletion, chaos and hardship” envisaged by Kingsnorth will be a better place to the extent that human rights are respected and promoted.^[67]

Public health restrictions on civic space introduced during the COVID-19 pandemic must conform with the principles of international law and be lifted as soon as they are no longer justified, including by court order if governments delay. Nonetheless, governments with an authoritarian inclination and little tolerance for dissent may seek to maintain bans on public gatherings and protest, including regarding the climate crisis, in the name of public health.^[68] In this context, human rights, public health, and environmental advocates must develop and strengthen collaborative platforms for joint engagement to address the climate crisis, while defending and extending the civic space essential to ensuring their voices are heard. This trialogue will require an openness to differing disciplinary paradigms and world views, which in turn offers rich possibilities for healthy people and a healthy planet.^[69]

Acknowledgments

I gratefully acknowledge the valuable comments offered by Brigit Toebes and Marlies Hesselman of the University of Groningen on an earlier version of this manuscript. I would also like to thank the independent reviewers for their feedback.

David W. Patterson, LLM, MSc, is a PhD candidate in the Faculty of Law at the University of Groningen, Netherlands.

Please address correspondence to the author. Email: d.w.patterson@rug.nl.

Competing interests: None declared.

Copyright © 2021 Patterson. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited.

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[11] Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948).

[12] United Nations, International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 12(1)(d).

[13] Convention on the Rights of the Child, G.A. Res. 44/25 (1989), preamble, art. 29(1)(e).

[14] Human Rights Council, The Human Right to a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/HRC/48/L.23/Rev.1 (2021), preamble.

[15] Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000), para. 4.

[16] Office of the United Nations High Commissioner for Human Rights (see note 4).

[17] United Nations, Climate change and the International Covenant on Economic, Social and Cultural Rights: Statement of the Committee on Economic, Social and Cultural Rights (October 8, 2018). Available at https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23691&LangID=E.

[18] Human Rights Committee, General Comment No. 36, The Right to Life (Article 6), UN Doc. CCPR/C/GC/36 (2019), para. 62.

[19] United Nations General Assembly, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/62/214 (2007).

[20] Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 21(1).

[21] United Nations, The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17 (1987), para. 11.

[22] United Nations, World Conference on Human Rights: Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (1993), art. 5.

[23] Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States Parties’ Obligations, UN Doc. E/C.12/1991/23 (1990), para. 1.

[24] Committee on Economic, Social and Cultural Rights (2000, see note 15), para. 53.

[25] Ibid., paras 11, 34.

[26] Human Rights Committee, General Comment No. 25, The Right to Take Part in the Conduct of Public Affairs, UN Doc. CCPR/C/21/Rev.1/Add.7 (1996), para. 8.

[27] Ibid, para. 25.

[28] Human Rights Committee, General Comment No. 34, Freedom of Opinion and Expression (Article 19), UN Doc. CCPR/C/GC/34 (2011); Human Rights Committee, General Comment No. 37, The Right of Peaceful Assembly (Article 21), UN Doc. CCPR/C/GC/37 (2020).

[29] H. Potts, Participation and the right to the highest attainable standard of health (Colchester: University of Essex Human Rights Center, 2008), p. 18.

[30] Committee on the Rights of the Child, General Comment No. 12, The Right of the Child to Be Heard, UN Doc. CRC/C/GC/12 (2009), paras. 127–131.

[31] Human Rights Council, Resolution Adopted by the Human Rights Council on 28 September 2018, UN Doc. A/HRC/RES/39/11 (2018), para. 1.

[32] Office of the United Nations High Commissioner for Human Rights, Guidelines for states on the effective implementation of the right to participate in public affairs (2018), paras. 1–2. Available at https://www.ohchr.org/EN/Issues/Pages/DraftGuidelinesRighttoParticipationPublicAffairs.aspx.

[33] G. Handl, “Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972 and the Rio Declaration on Environment and Development, 1992,” United Nations Audiovisual Library of International Law 11 (2012), p. 6.

[34] Human Rights Council, Report of the Independent Expert on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox, UN Doc. A/HRC/22/43 (2012), para. 17.

[35] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998).

[36] United Nations Economic Commission for Europe, Report of the Second Meeting of the Parties, Decision II/4 Promoting the Application of the Principles of the Aarhus Convention in International Forums, UN Doc. ECE/MP.PP/2005/2/Add.5 (2005).

[37] United Nations Economic Commission for Europe, Maastricht Recommendations on Promoting Effective Public Participation in Decision-Making in Environmental Matters, UN Doc. ECE/MP.PP/2014/8 (2014).

[38] Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Convention), UN Doc. LC/PUB.2018/8 (2018).

[39] A. V. Sanson and S. E. L. Burke, “Climate change and children: An issue of intergenerational justice,” in N. Balvin and D. J. Christie (eds), Children and peace: From research to action (Cham: Springer, 2020), pp. 343–362.

[40] United Nations General Assembly, Rights of Indigenous Peoples, UN Doc. A/RES/74/135 (2019).

[41] United Nations General Assembly, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, UN Doc. A/74/349 (2019), para. 32.

[42] Human Rights Council, Right to a Healthy Environment: Good Practices; Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/HRC/43/53 (2019).

[43] United Nations International Human Rights Instruments, Statement on Human Rights and Climate Change, UN Doc. HRI/2019/1 (2019), para. 9.

[44] United Nations General Assembly, Situation of Human Rights Defenders, UN Doc. A/71/281 (2016), para. 22.

[45] Office of the United Nations High Commissioner for Human Rights, Protecting and expanding civic space. Available at https://www.ohchr.org/EN/Issues/CivicSpace/Pages/ProtectingCivicSpace.aspx.

[46] A. Buyse, “Squeezing civic space: Restrictions on civil society organizations and the linkages with human rights,” International Journal of Human Rights 22 (2018), pp. 966–988.

[47] Human Rights Council, Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/HRC/37/59 (2018).

[48] United Nations General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN Doc. A/RES/53/144 (1998).

[49] M. Wahlström and J. de Moor, “Governing dissent in a state of emergency: Police and protestor interactions in the global space of the COP,” in C. Cassegård, L. Soneryd, H. Thörn, and Å. Wettergren (eds), Climate action in a globalizing world: Comparative perspectives on environmental movements in the Global North (Oxford: Taylor and Francis, 2017), p. 63.

[50] H. Thörn, C. Cassegård, L. Soneryd, and Å. Wettergren. “Hegemony and environmentalist strategy: Global governance, movement mobilization and climate justice,” in C. Cassegård, L. Soneryd, H. Thörn, and Å. Wettergren (eds), Climate action in a globalizing world: Comparative perspectives on environmental movements in the Global North (Oxford: Taylor and Francis, 2017), pp. 219–244.

[51] S. Brechenmacher and T. Carothers, Defending civic space: Is the international community stuck? (Carnegie Endowment for International Peace, 2019). Available at https://carnegieendowment.org/2019/10/22/defending-civic-space-is-international-community-stuck-pub-80110.

[52] International Center for Not-for-Profit Law, The Civic Space Initiative. Available at https://www.icnl.org/our-work/global-programs/the-civic-space-initiative.

[53] Human Rights Council, Disease Pandemics and the Freedom of Opinion and Expression: Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/44/49 (2020), para. 10.

[54] A. Buyse, “Could we meet online? Creative protests during COVID-19,” Global Campus of Human Rights (April 1, 2021). Available at https://gchumanrights.org/preparedness/article-on/could-we-meet-online-creative-protests-during-covid-19.html.

[55] M. Gros and N. Eisen, “Digitizing civic spaces amid the COVID-19 pandemic and beyond,” Up Front (Brookings Institute, March 9, 2021). Available at https://www.brookings.edu/blog/up-front/2021/03/09/digitizing-civic-spaces-amid-the-covid-19-pandemic-and-beyond.

[56] C. N. Voule, States responses to COVID 19 threat should not halt freedoms of assembly and association: UN expert on the rights to freedoms of peaceful assembly and of association (2020). Available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25788&LangID=E.

[57] S. Thomson and E. C. Ip, “COVID-19 emergency measures and the impending authoritarian pandemic,” Journal of Law and the Biosciences 7 (2020), pp. 1–33.

[58] United Nations General Assembly, Exercise of the Rights to Freedom of Peaceful Assembly and Association as Essential to Advancing Climate Justice, UN Doc. A/76/222 (2021), para. 64.

[59] C. Gearty, “Do human rights help or hinder environmental protection?,” Journal of Human Rights and the Environment 1 (2010), pp. 7–22.

[60] A. Roothaan, “A world of motion and emergence: An outline of what’s at stake,” in A. Roothaan, Indigenous, modern and postcolonial relations to nature: Negotiating the environment (Abingdon: Routledge, 2019), pp. 1–20.

[61] S. Atapattu and A. Schapper, “Inter-generational rights, animal rights, and rights of nature and ecosystems,” in A. Sumudu and S. Andrea (eds), Human rights and the environment: Key issues (Abingdon: Routledge, 2019), pp. 325–339.

[62] S. Atapattu, “Intergenerational equity and children’s rights: The role of sustainable development and justice,” in C. Fenton-Glynn (ed), Children’s rights and sustainable development: Interpreting the UNCRC for future generations (Cambridge: Cambridge University Press, 2019).

[63] L. Slobodian, “Defending the future: Intergenerational equity in climate litigation,” Georgetown Environmental Law Review 32 (2020), p. 569.

[64] Bundesverfassungsgericht, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 (2021). Available at https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html.

[65] Committee on the Rights of the Child, Decision Adopted by the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure in respect of Communication No. 104/2019, UN Doc. CRC/C/88/D/104/2019 (2021); A. Nolan, Children’s rights and climate change at the UN Committee on the Rights of the Child: Pragmatism and principle in Sacchi v Argentina (October 20, 2021). Available at https://www.ejiltalk.org/childrens-rights-and-climate-change-at-the-un-committee-on-the-rights-of-the-child-pragmatism-and-principle-in-sacchi-v-argentina.

[66] P. Joshi, Climate change: Civic space future trend report (Washington, DC: International Center for Not-for-Profit Law Civic Space 2040 Initiative, 2020), pp. 1, 14.  

[67] Kingsnorth (see note 6).

[68] D. Patterson and D. Z. Paget, “COVID-19 and human rights: Why should the public health community be concerned?,” European Journal of Public Health 30 (2020), pp. 852–853.

[69] D. Patterson, “Building capacity to use legal tools to address climate change through a public health lens” (poster presented at the 14th European Public Health Conference, November 10–12, 2021).