Grounding the New Legally Binding Instrument on Transnational Corporations on the Right to a Healthy Environment – Center for International Environmental Law

By CIEL Senior Lawyer Francesca Mingrone and FIAN Worldwide Secretary Normal Ana Maria Suarez-Franco. This text is being cross-published on the Third World Community (TWN): right here.

The primary present frameworks to control company conduct – on the worldwide, regional, and nationwide ranges – at the moment fail to include the safety of the setting meaningfully. This text explains how together with the precise to a wholesome setting and broader environmental concerns within the new legally binding instrument on transnational firms is crucial to make sure the efficient safety of individuals’s rights and the planet.

The Human Rights–Environmental Nexus

Indigenous Peoples, communities affected by company crimes, social actions, human rights specialists and the scientific neighborhood have been saying it loud and clear: the setting and human rights are deeply intertwined. Environmental-driven human rights hurt can manifest in a large number of how: the struggling of fisherwomen in coastal communities who’re dropping their livelihoods and seeing their youngsters migrate attributable to local weather change; the intoxication, illness, and demise of rural employees poisoned by extremely hazardous pesticides; or the destruction of biodiversity by agroindustrial meals programs, which undermines meals sovereignty and causes zoonotic ailments. The triple planetary disaster (local weather change, air pollution, and biodiversity loss) undermines the elemental rights of people and communities, particularly these most marginalized.

There’s additionally clear proof of the function that company actors – particularly transnational firms and monetary establishments – play in fuelling environmental degradation. A putting instance is the landmark inquiry by the Philippines’ Fee on Human Rights,1 which uncovered how massive oil, gasoline, coal, and cement producers – the so-called Carbon Majors – have considerably contributed to local weather change and the ensuing human rights violations. Whereas there can’t be efficient environmental safety with out bearing in mind human rights – whether or not substantive or procedural ones – to totally defend human rights, worldwide devices, processes, or mechanisms should tackle related environmental dimensions. This additionally applies to the continuing negotiations on a legally binding instrument (LBI) to control transnational firms and different enterprise enterprises.

The human rights–setting nexus is a multifaceted one. On the one hand, States’ lack of efficient motion to deal with the triple planetary disaster violates a variety of internationally acknowledged human rights, similar to the precise to life, well being, meals, water, and housing. Alternatively, some measures aimed toward tackling environmental disruption may also have the potential to undermine human rights after they influence the livelihood of people and communities, particularly their entry to land, water, and power. In each circumstances, procedural rights play a necessary function, as environmental policymaking have to be grounded in the precise to public significant participation, entry to info, and entry to justice, in addition to Indigenous Peoples’ proper to self-determination, together with free, prior, and knowledgeable consent.

The Relevance of the Proper to a Clear, Wholesome, and Sustainable Surroundings

The appropriate to a clear, wholesome, and sustainable setting captures this advanced interrelation between human rights and the setting in a single single proper, enhancing human rights safety within the context of environmental degradation and destruction. As a former United Nations Particular Rapporteur on human rights and the setting defined, the precise to a wholesome setting consists of substantive components – clear air; secure, ample water and satisfactory sanitation; wholesome and sustainably produced meals; non-toxic environments wherein to reside, work, study and play; wholesome biodiversity and ecosystems; and a secure, livable climate2  – in addition to procedural ones.3  As the precise to a wholesome setting is a ‘compound proper’,4 deeply interlinked with different basic human rights, its common recognition and utility as a human proper makes it simpler to ascertain a connection between a given act or omission and the next human rights violations.

On the international stage, the precise to a clear, wholesome, and sustainable setting was acknowledged by the UN Human Rights Council in 2021,5 and subsequently by the UN Normal Meeting in 20226. Different human rights mechanisms, in addition to environmental decision-making processes, have since been constructing on this. The Committee on the Rights of the Youngster said that this proper is implicit within the Conference on the Rights of the Youngster in its Normal Remark No. 26 (2023) on youngsters’s rights and the setting with a particular concentrate on local weather change,7  and the Committee on Financial, Social and Cultural Rights is taking an analogous stance with regard to its Covenant, in its Draft Normal Touch upon financial, social and cultural rights and the environmental dimension of sustainable improvement.8 A number of negotiated outcomes within the context of multilateral environmental agreements have reaffirmed this proper.9 

In the meantime, on the regional stage, this proper has loved longstanding recognition, and is nicely established within the San Salvador Protocol,10 the Inter-American Conference on Human Rights, the African Constitution on Human and Peoples’ Rights,11 the Arab Constitution on Human Rights12 and the Affiliation of Southeast Asian Nations (ASEAN) Human Rights Declaration.13 Inside the Council of Europe, discussions are ongoing with regard to the opportunity of recognizing the precise by way of a legally binding instrument.14 Within the ASEAN context, this proper can also be being included within the draft Declaration on environmental rights.15 Moreover, this proper is acknowledged within the nationwide constitutions and authorized frameworks of over 160 States.16 Courts on the nationwide and regional ranges are more and more referring to this proper and refining its scope, because the latest La Oroya v. Peru case17 earlier than the Inter-American Court docket of Human Rights or the Ranjitsinh et al. v. Union of India et al. case18  earlier than the Indian Supreme Court docket demonstrated.

In the course of the hearings for the Worldwide Court docket of Justice’s ongoing advisory opinion course of on States’ obligations with respect to local weather change in December 2024, not less than 5 States19 talked about the precise to a wholesome setting in reference to the difficulty of company accountability. The Framework Rules on Human Rights and the Surroundings, which define States’ obligations with regard to the precise to a wholesome setting, set up that States should regulate personal actors which have the potential to hurt the setting and human rights.20 

The appropriate to a wholesome setting within the draft legally binding treaty

Whereas there isn’t any point out of the setting within the Human Rights Council’s decision that established the open-ended intergovernmental working group (OEIGWG) tasked to barter the LBI again in 2014,21,  environmental rights, the precise to a clear, wholesome, and sustainable setting, and broader environmental concerns have been a part of the discussions all through the years, and have discovered their approach into the varied variations of the draft texts. In the course of the newest negotiation session, in December 2024, the setting was persistently raised by delegations and non-governmental organisations.22 The newly established group of specialists to advise the Chair of the OEIGWG and States was additionally requested to supply their view on the character of the precise to a wholesome setting. The specialists confirmed that there’s rising proof that this proper is a part of worldwide legislation, and said that ‘bearing in mind the indicia of crystallisation of interrelated obligations, States could want to think about them as a part of the fabric scope of the LBI persistently with the event in multilateral and judicial fora’.23 

Whereas it needs to be argued that the precise to a clear, wholesome, and sustainable setting is already a part of the worldwide human rights corpus – and thus, it’s implied each time the draft LBI refers to human rights – explicitly mentioning the precise to a wholesome setting within the textual content shall be important. It might reinforce this proper’s standing as internationally acknowledged and higher inform States’ and jurisdictional our bodies’ utility of the LBI. Such specific reference can even strengthen the case that States have an obligation to control transnational firms in a fashion that successfully upholds this proper and can facilitate entry to justice and treatment for many who have suffered hurt attributable to corporate-induced environmental degradation or destruction.

The primary present frameworks to control company conduct – on the worldwide, regional, and nationwide ranges – at the moment fail to meaningfully incorporate the precise to a wholesome setting and broader environmental concerns, that are wanted steps in any upcoming regulation. As an example, the European Union’s Directive on company sustainability due diligence refers back to the proper solely in its Preamble. Thus, the legally binding treaty on States’ obligations to control transnational company conduct has the chance and duty to fill this normative hole by explicitly together with the precise to a clear, wholesome, and sustainable setting and by integrating this proper in its substantive provisions. There needs to be cautious consideration of the best way to obtain this in a approach that gathers consensus throughout negotiating blocks and nonetheless ensures that the precise to a clear, wholesome, and sustainable setting successfully informs the legally binding instrument.

The way in which forward continues to be lengthy and fraught with uncertainties. As Ecuador, in its capability of OEIGWG Chair, has introduced a collection of thematic intersessional consultations all through 2025, ‘together with to deal with present divergent views’,24 we, as human rights and environmental organizations near the social actions and affected communities, urge the negotiating States to make sure a spirit of constructiveness to advance the decade-long course of. The ultimate consequence needs to be grounded within the understanding that separating human rights and the setting defeats the aim of an efficient instrument to control company conduct and to make sure that any transition from a fossil fuels–primarily based financial system is a simply and sustainable one. The express inclusion of the precise to a clear, wholesome, and sustainable setting is a pure acknowledgment of the evolution of the human rights framework and of the lived realities of these on the frontlines of corporate-induced environmental disruption.

Notes

Fee on Human Rights of the Philippines, Nationwide Inquiry on Local weather Change: Report (2022), accessible athttps://www.ciel.org/wp-content/uploads/2023/02/CHRP-NICC-Report-2022.pdf

D. Boyd, The Proper to a Wholesome Surroundings: A Consumer Information (2024), accessible athttps://www.ohchr.org/websites/default/information/paperwork/points/setting /srenvironment/actions/2024-04-22-stm-earth-day-sr-env.pdf, at 7.

Ibid. See additionally UN Particular Rapporteur on the precise to a wholesome setting, Report of the Particular Rapporteur on the human proper to a clear, wholesome and sustainable setting: Overview of the implementation of the human proper to a clear, wholesome and sustainable setting (2024), accessible athttps://docs.un.org/A/79/270, at 39–49.

Ibid., at 38.

Decision HRC/RES/48/13, The human proper to a clear, wholesome and sustainable setting (2021).

Decision A/RES/76/300, The human proper to a clear, wholesome and sustainable setting (2022).

 Committee on the Rights of the Youngster, Normal Remark 26 (2023) on youngsters’s rights and the setting with a particular concentrate on local weather change, CRC/C/GC/26, para. 63.

UN Committee on Financial, Social and Cultural Rights, Draft Normal Touch upon financial, social and cultural rights and the environmental dimension of sustainable improvement, para. 10.

See, for example, the result of the First World Stocktake underneath the Paris Settlement, UN Doc. FCCC/PA/CMA/2023/L.17, and the Sharm El-Sheikh Implementation Plan, Choice 1/CMA.4; Kunming-Montreal World Biodiversity Framework, para. 14, Choice 15/4; and fifth Worldwide Convention on Chemical substances Administration (ICCM5), Bonn Declaration for a Planet Freed from Hurt from Chemical substances and Waste, Decision V/1, para. 17.

Artwork. 11.

Artwork. 24.

Artwork. 38.

Artwork. 28f.

Steering Committee for Human Rights (CDDH), Draft Revised CDDH report on the necessity for and feasibility of an additional instrument or devices on human rights and the setting (2023), accessible athttps://rm.coe.int/steering-committee-for-human-rights-cddh-drafting-group-on-human-right/1680afa8ee

Draft ASEAN declaration on environmental rights (as of seven March 2024), AER WG/3M/03/Add.1, accessible at:https://unescap.org/websites/default/d8files/event-documents/AERpercent20WG_3M_3_Add1percent20Draftpercent20ASEANpercent20declaration %20onpercent20environmentalpercent20rights.pdf

Supra be aware 2, at 8.

Corte IDH. Caso Habitantes de La Oroya Vs. Perú. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 27 de noviembre de 2023. Serie C No. 511, accessible athttps://jurisprudencia.corteidh.or.cr/serie-c/sentencia/980571899

M.Ok. Ranjitsinh and Others v. Union of India and Others. 2024 INSC 280, Supreme Court docket of India, March 21, 2024, accessible athttps://climatecasechart.com/wp-content/uploads/non-us-case-documents/2024/20240321_67806_judgment.pdf

Ghana, Indonesia, Mexico, Myanmar and Senegal.

UN Particular Rapporteur on human rights and the setting, 2018, Annex to A/HRC/37/59, ideas 2, 10 and 12.

Decision HRC/RES/26/9, Elaboration of a world legally binding instrument on transnational firms and different enterprise enterprises with respect to human rights (2014).

Draft Report on the tenth session of the open-ended intergovernmental working group on transnational firms and different enterprise enterprises with respect to human rights, accessible athttps://www.ohchr.org/websites/default/information/paperwork/hrbodies/hrcouncil/igwg-transcorp/session10/igwg-Tenth-draft-report.pdf

See livestream of the intervention athttps://webtv.un.org/en/asset/k1g/k1g7tc9370, from 1:17:05 to 1:29:30.

Supra be aware 22, para. 21.