Last Updated:
Despite countries like India having strong domestic laws, the necessity for international enforceability arises because pollution and climate change do not respect borders
The health impacts of an unclean environment are severe and disproportionate. (AI Generated)
A clean environment is not a luxury but a basic requirement for every person to live and grow to their fullest potential. Environmental damage poses a direct threat to human survival, making a healthy environment central to the right to life, as outlined in Article 3 of the Universal Declaration of Human Rights.
The health impacts of an unclean environment are severe and disproportionate. The WHO estimates that approximately one-quarter of deaths among children under 5 could be avoided with healthier environments.
In October 2021, the United Nations Human Rights Council (UNHRC) recognised the right to a clean, healthy, and sustainable environment as a human right. This recognition is essential for enjoying all other human rights. This discussion aims to examine how this right could become enforceable under international law, covering its current status, the benefits of enforceability, and the potential challenges.
On October 8, 2021, the UN Human Rights Council adopted Resolution 48/13, formally recognising the right to a safe, clean, healthy, and sustainable environment. However, resolutions passed by the Human Rights Council are not legally binding on UN member states. While they establish a pathway for political commitments, they do not provide any mechanism for accountability for ‘defaulters’. This lack of legal obligation allows member states to postpone their environmental targets, thereby negatively impacting global citizens’ right to a clean environment. This deferral is often fueled by the absence of immediate repercussions, diminishing the fear of unfulfilled promises.
India’s Domestic Framework
India has firmly rooted the right to a clean and healthy environment within its constitutional and statutory framework. Although the right is not explicitly mentioned in the Constitution, the Supreme Court has interpreted Article 21 (Right to Life) to include this right. Key precedents include Subhash Kumar v. State of Bihar and the MC Mehta environmental litigation series. This right is further reinforced by two key constitutional elements: Article 48A (a Directive Principle compelling the State to protect and improve the environment) and Article 51A(g) (a Fundamental Duty requiring citizens to safeguard the natural environment). This framework makes environmental rights justiciable and enforceable in Indian courts, with the National Green Tribunal (NGT) dedicated to environmental justice.
The Need for International Enforceability
Despite countries like India having strong domestic laws, the necessity for international enforceability arises because pollution and climate change do not respect borders. Harm may originate externally—such as cross-border air pollution, rising sea levels, or melting glaciers in Tibet—even if India enforces strict environmental standards at home. International enforceability enables states to hold other states accountable through global and regional judicial bodies (like the ICJ, ITLOS, or arbitral tribunals).
For India, international enforceability would strengthen its commitment to the principle of Common but Differentiated Responsibilities (CBDR). CBDR stipulates that all countries share responsibility for global issues, but their contribution proportionality depends on historic activities and economic status. If the right were legally enforceable, India could demand that developed countries provide more assistance (technology transfer, finance) based on a legal right, rather than solely moral appeals.
The Role of Customary International Law (CIL)
Customary international law (CIL) is a critical mode of enforceability. Unlike treaties, which require ratification, CIL norms apply universally once they crystallize. CIL emerges through consistent state practice accompanied by opinion right — the belief that the practice is legally required.
Once established, CIL binds all states, providing a liability-based system that allows states to hold violators accountable in international tribunals without needing a specific treaty. This promotes global acceptance as domestic courts incorporate customary laws into their legal systems.
The Trail Smelter arbitration (United States v. Canada, 1938 & 1941) is an historical example, recognising the principle that no state has the right to use its territory in a manner that causes significant environmental harm to another. This is considered an early acknowledgment of environmental duties under customary international law. Current regional developments, such as Article 24 of the African Charter and the Inter-American Court’s recognition of a healthy environment right, signal an emerging global consensus towards this norm.
Implications of CIL Enforceability
Crystallizing the right into customary international law would transform it from soft law into legally binding hard law. This would impose universal duties on all states to act to avoid environmental harm, ensuring clean water, air, land, and ecosystems.
Key implications include:
- Accountability for Transboundary Harm: Problems like forest destruction or transborder pollution affecting neighbouring states would become legally enforceable. For example, the severe 2024 air pollution stemming from crop residue burning affecting both northern India and Lahore illustrates transboundary harm. CIL would legally oblige both countries to take preventive measures to ensure their pollution does not infringe on the rights of citizens in the neighbouring state.
- Mandatory Preventative Measures: Enforceability would necessitate preventative measures such as heightened emissions standards and mandatory environmental assessments.
- Domestic Recourse: National courts would find the right enforceable, allowing citizens and NGOs to bring their governments to account in domestic contexts.
- Strengthening CBDR: Developing nations could legally hold developed countries accountable for emissions reductions, climate finance, and technology transfer, giving concrete effect to the CBDR principle.
- International Action: States failing to uphold the right could be brought before international courts (ITLOS, ICJ, or regional human rights tribunals), potentially facing countermeasures, sanctions, or reparations. This process would promote global convergence toward minimum environmental standards.
Addressing Possible Challenges
The enforceability of the right to a clean and safe environment as customary international law faces challenges related to ambiguity in definition and the pragmatics of equitable enforcement.
1. Equitable Enforcement (The Economic Challenge)
Developing countries frequently lack the financial resources and technological capacity needed to fully implement environmental obligations, making them vulnerable to disproportionate cross-border litigation.
To counter this, a per capita income threshold for standing could be adopted. Under this mechanism, more prosperous countries would be prevented from suing poorer or developing states, ensuring that enforcement does not become a tool for economic hegemony. For instance, it would disallow a country like the US from filing suit against India, but would permit cases between similarly wealthy nations. This framework protects lower-income states while still ensuring accountability among richer nations, and equity can be further enhanced by mixing income levels with environmental concern factors like past emissions (in line with CBDR).
2. Defining a ‘Clean and Safe Environment’ (The Ambiguity Challenge)
To address the vagueness surrounding what constitutes a ‘clean and safe environment’, obligations can be tied to a country’s available resources. Countries would be required to spend a fixed percentage of their available resources on environmental protection and improvement.
If a country fails to achieve environmental outcomes but is meeting the required spending proportion, it would receive support from international bodies (e.g., UNDP or UNEP) rather than legal action. Enforcement mechanisms would only be triggered if a country fails to allocate the required proportion of resources. This framework can be complemented by setting absolute minimum standards for environmental safety, such as air and water quality thresholds defined by WHO, guaranteeing a baseline level of protection.
Conclusion
Environmental harm is borderless, placing human rights at risk. The right to a clean and safe environment is crucial—it is also a child’s right to life, liberty, and the opportunity to develop to their fullest potential.
A global framework that unites nations is essential not only for building a shared ambition but also for establishing accountability and liability. With the world only 17% on track to achieve the Sustainable Development Agenda goals by 2030, a liability-driven framework is necessary because current frameworks, despite UNHRC recognition, are insufficient.
Making the right to a clean and safe environment enforceable as customary international law provides a powerful and effective pathway to get environmental policy back on track. While complex hurdles exist, workable tools—such as per capita income thresholds, proportional resource allocation, and WHO-based minimum environmental baselines—can drive positive change.
The right to a clean and safe environment is both necessary and inevitable for human survival. Crystallizing it into customary law will create accountability, solidarity, and fairness among states. The world cannot afford for this right to remain aspirational; it must be universal, enforceable, and unshakable, because without a live-able planet, no other right survives.
Naman Sonpar is a Class 12 student of The Shriram Millennium School in Noida. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect News18’s views.
October 07, 2025, 10:16 is
Read More
Source link
[ad_3]
