Current air pollution levels in Asia violate the rights to life and health, the rights of the child, and the right to live in a safe, clean, healthy and sustainable environment.34 Given its importance to human life and well-being, governments and businesses must recognise clean air as a human rights issue and an urgent policy objective. Classifying clean air as a human right changes the perspective with which governments and civil society see this issue. Government authorities now have a clear, legally enforceable obligation to respect, protect and provide for clean air as a human right.35
Classifying clean air as a human right changes the perspective with which governments and civil society see this issue. Government authorities now have a clear, legally enforceable obligation to respect, protect and provide for clean air as a human right.35
In July 2022, the UN General Assembly (UNGA) affirmed in resolution A/76/L.75 that a clean, healthy, and sustainable environment is a human right.37 This historic resolution largely adopted the language of the UN Human Rights Council resolution 48/13, on the same matter in October 2021. By extension, the right to a clean, healthy, and sustainable environment includes the right to clean air. Experts interviewed for this report acknowledged the importance of these resolutions, despite their non-binding legal status, as they provide added support to arguments civil society champions bring to courts of law as they fight for remedies. Furthermore, classifying a clean environment (and clean air) as a human right also holds governments accountable for failing to act to prevent air pollution.
Resolution adopted by the UN General Assembly on 26 July 2022. The human right to a clean, healthy, and sustainable environment.36
The Human Rights Council’s recognition of the right to a clean, healthy and sustainable environment as a basic human right is significant in the following ways:
Recognition promotes a rights-based approach to addressing environmental violations:38 Classifying a clean, healthy and sustainable environment as a human right opens the doors to identifying both the various attributes of a clean environment as well as groups that are denied access to a clean environment. Such a rights-based approach encourages people to question why there is a ‘lack of a clean environment’ and who should be held responsible.
Recognition places environmental pollution within the remit of the UN Guiding Principles on Business and Human Rights (UNGPs): Recognising a clean environment as a basic human right, brings the issue of environmental pollution, which includes air pollution, directly within the remit of the UNGPs. In their present form, the UNGPs do not mention climate change or nature. By recognising a clean environment as a basic human right, any form of environmental pollution (including air pollution) becomes an abuse of a human right, which necessitates remedial action on the part of both States and businesses.39
“Even non-binding resolutions like these [HRC/RES/48/13] prove to be a good tool for civil society organisations to fight for justice, particularly for the most disadvantaged and under-represented sections of society.”
- Hemantha Withanage, Senior Advisor, Centre for Environmental Justice (Sri Lanka)
The potential impact of recognising clean air as a human right can be understood through a review of other such measures, for example, the UN General Assembly’s 2010 resolution 64/292, which recognises clean water as a human right. Actions taken following the passing of this resolution demonstrate how non-legally binding human rights instruments can be used as a catalyst to drive solutions on environmental issues.41
A decade after it was introduced, evidence of the positive impacts of the 2010 resolution were outlined:42
Resolution adopted by the United Nations General Assembly on 28 July 2010
The human right to water and sanitation40
Source: UNDP Sri Lanka
The UNGPs are a set of guidelines for States and businesses to follow to prevent and address human rights abuses committed in the context of business operations. The guidelines are based on three pillars, commonly referred to as the ‘Protect, Respect and Remedy’ framework. The first pillar involves the State’s duty to protect against human rights abuses by third parties, including business enterprises. The second pillar focuses on the responsibility of businesses to respect human rights. Finally, the third pillar involves the need for both State and businesses to provide access to effective remedy.46
The first pillar of the UNGPs focuses on the State's obligation to respect, protect and fulfil human rights and fundamental freedoms. To implement this duty, the guiding principles recommend the setting of clear expectations, such as relevant legal guidelines for businesses, that must be followed by both domestic and foreign businesses within the State’s jurisdiction. Setting clear expectations ensures predictability for businesses by signalling a consistent message applicable to all enterprises.
In the context of the State’s responsibility, Foundational Principles 4 and 5 state that:
Principle 4: “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.”47
Principle 5: “States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.”
The second pillar of the UNGPs focuses on the corporate responsibility to respect human rights. To carry out this responsibility, business enterprises are required to comply with all applicable local and international laws, but also go further and address any human rights risks or adverse human rights impacts of their operations. The UNGPs provide the necessary context for businesses to understand their responsibilities in taking steps to mitigate air pollution resulting directly from their operations.
Source: UNDP Business and Human Rights Asia
Guiding Principle 14 states, “The responsibility to respect human rights requires that business enterprises:
(a) Avoid causing or contributing to adverse human rights impacts through their own activities and address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”48
The final UNGP pillar outlines State and corporate responsibilities with regard to ensuring the appropriate judicial and legislative mechanisms are set up to address and remediate grievances and regulatory breaches.
Guiding Principle 25 states that: “As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.”
However, the onus does not rest solely with the State. Guiding Principle 29 provides that: “to make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.”
Subsequent to the establishment of the UNGPs in 2011, the UN Human Rights Council (HRC) urged States to develop National Action Plans (NAPs) on Business and Human Rights (BHR) that would define how the implementation of the UNGPs would be taken forward. At present, 43 governments and non-state actors (such as national human rights institutions) across Europe, the Americas, Africa and Asia have launched NAPs or NAP-related processes to implement the UNGPs. In Asia, three countries—Japan, Pakistan and Thailand—have successfully launched their NAPs, while India, Indonesia, Malaysia, Mongolia and Vietnam are in the active process of developing these policy initiatives. Promoting the UNGPs in Asia will strengthen internationally recognised standards of responsible business behaviour, based on agreed human rights norms while levelling the playing field for businesses that integrate human rights considerations into their operations and supply chain policies.
Source: UNDP Business and Human Rights Asia
The inclusion of environmental rights in a country’s constitution signals the country’s commitment to protecting its natural resources and shifts the conversation away from ‘whether to protect natural resources’ to ‘how to protect natural resources’. Using their constitutional environmental rights as leverage, petitioners in Asia have tried to hold governments and business entities accountable for their failure to address environmental issues, including air pollution. The table below highlights some instances of air-pollution-related litigation cases in Asia that have used a rights-based approach to seek redress for the adverse impacts of air pollution.
In 2019, 32 Jakarta citizens filed a legal challenge against the Indonesian President, three cabinet ministers, the Jakarta governor and two provincial leaders, for being negligent in their responsibility to control air pollution in the Indonesian capital city of Jakarta. The verdict, which followed two years later, found that the Indonesian government had failed to uphold citizens' right to clean air. The court held that the President must establish national air quality standards to safeguard human health and that the health minister and Jakarta governor must design strategies to control air pollution. Other mandates included cross-border emissions analysis and periodic testing of old vehicles.
Petitioners took legal action against the government demanding immediate and concrete action to reduce air pollution from transport emissions. The petitioners required the government to take steps to reduce ‘personal and official consumption of fossil fuels’ by at least 50%, implement road-sharing schemes, allocate open spaces for urban farming and release more financial resources to mitigate environmental pollution. However, the lawsuit was dismissed by the Supreme Court as it failed to fulfil all the legally required criteria for the issuance of writs.
India’s National Green Tribunal (NGT) issued directives to protect ecologically sensitive areas in the glaciers of Himachal Pradesh. It argued that increased tourism activity in the region, and the resulting pollution from fossil-fuel-powered transport vehicles, was releasing unburnt hydrocarbons and carbon soot into the atmosphere. This was leading to the blackening of snow cover, which was affecting glaciers in the mountains. The NGT ordered the State of Himachal Pradesh to take steps to reduce air pollution in the region, through measures such as restricting transport in some regions to clean fuels or electric vehicles, random pollution checks and a reforestation programme.
Petitioners brought a motion to the Supreme Court of the Philippines asking government agencies to mandate that public utility vehicles use clean transportation fuel (compressed natural gas) as a replacement for polluting fossil fuel. They alleged that emissions from fossil fuels were causing serious respiratory problems among citizens and that fossil-fuel-powered vehicles lead to air pollution that violates citizens’ right to clean air. In its judgement, the Supreme Court said that while the petitioners had legal standing—stemming from the right to clean air enshrined in the Philippines’ constitution—the requested writ of mandamus was inappropriate in this situation. Such a writ can only be issued to enforce a particular duty under law, and no law mandating the use of clean transport fuel exists.50
Petitioners brought legal action against Travancore-Electro Chemicals Industries Limited in the state of Kerala, for causing water and air pollution in neighbouring regions. They also sued the Kerala State Pollution Control Board for failing to prevent the entity from releasing these effluents and not taking steps to mitigate the harm resulting from them. The court found Travancore-Electro Chemicals Industries guilty of violating the national air pollution act and invasion of citizens’ constitutional right to life. As part of the verdict, the court suggested the creation of a national agency with powers to plan and enforce compliance. The court ordered the polluting industrial plant to comply with existing pollution norms within three months or to cease operations.
The above cases highlight how litigation can be a potentially powerful tool in raising awareness of the failure of the State and businesses to limit air pollution and its adverse impacts. However, few institutions or firms have been held accountable thus far. Citizen-led litigation might be more effective in the future where it is complemented by State commitments to the UNGPs through a NAP on Business and Human Rights.
Where States adopt a NAP on Business and Human Rights to implement the UNGPs, States can focus attention and consolidate the work of the many ministries that might regulate air quality. A NAP also offers a means of bringing public attention and inputs into planning and enforcement measures. Where States adopt a NAP on Business and Human Rights, they also send a clear message to businesses to respect human rights related to air quality. NAP processes may also encourage inputs from industry and lead to public commitments.
Finally, under Pillar 3, the UNGPs recognise that judicial mechanisms are a powerful tool providing for access to remedy. Clean air litigation can be complemented where the judiciary is also apprised of the concrete measures that government is taking to address air pollution in the context of a NAP on Business and Human Rights.
“We shouldn’t have to rely on legal action. When we recognise that people have the right to a healthy environment, that creates obligations on the part of the government, and governments should fulfil those obligations. Governments themselves need to respect, protect and fulfil the right. They need to respect the right by not violating it themselves through government projects that generate air pollution.”
- Dr David Boyd, United Nations Special Rapporteur on Human Rights and the Environment, Associate Professor, Institute for Resources, Environment and Sustainability, School of Public Policy and Global Affairs, University of British Columbia