Impact of the work of Special Procedures: Contribution to governmental and/or judicial processes

Impact of the Special Procedures on the momentous climate change Advisory Opinion of the International Tribunal for the Law of Sea

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered a momentous unanimous Advisory Opinion on States' obligations to protect and preserve the world's oceans from climate change impacts in response to the Request submitted to the Tribunal by the Commission of Small Island States on Climate Change and International Law.

The Request sought the Tribunal’s opinion on the obligations of State Parties to the United Nations Convention on the Law of the Sea ("UNCLOS") to prevent, reduce and control pollution of the marine environment caused by anthropogenic greenhouse gas emissions into the atmosphere and to protect and preserve the marine environment in relation to climate change impacts.

On 31 May 2023 the Special Rapporteurs on Human Rights and Climate Change, Toxics and Human Rights and Human Rights and the Environment submitted an amicus brief for the case to the Tribunal. The main thrusts of their submission were that:

UNCLOS should be interpreted through an approach which systemically integrates international human rights and international environmental law;

Greenhouse gas emissions amount to pollution of the marine environment under UNCLOS and they threaten a range of human rights;

States have obligations to respect, protect and fulfill rights where they are threatened by pollution of the marine environment through greenhouse gas emissions;

State responses to the climate crisis, including mitigation, adaptation and financing measures, must be consistent with human rights standards; and

States must provide appropriate remedies for the violation of human rights by activities that result in pollution of the marine environment through greenhouse gas emissions.

In its Advisory Opinion, the 21-member Tribunal acknowledged the Special Rapporteurs’ submission and noted that climate change represents an existential threat and raises human rights concerns. The separate declarations of Judge Kittichaisaree, Judge Infante Caffi and Judge Pawlak expanded on the relationship of human rights to climate change and the law of the sea.

“There is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights.”

On 9 April 2024, the European Court of Human Rights in the case of Verein Klimaseniorinnen Schweiz and Others v. Switzerland ruled in favour of a group of older Swiss women who claimed that weak Swiss climate policies put them at greater risk of death from heatwaves. In its landmark ruling, the Court found that the right to private and family life “must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.”

Verein KlimaSeniorinnen Schweiz, a non-profit association representing a group of 2400 older Swiss women, and four individual members, told the Court that several of their rights were being violated and that they were more likely to die in heat waves due to climate change, which had become hotter and more common. It argued that the European Convention on Human Rights required Switzerland to do more to stop the planet heating beyond the Paris Agreement target of 1.5C (2.7F) above preindustrial levels.

The Special Rapporteur on human rights and the environment, together with the Special Rapporteur on toxics and human rights and the Independent Expert on the enjoyment of all human rights by older persons, submitted an amicus curiae brief to the court on 15 September 2021. The amicus brief provided 2 main arguments, the first being that the Court’s existing approach to cases dealing with human rights and the environment and the rights of older persons could be tailored to address the specificities of climate change cases. Second, it argued that principles, obligations and commitments drawn from international environmental law could help the Court approach climate cases in a principled manner building upon its existing jurisprudence.

As part of an overview of relevant international materials, the Court mentioned reports by the Special Rapporteur on climate change, the Special Rapporteur on human rights and the environment, the Independent expert on human rights and international solidarity and the Independent Expert on the enjoyment of all human rights by older persons. 

In its judgement, the Court referred to the submission by the UN Special Rapporteurs. In paragraph 451, the Court stated: “It follows from the above considerations that the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded. Indeed, given the necessity of addressing the urgent threat posed by climate change, and bearing in mind the general acceptance that climate change is a common concern of humankind […], there is force in the argument put forward by the UN Special Rapporteurs ‘that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights […]’.”

Landmark regional human rights court ruling rules on State responsibility for violating the right to a healthy environment

On 22 March 2024, the Inter-American Court of Human Rights delivered its ruling in the case Community of Oroya vs Peru. The Court held Peru responsible for its failure to protect the inhabitants of the Peruvian Andean city of La Oroya, who were exposed to toxic industrial pollution from a smelter complex that operated without adequate pollution controls for a century. It is the first case in which the Court recognised a state’s responsibility for violating the right to a healthy environment and not protecting against business-related harms to the environment. The decision also constitutes the strongest and most comprehensive ruling to date of any regional human rights court on the right to a healthy environment, and by the same token, establishes a solid precedent on the matter.

The Special Rapporteur on human rights and the environment and the Working Group on Business and Human Rights, together with the Special Rapporteur on human rights defenders submitted two amicus briefs to the Court in October 2022.  

In line with the submissions of the amicus brief by the Special Rapporteur on human rights and environment, the Court clarified that the right to a healthy environment is comprised of a bundle of procedural and substantive elements. It cited reports of the Special Rapporteur, including one on “clean air”, (A/HRC/40/55), determining that the right to breath clean air was a substantive component of the right to a healthy environment, and another on “Human rights and the global water crisis: water pollution, water scarcity and water-related disasters” (A/HRC/46/28). In addition, the Court agreed with the Special Rapporteur’s earlier identification of La Oroya community as a sacrifice zone as highlighted in his thematic report (A/HRC/49/53) on “nontoxic environment”. 

The ruling directly quoted the work of the Special Rapporteur on human rights and environment, about the disproportionate impacts of environmental pollution on certain groups. Moreover, in line with the UN experts’ amicus briefs, the Court explained its decision to hold Peru responsible to protect against business-related harms to the environment and human rights in accordance with the UN Guiding Principles on Business and Human Rights. The Court stated that Peru should have taken additional steps, including requiring human rights due diligence, as the mining company had been owned by the Government. It also recognized that the Oroya community members were human rights defenders, as highlighted in the amicus brief, and held Peru responsible for not protecting them, and for not investigating the attacks they suffered. 

This ruling by a regional human rights court sets a crucial precedent for global use. 

The French Constitutional Court ruled a law unconstitutional following submissions by special procedures

The French Constitutional Court ruled on 21 May 2021 that numerous provisions of the law on global security were unconstitutional, in particular Article 52 (former Art. 24) which was making an offense to maliciously share images that identify police officers, as well as Article 47 which foresaw the use of drones to monitor protests. Earlier SP mandate holders through a joint communication JOL FRA 4/2021 had submitted arguments in this regard that the Constitutional Court had accepted. While deciding in particular, re: Art. 52, the Constitutional Court found that: “faute pour le législateur d'avoir déterminé si « le but manifeste » qu'il soit porté atteinte à l'intégrité physique ou psychique du policier devait être caractérisé indépendamment de la seule provocation à l'identification, les dispositions contestées font peser une incertitude sur la portée de l'intention exigée de l'auteur du délit… Dès lors, le paragraphe I de l'article 52 méconnaît le principe de la légalité des délits et des peines”. Re: 47, the Court noted that: “eu égard à leur mobilité et à la hauteur à laquelle ils peuvent évoluer, ces appareils sont susceptibles de capter, en tout lieu et sans que leur présence soit détectée, des images d'un nombre très important de personnes et de suivre leurs déplacements dans un vaste périmètre. Dès lors, la mise en œuvre de tels systèmes de surveillance doit être assortie de garanties particulières de nature à sauvegarder le droit au respect de la vie privée.

Other impact: Human rights standard setting

Ireland commits to independent review of controversial Electoral Act affecting civil society organisations

Following a joint communication (OL) sent on 10 December 2020 by the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the situation of human rights defenders, the Irish Government has acknowledged the legitimate and long-standing concerns raised by civil society in relation with the 1997 Electoral Act and committed to establish, by the end of 2021, an independent Electoral Commission which will, among other matters, review the Act in its totality, including Section 22.

Since the amendment of the law in 2001, civil society had repeatedly criticized the vagueness and uncertain wording of Section 22, which restricts civil society organizations’ effective exercise of the right to freedom of association and strongly impacts their fundraising capacity. The wide-ranging definition of “political purposes” introduced in the 2001 Act has had an unintended impact on the activities of civil society organisations and the means by which they legitimately raise funds to run their day-to-day operations. In 2001, Section 22 of the Electoral Act extended the donation restrictions that previously applied only to election candidates and political parties to all contributions given ‘for political purposes’ to any ‘third party’. The donation restrictions include donations in kind, i.e. not just money but also the supply of voluntary services, any reduction in rates for the use of property or supply of services, and donations of property or goods. These disproportionate donation restrictions on civil society organizations limit the ability of such organizations to carry out their legitimate work in contributing to public policy development in Ireland. In its reply, the Irish Government has committed to respond to the concerns raised in the most reasonable and appropriate manner.

Other impact: Legal reform

Advocating Mongolia to adopt its draft law on human rights defenders

The Special Rapporteur on human rights defenders, Mr. Michel Forst, has been very supportive and vocal towards their adoption of the draft law on the “Legal Status of Human Rights Defenders” during his country visit to Mongolia in May 2019 and subsequently, including in the report about this visit presented to the Council in March 2020 (see A/HRC/43/51/Add.2). Earlier in September 2019, he participated in a seminar around the law organised by OHCHR and other related activities organised by civil society. During his interactive dialogue at the 43rd session of the Human Rights Council, the representative of Mongolia noted that their Minister of Foreign Affairs had initiated the draft Law with the support of the National Human Rights Institution and civil society. He had the draft law considered by the Government and that, in his capacity as Member of Parliament; he was working to submit it to the Parliament. The representative of Mongolia also expressed the gratitude of the Government to OHCHR and the Special Rapporteur for their support for the adoption of the law.

Other impact: Legislative reform

Uzbekistan successfully implements recommendations to strengthen initial and continuous training for legal professionals

Following his country visit to Uzbekistan from 19 to 25 September 2019, the Special Rapporteur on the independence of judges and lawyers, Mr. Diego García-Sayán, made several recommendations to the Government on how it can strengthen its judicial system, including recommendations on how to ensure that the judiciary is truly independent from other branches of the State, in particular the executive branch, and that judges, prosecutors and lawyers are free to carry out their professional activities without any undue interference or pressure (A/HRC/44/47/Add.1). In particular, the Special Rapporteur underscored the important role that initial and continuous training play in strengthening the independence and impartiality of magistrates, judges, prosecutors and lawyers.

In line with these recommendations, the Government of Uzbekistan indicated that on 29 April 2020, the President of the Republic adopted a Decree “On additional measures to radically improve legal education and science in the Republic of Uzbekistan”. The decree aims at implementing the Special Rapporteur’s recommendations on how to improve initial and continuous training for legal professionals, and identifies priority areas for the further development of legal education. In accordance with the Decree, Tashkent State University of Law (TSUL) has been designated as the higher educational institution for the training and retraining of legal personnel, while new law schools have been created in the region of Samarkand, Namangan and Termez to facilitate access to the legal profession in areas where there is a lack of qualified legal professionals. The Decree also establishes the Institute of Governance and Law within the Academy of Sciences to carry out fundamental and applied research in the field of governance, law, political and legal thinking.

Other impact: Legislative reform

The Bahamas changes citizenship law to promote gender equality and reduce statelessness

On 25 May 2020, the Supreme Court in The Bahamas ruled that anyone born in country was entitled to citizenship at birth if at least one of their parents was a citizen of the country, irrespective of whether the parents were married. Until now, a child born in The Bahamas to a foreign mother and a Bahamian father out of wedlock was not granted citizenship and many children were rendered effectively stateless as they could only apply for Bahamian nationality upon turning 18. While the country started a deliberation on this issue in November 2017, the Special Rapporteur on violence against women advocated for a change in nationality laws during an official visit to The Bahamas in December 2017, (para 73 (f) of country visit report A/HRC/38/47/Add.2 refers).  The recent court ruling regarding the country’s citizenship laws represents a positive step towards promoting gender equality and reducing the risk of statelessness.

Other impact: Legislative reform

Argentina creates a Ministry of Women, Gender and Diversity

In December 2019, the Government of Argentina created a Ministry of Women, Gender and Diversity, giving ministerial rank to the body responsible for coordinating and implementing programs to prevent and combat violence against women. In addition, on 3 July 2020, the Government launched a National Action Plan against gender-based violence (2020-2022), in compliance with Law No. 26.485 for the Integral Protection to Prevent, Punish and Eradicate violence against women. The measures already carried out, and those listed in the National Action Plan, are positive steps towards complying with the recommendations issued by the Special Rapporteur on violence against women during her visit in November 2016.  The Special Rapporteur had recommended giving the then National Women’s Council ministerial rank to make it more visible and enhance its capacity; and promoting the uniform implementation of Law No. 26.485 on violence against women at all levels, among other measures. See report A/HRC/35/30/Add.3.

Other impact: Mechanisms of redress

Court in El Salvador finds non-recognition of internal displacement caused by criminal groups violates the rights of displaced persons

In July 2018, the Constitutional Chamber of the Supreme Court of Justice of El Salvador concluded in a case filed by an internally displaced family of 33 persons that El Salvador has not formally recognized current internal displacement in the country perpetrated by criminal groups and their inaction has violated the rights of these citizens. It continued that the national authorities should acknowledge this situation as well as take concrete measure to prevent further displacement and protect those already displaced, among others, within six months. In rendering its decision, the Court took into account, among other things, the Guiding Principles on Internal Displacement and the report of the Special Rapporteur on the human rights of internally displaced persons on the country visit to El Salvador from 14 to 18 August 2017 (A/HRC/38/39/Add.1).

Other Impact: Mechanisms of Redress – Accountability, Victim Support, and Access to Reparation Mechanisms

Nigerian court finds evicting 30,000 people without alternative accommodation is undignifying and inhuman

In November 2016, the Special Rapporteur on the right to adequate housing issued a communication to the Government of Nigeria (NGA 4/2016) and a press release raising serious concerns about the eviction of people belonging to the Otodo Gbame fishing community in the waterfront of Lagos, Nigeria. Thereafter, on 26 January 2017, the High Court of the State of Lagos in Nigeria issued an exceptional ruling addressing the protection of over 30,000 people belonging to the Otodo Gbame fishing community in the waterfront of Lagos who had been evicted and rendered homeless in which Hon. Justice S.A Onigbanjo ruled that eviction without alternative accommodation is "totally undignifying and certainly inhuman, cruel and degrading".

Other Impact: Mechanisms of Redress – Accountability, Victim Support, and Access to Reparation Mechanisms and Prevention and/or Cessation of Human Rights Violations