Grounding the New Legally Binding Instrument on Transnational Corporations on the Right to a Healthy Environment

By CIEL Senior Attorney Francesca Mingrone and FIAN International Secretary General Ana Maria Suarez-Franco. This article is being cross-published on the Third World Network (TWN): here.

The main existing frameworks to regulate corporate conduct – at the international, regional, and national levels – currently fail to incorporate the protection of the environment meaningfully. This article explains how including the right to a healthy environment and broader environmental considerations in the new legally binding instrument on transnational corporations is essential to ensure the effective protection of people’s rights and the planet.

The Human Rights–Environmental Nexus

Indigenous Peoples, communities affected by corporate crimes, social movements, human rights experts and the scientific community have been saying it loud and clear: the environment and human rights are deeply intertwined. Environmental-driven human rights harm can manifest in a multitude of ways: the suffering of fisherwomen in coastal communities who are losing their livelihoods and seeing their children migrate due to climate change; the intoxication, sickness, and death of rural workers poisoned by highly hazardous pesticides; or the destruction of biodiversity by agroindustrial food systems, which undermines food sovereignty and causes zoonotic diseases. The triple planetary crisis (climate change, pollution, and biodiversity loss) undermines the fundamental rights of individuals and communities, especially those most marginalized.

There is also clear evidence of the role that corporate actors – especially transnational corporations and financial institutions – play in fuelling environmental degradation. A striking example is the landmark inquiry by the Philippines’ Commission on Human Rights,¹ which exposed how big oil, gas, coal, and cement producers – the so-called Carbon Majors – have significantly contributed to climate change and the resulting human rights violations. While there cannot be effective environmental protection without taking into account human rights – whether substantive or procedural ones – to fully protect human rights, international instruments, processes, or mechanisms must address relevant environmental dimensions. This also applies to the ongoing negotiations on a legally binding instrument (LBI) to regulate transnational corporations and other business enterprises.

The human rights–environment nexus is a multifaceted one. On the one hand, States’ lack of effective action to address the triple planetary crisis violates a wide range of internationally recognized human rights, such as the right to life, health, food, water, and housing. On the other hand, some measures aimed at tackling environmental disruption can also have the potential to undermine human rights when they impact the livelihood of individuals and communities, especially their access to land, water, and energy. In both circumstances, procedural rights play an essential role, as environmental policymaking must be grounded in the right to public meaningful participation, access to information, and access to justice, as well as Indigenous Peoples’ right to self-determination, including free, prior, and informed consent.

The Relevance of the Right to a Clean, Healthy, and Sustainable Environment

The right to a clean, healthy, and sustainable environment captures this complex interrelation between human rights and the environment in one single right, enhancing human rights protection in the context of environmental degradation and destruction. As a former United Nations Special Rapporteur on human rights and the environment explained, the right to a healthy environment consists of substantive elements – clean air; safe, sufficient water and adequate sanitation; healthy and sustainably produced food; non-toxic environments in which to live, work, learn and play; healthy biodiversity and ecosystems; and a safe, livable climate²  – as well as procedural ones.³  As the right to a healthy environment is a ‘compound right’,⁴ deeply interlinked with other fundamental human rights, its universal recognition and application as a human right makes it easier to establish a connection between a given act or omission and the subsequent human rights violations.

At the global level, the right to a clean, healthy, and sustainable environment was recognized by the UN Human Rights Council in 2021,5 and subsequently by the UN General Assembly in 2022⁶. Other human rights mechanisms, as well as environmental decision-making processes, have since been building on this. The Committee on the Rights of the Child stated that this right is implicit in the Convention on the Rights of the Child in its General Comment No. 26 (2023) on children’s rights and the environment with a special focus on climate change,⁷  and the Committee on Economic, Social and Cultural Rights is taking a similar stance with regard to its Covenant, in its Draft General Comment on economic, social and cultural rights and the environmental dimension of sustainable development.⁸ Several negotiated outcomes in the context of multilateral environmental agreements have reaffirmed this right.⁹ 

Meanwhile, at the regional level, this right has enjoyed longstanding recognition, and is well established in the San Salvador Protocol,¹⁰ the Inter-American Convention on Human Rights, the African Charter on Human and Peoples’ Rights,¹¹ the Arab Charter on Human Rights¹² and the Association of Southeast Asian Nations (ASEAN) Human Rights Declaration.¹³ Within the Council of Europe, discussions are ongoing with regard to the possibility of recognizing the right through a legally binding instrument.¹⁴ In the ASEAN context, this right is also being included in the draft Declaration on environmental rights.¹⁵ Additionally, this right is recognized in the national constitutions and legal frameworks of over 160 States.¹⁶ Courts at the national and regional levels are increasingly referring to this right and refining its scope, as the recent La Oroya v. Peru case¹⁷ before the Inter-American Court of Human Rights or the Ranjitsinh et al. v. Union of India et al. case¹⁸  before the Indian Supreme Court demonstrated.

During the hearings for the International Court of Justice’s ongoing advisory opinion process on States’ obligations with respect to climate change in December 2024, at least five States19 mentioned the right to a healthy environment in connection with the issue of corporate accountability. The Framework Principles on Human Rights and the Environment, which outline States’ obligations with regard to the right to a healthy environment, establish that States must regulate private actors that have the potential to harm the environment and human rights.²⁰ 

The right to a healthy environment in the draft legally binding treaty

While there is no mention of the environment in the Human Rights Council’s resolution that established the open-ended intergovernmental working group (OEIGWG) tasked to negotiate the LBI back in 2014,^21,  environmental rights, the right to a clean, healthy, and sustainable environment, and broader environmental considerations have been part of the discussions throughout the years, and have found their way into the various versions of the draft texts. During the latest negotiation session, in December 2024, the environment was consistently raised by delegations and non-governmental organisations.²² The newly established group of experts to advise the Chair of the OEIGWG and States was also requested to provide their view on the nature of the right to a healthy environment. The experts confirmed that there is growing evidence that this right is part of international law, and stated that ‘taking into account the indicia of crystallisation of interrelated obligations, States may wish to consider them as part of the material scope of the LBI consistently with the development in multilateral and judicial fora’.²³ 

While it should be argued that the right to a clean, healthy, and sustainable environment is already part of the international human rights corpus – and thus, it is implied every time the draft LBI refers to human rights – explicitly mentioning the right to a healthy environment in the text will be essential. It would reinforce this right’s status as internationally recognized and better inform States’ and jurisdictional bodies’ application of the LBI. Such explicit reference will also strengthen the case that States have an obligation to regulate transnational corporations in a manner that effectively upholds this right and will facilitate access to justice and remedy for those who have suffered harm due to corporate-induced environmental degradation or destruction.

The main existing frameworks to regulate corporate conduct – at the international, regional, and national levels – currently fail to meaningfully incorporate the right to a healthy environment and broader environmental considerations, which are needed steps in any upcoming regulation. For instance, the European Union’s Directive on corporate sustainability due diligence refers to the right only in its Preamble. Thus, the legally binding treaty on States’ obligations to regulate transnational corporate conduct has the opportunity and responsibility to fill this normative gap by explicitly including the right to a clean, healthy, and sustainable environment and by integrating this right in its substantive provisions. There should be careful consideration of how to achieve this in a way that gathers consensus across negotiating blocks and still ensures that the right to a clean, healthy, and sustainable environment effectively informs the legally binding instrument.

The way ahead is still long and fraught with uncertainties. As Ecuador, in its capacity of OEIGWG Chair, has announced a series of thematic intersessional consultations throughout 2025, ‘including to address existing divergent views’,²⁴ we, as human rights and environmental organizations close to the social movements and affected communities, urge the negotiating States to ensure a spirit of constructiveness to advance the decade-long process. The final outcome should be grounded in the understanding that separating human rights and the environment defeats the purpose of an effective instrument to regulate corporate conduct and to ensure that any transition from a fossil fuels–based economy is a just and sustainable one. The explicit inclusion of the right to a clean, healthy, and sustainable environment is a natural acknowledgment of the evolution of the human rights framework and of the lived realities of those at the frontlines of corporate-induced environmental disruption.

Notes

1. Commission on Human Rights of the Philippines, National Inquiry on Climate Change: Report (2022), available athttps://www.ciel.org/wp-content/uploads/2023/02/CHRP-NICC-Report-2022.pdf

2. D. Boyd, The Right to a Healthy Environment: A User Guide (2024), available athttps://www.ohchr.org/sites/default/files/documents/issues/environment /srenvironment/activities/2024-04-22-stm-earth-day-sr-env.pdf, at 7.

3. Ibid. See also UN Special Rapporteur on the right to a healthy environment, Report of the Special Rapporteur on the human right to a clean, healthy and sustainable environment: Overview of the implementation of the human right to a clean, healthy and sustainable environment (2024), available athttps://docs.un.org/A/79/270, at 39–49.

4. Ibid., at 38.

5. Resolution HRC/RES/48/13, The human right to a clean, healthy and sustainable environment (2021).

6. Resolution A/RES/76/300, The human right to a clean, healthy and sustainable environment (2022).

7.  Committee on the Rights of the Child, General Comment 26 (2023) on children’s rights and the environment with a special focus on climate change, CRC/C/GC/26, para. 63.

8. UN Committee on Economic, Social and Cultural Rights, Draft General Comment on economic, social and cultural rights and the environmental dimension of sustainable development, para. 10.

9. See, for instance, the outcome of the First Global Stocktake under the Paris Agreement, UN Doc. FCCC/PA/CMA/2023/L.17, and the Sharm El-Sheikh Implementation Plan, Decision 1/CMA.4; Kunming-Montreal Global Biodiversity Framework, para. 14, Decision 15/4; and fifth International Conference on Chemicals Management (ICCM5), Bonn Declaration for a Planet Free of Harm from Chemicals and Waste, Resolution V/1, para. 17.

10. Art. 11.

11. Art. 24.

12. Art. 38.

13. Art. 28f.

14. Steering Committee for Human Rights (CDDH), Draft Revised CDDH report on the need for and feasibility of a further instrument or instruments on human rights and the environment (2023), available athttps://rm.coe.int/steering-committee-for-human-rights-cddh-drafting-group-on-human-right/1680afa8ee

15. Draft ASEAN declaration on environmental rights (as of 7 March 2024), AER WG/3M/03/Add.1, available at:https://unescap.org/sites/default/d8files/event-documents/AER%20WG_3M_3_Add1%20Draft%20ASEAN%20declaration %20on%20environmental%20rights.pdf

16. Supra note 2, at 8.

17. 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, available athttps://jurisprudencia.corteidh.or.cr/serie-c/sentencia/980571899

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

19. Ghana, Indonesia, Mexico, Myanmar and Senegal.

20. UN Special Rapporteur on human rights and the environment, 2018, Annex to A/HRC/37/59, principles 2, 10 and 12.

21. Resolution HRC/RES/26/9, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights (2014).

22. Draft Report on the tenth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, available athttps://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-transcorp/session10/igwg-10th-draft-report.pdf

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

24. Supra note 22, para. 21.

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