International standards protecting the climate and its defenders

Background

Climate activists and movements fighting against the climate crisis are under pressure across the globe. Environmental defenders, CSOs and young activists are subject to fierce repression that can take various forms: introducing laws criminalizing legitimate expression and assembly, excluding or preventing CSOs from participating in environmental policy making, stigmatisation of activists as “eco-terrorists,” increased use of punitive lawsuits (“SLAPPs”), physical persecution, arbitrary arrests, verbal harassment online and offline, excessive use of police force. These actions are contrary to international standards on human rights and the environment.

The aim of the guide is to map out:

1. the scope of standards that protect the environmental activists’ rights to association, peaceful assembly, expression and participation in decision-making;
2. the type of restrictions that affect the space for environmental defenders; and
3. the mechanisms that they can use to enforce their rights and freedoms.  

 

Standards that protect environmental activists

 

 

 

 

Which are the most relevant standards that protect the environmental activists’ civic freedoms such as their rights to association, peaceful assembly, expression and participation in decision-making? You may find the extracts from the key international and regional documents below:

United Nations

International Covenant on Civil and Political Rights (ICCPR)

Article 19: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 21: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 25: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

Universal Declaration of Human Rights (UDHR)

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20: Everyone has the right to freedom of peaceful assembly and association

Article 21: Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matter  (Aarhus Convention)

Article 1: In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.

Article 3 (4): Each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection and ensure that its national legal system is consistent with this obligation.

Article 3: General provisions

Article 6: Public participation in decisions on specific activities

Article 7: Public participation concerning plans, programmes and policies relating to the environment

Article 8: Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments  

Geneva Roadmap (A/HRC/RES/40/11)

Article 3: Urges all States to take all measures necessary to ensure the rights, protection and safety of all persons, including environmental human rights defenders, who exercise, inter alia, the rights to freedom of opinion, expression, peaceful assembly and association, online and offline, which are essential for the promotion and protection of human rights and the protection and conservation of the environment

Article 14 (b): To adopt and implement strong and effective laws or policies ensuring, among other things, the right to take part in the conduct of public affairs and in cultural life, the freedom to seek, receive and impart information and equal access to justice, including to an effective remedy, in the field of the environment;

The Geneva Pledge for Human Rights in Climate Action

"We will facilitate the exchange of expertise and best practice between our human rights and climate experts to build our collective capacity to deliver responses to climate change that are good for people and the planet. To realise this we will strive to include human rights knowledge in our delegations to the UNFCCC and where applicable, climate change expertise in the HRC. "

United Nations Framework Convention on climate change  (UNFCC)

Article 6: (a) Promote and facilitate at the national and, as appropriate, subregional and regional levels, and in accordance with national laws and regulations, and within their respective capacities: (i) The development and implementation of educational and public awareness programmes on climate change and its effects; (ii) Public access to information on climate change and its effects; (iii) public participation in addressing climate change and its effects and developing adequate responses.  

Article 7: The Conference of the Parties, as the supreme body of this Convention, shall keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt, and shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention. To this end, it shall: (l) Seek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies;

Paris Agreement

Article 12: Parties shall cooperate in taking measures, as appropriate, to enhance climate change education, training, public awareness, public participation and public access to information, recognizing the importance of these steps with respect to enhancing actions under this Agreement.

Article 6 (4): A mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development is hereby established under the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Agreement for use by Parties on a voluntary basis. It shall be supervised by a body designated by the Conference of the Parties serving as the meeting of the Parties to this Agreement, and shall aim:  (b) To incentivize and facilitate participation in the mitigation of greenhouse gas emissions by public and private entities authorized by a Party;

Article 6 (8): Parties recognize the importance of integrated, holistic and balanced non-market approaches being available to Parties to assist in the implementation of their nationally determined contributions, in the context of sustainable development and poverty eradication, in a coordinated and effective manner, including through, inter alia, mitigation, adaptation, finance, technology transfer and capacity-building, as appropriate. These approaches shall aim to: (b) Enhance public and private sector participation in the implementation of nationally determined contributions;

UN Convention on biological diversity (UNCBD)

Preamble: Recognizing also the vital role that women play in the conservation and sustainable use of biological diversity and affirming the need for the full participation of women at all levels of policy-making and implementation for biological diversity conservation, (a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate allow for public participation in such procedures

Article 14: Impact Assessment and Minimizing Adverse Impacts 1. Each Contracting Party, as far as possible and as appropriate, shall: (a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate allow for public participation in such procedures;

Council of Europe

European Convention on Human Rights (ECHR) 

Article 10: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Article 11: Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests

European Union

Charter of Fundamental Rights

Article 12: Freedom of assembly and of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

Public Participation Directive

Article 2 (2): Member States shall ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of the plans or programmes required to be drawn up under the provisions listed in Annex I.

To that end, Member States shall ensure that:

(a) the public is informed, whether by public notices or other appropriate means such as electronic media where available, about any proposals for such plans or programmes or for their modification or review and that relevant information about such proposals is made available to the public including inter alia information about the right to participate in decision-making and about the competent authority to which comments or questions may be submitted;

(b) the public is entitled to express comments and opinions when all options are open before decisions on the plans and programmes are made;

(c) in making those decisions, due account shall be taken of the results of the public participation;

(d) having examined the comments and opinions expressed by the public, the competent authority makes reasonable efforts to inform the public about the decisions taken and the reasons and considerations upon which those decisions are based, including information about the public participation process.

Article 2 (3): Member States shall identify the public entitled to participate for the purposes of paragraph 2, including relevant non-governmental organisations meeting any requirements imposed under national law, such as those promoting environmental protection.

The detailed arrangements for public participation under this Article shall be determined by the Member States so as to enable the public to prepare and participate effectively.

Reasonable time-frames shall be provided allowing sufficient time for each of the different stages of public participation required by this Article.

Article 2 (4): This Article shall not apply to plans and programmes designed for the sole purpose of serving national defence or taken in case of civil emergencies.

Commission Notice on access to justice in environmental matters

2.5.2: Legal standing must be provided to individuals and environmental NGOs to ensure respect for EU environmental procedural pro­visions, such as those laying down decision-making procedures involving public participation, for example in procedures concerning plans and programmes.

Inter-American System

American Convention on Human Rights

Article 13: Everyone has the right to freedom of thought and expression.

This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.

Article 15: The right of peaceful assembly, without arms, is recognized. 

Article 16: Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.

 

 

Types of restrictions

 

 

 

 

What are the most common types of restrictions that environmental activists face during their work?

Freedom of peaceful assembly

• Protest ban: State authorities enforce protests bans that are arbitrary, imposed without clear legal authorization or proper justification. 
• Criminalization of peaceful protests: State authorities and law enforcement bodies impose criminal penalties or arbitrarily detain protestors for exercising their right to protest without any justification.
• Smear campaigns and intimidation of peaceful protestors: Protestors are victims of criminalization and defamation. Their detention or criminal prosecution is arbitrary or fabricated. They are subject to public shaming by public authorities. 

Freedom of association

• Restricting the environmental organizations’ ability to access funding: Some states require CSOs, including environmental organizations to register as foreign agents that may result in their dissolution and criminal penalties.
• Imposing highly burdensome audit requirements on them: New procedural rules, such as highly burdensome audit requirements, are put in place that target environmental organizations.

Access to information and participation in decision-making

• Limiting climate defenders’ access to information: Public authorities limit climate defenders’ access to information, which makes meaningful engagement in national-level policymaking difficult and erodes trust. Local consultations are perceived as not being genuine.
• Not respecting timelines for publishing information: Information on projects of public interest is systematically published late or not published at all.
• Limiting public input in large projects: Rules for public participation make it impossible for CSOs to provide input to large projects of public interest. There is lack of official procedure to challenge such practice and there is no other oversight mechanism in place. 
• Curtailed participation in international conferences and events: climate activists face barriers to access to the climate forums and other events and participate effectively and meaningfully in negotiations, including through bureaucratic hurdles, such as visa delays and denials, stricter travel, funding and security restrictions and the limited opportunities afforded to United Nations-accredited associations to register representatives.
• Withholding benefits for organizations conducting political activities or engaging in public participation: Stripping or threatening to strip the charity/public benefit status and its associated benefits from environmental groups on the grounds of being “too political”.

Freedom of expression

• Intimidation and smear campaign against activists: State officials and/or state-owned media label environmental CSOs and activists as "ecoterrorists", "ecoidiots",  “extremists” and “green criminals”, “anti-development” and “foreign-funded” groups.
• Hate speech and trolling: Climate activists face online hate speech and verbal abuse, including misogynistic or racist commentary, often from far-right agitators on Facebook and Twitter.

Right to privacy

• Excessive state surveillance: State authorities wiretap climate activists, access and store private information without judicial review, particularly those who engaged in civil disobedience to protest climate change or participate at climate conferences. Increasingly sophisticated digital surveillance strategies, from spyware to phishing campaigns, are being employed by government.
• Surveillance by private companies: Some international companies and energy firms employ private security firms to spy on environmental protesters perceived as a threat to their business activities. 

 

Enforcement Mechanisms

 

 

 

How can individuals or CSOs enforce the abovementioned rights when they find their rights being violated by their States? 

National enforcement mechanisms

Litigation at national level: In most cases, legal enforcement will have to start on national level. States that are party to binding international human rights treaties (such as the ICCPR, Aarhus Convention, ECHR), are obliged to safeguard these rights on national level. Individuals and/or CSOs that observe and experience violations can invoke these rights in for example national courts.  

Other national enforcement mechanisms: Said violations can also be brought to the attention of, for example, the national human rights institution, who are tasked to protect, highlight and promote human rights in their countries. They, for example, can judge individual cases of violation to determine and advise the government on its violations. They also report annually on the human rights situation in their country. Another relevant national body is the national ombudsperson. The typical duties of an ombudsperson are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation between citizen(s) and government. Sometimes they also aim to identify systemic issues leading to poor service or breaches of people's rights.  

Regional enforcement mechanisms  

Council of Europe

Once all national legal remedies have been used individuals or CSOs can address regional courts. For the enforcement of the ECHR, individuals can turn to the European Court of Human Rights (ECHR).

European Union

• As to the European Union legislation, such as the EU Charter of Fundamental Rights, the EU Aarhus Regulation but also other relevant EU directives, one can address the Court of Justice of the European Union (CJEU).  
• EU Infringement proceedings: The infringement procedure (also called infringement proceedings) is used when a Member State fails to implement European legislation. By means of the infringement procedure, Member States can be obliged to properly and fully apply European regulations. The Commission identifies possible infringements of EU law on the basis of its own investigations or following complaints from citizens, businesses or other stakeholders.
• Petitions to EU Parliament: Any citizen of the European Union, or resident in a Member State, may, individually or in association with others, submit a petition to the European Parliament on a subject which comes within the European Union’s fields of activity and which affects them directly. Any company, organisation or association with its headquarters in the European Union may also exercise this right of petition, which is guaranteed by the Treaty. A petition may take the form of a complaint or a request and may relate to issues of public or private interest. The petition may present an individual request, a complaint or observation concerning the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter. Such petitions give the European Parliament the opportunity of calling attention to any infringement of a European citizen’s rights by a Member State or local authorities or other institution. 

Inter-American System

• Inter-American Commission on Human Rights: Within six months of exhausting domestic legal remedies, individuals or recognized non-governmental entities can submit a petition to the Inter-American Commission on Human Rights stating facts tending to establish a violation of rights protected under the American Convention. If the petition is admissible, the Commission will request information from the government of the State, examine the matter, carry out its own investigation if needed, and place itself at the disposal of the parties to reach a friendly settlement.  Whether a settlement is reached or not, the Commission will issue a report to the parties.  If no settlement is reached within three months, it may issue recommendations or submit the case to the Inter-American Court of Human Rights. In serious and urgent cases, to protect the persons from irreparable harm, the Commission may requests Member States to adopt precautionary measures. The Commission also investigates priority thematic areas, including the situation of human and environmental rights defenders. It does so through thematic hearings held periodically and by establishing special rapporteurships. 
• Inter-American Court of Human Rights: Will hear cases referred to it by the Commission or by State parties to the American Convention, but in all instances, the case must have been previously examined by the Commission. The Court may adopt provisional measures in urgent and grave cases and when needed to avoid irreparable damage to persons. Its judgments are final and not subject to appeal and States parties have agreed to comply with its judgments. 

International enforcement mechanisms

Individuals or CSOs can also address international enforcement mechanisms next to or when do they do not get redress through national legal system. 

UN Mechanisms

Individuals or CSOs can bring information about human rights violations or non-compliance with human rights obligations to relevant UN bodies through two procedures: 

Complaint mechanisms: Some UN bodies accept complaints (usually referred to as “communications”) directly from individuals or CSOs on behalf of individuals.

• The complaint-recourse procedure should be used when the victim is seeking redress for a specific human rights violation. The general purpose for submitting this type of complaint is to address individual grievances and advocate on behalf of the victim. The complaint procedure also serves to bring publicity to a specific case. The UN bodies that receive such complaints review the submission and can ask the state government concerned to take measures to protect the victim and to provide redress for the violation.
• For example, the Human Rights Committee is a body of independent experts that monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR) by its State parties. It may consider individual communications alleging violations of the rights set forth in the ICCPR by States parties to the First Optional Protocol to the International Covenant on Civil and Political Rights.

Reporting/ monitoring mechanisms: The UN human rights bodies themselves regularly monitor compliance with treaty obligations. Monitoring and reporting procedures differ from complaint mechanisms in that monitoring does not result in a legally binding decision, nor does it depend on information communicated by individuals or groups. When UN bodies undertake monitoring, they create a report on State noncompliance which includes specific authoritative, but non-binding, recommendations. There are two ways that the reporting and monitoring procedure can be initiated:  

1. Required State reporting: The six core human rights treaties, including the ICCPR, establish committees that monitor their implementation. Once a national government has ratified one of these treaties, it is required to report on a regular basis to the treaty-monitoring body. CSOs have successfully used the State reporting period as a tool for advocacy. Most commonly, CSOs may submit alternative or “shadow” reports which offer an alternate view of State compliance with treaty obligations.  
2. Committee or CSO- Initiated reporting: Some UN monitoring bodies initiate a report on government action outside of the reporting schedule required by a treaty. In the case of the UN Special Rapporteurs (UNSR), the office initiates analyses of specific issues or developments, which is published in a report. CSOs have successfully used these reports cycles to address structural violations of their rights. (See for example the mandate and work of UNSR on the rights to freedom of assembly and association and UNSR on human rights and the environment.)

The Aarhus Convention compliance mechanism

This mechanism allows individuals and/or CSOs to communicate their concerns about a Party’s compliance directly to a board of independent experts, the Compliance Committee, who have the mandate to examine the merits of the case. Even though the Committee cannot issue binding decisions, it may make recommendations either to the Meeting of Parties, or, in certain circumstances, directly to individual Parties. See for more details the Committee's guidance document. 

Special Rapporteur for the protection of environmental defenders

On the 24th of June 2022, Mr. Michel Forst was elected with immediate effect as the world’s first Special Rapporteur on environmental defenders. His role is to take measures to protect any person experiencing or at imminent threat of penalisation, persecution, or harassment for seeking to exercise their rights under the Aarhus Convention. This is the first such mechanism specifically safeguarding environmental defenders to be established within a legally binding framework either under the United Nations system or other intergovernmental structure. The Special Rapporteur will be supported by the Aarhus Convention secretariat.

Any member of the public, Party to the Aarhus Convention, or the secretariat can submit a complaint to the Special Rapporteur. Since time is of the essence when it comes to the safety of environmental defenders, a complaint may be filed even if domestic remedies (lengthy court trials, etc.) have not yet been exhausted. Information submitted to the Special Rapporteur will be kept confidential unless the complainant explicitly waives this right.

The Special Rapporteur has various tools for resolving complaints and protecting environmental defenders quickly and effectively. This includes issuing immediate and ongoing protection measures, using diplomatic channels, issuing public statements, or bringing the matter to the attention of other relevant human rights bodies, and of the concerned Governments and Heads of State. Protection measures will be tailored to each situation and could include several actions that the Party concerned is directed to take to ensure that environmental defenders are not subject to further persecution, penalisation and harassment. 

 

Resources

• OHCHR International Covenant on Civil and Political Rights (ICCPR) | United Nations
• Universal Declaration of Human Rights | United Nations
• Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matter (Aarhus Convention) | United Nations
• Geneva Roadmap (A/HRC/RES/40/11) | United Nations
• United Nations Framework Convention on climate change (UNFCC)
• Paris Agreement | United Nations
• UN Convention on biological diversity (UNCBD) | United Nations
• European Convention on Human Rights (ECHR) | Council of Europe
• Charter of Fundamental Rights | European Union
• Public Participation Directive | European Union
• Commission Notice on access to justice in environmental matters | European Union

 

 

This e-book was prepared as part of the “Enabling Civic Environment for Climate Activism” regional project, managed by the European Center for Not-for-Profit Law Stichting (ECNL). The project is made possible by the International Center for Not-for-Profit Law (ICNL) through the Civic Space Initiative, funded by the Government of Sweden. The Government of Sweden does not necessarily share the opinions here within expressed. The author bears the sole responsibility for the content.

Copyright © 2022 by ECNL. All rights reserved.

Design elements: vecteezy.com and brusheezy.com