A/HRC/25/53
conclusions about the obligations of States to protect against environmental harm to the
rights of indigenous peoples. In his reports, the Special Rapporteur on the rights of
indigenous peoples has described in detail the duties of States to protect those rights.72 This
section therefore only outlines certain main points.73
78.
Firstly, States have a duty to recognize the rights of indigenous peoples with respect
to the territory that they have traditionally occupied, including the natural resources on
which they rely. Secondly, States are obliged to facilitate the participation of indigenous
peoples in decisions that concern them. The Special Rapporteur has stated that the general
rule is that “extractive activities should not take place within the territories of indigenous
peoples without their free, prior and informed consent,” subject only to narrowly defined
exceptions (A/HRC/24/41, para. 27). Thirdly, before development activities on indigenous
lands are allowed to proceed, States must provide for an assessment of the activities’
environmental impacts. Fourthly, States must guarantee that the indigenous community
affected receives a reasonable benefit from any such development. Finally, States must
provide access to remedies, including compensation, for harm caused by the activities.
V.
Conclusions and recommendations
79.
Human rights law includes obligations relating to the environment. Those
obligations include procedural obligations of States to assess environmental impacts
on human rights and to make environmental information public, to facilitate
participation in environmental decision-making, and to provide access to remedies.
The obligation to facilitate public participation includes obligations to safeguard the
rights of freedom of expression and association against threats, harassment and
violence.
80.
The human rights obligations relating to the environment also include
substantive obligations to adopt legal and institutional frameworks that protect
against environmental harm that interferes with the enjoyment of human rights,
including harm caused by private actors. The obligation to protect human rights from
environmental harm does not require States to prohibit all activities that may cause
any environmental degradation; States have discretion to strike a balance between
environmental protection and other legitimate societal interests. But the balance
cannot be unreasonable, or result in unjustified, foreseeable infringements of human
rights. In assessing whether a balance is reasonable, national and international health
standards may be particularly relevant. In addition, there is a strong presumption
against retrogressive measures.
81.
In addition to a general requirement of non-discrimination in the application of
environmental laws, States may have additional obligations to members of groups
particularly vulnerable to environmental harm. Such obligations have been developed
in some detail with respect to women, children and indigenous peoples, but work
remains to be done to clarify the obligations pertaining to other groups.
82.
Other issues deserve greater attention as well. Although it is clear that States
have an obligation of international cooperation, which is of obvious relevance to
global environmental problems such as climate change, clarification of the content of
extraterritorial human rights obligations pertaining to the environment is still needed.
72
73
See Report on indigenous peoples.
In addition to the reports of the Special Rapporteur, this summary draws on the ICESCR report,
sect. III.C; ICCPR report, sect. III.A; ICERD report, sect. III.B; and Inter-American report, sect. III.C.
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