Inter Folia Fulget: The UN General Assembly Resolution 76/300 of 28 July 2022 on “The Human Right to a Clean, Healthy and Sustainable Environment”

On 28 July 2022, the UN General Assembly (UNGA) adopted the landmark Resolution 76/300 “: “The Human Right to a Clean, Healthy and Sustainable Environment”. Resolution 76/300 was adopted with overwhelming support: 161 votes in favour, zero against, and 8 abstentions (Belarus, Cambodia, China, Ethiopia, Iran, Kyrgyzstan, Russia, and Syria).

The process of “carving out” the international recognition of the right to a clean, healthy and sustainable environment as a human right at the interacting international and national orders was naturally long and imperceptibly, but steadily, embedded in international negotiating process.

Unfolding the Relational Context of the UNGA Resolution 76/300

The UNGA Resolution 76/300 gained its foothold in the 1972 Stockholm Declaration, where UN Member States proclaimed their common conviction that “man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations” (Principle 1), and, also , that “the natural resources of the earth ….must be safeguarded for the benefit of present and future generations through careful planning or management” (Principle 2). The 1972 Stockholm Declaration called for concrete action at all levels contributing to the recognition and implementation of this right, placing at centre stage the inter-linkage between economic development, environmental protection and management, and peace and human well-being in an a-chronic (“for the benefit of present and future generations”) and context-dependent (the particular interests of, and requirements for the developing countries) perspective.

Unfolding the context of the creative international negotiating process[1] that generated the landmark UNGA Resolution 76/300 is a complicated endeavor. It requires digging into the relational foundations of the UNGA Resolution 76/300 that have provided, interactively, variably and progressively, the backdrop for its normative development and its consensus-building serving international common interest (ICI). After the 1972 Stockholm Declaration, an interesting contextual development goes back to the Malé Declaration on the Human Dimension of Global Climate Change (14 November, 2007)[2] which generally but explicitly addresses the connection between climate change and human rights. Being the declarative outcome of a Conference of Small Island Developing States convened by the government of Maldives, the Malé Declaration advocates the complementarity between the climate change and the human dimension (people’s rights, prosperity and survival) envisaging it as an inclusive process, and requested the Human Rights Council “to convene . . . a debate on human rights and climate change.”[3]

Responding creatively, the Human Rights Council (HRC) was seized on the digging into the relationship between climate change and human rights[4], and after receiving a requested analytical report of this relationship by the UN High Commissioner for Human Rights, it   affirmed that “human rights obligations and commitments have the potential to inform and strengthen international and national policy making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes”, and it initiated a multifaceted process for the development of a more coordinated consideration and study for the advancement of this relationship.[5]

Of catalytic importance in this process were the successive annual Reports to the HRC submitted by John Knox, the Special Rapporteur “on human rights obligations related to the enjoyment of a safe, clean, healthy, and sustainable environment”, appointed in 2012 by the Council. Knox depicted the working aspects of the relationship between human rights and the environment, identified good practices in the use of human rights obligations relating to the environment, and formulated specific recommendations for the implementation of their dynamic interlinkages.[6]

In his final Report in 2018, submitted jointly with his successor, and current Special Rapporteur, David Boyd, it was pointed out that, against the backdrop of the widespread agreement that human rights norms apply to environmental issues, Framework Principles on Human Rights and the Environment are elaborated that set forth “procedural obligations”, “substantive obligations” and “obligations related to those in vulnerable situations” vested to States and businesses.[7] However, it is underscored that a more consistent effort and work are required for the further clarification and implementation of the human rights obligations relating to a safe, clean, healthy and sustainable environment, and that the time has come for the UN to formally recognize the human right to a healthy environment. Such a legal recognition of this right will provide a powerful platform for benefits, perspectives and challenges in sustainability law and governance at all levels, associated with effective public participation in environmental decision-making, improved implementation and enforcement of environmental laws, stronger environmental policies, reduced environmental injustices, better environmental performance, and  a level playing field with social and economic rights.[8]

International Processes

The dynamic contextual field embellishing the canvas of recognition of the human right to a safe, clean, healthy and sustainable environment was further enlarged by the development of relational international processes, such as:

• The Global Call by civil society, indigenous people, social movements and local communities addressed to the HRC in 2020, to formalize, without delay, the recognition of the human right of all to a safe, clean, healthy and sustainable environment. This Call points to its widespread acceptance and legal development of the right at international, regional and national levels, as demonstrated in the Reports of the Special Rapporteurs to the HRC, ensuring “the interdependence and indivisibility of human rights and their relevance to environmental realities” and protecting people “both individually and collectively, and both substantively and procedurally, from the natural and human-made degradation of the environment and the impacts of climate change”. It will further play a decisive role in strengthening environmental justice, policies and performances, in the protection and empowerment for particularly affected persons, and in international cooperation.[9]
• The Report of the UN General Secretary “Our Common Agenda”, 2021, which, in its Section II, underscores the importance of pursuing “a renewed social contract, anchored in a comprehensive approach to human rights…… one that allows many more actors to tackle increasingly complex and interconnected problems.[10] The Report brings forward and showcases the importance of the complementarity of the three foundational elements “for a renewed social contract fit for the twenty-first century” (trust; inclusion, protection and participation; and measuring and valuing what matters to people and the planet), endowed with a consensus by the international community and the implementation of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals. In this vein, it illuminates the centrality of Human Rights as problem-solving tools in this process, and the concomitant need to update our thinking on them, giving consideration “to updating or clarifying our application of human rights frameworks and standards to address frontier issues” where, inter alia, “the right to a healthy environment also warrants deeper discussion”.[11]
• The joint Statement of 15 United Nations entities on the right to healthy environment, 8 March 2021, which underlines that the right to a healthy environment, despite its recognition by over 150 UN Member States, “has not been formally recognized at the global level thereby delaying achievement of the Sustainable Development Goals, exacerbating inequalities, and creating protection gaps ”, and that its global recognition “will support efforts to leave no one behind, ensure a just transition to an environmentally healthy and socially equitable world and realize human rights for all” in view of the fact that “rights of present and future generations depend on a healthy environment”. The 15 UN entities “commend the Council’s leadership for bringing the world closer to global recognition and protection of the right to a healthy environment” and declare that “the time for global recognition, implementation, and protection of the human right to a safe, clean, healthy and sustainable environment is now”. [12]

 Contextual Understanding of the Right to a Healthy Environment:  The Flow of Interlinkages

Resolution 76/300 “The Human Right to a Clean, Healthy and Sustainable Environment”, in its “Considering Part” – its preambular paragraphs, identifies, formally and comprehensively, the referential frame of its context from which its “Ordering” or “Operative” Part” derives.   Formulating its justificatory and explanatory frame, these preambular paragraphs specifically refer to the plurality of specific international instruments and processes shaped up over the years, supporting its development and implementation. Building on the 1972 Stockholm Declaration, this referential context features two kinds of instruments: those contributing to a fostering relationship and those marking a constitutive relationship   with the UNGA Resolution 76/300, both of which are specifically identified in the preambular paragraphs of this Resolution.

Prominent instruments reflecting a fostering relationship with the UNGA 76/300 include:

• The 1992 Rio Declaration on Environment and Development[13] which, inter alia, sets out that human beings are “at the centre of concerns for sustainable development” and  are “entitled to a healthy and productive life in harmony with nature” (Principle 1), that the right to development “must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations” (Principle 3), and that environmental issues are “best handled with the participation of all concerned citizens, at the relevant level” and requests the states to ensure that each individual has appropriate access to information, participation in decision-making processes and effective access to justice (Principle 10), while women and Indigenous people, their communities and other local communities have a vital role in environmental management (Principles 20 and 22).
• The 2012 UN Conference on Sustainable Development (Rio+20) and its outcome document entitled “The Future We Want”[14], which, inter alia, “reaffirms the importance of freedom, peace and security, respect for all human rights, including the right to development and the right to an adequate standard of living, including the right to food, the rule of law, gender equality, women’s empowerment and the overall commitment to just and democratic societies for development” (para.8). It also underscores that “broad public participation and access to information and judicial and administrative proceedings are essential to the promotion of sustainable development” requiring the meaningful involvement and active participation of regional, national and subnational legislatures and judiciaries, and all major groups and other stakeholders in order to “contribute to decision-making, planning and implementation of policies and programmes for sustainable development at all levels” (para.43), and it encourages “action at the regional, national, subnational and local levels to promote access to information, public participation and access to justice in environmental matters” (para.99). Emphasizing that sustainable development must be inclusive and people-centred, it recognizes the importance of the women’s leadership role, the importance of gender equality, and women’s empowerment for their full and effective participation in decision-making at all levels (paras. 31, 45) as well as the importance of active participation of indigenous people and youth in the achievement and governance of sustainable development. It also underlines the need for strengthening international cooperation to provide financial resources, capacity-building and technology transfer to developing countries which include least developed countries, landlocked developing countries and small island developing States, as well as the specific challenges facing the middle-income countries (paras. 58(f), 16, 32). Interestingly, and quite perspectively, it propounds the conviction that “in order to achieve a just balance among the economic, social and environmental needs of present and future generations, it is necessary to promote harmony with nature”, it notes the interlinkage between the promotion of sustainable development and the rights of nature as recognized by some states  (para. 39), and calls “for holistic and integrated approaches to sustainable development that will guide humanity to live in harmony with nature and lead to efforts to restore the health and integrity of the Earth’s ecosystem”(40).

Τhe UN Resolution 70/1 of 25 September 2015 “Transforming our World: The 2030 Agenda for Sustainable Development”[15] where a comprehensive, far-reaching and people-centred set of universal and transformative Sustainable Development Goals  (SDGs) and targets are adopted. In preambular para. 4 of the UNGA 76/300, the GA reaffirms its commitment to work “tirelessly for the full implementation of the Agenda 2030 by 2030”, to achieve “sustainable development in its three dimensions – economic, social and environmental – in a balanced and integrated manner”, and to eradicate poverty “in all its forms and dimensions” as an indispensable requirement for sustainable development.  The referential context delivers the creative frame for making the crucial step towards the right to safe, healthy and sustainable environment. The SDGs  provide a framework for achieving sustainable development, which includes ensuring that all people have access to a clean, healthy, and sustainable environment. In other words, the SDGs and the human right to a clean, healthy, and sustainable environment are interrelated and mutually reinforcing. For instance, achieving SDG 6, which aims to ensure availability and sustainable management of water and sanitation for all, is critical to ensuring that people have access to clean drinking water and adequate sanitation facilities. Similarly, SDG 7, which seeks to ensure access to affordable, reliable, sustainable, and modern energy for all, is crucial to promoting sustainable development and reducing greenhouse gas emissions that contribute to climate change. Furthermore, SDG 13, which focuses on taking urgent action to combat climate change and its impacts, is closely linked to the human right to a clean, healthy, and sustainable environment, for it has significant impacts on the environment and people’s health and well-being, and addressing this challenge is essential to ensuring that the right to a clean and sustainable environment is respected, protected, and fulfilled.

The instrument that marks an explicit constitutive relationship with this UNGA Resolution, is the Human Rights Council Resolution 48/13 of 8 October 2021, entitled “The human right to a clean, healthy and sustainable environment”[16]. Cast on the same title, this HRC Resolution, in its operational paragraphs, “recognized the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights”, noted that this right “is related to other rights and existing international law”, and that its promotion requires “the full implementation of the multilateral environmental agreements under the principles of international environmental law.” It further encouraged the States to build capacities and enhance cooperation with other States, the Office of the United Nations High Commissioner for Human Rights, relevant international organizations, international convention secretariats and programmes and relevant non-State stakeholders on the implementation of this right, to continue to share good practices in fulfilling human rights obligations relating to the enjoyment of this right, and to adopt policies for the enjoyment of this right. Concluding, it invited “the General Assembly to consider the matter”.[17] The Resolution was adopted by 43 votes in favor, 4 abstentions (China, India, Japan, and Russia), and no members voting against.

 Relational Understanding of the Right to a Healthy Environment:  Thematic and Procedural Elements

Most perceptively, the UNGA Resolution 76/300 approach to the general understanding of the human right to a clean, healthy and sustainable environment is relational rather that definitional. Instead of attempting to formulate a definition of this right, it refers to the interconnectedness of different factors that impact the environment and human well-being, highlighting the need for comprehensive and integrated solutions that take into account the complex relationships between different environmental, social, and economic factors. Embracing such a relational approach, the UNGA Resolution 76/300 seals its recognition  that environmental issues cannot be viewed in isolation from social and economic factors, such as poverty, inequality, and human rights.

Thus, its preambular paragraphs unfold the plurality of the different factors that relate to, and operate on, the inter-linkage between environmental governance and human rights, pointing to the thematic and procedural elements of such inter-linkage. The thematic elements include: sustainable management of natural resources, protection from the pollution of air, land and water, safe and stable climate, healthy biodiversity and ecosystems, sound management of chemicals and wastes, healthy and sustainably produced food and sustainable response to environmental degradation, so that the enjoyment of a clean, healthy and sustainable environment and the ability of present and future generations to effectively enjoy all human rights will be ensured.[18] Τhe procedural elements include: the right to have an access to information, the right to participate effectively in decision-making and the right to have an access to Justice and effective remedies.[19] In addition, the right to a clean, healthy and sustainable environment for the enjoyment of all human rights requires international cooperation in equitable terms, incorporating the standard formulation already cast in the above contextual instruments: to assist developing countries and middle-income countries facing specific challenges, in strengthening their human, institutional and technological capacity.[20] Further, it requires gender equality, recognition of the special role of women in environmental governance in all its aspects, recognition of the human rights implications of environmental damage around the world most acutely felt by women, girls and populations in vulnerable situations, the obligation of States to take additional measures “for those who are particularly vulnerable to environmental degradation” within the framework principles on human rights and the environment, and underscores the responsibility of all business to respect human rights.[21]

Maintaining the thread of the inter-linkage between human rights obligations and the enjoyment of safe, clean, healthy and sustainable environment as is consistently reflected in all the reports of the Special Rapporteurs, the Preamble makes a general reference to the normative instrumentalization of the right to a clean, healthy and sustainable environment through international agreements, national constitutions, legislation, laws and policies.[22] In fact, the recognition of this right and its normative goal is instrumentalized through important regional agreements which primarily include the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention (1998))[23] and its regional counterpart, the  Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin American and the Caribbean (Escazú Agreement (2018))[24], both of which are related to the procedural elements of the right to a healthy environment, protecting  the rights to information, access to justice and public participation in environmental matters and support environmental human rights defenders in exercising their human rights, including the right to a healthy environment. The international conventional and declarative instruments that have recognized the right to a healthy environment include the African Charter on Human and Peoples’ Rights (1981), the San Salvador Protocol to the American Convention on Human Rights (1988), and the ASEAN Declaration on Human Rights (2012). At the national level, a considerable number of States have constitutional provisions and have enacted legislation implementing the right to a safe, clean, healthy and sustainable environment. As the Special Rapporteur, David Boyd, stated in his 2019 Report to the HRC, “There are 101 States where this right has been incorporated into national legislation. Especially good practices can be seen in Argentina, Brazil, Colombia, Costa Rica, France, the Philippines, Portugal and South Africa, where the right to a healthy environment serves as a unifying principle that permeates legislation, regulations and policies…… In total, more than 80 per cent of States Members of the United Nations (156 out of 193) legally recognize the right to a safe, clean, healthy and sustainable environment”.[25]

 The Four Legitimating and Process-Evolving Aspects of the Right to a Healthy Environment

The deriving “Operative Part” of the the UNGA Resolution 76/300 focus on four legitimating and process-evolving aspects of the human right to a clean, healthy and sustainable environment performing international common interest (ICI) in correlation with its constantly evolving context

• First, its consensus-establishment: the Resolution recognizes the right to a clean healthy and sustainable environment as a human right.[26]
• Secondly, its relational aspect : the Resolution notes that the right is related to other rights and existing international law,[27] pointing to its interrelationship and interactive operation in the governance of international order protecting and promoting international common interest (ICI). In its concise wording, the Resolution, by acknowledging the interconnectedness of environmental issues with human rights and existing international law, provides a comprehensive, relational approach to the right to a clean, healthy and sustainable environment recognizing that environmental protection and sustainability governance constitute an integral part of a larger framework of global governance that seeks to protect and promote the well-being of all people in a-chronic terms (interests of present and future generations) and the nature.
• Thirdly, its instrumentation aspect: the Resolution affirms that the promotion of the right “requires the full implementation of the multilateral environmental agreements under the principle of international environmental law”.[28] The Resolution underscores the importance of instrumental multilateralism associated with the effective implementation of all relevant conventional environmental regimes serving ICI and governing the thematic and procedural elements of the inter-linkage between environmental governance and human rights, as explained above.
• Fourthly, its inter-subjective governance aspect: the Resolution calls on “States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.”[29] The Resolution emphasizes the need for applying a participatory approach to governance: to involve States and all relevant stakeholders, integrating the diverse interests and perspectives of different groups and ensuring that their voices are heard, and their concerns are addressed, in the decision-making processes. It highlights the importance of collective action, international cooperation, capacity building, and a participatory approach to governance in ensuring a clean, healthy, and sustainable environment for all.

CODA

Inter Folia Fulget. The UNGA Resolution 76/300 proclaiming the recognition of the right to a healthy environment and emerging from the richness of a flow of interlinked international instruments and processes, echoes the indispensable need and perspective for reigniting the fundamental expectation of citizenship requiring government to act in loyalty to the public for securing a sustainable future and protecting the interests of present and future generations. Rights-based and equitable approaches to addressing and shaping governance of climate change, biodiversity and nature loss, and pollution are essential to stimulating a process embracing effective actions to achieve the Sustainable Development Goals (SDGs). Importantly, they lay the foundations for thinking relationally, holistically and contextually in environmental law and governance and for building transformative societal change. They open up new horizons in a societal trust management  of nature, protecting the rights of nature in tandem with human rights fuelled by an inter-generational power.

ENDNOTES

[1] On the conceptualization and understanding of international creative negotiation as a structured process of relational governance constructing international common interest in a world of relations, see RAFTOPOULOS, E., International Negotiation – A Process of Relational Governance for International Common Interest (Cambridge University Press, 2019).

[2] Malé Declaration on the Human Dimension of Global Climate Change (Nov. 14, 2007).

  Available at:  https://www.ciel.org/Publications/Male_Declaration_Nov07.pdf.

[3] Ibid., paras. 4 and 5.

[4] Human Rights Council, Human Rights and Climate Change, Res. 7/23, in Report of the Human Rights Council on Its Seventh Session, UN Doc. A/HRC/7/78 (July 14, 2008).

[5] Human Rights Council, Res. 10/4, Human Rights and Climate Change, UN Doc. A/HRC/RES/10/4 (Mar. 25, 2009).

[6] See Annual Thematic Reports – Special Rapporteur on Human Rights and the See Annual Thematic Reports – Special Rapporteur on Human Rights and the Environment.

Available at: https://www.ohchr.org/en/special-procedures/sr-environment/annual-thematic-reports.

[7] These Framework Principles included: Principle 3: States should prohibit discrimination and ensure equal and effective protection against discrimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment. Principle 5: States should respect and protect the rights to freedom of expression, association and peaceful assembly in relation to environmental matters. Principle 6: States should provide for education and public awareness on environmental matters. Principle 7: States should provide public access to environmental information by collecting and disseminating information and by providing affordable, effective and timely access to information to any person upon request. Principle 9: States should provide for and facilitate public participation in decision-making related to the environment and take the views of the public into account in the decision-making process. Principle 10: States should provide for access to effective remedies for violations of human rights and domestic laws relating to the environment. Principle 13: States should cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights. Principle 14: States should take additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities. See Framework Principles on Human Rights and the Environment (UN Report, 2018), A/HRC/37/59.

Available at:    https://www.ohchr.org/en/special-procedures/sr-environment/framework-principles-human-rights-and-environment-2018.

[8] UN General Assembly, 73rd Sess., para. 37, UN Doc. A/73/188 (July 19, 2018).

[9] THE TIME IS NOW! Global Call for the UN Human Rights Council to Urgently Recognize the Right to a Safe, Clean, Healthy and Sustainable Environment (Sept. 10, 2020).

Available at: https://www.ciel.org/wpcontent/uploads/2020/09/Global-Call-for-the-UN-to-Recognize-the-Right-to-a-Healthy-Environment-English.pdf.

[10] Report of the UN Secretary-General, Our Common Agenda (Sept. 10, 2021), pp. 22-34.

Available at: https://www.un.org/en/content/common-agenda-report;

[11] Ibid., paras. 33 and 35, pp. 32-33.

[12] Joint Statement of United Nations Entities on the Right to Healthy Environment (Mar. 8, 2021). Available at: https://www.unep.org/news-and-stories/statements/joint-statement-united-nations-entities-right-healthy-environment. The 15 UN Entities include: ILO, Office of the High Commissioner for Human Rights (OHCHR),UNDP, UNECE, UNECLAC, UNESCO, UNEP, United Nations High Commissioner for Refugees (UNHCR), UNESCO and WHO. See also STEP UP!: A Joint Commitment by Heads of United Nations Entities to Promote the Right of Children, Youth and Future Generations to a Healthy Environment and Their Meaningful Participation in Decision-Making at All Levels, in Relation to Climate Action and Climate Justice (June 2021), Available at: https://www.sparkblue.org/system/files/2021-06/210615%20STEP%20UP%20 %20Joint%20Commitment%20by%20Heads%20of%20UN%20Entities.pdf.

[13] UNGA, The human right to a clean, healthy and sustainable environment, A/RES/76/300 (28 July 2022), preambular paragraph 2. See Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3−14 June 1992, vol. I, Resolutions Adopted by the Conference (United Nations publication), Resolution 1, Annex I

[14] UNGA , A/RES/76/300 (28 July 2022), op. cit., preambular paragraph 5. See UNGA Resolution 66/288 “The Future We Want”, adopted on 27 July 2012 (A/RES/66/288).

[15] Ibid., preambular paragraph 4.

[16] Human Rights Council, The Human Right to a Clean, Healthy and Sustainable Environment, Res. 48/13, UN Doc A/HRC/RES/48/13 (Oct. 8, 2021).

[17] Ibid., paras. 1,2,3,4,5.

[18] See Ibid., preambular paras. 9, 13.

[19] Ibid., preambular para. 14.

[20] Ibid., preambular para. 10.

[21] Ibid., preambular paras. 12, 11, 15, 16.

[22] Ibid., preambular paras. 18, 20.

[23] UNECE, “Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)”, (25 June, 1998, Aarhus, Denmark). Available at https://unece.org/DAM/env/pp/documents/cep43e.pdf.

[24]CEPAL, “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean”, (4 March 2018, Escazú, Costa Rica). Available at https://www.cepal.org/en/escazuagreement.

[25] Human Rights Council, Right to Healthy Environment: Good Practices, Report of the Special  Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 43^rd Session(24 February–20 March 2020), UN Doc A/HRC/RES/43/53 (Dec. 30, 2019), paras. 12, 13.

[26]See UNGA Resolution 76/300, para.1.

[27] Ibid., para.2

[28] Ibid., para 3

[29] Ibid., para.4.