The UN’s Top Human Rights Panel is Set to Vote on the Right to a Clean and Sustainable Environment
On Friday, the United Nations’ top human rights body will vote on whether to adopt a resolution recognizing the human right to a safe, clean, healthy and sustainable environment.
Approval, while not legally binding, would solidify the idea that the right to a healthy environment —a right that at least 150 countries recognize in some form—should be universally protected.
The move would also bolster the work of environmental advocates, provide courts with a touchstone to draw upon in environmental litigation and pressure countries to recognize or better protect the right, according to supporters of the resolution.
“It’s important that in this moment of environmental crises that the public are empowered to be as vociferous as possible,” Annalisa Savaresi, an expert in human rights and environmental law at the University of Eastern Finland, said. “The right to a healthy environment gives them greater power to question what public authorities and private actors do.”
Jonas Schubert, a childrens’ rights advocate in Switzerland who specializes in the right to a healthy environment, said approval of the resolution would be a worthwhile first step towards developing international standards that activists can lean on in pushing their own governments to better protect the environment.
While countries like Costa Rica, Morocco, Slovenia, Switzerland and the Maldives have led the push for U.N. Human Rights Council recognition of the right to a clean environment, a small handful of countries, including the United States, have opposed the measure.
The U.S. opposition comes at the same time the Biden administration has said it would emphasize environmental justice in its domestic agenda and be a leader abroad on issues like climate change. That dissonance has lawyers and advocates questioning why the United States would use political capital to actively oppose the non-binding resolution.
“The U.S.’ international diplomacy is at odds with its domestic commitments to environmental justice. It is very hard to understand their position here,” said Sébastien Duyck, a senior attorney at the Center for International Environmental Law in Geneva. “The right to a clean environment is one of the keys to the international translation of environmental justice.”
Many of the negotiations over the resolution have taken place behind closed doors, but sources familiar with the matter said U.S. officials have gone to great lengths to sell the idea that the resolution is a bad move.
U.S. opposition won’t directly affect the outcome of Friday’s vote because the Trump administration withdrew from the human rights council in 2018.
“As we are not currently a member of the Human Rights Council, we will not vote on issues before the Council,” a State Department spokesperson said Thursday. “We continue to work closely with our allies and partners on issues of concern, within the Council and in other multilateral fora.”
The Biden administration has indicated that it wants to rejoin.
The United States has long opposed legal recognition of economic, social and cultural rights, such as those pertaining to education, housing and health care, seeing them instead as favorable policy goals. U.S. officials view the right to a healthy environment as similarly in the realm of policy, not law, Schubert said.
“When you hear U.S. representatives in current discussions at the U.N. level, they often say, ‘There’s no such thing as a right to a healthy environment, it just doesn’t exist,’” he said.
The administration’s opposition has also caused some Biden supporters to question the White House’s commitment to marginalized communities in the United States.
“Having all of these public facing expressions of an intent to support environmental justice and then to not do that in practice is a waste of hope and misleading,” Samia Shell, a New York-based youth environmental justice advocate, said. “Environmental and climate justice can’t exist without the underlying assumption that a human right to a healthy environment exists.”
Observers expect the resolution to pass on Friday, just ahead of U.N climate negotiations next month in Glasgow, Scotland, and a Nov. 2 vote in New York on whether to enshrine the right to clean water, clean air and a healthful environment in the state constitution’s bill of rights. At least two other states, Pennsylvania and Montana, also recognize versions of the right, while activists in more than 10 other U.S. states are organizing to amend state-level constitutions to the same effect.
“This is arguably the most advanced the conversation about the right to a clean environment has ever been,” Savaresi said. “The key question is, will it make any difference?”
Where Did the Right to a Healthy Environment Come From?
While most international human rights law was born in the aftermath of World War II, the idea of a right to a healthy environment didn’t begin to take root until the environmental movement emerged in the 1960s.
Following a wave of greater awareness about how degrading the environment harms human health, Portugal, Argentina, Greece and other countries began adding the right to their constitutions. In India, Italy and Nigeria, courts have now recognized the right. And several regional and international treaties also recognize the right to a healthy environment, including the African Charter, the ASEAN Declaration and the Convention on the Rights of the Child.
Elsewhere, courts have connected environmental degradation to other human rights. In the 2019 case Urgenda Foundation v. State of the Netherlands, the Supreme Court of the Netherlands ruled that the government’s obligations to protect the rights to life and to family requires it to take action towards limiting global warming to 1.5 degree Celsius, as called for in the Paris climate accord. The Paris Agreement itself, in its preamble, connects the treaty’s goal to countries’ human rights obligations.
At the United Nations, there has been a proliferation of studies on the right to a healthy environment, including the appointment of a special rapporteur to focus on and promote the right.
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Building on this momentum, and spurred by the pace of environmental degradation around the world, advocates say it’s time for international recognition of the right.
“We have made excellent progress, but there is a strong potential for backsliding if we don’t internationally recognize this right,” Duyck said. “We need to lay [the right to a healthy environment] out explicitly and clearly once and for all.”
Why is the United States Opposing This Resolution?
The Biden administration’s opposition to the resolution is consistent with the United States’ history on other economic, social and cultural rights.
For instance, in 2010, the United States abstained from voting on a U.N resolution recognizing the right to clean water and sanitation. And despite leading in the creation of the post-war international order, including the creation of the Universal Declaration of Human Rights, America has not ratified a number of so-called core human rights treaties like the Convention on Violence Against Women, the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights.
The United States has viewed the rights under those treaties as distinct from civil and political rights, such as free speech, freedom of religion and due process, which generally protect individuals from government interference.
On the other hand, the United States has historically looked at issues like health care, education and the environment as political matters best dealt with by Congress.
Some legal scholars attribute the U.S. position to a Cold War-era split between communist-block countries that emphasized social rights, and western market economies that emphasized individual liberty. Today, the prevailing global view is that all forms of human rights are interrelated.
There could be other reasons behind the resistance of the United States to Friday’s resolution, Schubert said.
“I think there is reluctance because they fear that the consequences could be uncontrollable,” he said, referring to the possibility that the right could bind government decision making. “They also may fear that other countries or citizens of other countries might use a legal right to a clean environment to sue the U.S. government, the world’s biggest contributor to climate change.”
Where to From Here
Supporters of the right to a healthy environment acknowledge that harms affecting humans have continued, even as countries have formally begun to embrace an environmental right. They also say it would be unrealistic to expect countries that are notorious for ongoing human rights abuses, like China and Russia, to abide by the Human Rights Council’s approval of the nonbinding resolution.
Despite these drawbacks, Schubert said that international standards to better protect the environment will aid activists fighting for the right to information about governmental decision making and encourage public participation. Others have argued that giving up on the fight for the human right to a healthy environment because some countries won’t comply would be akin to giving up on the crime of murder because killings continue to happen.
Savaresi said she expects more court battles invoking the right as people become increasingly conscious of the right’s existence and recognition.
“It’s a long game. It won’t happen tomorrow and one has to be realistic about impacts in the short term. But the right could have a domino effect,” she said.
For Shell, the youth advocate, international recognition of the right to a healthy environment would be an acknowledgement that the world’s nations are starting to listen to young people who she says have the most at stake if environmental crises aren’t addressed.
“Young people have organized for this for a long time. It’s reached beyond idealism. This is about human empathy, which youth inherently understand,” she said. “The right to a healthy environment, it’s self-evident. You can’t argue that it doesn’t exist.”