Clifford Chance

On 21 June, Costa Rica, the Maldives, Morocco, Slovenia, and Switzerland presented the UN General Assembly with a draft resolution on the human right to a healthy and sustainable environment.

Draft resolution 76/XXX (which is yet to be formally published) is based on UN Human Rights Council (UNHRC) Resolution 48/13 A/HRC/48/L.23/Rev.1, which in October 2021 recognised the right to a safe, clean, healthy and sustainable environment (the R2HE).

The draft resolution:

• Recognises the R2HE as a human right that is essential for the full enjoyment of all human rights;
• Notes that the R2HE is inextricably related to the right to life and the right to the highest attainable standard of physical and mental health, as well as other rights; and
• Calls upon States and international organizations to adopt policies, to enhance cooperation and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.

The draft resolution was presented to UN Member States on 27 June and was open for comment until 29 June. It is anticipated that the resolution will go to a vote by the end of July.

The draft resolution comes amid increased calls by stakeholders for governments around the world to recognise the R2HE.

A growing recognition of the R2HE

Over the last fifteen years, the UNHRC has increasingly focussed on the impact on human rights of environmental issues, including climate change. This began in 2008, when the UNHRC passed Resolution 7/23 requesting the Office of the UN High Commissioner for Human Rights to conduct a detailed analytical study on the relationship between climate change and human rights.

The concept of a R2HE has its roots in the 1972 Declaration of the United Nations Conference on the Human Environment (the Stockholm Declaration) and has gained significant traction in recent years. In a 2019 report to the UNHRC, Right to a healthy environment: good practices, the UN Special Rapporteur on Human Rights and the Environment, Dr David Boyd, using research prepared by Clifford Chance and the Vance Center for International Justice (among others), found that the R2HE is recognised by 156 UN Member States, and that such a right is afforded constitutional protection in 110 Member States.

Dr Boyd's 2019 report also argued that a rights-based approach is essential to catalysing the urgent actions needed to achieve the Sustainable Development Goals.

On 8 October 2021, the UNHRC passed Resolution 48/13 A/HRC/48/L.23/Rev.1 , recognising the R2HE for the first time. Read further here.

R2HE, climate change as a human rights issue and litigation

Importantly, both Resolution 48/13 and this new draft resolution recognise that a safe and stable climate is an integral component of the R2HE. The potential force of this right in the armory of climate change activists is clear from traction claimants have managed to secure from the right when invoking human rights protections in climate-related litigation around the world.

In a report published on 3 June 2022, the Special Rapporteur for Climate Change noted that a growing number of stakeholders – including individuals, NGOs and business entities – are bringing cases to compel enforcement of climate change-related laws, to extend existing laws to address climate change, and to define the relationship between fundamental rights and the impacts of climate change.

A large proportion of these cases are concentrated in Latin America, Asia-Pacific and Europe, consistent with the findings in a 2012 article by Dr Boyd, "The Constitutional Right to a Healthy Environment", that courts in those regions more commonly rely on the constitutionally recognised right to a healthy environment to protect environmental interests.

In Salamanca Mancera v. Presidencia de la República de Colombia [2018], for example, the Colombian Supreme Court at paragraphs [26] – [27] upheld a complaint brought by young activists who argued that deforestation in the Amazon rainforest breached rights protected by the Colombian Constitution, including the R2HE.

Next steps: What is the likely impact of the UNGA Resolution on domestic legal systems?

If passed, the UN General Assembly resolution could have important ramifications. Even if non-binding, the resolution may influence the scope and shape of laws in Member States. In their press release on 30 May 2022, UN Special Rapporteurs (including Dr Boyd) stated that a UN General Assembly resolution on the R2HE would "reinforce the urgency of actions to implement the right".

As preparations begin for COP 27 and the 50th anniversary of the Stockholm Declaration, there is increased momentum in the calls for UN Member States to enshrine the right in their domestic laws. At the Stockholm+50 conference on 2 and 3 June 2022, Dr David Boyd urged Member States to put the R2HE at the centre of all discussions and outcomes and to implement constitutional changes and stronger environmental laws, stemming from the recognition of the R2HE.

In January of this year, New York voters approved the "Green" or "Environmental Rights" Amendment to the state's constitution, which provides that "[e]ach person shall have a right to clean air and water, and a healthful environment." For more information, read our blog here.

It will be interesting to see what the response will be to the draft resolution by States such as the UK which have previously expressed concern about the acknowledgment of a R2HE and its implications, while emphasising a commitment to tackling climate change. Last year, the UK Ambassador for Human Rights explained that the UK's recognition of the right in UNHRC Resolution 48/13 was without prejudice to the UK's legal position and cautioned that recognising rights – such as R2HE – without due consideration and a common understanding at an international level of what they comprise creates ambiguity. The United States has expressed similar reservations, including concerns that recognising new rights could dilute traditional civil and political rights. The United States was not a member of the UNHRC when Resolution 48/13 was presented, and so did not vote on the resolution, but will have the opportunity to vote on the draft UNGA resolution.

Finally, the growing trend of climate change litigation in which it is alleged that claimants' human rights have been breached may encourage exploration of the implications of the R2HE in that context.