Clifford Chance

On 28 July, the UN General Assembly (UNGA) adopted a resolution recognising the universal human right to a healthy and sustainable environment (R2HE).

Resolution A/76/L.75 (the Resolution) is based on UN Human Rights Council (UNHRC) Resolution 48/13 A/HRC/48/L.23/Rev.1, which recognised the R2HE last October.

Our analysis of the draft Resolution presented before the UNGA is set out at length in our previous blog post. The published Resolution:

• Recognises the R2HE as a human right;
• Notes that the R2HE is related to other rights and existing international law;
• Affirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law; and 
• Calls upon States and international organisations to adopt policies, to enhance cooperation, to 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.
  The vote was passed with 161 States in favour, 0 States against, with 8 abstentions.

The vote was heralded as an historic breakthrough by the UN, with Dr David Boyd (the Special Rapporteur on human rights and the environment) stating that the "resolution has the potential to be a turning point for humanity, improving the life and enjoyment of human rights of billions of individuals as well as the health of our extraordinary planet".

What do the explanatory statements made by States suggest about the impact of the UNGA Resolution on their domestic laws and policies?

Several States made statements prior to the UNGA vote, which included qualifications about their votes. Those statements can be broadly distilled into the following points:

• First, that the Resolution is a non-binding political text, rather than a legal affirmation by the UNGA. Some of the States adopting this position – including New Zealand and the UK– expressed concern at the manner in which the proposed right was emerging, and that it should not be a substitute to international law; whilst others – e.g. Norway – expressed disappointment that the Resolution did not go further, precisely because political recognition of this kind would not have any legal effect. The US, while expressing support for the Resolution, stated that as there is no legal relationship between a R2HE and existing international law, and so it would not recognise any change to international law; whereas Sri Lanka, whose Constitution already recognises the right, said that it would interpret the Resolution within that framework. Abstaining from the vote, Belarus stated that it considered recognising a special category of human rights can only be done through a universal legally binding instrument.
• Second, that certain terms – including "clean", "healthy", "sustainable", "unsustainable" and the R2HE itself - lack internationally agreed definitions. Japan, in particular, flagged that the R2HE has the potential to be “extremely broad” in scope and must be clearly defined.
• Finally, that the Resolution could have been strengthened through the inclusion of common but differentiated responsibilities, as enshrined in Principle 7 of the Rio Declaration on Environment and Development. Principle 7 provides that, in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities; and that developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. The point about differentiated responsibilities was raised by Brazil, Pakistan, Syria and China (which abstained from voting due to the absence of this principle). Nicaragua raised a corollary point, emphasising that to have a R2HE developed countries must first fulfil their commitments to offer support and development assistance to developing countries.

These statements indicate that while there is a general consensus on the need to recognise the R2HE, there is still a considerable difference in opinion as to how that right should actually be defined, implemented and enforced – particularly on a State-specific basis. Ultimately, however, it is likely that any divergence in approach to the R2HE will emerge on the basis of the differences between the rights articulated under domestic laws and policies among States in the future rather than the generality of the UNGA resolution.