Environmental Human Rights Series: The UNGA Resolution
Foreword
This series of articles provides an analysis of the recent recognition by the UN General Assembly (UNGA) of “the access to a clean, healthy and sustainable environment, as a universal human right” (UNGA, 2022). The recognition of a universal human right to a healthy environment has been a long-awaited accomplishment for environmental law scholars, which brought to a conclusion a long course of preliminary steps that have paved the way to such a result in past decades. This itinerary, made of scholarly contributions, judicial rulings and domestic legislative recognitions, has highlighted the multiplicity of connotations that can be attributed to such a fundamental concept. The different perspectives adopted by different cultures and different fields of study are a feature of the human right to a healthy environment, which deem it necessary for such a right not to be encapsulated in a single, one-dimensional notion. It will be observed that, even after the successful adoption of the above-mentioned Resolution by the UNGA, the debate has been florid on the multiplicity of perspectives which can be taken to interpret the words it contained. There is no doubt that judicial courts will be invested in the very important task of setting precise legal standards. This article, the fifth of the series, focuses on the textual content of the Resolution and aims to submit an interpretation of the choices made by the proponents of the legal instrument, beginning from a literal perspective.
The Environmental Human Rights series consists of six articles:
Environmental Human Rights Series: The UNGA Resolution
Environmental Human Rights Series: Anthropocentrism (and Other Similar Problems)
Environmental Human Rights Series: The UNGA Resolution
First of all, it seems appropriate to open the present article with a brief introduction concerning the concrete happenings that have surrounded the adoption of Resolution A/76/L.75, entitled: "The human right to a clean, healthy and sustainable environment" (UNGA, 2022).
Figure 1: The General Assembly Hall (Gruban, 2008)
On July 22nd, 2022, the Seventy-Sixth Session of the UN General Assembly was called to vote on a Draft Resolution proposed by sixty-two State Parties, which aimed to recognize each person's right to enjoy a healthy environment as a human right, thereby attributing formal recognition to the already existent pathway connecting international environmental law and international human rights law. The vote resulted in a large majority of favorable expressions, with the Resolution adopted on the strength of 161 favorable votes and 8 abstentions. The immediate reaction to the adoption was one of great excitement and determination, as exemplified by the words of Inger Andersen, Executive Director of the UN Environment Programme (UNEP), who stated that the implementation of the Resolution "sends a message that nobody can take nature, clean air and water, or a stable climate away from us" (Andersen, 2022). The Resolution does not have a binding legal character, but nonetheless, its adoption still conveys both a symbolic and a practical meaning: a UNGA official pronouncement - especially when adopted by such a large majority - is a clear indication to States and other international organizations of the priorities of the global agenda and there is no doubt that, even without a binding character, this act will serve as an interpretational instrument for international courts (Mahazeri, 2019) and, eventually, it may also serve useful for the formation of customary law on the subject (Schwebel, 1979).
Figure 2: The vote infographic of Resolution A/76/L.75 by State Parties (the Global Pact for the Environment, 2022)
The content of the Resolution
Moving on to the substantial content of the Resolution, the act adopted by the UN General Assembly does not stand out for length or complexity. In fact, excluding the long list of preambles, the Resolution limits itself to enunciate four deliberations:
a) recognition of the right to a clean, healthy and sustainable environment as a human right;
b) recognition of the relation between the right to a clean, healthy and sustainable environment to other rights and existing international law;
c) affirmation 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;
d) call upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, 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.
a) the recognition of the right to a clean, healthy and sustainable environment as a human right
The first and most important deliberation contained in Resolution A/76/L.75 is the formal bestowal of the human right character to the right to a clean, healthy and sustainable environment. A formal passage that lies on a scientific consensus also demonstrates a degree of impatience towards policy-based agreements and the will to find different pathways - unable to wait for a pacific and worldwide consensus on political measures - for environmental protection (Tang and Spijkers, 2022). The significance of this passage already has been analyzed in the previous articles and, given the textual focus of this present article, the attention will be led mainly on the exact words used to carve the Resolution.
The words "clean, healthy and sustainable" are by no means casually chosen, especially for what concerns the first two adjectives. The concept of a "clean and healthy" environment found its first important acknowledgement in the "Bruntland" Report (Bruntland, 1987), a document published in 1987 during Gro Harlem Bruntland's role as Chair of the World Commission on Environment and Development. In this document, it was first argued that the environmental crisis represented a serious limitation for human progress and economic development, for the first time implying that the environmental problem had linkages with the sectors of wealth, other than mere well-being. From that moment on, the two aforementioned adjectives have represented a stable presence in connection to the concept of environmental protection in UN documents (Peters, 2021), being later also cited in the 2002 Johannesburg Declaration on Sustainable Development.
Only more recently, however, the concept of environmental protection in UN documents was endowed with the notion of "sustainability", in order to further highlight the connection to the other sectors of global progress, in a view of constant balancing of rights and ambits of application (Della Santa Navarrete et al, 2020). Aside from the importance that the concept of "sustainability" has acquired in recent years, in reference to ambits which are also different and independent from environmental protection, the concept of "sustainability" offers a view much more connected to the relationship between people and the environment, as opposed to the notions of "clean and healthy", which may also apply independently from the connection to Man. In a way, the adjective "sustainable" serves well to the notion of the environment as a human right, as it constitutes a textual bridge to justify the humane facet (Kopnina, 2018). This very aspect, however, has also attracted many critiques, which will be observed in the final article of the present series.
Figure 3: The right to a clean, healthy and sustainable environment requires an ecological transition in energetic production (Unknown, 2022).
b) recognition of the relation between the right to a clean, healthy and sustainable environment to other rights and existing international law
In a way, this second predicament is probably the most significant element of the Resolution in terms of the connection to judicial courts. It recognizes that the recognition of the human right to the environment does not exist as a mere formal passage, but that it deserves to have its place acknowledged in the mass of existing human rights. The hardest task, with reference to human rights tribunals, is often embedded in the balancing between conflicting rights (Çali, 2007). It is a well-renowned fact that one of the arguments which play in the disfavour of more brave and incisive attention to the protection of environmental human rights is the fear for the fortunes of industrial progress. The such conflicting interest is generally protected by the human right to economic initiative, common to most domestic legislations and protected in very different facets, according to the domestic legal source of reference.
The recognition of interdependence and correlation between the human right to the environment and the parterre of the other existing human rights calls out courts to make their balancing of interest explicit, in order to adjust the boundaries of this emerging - or better, emerged - human right, whose extension is necessarily still unknown. The same also applies to other existing international laws. The explicit mention of a relationship between "the right to a clean, healthy and sustainable environment" and existing international law" shows that the intention of the UNGA is to place this newly recognized human right in the spectrum of all international law, prompting judicial courts and interpreters to draw its exact role.
c) requirement of the full implementation of the multilateral environmental agreements under the principles of international environmental law
This third passage is also particularly interesting but does not add much to the definition of the right. The General Assembly, here, calls for the fulfilment of international environmental law expressing the aim to fully attribute meaning to the previously recognized right. Nonetheless, it is impossible not to notice an overlapping of surfaces. The focus of this predicament is clearly a political one. Surely, the political function is among those touched by the UNGA, if not the most important one, but one which has little to do with human rights law. It has been correctly stated - also in the previous articles of the series - that the resort to the more strictly legal and judicial surface has been necessary in light of the hardships faced in the attempts to get worldwide consensus in binding international law instruments. What appears, here, is that the UNGA is using the formal recognition of a human right to solicit a political behaviour that international environmental instruments failed to achieve. A fair choice, but one which feels somewhat out of target.
It is hard to counterargument the necessity to acknowledge an instrument which has deservedly attracted great mediatic attention, especially in light of the most recent Conferences of Parties, where the adoption of binding instruments has not been fervent, to use a euphemism (Streck et al., 2020). Still, this passage can convey the idea that some pebbles had to be removed from someone's shoes.
Figure 4: A snapshot from the latest COP27 (Lemde, 2022).
d) call upon States, international organizations, business enterprises and other relevant stakeholders
This last predicament may be the most obvious one and it could have been legitimately also left out of the scope of the present discussion. The necessity that the most relevant actors are called to act in conformity to the concepts expressed by the Resolution is one that comes without saying and, yet, there is one very interesting element. The UNGA calls upon "business enterprises" by specifically naming them, avoiding their relegation in the residuary batch of relevant stakeholders. Another hint to the intention, as mentioned before in the passage concerning the Bruntland report, is to create a stable connection between the right to economic initiative and the right to the environment, with the firm belief that their coexistence does not imply reciprocal exclusion or loss of significance. The UNGA extends the arm in the direction of the industrial world: will the hand be shaken?
Bibliographical References:
Andersen, I. (2022) In: UN Environmental Programme Youtube Channel, Retrieved from: www.youtube.com/watchv=oykGxLQaNXs&embeds_euri=https%3A%2F%2Fwww.unep.org%2F&embeds_origin=https%3A%2F%2Fwww.unep.org&source_ve_path=MjM4NTE&feature=emb_title&ab_channel=UNEnvironmentProgramme;
Brundtland, G.H. (1987) Our Common Future: Report of the World Commission on Environment and Development. Geneva, UN-Dokument A/42/427.
Çalı, B. (2007). Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions. Human Rights Quarterly (27). The Johns Hopkins University Press.
Della Santa Navarrete S., Mendes Borini F., Avrichir I. (2020). Environmental upgrading and the United Nations Sustainable Development Goals. Journal of Cleaner Production, (264).
Kopnina, H., Washington, H., Taylor, B. et al. (2018). Anthropocentrism: More than Just a Misunderstood Problem. Journal of Agricultural and Environmental Ethics 31, 109–127.
Mazaheri, J. (2019). The Status of Resolutions of the UN General Assembly among the Sources of International Law. Journal of Legal Research, 17(36), 133-157.
Peters, B. (2021). Clean and Healthy Environment, Right to, International Protection. In: Max Planck Encyclopedias of International Law.
Schwebel, S. M. (1979). The effect of resolutions of the UN general assembly on customary international law. In Proceedings of the ASIL Annual Meeting (Vol. 73, pp. 301-309). Cambridge University Press.
Streck, C., von Unger, M. and Greiner, S. (2020). Cop 25: Losing Sight of (Raising) Ambition. Journal for European Environmental & Planning Law. BRILL.
United Nations General Assembly. (2022). The human right to a clean, healthy and sustainable environment, Resolution A/76/L.75, 22 July, 2022.
United Nations Human Rights Council. (2019). Right to a 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 [UN Doc A/HRC/43/53].
Visual References
Cover Figure: Henrik Sørensen. (2021). Glaciers [Photo]. Retrieved: https://www.pexels.com/it-it/foto/neve-mare-paesaggio-natura-9391321/
Figure 1: Patrick Gruban. (2008). The General Assembly Hall. [Photo]. Retrieved: https://en.wikipedia.org/wiki/United_Nations_General_Assembly#/media/File:UN_General_Assembly_hall.jpg
Figure 2: Voting Countries. (2022). [Graph]. Retrieved: https://globalpactenvironment.org/en/the-un-general-assembly-recognizes-the-right-to-live-in-a-healthy-environment/
Figure 3: Unknown. (2022). Wind energy [Photo]. Retrieved: https://www.pexels.com/it-it/foto/mulino-a-vento-bianco-414837/
Figure 4: Unknown. (2022). COP27. [Photo]. Retrieved: https://img.lemde.fr/2022/11/06/0/0/6742/4495/664/0/75/0/e2ef396_1868ded85b7b460bac53a5d6adc0de8a-1868ded85b7b460bac53a5d6adc0de8a-0.jpg
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