Evolutions of the Right to a Healthy Environment Part 1: Implications for Vulnerable Communities

by Anna Guzman and Stephanie Yu

Series Introduction

On 8 October 2021, the United Nations Human Rights Council (UN HRC) adopted Resolution 48/13 (henceforth referred to as the “HRC Resolution”), which recognized the human right to a clean, healthy, and sustainable environment, and urged states within the UN General Assembly (UNGA) to consider the matter at their earliest convenience. On 28 July 2022, the UNGA passed Resolution A/76/L.75, an edited version of the HRC resolution, which affirmed the human right to a clean, healthy, and sustainable environment.

In this two-part blog post series, we hope to shed light on the ways in which the articulation and framing of the right to a healthy environment evolved between the two resolutions. The first part of the series will touch on the resolution’s implications for vulnerable communities by analyzing how the two resolutions distinctively address the relationship between a healthy environment and the enjoyment of broader human rights.  The second part of the series will focus on changes in the resolution made to the framing of states’ respective political authority as well as the relationship between developing and developed nations. Both parts aim to explore how these implications fit within international human rights frameworks and litigation.

Bolstering Broader Human Rights Protections: What’s Been Added?

Recognizing the Importance of Gender Equality

Firstly, while the HRC Resolution acknowledges that the consequences of environmental damage are “felt most acutely” by those in already vulnerable situations, “including indigenous peoples, older persons, persons with disabilities, and women and girls,” the UNGA resolution additionally includes language specifically addressing gender equality, noting:

the importance of gender equality, gender-responsive action to address climate change and environmental degradation, the empowerment, leadership, decision-making and full, equal and meaningful participation of women and girls, and the role that women play as managers, leaders and defenders of natural resources and agents of change in safeguarding the environment.” 

Women are often responsible for the provision of clean, accessible water within the household for drinking, cooking, and basic hygiene. While droughts and unusable water pose a substantial threat to global health at all levels of the population, women, and girls tasked with the responsibility of acquiring water face disproportionate risks.  Consider, for example, the heightened risk of cholera women face due to increased opportunities to come into contact with contaminated water. Beyond the health implications, there are also severe socioeconomic consequences: women have less time to spend on education and search for employment if natural resources become harder to acquire. The gendered dimension of environmental protection necessitates that policies be informed by women’s experiences and gender equity considerations.  

It is important to note, however, that while the concept of gender equality is addressed multiple times in both resolutions, the UNGA resolution expands on it with a particular focus on the role of women and children. This language perpetuates the norms of a gender binary, obscuring the challenges faced by gender minorities. Such individuals already face compounded challenges as a marginalized group and may experience greater difficulty accessing socioeconomic resources in times of need due to social, political, and legal prejudices. As such, while the societal responsibility of providing natural resources does disproportionately burden women, compounded risks faced by gender minorities in the climate crisis must not be overlooked.

Defending Human Rights: What Has Been Omitted?

Language Addressing the Connection Between the HR2HE and the Enjoyment of Other Human Rights

The two resolutions employ different approaches when contextualizing the right to a healthy environment within larger international human rights frameworks. While the HRC argues that there is a direct correlation between the right to a healthy environment and the enjoyment of other human rights “including the rights to life, to the enjoyment of the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to housing, to safe drinking water and sanitation and to participation in cultural life,” the UNGA entirely omits this language. By centering the role of sustainable development at the nexus of other human rights, especially such broad interests like the right to life and physical and mental health, the HRC Resolution framing would have demonstrated the intersectional nature of the right to a healthy environment and predicates its importance in future human rights discourse.

The change could possibly be attributed to practical concerns raised by various member states as to the vague, unclear nature of the right. For example, while the delegation from New Zealand understood the resolution to be a “political declaration that does not create international human rights law with legally binding obligations on States,” others (such as the delegation from Iran, which ultimately abstained from the vote) voiced concern as to the recognition of a right that “lacks clear definition and understanding among States.” The delegation from the United Kingdom also echoed concern for the resolution’s ambiguity, noting that “recognizing rights without due consideration and a common understanding of what those rights comprise creates ambiguity.  People cannot know what they can claim from the State, and conversely, the State has no clear understanding of the right it is obliged to afford to the individual.” The omission of the language could be connected to a sentiment amongst member states seeking to clarify or simplify the definition of the right. 

This evolution highlights a larger debate regarding the right to a healthy environment as it functions within the larger international human rights jurisprudence. While a vast majority of member states have made explicit their interpretation of the resolution as “soft law” without any binding legal obligation, it is likely that legal and political discourse surrounding the material implications of the resolution will continue in the coming months.

Language Addressing the Protection of Environmental Human Rights Defenders

A substantial disappointment of the final UNGA text was the omission of any reference to the protection of environmental human rights defenders (EHRDs). While the HRC Resolution originally acknowledged “the rights to life, liberty and security of human rights defenders working in environmental matters,” this language was completely missing from the final UNGA Resolution, despite the fact that this was seen as neutral, “non-controversial language.” The UN defines environmental human rights defenders as “individuals and groups who, in their personal or professional capacity and in a peaceful manner, strive to protect and promote human rights relating to the environment, including water, air, land, flora and fauna.” The United States delegation highlighted their disapproval of the unexpected change in their official statement:

“We do regret the loss of important human rights language throughout the process, including non-controversial accepted language on human rights defenders. Together we must protect the environment, address the climate crisis, stop attacks on environmental defenders worldwide and promote accountability for human rights violations and abuses affecting those defenders.”

 The delegations from the UK and Norway also voiced their strong concern as to the removal of this section.

As noted in several statements made by state representatives, this omission is especially disquieting given the drastic threat to the lives and livelihoods of EHRDS across the globe. The UNEP Environmental Rule of Law: First Global Report estimated that between 2002 and 2013, 908 people in 35 countries were killed defending the environment and land, and the pace of killing is only increasing.  In 2017 alone, 197 environmental defenders were murdered. These numbers have only intensified since the publication of the report – it is now estimated that “at least three people a week are killed protecting our environmental rights- while many more are harassed, intimidated, criminalized and forced from their lands.”

It is unclear why this language was particularly targeted within the final draft—the action runs contrary to the attitude presented by the General Assembly in A/71/281. In a report of the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur raised alarm about the increasing and intensifying violence against EHRDs and called on various stakeholders to reverse this worrying trend and protect those defenders, “for the sake of our common environment and sustainable development.”  Given the UNGA’s strong support for this cause in the past, as well as the undeniable connection between the human right to a healthy environment and the work of environmental human rights defenders, it seems especially incongruent that this specific clause was removed. 

When it comes to the evolution of language regarding marginalized and vulnerable populations, the above implications present a mixed bag. On one hand, the addition of language acknowledging the gendered dimensions of the climate crisis demonstrates an awareness of the disproportionate impact of environmental disasters on female-identifying individuals. However, the UNGA version of the resolution also omits critical language recognizing the role of environmental human rights defenders and fails to make the explicit link between the HR2HE and the enjoyment of other human rights. These omissions are significant failures on the part of the UNGA to recognize the broad implications of the climate crisis and make clear the position of this newly recognized human right within existing legal and political frameworks. Thus while some progress was made between the two drafts in terms of centering the rights of marginalized individuals, the UNGA resolution does not present a marked improvement from the treatment of human rights within the HRC resolution. 

In the second part of our two-part series, we will again seek to analyze the evolution of the right from the HRC to the UNGA, but this time with a focus on how political authority and the relationship between developing and developed nations evolved between the two drafts.