HRC-52 Right to Environment Resolution

Explanation of Position

The United States has long recognized the important relationship between human rights and environmental protection, including advancing environmental justice and protecting environmental defenders.  The United States continues to prioritize globally, regionally, and bilaterally an enhanced focus on national policies and actions by all countries that support global ambitions to address climate change, pollution, and biodiversity loss, as well as protect environmental defenders.  A healthy environment supports the well-being and dignity of people around the world and the enjoyment of human rights.  We recognize that these issues are existential for us all and that the likely consequences of climate change are devastating.

We also have demonstrated that commitment through domestic actions.  Through the Inflation Reduction Act, Bipartisan Infrastructure Law, and Justice 40, we are making unprecedented investments to address pollution and support a cleaner environment in U.S. communities.

As the United States indicated in our Explanation of Vote on UNGA resolution 76/300, we supported the political and moral aspirations reflected in that resolution.  That continues to be the case today.   That said, the development of a right to a clean, healthy, and sustainable environment needs to be carried out in a manner that is consistent with international law.  To that end, the United States would support the creation of an intergovernmental working group to discuss next steps, with the goal of reaching a common understanding of the definition and nature of such a right that could be universally considered a right under international law.  We dissociated from consensus today because we have significant concerns that this resolution, in purporting to characterize certain aspects of a right or obligations of states, gets ahead of the proper development of such a right.

Unless and until there is a transparent process through which governments have consented to be bound by such a right, the United States notes that a right to a clean, healthy, and sustainable environment has not yet been established as a matter of customary international law; treaty law does not yet provide for such a right; and there is no legal relationship between such a right and existing international law.  The adoption of this resolution does not change the current state of conventional or customary international law.

This resolution also raises significant concerns about the proper formation of international law that go beyond those related to either HRC 48/13 or UNGA 76/300.  Of particular concern, the resolution suggests characteristics of the right to a clean, healthy, and sustainable environment that draw from reports based primarily on the views of special mandate holders.  But information notes, reports, framework principles, and other work product of special mandate holders do not reflect the shared understanding of states.  The process for defining this right must be pursued in a manner that is consistent with international law through a transparent process in which all governments have had an opportunity to provide input and have indicated consent to be bound.

The United States disagrees that any development of such a right has occurred to date as a matter of international law and thus any future developments should not be considered as “further” developments that take place.

Moreover, the resolution asserts that states have obligations with respect to the right, including an obligation to provide access to effective remedies.  This, however, seems to prejudge the existence and content of such a right.  A “right to effective remedy/remedies” is only relevant where provided under international human rights law, and only in the context of or in relation to states’ respective obligations under international law.  Here, the right, as specified, does not exist as a matter of international human rights law.

As a result, the United States reads references to obligations in the text to refer to states’ respective obligations only, meaning the obligations of those states that have consented to be bound by the relevant obligations – and not to all states.  The same applies to references in the text to the “rights” to participate safely and effectively in the conduct of government and public affairs, access to information, access to justice, to development, and to health – as such rights do not exist per se in any of the core human rights conventions.  For the avoidance of doubt, the United States does not consider the adoption of this resolution to establish any additional obligations on states that would be cognizable in domestic courts or international fora.  More specifically, to the extent the resolution refers to general obligations and commitments of states under human rights “relating to” a clean, healthy, and sustainable environment, the United States interprets such rights to be those that are recognized in core instruments international human rights law, not to include a “right to a clean, healthy, and sustainable environment” as such.

The resolution further suggests that States have responsibilities regarding “compliance” with “commitments.”  The United States underscores that the concept of compliance is appropriate only in reference to legally binding obligations, and thus references to compliance with “obligations and commitments” are read to mean compliance with binding legal obligations.  In that vein, the references to compliance only refer to those rights for which states have obligations as a matter of international human rights law.

We also note concerns with the ninth preambular paragraph of this resolution, which conflate the contents of multilateral environmental agreements with human rights law.  We do not agree with any suggestion that multilateral environmental agreements are implemented “under the principles of international environmental law” or have any bearing on any State’s international legal obligations.  There is no single set of principles under which multilateral environmental agreements operate, and such agreements are each implemented in accordance with their own provisions and are applicable only to those States that have joined them.  In addition, HRC resolutions should only reference transparent, Member State-negotiated outcome documents from UN conferences.

Furthermore, where obligations under multilateral environmental agreements are referenced, we understand such references to be to states’ respective obligations, and we understand “environmental laws and policies” to refer to national environmental laws and policies.  We emphasize that development and enforcement of strong domestic environmental laws and policies is what leads to a healthy environment.  More broadly, as a factual matter, we recognize the relationship between a clean, healthy, and sustainable environment and the enjoyment of human rights; yet, there has yet to be a basis for claiming that such an environment is necessary to the enjoyment of “all” human rights.

With respect to the reference in the second preambular paragraph to the UN Framework Convention on Climate Change, while we question the need or basis for selectively highlighting only certain multilateral environment agreements, we note that if only one agreement is to be referenced with respect to climate change it should be the Paris Agreement, as it is the latest agreement setting out the goals and obligations of states on climate change.

The United States strongly believes in the importance of preserving the ability of those who exercise their human rights while working on environmental matters, referenced in the resolution as environmental human rights defenders, to do their work.

The United States also recognizes the role that national human rights institutions (NHRIs) play in supporting the protection of and respect for human rights that exist as a matter of international law.  To the extent that certain states have established a right to a clean, healthy, and sustainable environment domestically or through their regional treaties, NHRIs should play a robust role in protecting that right.