The UN recognises the right to a clean environment as a human right
(Disclaimer: A more in-depth analysis of the resolution will appear in the forthcoming September issue of The Conservation & Livelihoods Digest).
During its 76th session, the United Nations General Assembly (UNGA) has recognised the right to a clean, healthy and sustainable environment as a human right. In its resolution A/RES/76/300 (at the time of writing not publicly available), the UNGA confirms a draft resolution by the Human Rights Council (HRC) from 5 October 2021. It is noteworthy that of the 169 UN Member States being able to vote, none voted against the adoption of the resolution. Instead, merely eight countries – Belarus, Cambodia, China, Ethiopia, Iran, Kyrgyzstan, the Russian Federation and Syria – abstained from taking a vote.
The HRC draft resolution
While the resolution that was voted upon found wide support, it did not come without criticism. Even some states having voted in favour criticised the HRC draft resolution for putting additional burdens on developing states and for using terminology – for instance ‘clean, healthy and sustainable environment’ – which is neither internationally agreed upon nor can be found in any legally-binding agreement. Also the term ‘unsustainable management’ or ‘unsustainable development’ were criticised for expressing a notion that cannot be found in other internationally agreed texts.
A closer look at the draft resolution by the HRC reveals, however, what these terms may imply or what they should not hinder: the sixth preambular paragraph thus reads as follows:
“Recognizing that sustainable development, in its three dimensions (social, economic and environmental), and the protection of the environment, including ecosystems, contribute to and promote human well-being and the enjoyment of 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, for present and future generations“
While, quite typical for UN resolutions and agreements, the text is held in a broad manner, the link between a clean, healthy and sustainable environment and human rights to life, physical and mental health, adequate living standards, food, housing, water and sanitation, in addition to culture is rather obvious and the resolution should be read against that backdrop. To turn this matter around, if the environment cannot be held clean, healthy and sustainable state, the enjoyment of these human rights is acerbated and possibly compromised.
For the purposes of our work, i.e. the link between conservation and local populations, the tenth preambular paragraph is highly relevant and could serve as yet another reference point that would justify the inclusion of local populations in the decision-making processes. The paragraph reads:
“Recognizing also that the exercise of human rights, including the rights to seek, receive and impart information, to participate effectively in the conduct of government and public affairs and in environmental decision-making and to an effective remedy, is vital to the protection of a safe, clean, healthy and sustainable environment“
On the one hand, this paragraph can be read as a call for more effective participation of civil society, and arguably indigenous peoples and local communities (IPLCs) in environmental decision-making. Indeed, participation in environmental decision-making and access to information – free, prior and informed consent – are considered fundamental human rights. However, as Sellheim & Ojanperä (2021) have shown, the application of these rights lacks far behind.
On the other hand, however, this paragraph also reveals another highly important element: that the participation of IPLCs is ‘vital to the protection of a safe, clean, healthy and sustainable environment.’ While there are numerous scholars and political bodies that have recognised the fact that effective biodiversity conservation can only occur through the inclusion of IPLCs, bodies such as the International Whaling Commission (IWC) or the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) show time and again that this link has not reached every corner of international environmental decision-making. In other words, top-down decision-making without proper consultation and inclusion of IPLCs appears to be more appreciated than decision-making mechanisms that correspond to the standards set out in abovementioned paragraph.
As mentioned by several UN Member States, the resolution does not have legally-binding character and should instead be considered a statement of political will. In that sense it cannot be enforced as there is no international political entity which has the mandate to ensure compliance to this resolution. The implementation of the rights and obligations set forth in the resolution thus rests with the national legal systems of the UN Member States themselves of which 150 have incorporated human rights and environmental provisions in their national legislation.
Since there is no way to enforce this ‘soft-law’ agreement, other ways and means should be taken to operationalise the resolution’s provisions. One opportunity could be the next Conference of the Parties (COP) of CITES in November 2022. Several agenda items address participation of IPLCs, livelihoods and food security. One such agenda item (Item 87) deals with amendments to Resolution Conference. 9.24 (Rev. CoP17). This CITES resolution sets standards for the amendments to the Appendices, stipulating that biological and trade criteria should be taken into account. Botswana, Cambodia, Eswatini, Namibia and Zimbabwe, however, challenge this rather narrow approach in document CoP19 Doc. 87.1 by calling for considerations of Appendix-listings on livelihoods and food security through stakeholder consultations before a proposal to add a species to one of the Appendices is tabled.
The recently adopted UN resolution could strengthen these endeavours. Even though it is not legally-binding, it can time and again serve as a reference point for approaches to environmental decision-making that take the human dimension, i.e. effects of protective measures on human livelihoods and food security, into consideration. This means that the resolution finally allows for decision-making that does not disassociate environmental protection (and arguably environmental rights) from human rights and wellbeing.