On July 28, 2022, the United States voted in favor of UN General Assembly Resolution 76/300 “recogniz[ing] the right to a clean, healthy and sustainable environment as a human right.”Footnote ¹ Just nine and a half months earlier, in October 2021, the United States had opposed the Human Rights Council's recognition of the same right. Not only was the U.S. vote in the General Assembly a reversal of its consistent stance against the right to a healthy environment, it was also a striking exception to the long-standing resistance of the United States to the recognition of “new” human rights.

The origins of the right to a healthy environment date back to 1972, when the UN Conference on the Environment adopted the Stockholm Declaration. The Declaration proclaimed that “both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights—even the right to life itself” and it stated, in the first of its principles, that people have a “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”Footnote ² Since Stockholm, at least 155 states have recognized the right to a healthy environment at the national or regional level.Footnote ³ That number includes more than 120 states that are bound by regional treaties that recognize the right; over 100 states that have constitutional protections that acknowledge the right; and above 100 states that have adopted legislation that incorporates the right.Footnote ⁴

Until fifteen months ago, however, the right's success nationally and regionally had not been replicated globally. UN environment and sustainable development conferences subsequent to Stockholm did not adopt or elaborate the right. There was a moment, in the early 1990s, when the Sub-Commission on Prevention of Discrimination and Protection of Minorities pursued the topic through the appointment of a Special Rapporteur on Human Rights and the Environment, Fatma Zohra Ksentini. The special rapporteur's final report, in 1994, proposed a draft declaration stating that: “All persons have the right to a secure, healthy and ecologically sound environment.”Footnote ⁵ But the Commission on Human Rights did not pursue the matter further with any vigor.Footnote ⁶ For more than a decade thereafter efforts at the United Nations mostly stalled.Footnote ⁷

The right to a healthy environment's return to center stage began in 2007 within the broader efforts, then gaining strength, to combat climate change. The government of Maldives convened a conference of small island developing states, and the meeting resulted in the Malé Declaration on the Human Dimension of Global Climate Change—the first international statement to explicitly connect climate change to human rights.Footnote ⁸ The declaration requested the Human Rights Council “to convene . . . a debate on human rights and climate change.”Footnote ⁹ In response, the Human Rights Council adopted Resolution 7/23 in 2008, in which it stated, in a first for the United Nations, that climate change poses “an immediate and far-reaching threat to people . . . and has implications for the full enjoyment of human rights.”Footnote ¹⁰ As requested in that resolution, the United Nations high commissioner for human rights submitted a report to the Council that analyzed “the relationship between climate change and human rights.”Footnote ¹¹ In response, the Council affirmed that “human rights obligations and commitments have the potential to inform and strengthen international and national policy making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.”Footnote ¹²

In 2012, the Council appointed John H. Knox as its first independent expert (later, special rapporteur) on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment.Footnote ¹³ Over the next six years, Knox issued reports mapping human rights obligations relating to the environment, identifying good practices in the use of these obligations, describing the relationship between human rights and climate change, biodiversity, and children's rights, and issuing specific recommendations on implementation of the human rights obligations relating to the environment.Footnote ¹⁴ In his January 2018 final report, Knox suggested that the “Human Rights Council [should] consider supporting the recognition of the right in a global instrument” and that the General Assembly “could adopt a . . . resolution that recognizes the right to a safe, clean, healthy and sustainable environment.”Footnote ¹⁵ A report later that year, co-authored by Knox and his successor David R. Boyd, presented an extensive argument that the United Nations should formally recognize the “human right to a safe, clean, healthy and sustainable environment, or, more simply, the human right to a healthy environment.”Footnote ¹⁶ Over the next few years, with the increasing public support for the right from the secretary-general, the high commissioner, UN agencies, and non-governmental organizations,Footnote ¹⁷ the core group of delegations that had been patiently pushing the Council over the prior decade decided to move forward and carefully drafted and negotiated a resolution recognizing the right to a healthy environment.Footnote ¹⁸

On October 8, 2021, the Human Rights Council adopted Resolution 48/13 “recogniz[ing] the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights,” with forty-three votes in favor, four abstentions (China, India, Japan, and Russia), and no members voting against.Footnote ¹⁹ The resolution also “[i]nvite[d] the General Assembly to consider the matter.”Footnote ²⁰ Five days later, the United States, which was not then a member of the Council, explained its opposition to the right.Footnote ²¹ Although the United States “recognize[d] that climate change and environmental degradation impact the enjoyment of human rights and affirm that when taking action to address environmental challenges and climate change, States should respect their respective human rights obligations,” the statement nonetheless reiterated the “consistent” U.S. position that “there are no ‘universally-recognized’ human rights related to the environment,” and international law provides no basis for recognizing “a ‘right to a clean, healthy, and sustainable environment,’ either as an independent right or a right derived from existing rights.”Footnote ²²

On July 28, 2022, less than two months after the Stockholm+50 meeting marking the five decades since the Stockholm Conference,Footnote ²³ the General Assembly adopted Resolution 76/300 recognizing the human right to a clean, healthy, and sustainable environment by a recorded vote of 161 in favor, zero against, and eight abstentions (Belarus, Cambodia, China, Ethiopia, Iran, Kyrgyzstan, Russia, and Syria).Footnote ²⁴ Only four operative paragraphs long, the resolution “[n]otes that the right to a clean, healthy and sustainable environment is related to other rights and existing international law.”Footnote ²⁵ It also affirms that the promotion of the right “requires the full implementation of the multilateral environmental agreements under the principles of international environmental law.”Footnote ²⁶ Finally, it calls on “States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to 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.”Footnote ²⁷

The United States voted in favor of the resolution and subsequently issued an extensive explanation of position.Footnote ²⁸ The statement first discussed why the United States supported the resolution. It stated that the United States had “long recognized the relationship between human rights and a clean, healthy and sustainable environment and that environmental degradation can negatively affect the enjoyment of human rights.”Footnote ²⁹ And the statement emphasized that the United States has already sought to “achieve the aims set out in this resolution through domestic laws and policies in accordance with the U.S. Constitution and U.S. law.”Footnote ³⁰ The statement noted that the resolution “expresses the aspirations of those around the world seeking a clean and healthy environment for all.”Footnote ³¹ “Taking into account our history and current efforts of environmental protection and our belief that every person should enjoy the benefits of a healthy environment,” the statement explained, “the United States supports the development of a right to a clean, healthy, and sustainable environment in a manner that is consistent with international human rights law and international environmental law.”Footnote ³²

But the explanation went on to note what the United States considers to be the limits of the General Assembly resolution. The resolution, the explanation of the U.S. position emphasized, “is not legally binding or a statement of current international law.”Footnote ³³ Indeed, “[i]nternational law has yet to establish a right to a clean, healthy, and sustainable environment as a matter of customary international law, nor does treaty law provide for such a right. As such, there is no legal relationship between a right as recognized under this resolution and existing international law.”Footnote ³⁴ What is more, the U.S. vote in favor of the resolution “does not [imply that the United States] recognize[s] any change in the current state of conventional or customary international law.”Footnote ³⁵ The United States also disagreed with “any suggestion [in the resolution] 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.”Footnote ³⁶

U.S. support for Resolution 76/300 is in marked contrast to its usual attitude towards the recognition of new human rights. The United States was alone in its vote against the 1986 resolution recognizing the right to development, a position that it reiterated as recently as 2020.Footnote ³⁷ It voted against the United Nations Declaration on the Rights of Indigenous Peoples in 2007, although it later reversed its position.Footnote ³⁸ It abstained on the resolution recognizing the human right to water and sanitation in 2010.Footnote ³⁹ It is one of six states that have not ratified the Convention on the Elimination of all Forms of Discrimination Against Women, and it is the only state that has not ratified the Convention on the Rights of the Child.Footnote ⁴⁰