In 1972, environmental activists, government leaders, and industry experts met in Stockholm, Sweden, for the United Nations Conference on the Human Environment (Stockholm Conference) to plot out a new direction for international environmental governance. Over the ensuing 50 years, countries negotiated successful agreements to shrink the ozone hole and expanded protections for wildlife and ecosystems.

The State Department’s opposition seems primarily to be based on its historic antipathy to economic, social, and cultural rights. The United States submitted a dissenting note regarding the right to development at the Rio Conference in 1992, refusing to commit to specific emissions reductions; and the State Department objected to the right to housing until overruled by President Clinton in 1996. The United States abstained on the UN Declaration on the Rights of Indigenous Peoples in 2007 until it was demonstrated that the State Department had misinterpreted that instrument, leading President Obama to support it, and it abstained on the right to water and sanitation in 2010.

Flawed and outdated assumptions

The State Department’s opposition to the right to a healthy environment is based on flawed and obsolete concepts and assumptions. To the extent the State Department articulates reasons for opposing the right to a healthy environment, they seem to be that (i) recognition of the right would create legal liability for the United States and (ii) the right is not as clear as previously recognized human rights. International legal and human rights experts have repeatedly dismissed those concerns. Law professor Robert Blitt has argued for an embracive approach to corporate human rights compliance, “[A]ligning business activities with the full spectrum of recognized international human rights norms can more effectively help identify and prevent harmful impacts as well as insulate the corporation from the evolutionary changes inherent in customary international law.”

First, UN recognition of the human right to a healthy environment has no legally binding effect in either domestic or international law. This is because neither Human Rights Council resolutions nor UNGA resolutions are legally binding. They are significant political statements and serve as important ways to mobilize attention and resources, for example to the plight of Environmental Human Rights Defenders, at least four of whom are murdered on average every week around the world. Moreover, even if this right were to somehow become legally binding international law, there is no forum in which the United States could be sued on the basis of it. 

Second, the right to a healthy environment is as clear, if not clearer, than previously recognized rights. In fact, it has already been adopted by over 155 nations in their constitution, national statutes, or a legally binding treaty to which they are a Party, as well as by several U.S. states (e.g., Montana, Pennsylvania, New York).

Aligning leadership on environment, climate, and human rights

The United States should lead and hold itself to the highest standard for human rights. The headwinds of change are strong. Petitions calling for this right have been signed by over 1,300 non-governmental organizations, more than 50 businesses, 120,000 individuals, and 140,000 children, young people, and allies around the world. More than 50 UN Special Procedures mandate holders, 15 UN entities, the 400,000-member-strong American Bar Association, the Global Alliance of National Human Rights Institutions, the International Union for Nature, the UN High Commissioner for Human Rights, and the UN Secretary-General, and several other intergovernmental bodies have also expressed their strong support for the UN Resolution for a Healthy Environment. 100 countries—more than half the membership of the UN Human Rights Council—support the Council’s recognition of the right to a healthy environment.

President Biden announced on May 23, 2022, that 12 nations will join a new trade agreement so that the United States can work closely with Asian economies on supply chains, digital trade, clean energy, and anticorruption. Having President Biden announce support for the UN Resolution for the Right to a Healthy Environment would be momentous and demonstrate true international environmental leadership.

This week, Stockholm+50 will commemorate the 1972 United Nations Conference on the Human Environment and recognize the important role of multilateralism in tackling the Earth’s triple planetary crisis—climate, nature, and pollution. The event seeks to serve as a springboard to “accelerate the implementation of the UN Decade of Action to deliver the Sustainable Development Goals, including the 2030 Agenda, Paris Agreement on climate change, the post-2020 global Biodiversity Framework, and encourage the adoption of green post-COVID-19 recovery plans.” Just as our understanding of the connections between environmental sustainability and justice have evolved over the last 50 years, so must U.S. willingness to lead on these issues. Expect the UN resolution for the right to a healthy environment to pass in the UNGA this summer. What a missed opportunity it would be for the United States to not be on the right side of the resolution.