background
  1. Home
  2. Conceptual Framework
  3. Environmental Rights

Environmental Rights

There is a strong interrelationship between environmental protection and human rights. In general, a healthy environment is a pre-condition for enjoyment of human rights. Human rights cannot be exercised in a degraded environment. Environmental harm in our contemporary world can easily infringe values that human rights are designed to protect. It means that environmental degradation can affect human rights negatively. Therefore, human rights instrument should be used as a tool for the protection of individuals against the consequences of environmental harm. A rights-based approach or human right approach to environmental protection aims to secure that the natural world does not degrade to the point where human rights are violated. Environmental rights constitute an institutionalization of legal links between environmental protection and human rights. Certain new types of human rights have been designed for the protection of the environment and some existing human rights have been used specifically for that purpose. 

Human right approach to environmental protection has great potential to contribute significantly to the solution of global environmental problems and therefore to attainment of sustainable development, however this potential is not fully used in the modern times. 
 

Human Right to a Clean, Healthy and Sustainable Environment

Environmental rights may be used to denote the right to environment. The right to environment refers to an entitlement to a certain environmental quality. The right to environment is a substantive environmental right. In various adopted documents there are different formulations of the right to environment: such as “clean“, “healthy“, “sustainable“, “safe“, “decent“, “secure“, or “ecologically sound“ environment. 

The United Nations General Assembly (UNGA) on 28 July, 2022 adopted resolution “The human right to a clean, healthy and sustainable environment“ (A/RES/76/300). According to the resolution, the General Assembly “Noting also that a vast majority of States have recognized some form of the right to a clean, healthy and sustainable environment through international agreements, their national constitutions, legislation, laws or policies, 1. Recognizes the right to a clean, healthy and sustainable environment as a human right;“. It was preceded by resolution of the United Nations Human Rights Council (UNHRC), “The human right to a clean, healthy and sustainable environment“ (A/HRC/RES/48/13), adopted on 8 October, 2021. According to the resolution, the Human Rights Council “Recognizes the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights; (paragraph 1).“ The Parliamentary Assembly of the Council of Europe (PACE) on 29 September 2021 adopted recommendation “Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe“ (Recommendation 2211). According to the recommendation, “Assembly recommends that the Committee of Ministers: draw up an additional protocol to the European Convention on Human Rights (ETS No. 5, hereafter “the Convention”) on the right to a safe, clean, healthy and sustainable environment, based on the terminology used by the United Nations . . . (paragraph 3.1).“

The human right to a clean, healthy and sustainable environment, if implemented efficiently by governments, has a great potential to secure environmental protection and sustainability. This environmental right, in the future, can become a key legal instrument available to the public at large in terms of forcing governments to secure sustainable environmental policies and sustainability. 
 

„Greening“ of Existing Human Rights

Environmental rights can be derived from existing human rights, in particular the rights to life, private life, property and access to justice under the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Inter-American Convention on Human Rights (IACHR). 

For example, the European Court of Human Rights (ECtHR) has produced a body of environmental jurisprudence in which the “greening” of existing rights of the ECHR has taken place. The European Convention on Human Rights does not mention the environment and it is not specifically designed to provide general protection of the environment as such. However, the European Court of Human Rights has interpreted the provisions of the ECHR in the context of environmental issues, in particular to protect individuals against the consequences of environmental harm. The case law of the ECHR makes it clear that environmental protection can be extracted from the Convention rights without creating environmental rights. Under the European Convention of Human Rights, legal protection from environmental harm is firmly tied to fundamental rights such as the right to life, the right to respect for private life and family life and the right to respect for one’s home. The European Court of Human Rights has recognized that damage to the environment or environmental problems like pollution and excessive noise may affect certain rights of the Convention. The European Court of Human Rights has derived environmental rights from existing rights of the European Convention on Human Rights in the following cases: Lopez Ostra v. Spain (1995); Fedeyeva v. Russia (2005); Guerra and Others v. Italy (1998); Hatton and Others v. UK (2003); Powell and Rayner v. the United Kongdom (1990); Öneryildiz v. Turkey (2004); Taskin v. Turkey (2005/6) etc.

The “greening” of environmental rights from existing human right treaties such as the ECHR is an efficient legal tool in terms of securing protection of individuals against environmental harm and for attaining higher standards of environmental protection.

Currently there are several ground-breaking climate change lawsuits pending before the European Court of Human Rights (ECtHR). Duarte Agostinho et al. v Portugal and 32 Others (2020) was the first ever climate change case filed with ECtHR under the ECHR. It was followed by other climate change disputes such as KlimaSeniorinnen and Others v Switzerland (2022), Carême v France (2022) etc. These climate change lawsuits have much in common, namely they claim that inaction on behalf of the government to tackle climate change threatens the Convention rights, including the right to life. The applicants in these cases complain that governments are failing to comply with undertakings under the 2015 Paris Agreement on climate change, namely to achieve temperature target of limiting the global average temperature increase to 1.5 degree Celsius above pre-industrial levels. It is noteworthy that the undertakings to tackle climate change, are integral part of Sustainable Development Goals (SDGs) and therefore there might be a role to play by the ECHR in terms of tackling climate change and attainment of SDGs. 
 

Procedural Environmental Rights 

Environmental rights may be used to denote the three procedural environmental rights, namely  the right of access to environmental information, the right of public participation in environmental decision-making and the right of access to environmental justice. It should be noted that the concepts of “environmental rights”, “public participation”, “participatory rights”, or “procedural rights” may have the same meaning as the notion of “procedural environmental rights”.

The United Nations Conference on Environment and Development (UNCED), held in 1992 in Rio de Janeiro, Brazil, adopted non-binding document: the Rio Declaration on Environment and Development (the Rio Declaration). Principle 10 of the Rio Declaration recognized the importance of three procedural environmental rights at world level. Principle 10, declares that each individual must have access to information concerning the environment, the opportunity to participate in decision-making, and access to judicial and administrative proceedings. Building on the model of human rights, the declaration contributed to the establishment of new procedural environmental rights. 

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) was adopted at the Fourth Ministerial Conference, “Environment for Europe”, in the Danish city of Aarhus on 25 June, 1998. The Convention contains three “pillars” on (i) access to environmental information; (ii) public participation in environmental decision-making; and (iii) access to justice in environmental matters. The Convention was sponsored by the United Nations Economic Commission for Europe (UNECE). According to Kofi A. Annan (Former Secretary-General of the United Nations: 1997-2006), the adoption of the Aarhus Convention was a giant step forward in the development of international law in the field of citizens’ environmental rights. The Aarhus Convention is the most detailed and extensive development to date, at the international level, in the field of procedural environmental rights. The Aarhus Convention constitutes an expression of Principle 10 of the Rio Declaration. The Convention is the most comprehensive multilateral scheme to bring into effect this principle of the Rio Declaration.

The effective implementation of the three procedural environmental rights under the Aarhus Convention can contribute significantly to the achievement of sustainable development.