The “right to a healthy environment” protection

Fundamental human rights are those rights that are ensured the highest degree of protection from their violation. These can be specifically identified in the world nations’ Constitutions, but can be found in other texts, such as in “the United Nations Universal Declaration of Human Rights” or the “European Convention on Human Rights”, and many others. Their connection with sustainable development is strong; on one hand human rights can be seen as a “normative space” to balance the three components of sustainability (namely the social, environmental and economic); on the other, for some experts, human right anthropocentrism risks putting human right concerns before collective environmental issues; the common argument along with this vision, is that fighting poverty is a limit in fighting climate change. In this paper I argue that a “right to a healthy environment” can be used for the pursuit of sustainability-related goals and that this right is due to individuals, to uphold their dignity “to be” , “to do” and to develop their capabilities as individuals and as a society.

Moreover, as the world is asking for “actions, not just words” regarding climate change, environmental sustainability and the emergencies related, the existence of a fundamental “right to a healthy environment” seems to lead to the right direction for actual and practical measures addressing the environmental concerns.

The “right to a healthy environment”, in general, reflects the need of humans to be able to live and enjoy a beneficial ecosystem, that doesn’t endanger health, doesn’t disrupt the quality of life and ultimately that permits human activity to continue in the far future. It is even possible to claim that the “right to a healthy environment” represents the environmental dimension of many other types of rights, including cultural, civil and social rights and that it stands at the base for human dignity.

There are several questions and possible argumentations for and against the existence of this right; among these, we find reasonings regarding how correct it is that the Constitution of a country contains such right, argumentations related to its effectiveness and applicability, and concerning its magnitude and scope. Many argue whether it is enough to ensure action, whether it is just an aspirational right, or if, extremely, it is totally useless.

In the following paper, I will analyse the key argumentations that are usually brought up when dealing with such matter. Then, I will move towards the discussion on how “the right to a healthy environment” can be brought before different courts; finally, I will examine two jurisdictions that both have the right constitutionally recognized and I will provide insights on the discussion about how important it is to have the right constitutionally protected and how crucial is that States work towards its achievement.

1. THE DEBATE ON “THE RIGHT TO A HEALTHY ENVIRONMENT”
The main debate of whether this right can be effectively enforced and thus found in a country’s Constitution, is based on the idea that this right is merely an aspirational right. Aspirational or third-generation rights are those which cannot be actually enforced by the citizens of a nation, but they represent an ambition that a country wishes to realize. Some scholars believe that if a right cannot be enforced, there is no point in its existence; other researchers, on the other hand, believe in the importance of their existence, trusting that they may inspire future legislation to develop, or might provide a framework to address a dialogue about their evolution.

An “aspirational environmental right”, in particular, has become a heated debate in the international arena; legal institutions are asking for moves involving it, independently if it is, or not, considered only “aspirational” by numerous.

For instance, at COP21, in 2015, the United Nations Special Rapporteur on human rights and the environment, John Knox, urged States parties to encompass climate change in their Constitution or legislations, but, as to this moment, only few acted on this request. “Considering how climate change affects other fundamental human rights”, he argued in the Conference, “it is essential for countries to make the connection” and to act towards the right direction (John Knox, 2015).

Even if it is considered only aspirational, the “right of a healthy environment” would, at some extent, guide the nation authorities, providing a basis for performing the functions with a view of “progressively achieve the full realization of the principle” (Lesotho, 1993).

Another case against the creation of such right, and the possible allocation of it in the Constitution, regards the fact that “the right to a healthy environment” may be seen as already encompassed in the “right to life”, which already exists in all Constitutions. A healthy environment, in fact, is inherent to human life, as it allows a person to grow and live healthily. The experts supporting this view, therefore, claim that it is unnecessary to
have this right constitutionally recognised, as the provision would result in being only a duplication. Some even go as far as arguing that a “healthy environment” right is a requirement for each and every one of the other fundamental rights, believing even less in the impact of its creation.

An alternative argumentation reflects the fact that such right cannot be considered fundamental, as it embraces the characteristics of both a negative and positive right, which is the “flipside” of fundamental. The “right to a healthy environment”, in fact, does actually require positive action from governments, does need means to be implemented and demands adequate programmes to work effectively.

If it was laid in the Constitution, although the legal duties it imposes are vague, governments not only wouldn’t have to interfere or harm the environment for the society’s sake but would also need to act to improve its protection. For this reason, many experts are against the act of giving force of such right in the Constitution; even if placed in such an important text, they believe, it doesn’t mean that the country is ready to uphold and defend it.

Lastly, other views argue that, other than being too vague, redundant or ineffective, it may also jeopardize democracy. These studies report how, in fact, judges, by using such a vague and multifaceted right, would gain too much authority, and how the shift of power from legitimate legislators to judges may cause complications and threaten  the justice system in a country.

Courts are essential in assuring the constitutional rights’ and duties’ implementation; with the presence of a fundamental “right to a healthy environment”, they would have to act in any circumstance involving cases in which other pieces of legislation against the scope of
environmental protection were created, or in cases in which the executive breach of a country failed to adopt necessary means to apply those rights. Conflicts between powers would be likely to emerge and the tension, according to some, may trigger complications for the country and may expose democracy to too much vulnerability. By formulating remedy policies or sanctions for failures to act, democratic accountability and the separation of power may be lost in some instances, even if evidences show that Courts are often unwilling to express judgments in particular choices of the governments regarding social and economic issues.

Nevertheless, even if many argumentations against this right exist, the reasons of wanting to protect the environment for current and future generations in Constitutions, and the reasons behind the right formation, are many and supported by numerous experts. Pollution, climate change and environmental degradation impose many costs to the society, ranging from expenses related to health, to social life and to the economy in general.

Hence, the consequences of an unhealthy environment have wide implications and threaten human freedoms, which are at the core of the purposes of fundamental rights.

One other key intention behind this right is helping intergenerational equity. This concept deals with how today’s choices are reflected in the future; almost all current decisions, in fact, have an impact in the long run; climate change is only one aspect, but it has the most dangerous effects for future generations opportunities, possibilities and freedoms.

Surely the existence of the “right to a healthy environment” wouldn’t be enough to promise future generations all chances that the world has today but may be a great step towards the appropriate direction, with not only symbolic implications, but with very concrete consequences regarding the spread of the climate and ecosystem emergencies.

The advantages stated above add themselves to another broader one, sustainable development.

If a country wants to grow economically and socially develop, means that may be endangering current citizens wellbeing cannot be used. Soils depletion, water and air pollution or fossil fuels usage are only few of the threatening means to grow economically that todays’ nations are employing, and the environmental costs on the society must be weighted accordingly.

Having the “right to a healthy environment”, especially if constitutionally recognised, forces the country to have effective instruments and appropriate frameworks to control the sustainability of every business, every private or public actor and of every operation, no matter how big or small. The right of a healthy environment could, for this purpose, be considered a “safety net”, to induce more attention towards environmental related problems, especially created from a business or large-scale operation side. In this regard, the right to a healthy environment, may be considered as an obligation of means, in contrast with the obligation of result.

Moreover, it would also subtract the decision-maker from the dangerous temptation to seek solutions or electoral consensus with immediate positive impact interventions, but with negative repercussions in the medium-long term period, forcing him/her to consider the broader picture, and to be accountable for his/her decisions. All subsequent regulatory and legislative production, in fact, would be forced to refer to the constitutional transcript and would oblige the legislator to no longer be able to ignore sustainability, as it is allowed at some extent today.

In this respect, studies have shown how the constitutional “right to a healthy environment” has been used by nations to fill the gaps left by environmental national laws; national Supreme Courts, through this, were theoretically given the power to influence government decisions, by having the possibility to issue rulings clarifying how governments were constitutionally obliged to meet their environmental responsibilities.

Some examples may be found in decisions from the Supreme Court of Uganda, clarifying legislation governing plastic bags, about public smoking in India, and air quality standards in Sri Lanka.

2. THE CREATION OF THE RIGHT TO A HEALTHY ENVIRONMENT.

The history of the “right to a healthy environment” can be assumed to have begun in the 70s. The latter decade saw the rise of “green movements”, which were starting to become popular and the talking about a “right to a healthy environment” was becoming acceptable.

The first official action concerning the environment in international law, took form in a statement made in the first UN Conference regarding the Environment, in Stockholm, in 1972, when it was proclaimed that men had the “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. He bears a solemn responsibility to protect and improve the environment for present and future generations”

The conference adopted a non-binding instrument: an action plan containing recommendation for the parties.

This paved the way for the creation of important institutions, dealing with the environment, but from a legislative and juridical point of view, which it is argued to be the most practical and effective way to deal with environmental problem, much wasn’t achieve.

The first move in the legislative framework towards the creation of a right, related to the environment protection, was the entry into force, in 1976, of the “International Covenant on Economic, Social and Cultural Rights”. Article 12 of such text noted that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” And that the steps shall include “The improvement of all aspects of environmental and industrial hygiene”. An adequate environment was therefore already seen as necessary to achieve maximum health.

Among the years, the international adoption of non-binding instruments kept increasing, but the principles, even recognizing a healthy environment as a human right, merely addressed it as a strong necessity, thus not creating legally enforceable rights or obligations.

Following, in the national and constitutional laws of some State Parties to the previous international agreements, principle recognizing the “right to a healthy environment” started to appear more regularly; the legal status of the right, nonetheless, varied greatly among countries.

The first countries to establish this right in the Constitution were Portugal, in 1976, and Spain, two years later. As today, about 100 national Constitutions worldwide include this guarantee and over 180 recognize this right at some degree (Reuters, 2020). Constitutional and Environmental law specialists perceive the recognition as extremely valuable, but the progress must flourish more rapidly.

3. ENVIRONMENTAL LITIGATION
Independently on the fact if countries have the “right to a healthy environment” constitutionally protected, or only protected though international treaties or agreements, proceedings connected to a healthy environment are rising more and more.

At the core of environmental litigation, a term used to describe cases to uphold environmental correctness directed at governments, public or private businesses, stands the need felt by the societies to defend the environment and their rights related. Courts are increasingly being asked to deal with arguments and facts related to the ecosystem, and it was counted that in 2018, at least 1,000 climate change-related cases have been brought before judges of over 25 countries.

The majority of these cases rely on rights-based argumentations; however, some also seek to enforce legislative and policy commitments that a country has taken or seek to find liability for failures (or efforts) to adapt to climate change. The plaintiffs range from various possible actors in the society, whereas the defendants are almost always the governments. This fact, as stated previously, increases the difficulties in succeeding, but surely, despite the struggles and the very few victories of environmental litigations, these successes can be considered an increasing trend for today’s societies.

The role of the “right to a healthy environment” stands at the core of a smooth and effective litigation; it is needed for an successful process, even though, other rights, including the right to life, can be infringed because of environmental threats and thus used in the cases of environmental lawsuits.

Nonetheless, with the spread of the constitutionally recognized “right to a healthy environment”, applicants have increasingly used this latter right for seeking remedy or report inaction, failure or wrong doings from their governments.

The legal problems related to these cases are however to be considered.

First of all, as previously stated, the justiciability of the “right to a healthy environment”, or rights used for the same processes, have been considered political issues only, thus not disputable by courts.

Moreover, for a case to be heard, the environmental damages or the harms to people, caused by any climate related issues, always have to be demonstrated. Pinpointing at the exact consequences of environmental harms for individuals’ health or wellbeing is not always so easy, and even when it is possible, often it is challenging to demonstrate a direct link between the sufferers and the ones causing the harm.

Lastly the attribution of the liability and the proportions of it are drawbacks in dealing with such cases, as effects and consequences, and thus the fines, sanctions, or other remedies, are hard to assess.

Following I will analyze more deeply two cases involving countries that both have the “right to a healthy environment” constitutionally recognized. In the first example, regarding India, another right has been used for the environmental litigation; in the second example the
“right of a healthy environment” itself was invoked. Both cases show how legal problems relating to assessing correctly the dimensions of the harm to people have an impact on the rulings of the courts.

4. THE CASE OF INDIA
The Constitution of India was adopted in 1949, and as today, it is the second longest constitutional text in the world. The environment is at the core of Indian cultural values and traditions, and this is reflected under the constitutional framework.

After the amendments of 1976, in fact, the text is today rich regarding environmental jurisprudence.

Articles 48A and 51A (g), contained in Part IV of the Constitution read:
Article 48-A: “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
Article 51-A(g): “It shall be the duty of every citizen of India – (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”

What is striking, however, is that, although the environmental rights are explicitly and beautifully scripted in the Constitution in Articles 48 and 51, their application and promotion is constrained because if their legal source.

Article 37 in fact reads: “The provisions contained in [Part IV] shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” (India Const. pt. IV, art. 37 (1949)).

Part IV of Indian Constitution, which comprehends those Articles, is just considered as “The Directive Principles of State Policy”; instructions for the State to keep in mind in the creation of laws and policies; these directions reflect ideas that the Indian nation has, and strives to achieve, but that it is not possible to judge.

This means that, the constitutional “right to a healthy environment” exists, but it is not justiciable.

Nevertheless, from the late 80s, the Supreme Court of the country has started to safeguard the environment and citizens’ deteriorating health, resulting from its degradation, by broadly interpreting Article 21, relating to the “right to life”, thus not using the un-enforceable Articles 48 and 51.

Article 21 reads: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

The Court, in Virender Gaur’s case, in 1995, expanded its interpretation, encompassing the “right to a healthy environment” The Court declared:
“Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21”

This “open” interpretation of Article 21 is only one of the occasions in which the same happened. The Court has done equivalent “open versions” of Article 14 and 19, applying them for other environmental protection situations, for allowing individuals to develop under a clean and safe environment or to uphold the government duties to respect some provisions related to environmental protection.

As the examples provided, therefore, the Supreme Court cared about upholding “the right to a clean and healthy environment”, and it managed to do so, just by using another tool, the one of “broad interpretation” of another constitutional provision.

For these rulings, the Indian Supreme Court has been subject to many critiques. As explained in the first part of this paper, it was accused to have exceed its juridical power, as judges gave themselves too much authority in respect to elected politicians. At the same time, however, its actions are defended by many. Experts claimed that, as the government failed to fulfill the constitutional rights provided in Articles 48 and 51, the wider
interpretations are indeed defendable.

The case “Subhash Kuimar v. State of Bihar and Others” was brought to the Indian Supreme Court in 1991, and concerns the fundamental “right to life”, used, as previously shown in one other case, to address the “right to a healthy environment”. The petitioner filed a public interest lawsuit claiming that two iron and steel companies, were creating health risks for the society. The companies were dumping waste in form of sludge in agricultural land, which were leaving harmful products on the soil, and entering a near river, polluting it.

Moreover, the petitioner claimed that the State Pollution Control Board failed to address the situation and even granted private leases for the collection of the slurry.

The petitioner asked the Court to take actions and requested the allowance for collecting himself the waste, as a temporary measure, to give relief to the affected people.

Both the Board and the companies denied the claims brought by the applicant, so that consequently, the latter filed the present case to the Supreme Court of India, under Article 32, that provides the extraordinary procedure of appealing to the Supreme Court in the interest of protecting a citizen’s fundamental right.

The Court observed: “Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”

This statement is extremely valuable, as it shows how the “right to a healthy environment” can be enforced, even by not using the articles stipulating it.

The Supreme Court, although declaring the latter statement, dismissed the petitioner’s claim, proclaiming that the companies did adhere to the standards of polluting effluents and that the Board did actually address the situation, by taking “effective steps” to monitor the quality of slurry.
Positively, even if a maximum limit for any kind of pollution to the environment shouldn’t exists, the case recognized “the right to a healthy environment” and has proved that having it in the Constitution does matter at some extent.

The fact that the Court held that the waste disposal wasn’t bad enough to intervene, as didn’t endanger the health of citizens enough, however, has delivered an important message for the Indian society.

If the waste had been “bad enough”, I believe that the Court would have taken measures to ensure the protection of citizens. Having overstepped the clause of the nonenforcement of the rights contained in Part IV of the Constitution, the Court gave hope that in the future this right may be actually enforced.

Indeed, based on this result, I agree with the experts that believe that having it in a Constitution, grant a status that is undeniably extremely significant.

5. THE CASE OF NORWAY

The Constitution of Norway was adopted and signed in 1814, coming to be the second oldest Constitution still in force today. At the time, it was believed that the writing represented an innovative and revolutionary text, exhibiting strong liberal voting rights and democratic values that officially broke with the previous monarchy ideals.

In mid 2014, the text was amended and substantial changes and new provisions, were added to the text. One intention behind adding a new chapter, which regards fundamental rights of Norwegian citizens, was to better guarantee the safeguarding of rights already protected elsewhere, such as in the as the in “European Convention on Human Rights” or in the parallel UN Covenant, or in UN Declaration.

These economic, social, cultural or political rights were in fact already secured, but strengthened by this addition.

Another underhand intention of the new section, on the other hand, was to add specific rights, such as Article 112 that adds, among so much protection of sustainability-related issues, the “right to a healthy environment”.

Article 112 states: “Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved. Natural resources should be made use of on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well.

In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to be informed of the state of the natural environment and of the effects of any encroachments on nature that are planned or commenced. The State authorities shall issue further provisions for the implementation of these principles.”

The country of Norway has a strong reputation for having a profound care of nature and environment and the creation of such Article containing the constitutionally protected “right to a natural and healthy environment for current and future generations” enforces these values. Article 112 is also distinguishable for its links with the UN Sustainable Development Goals; indeed, the language within which it is stated, and its comprehensiveness, encompass many of the aims of the SDGs.

At the same time however, the nation is one of the most colossal power to drill and export oil. Such activities result in massive emissions because of their burning, that even if does not happen in the country itself, because Norway moves these activities elsewhere, intensify emissions favouring climate change strongly.

In 2015, the government of Norway approved yet another plan for exploring the Arctic, in search of more oil. Two years later, Greenpeace Norway, Nature and Youth and the Grandparents Climate Campaign NGOs took a case against the Norwegian Government, stating that this action was against the constitutional right stated in Article 112, and also against the Paris Agreement, which the country is still a party of. The case represented an historic event, as it was the first time that the right was brought before a court.

In the ruling, the Oslo District Court, approved the plans of the Government, dismissing the lawsuit of the NGOs. The reasonings behind the decision were based on the fact that the government was “not responsible for the emissions from the oil they drill, because the oil is
not burned in Norway.”

According to public international law general principles, each country is responsible for GHG emissions on its territory only, and in the country constitutional law, the issue was not even specified. The Court, probably unsure on how to react, ignored the fact that the emissions were still generated by the Norwegian government, even if in another area, and overlooked the fact that the consequences on the life of Norwegian citizens were equivalent if the oil was burnt inside the country.

Yet the Court, even if it didn’t take any action accordingly to the following statement, added that “the right to a healthy environment is protected by the Constitution” and that “the Government must uphold those rights”. This last part of the judgment signifies a positive statement from the plaintiffs’ point of view. “We see this as an important step for stronger protection of the environment, that can serve as inspiration for youth all around the world”, stated the head on the Nature and Youth NGO.

This case had, in fact, a ripple effect, helping others to initiate cases against their government and helped to increase pressures on the institutions that can do the most about climate change.

The plaintiffs didn’t give up. In 2019, the NGOs decided to take Norway Government back to the Court for starting an appeal, on the same ground. They declared again that no matter where it is burnt, “oil fuels climate change”, and because of this, they couldn’t give up with losing the case and demanded the ruling to be reviewed.

The attorney general of the government, Mr Sejersted, argued that “the environmental rights provision is more a statement of principle rather than a concrete right”; moreover he argued that the inquiry of the NGOs didn’t represent a legal matter, but only a political issue, debating that Article 112 is definitely not involved in the issue of oil drilling as the citizens are still able to enjoy “an environment that is conducive to health”.

In the appeal, the Court ruling upheld the district court findings, again recognising only in theory, “the current and future generations’ right to a healthy environment” and finding that the threshold for invalidating the oil drilling licences has not breached. The co-plaintiffs declared that they will appeal the judgement to Supreme Court of Norway, to further review these judiciary rulings.

Nevertheless, even if the environmental organisations didn’t win the case, their actions have and are advocating the importance of the “right of a healthy environment” across the globe, providing courage and setting an example. Citizens, NGOs and communities raised their attention to this case and started to demand the protection of the society’s collective interest and of “the right to a healthy environment” in a lot more several actions.

Recognition of the constitutional right, the first efforts against its violation and the monitoring and enforcement of the rest of environmental laws by the public, have indeed improved in the past years. At the beginning of 2020, the NGOs involved in the case, spoke out about how they consider the case “an important legal victory on the right to a healthy environment under the Norwegian Constitution”.

In my opinion, even if it is true that it is certainly a positive step towards the right direction for environmental rights and laws, the courts explicitly took their decisions considering that rights merely a “guiding norm”, breaching the society constitutional right, and stepping against the aims of sustainable development ambitions and intergenerational equity goals, that were formerly recognized by the country democracy.

The judgments of the courts, moreover, can be considered a clear example how Article 112 and the “right of a healthy environment”, are not really executable officially for a number of reasons; their flexibility, vagueness and the non-concreteness still contour their existence, at least for Norway.

Additionally, the juridical review that questions the lawfulness of the polluting actions made by the government, was proven to be still too fearful.

6. CONCLUSION
Over the years, the existence of a “right to a healthy environment” has served the cause for a healthier and better life, for environmental protection, for intergenerational equity and for sustainable development.

Having analyzed the two cases, nonetheless they provide some positive aspects, we understand though, that even when the right is inserted in the constitutional text, it stays weak and the possibilities and outcomes of environmental litigation are quite unsuccessful.

In my opinion, the effort to promote this type of right into the world’s Constitutions is however significant. I believe, in fact, that even if its enforceability is still weak, the work of International and Inter-regional Organization to make this right, or its aims, present in many treaties and conventions cannot be enough. These Organizations, as much as they represent one of the most key supports and promoters of sustainable development, environmental and human rights protection, must be helped by the States themselves.

Legal recognition in the Constitutions by more and more nations is long overdue to prove the will to actually want to encompass the environmental protection in development and growth. The institutional aspects of international organizations and international laws is in fact too weak, compared to the one of States, as the level of the Constitution and national governments can achieve much more.

At the same time, what also has to change to actually provide today’s and tomorrow’s  individuals with an effective environmental right and the related benefits, is the judiciary system that must have the “courage” to act in accordance to the provisions or the rights accepted by a nation; additionally, what it should also be transformed is the driver ideology behind the creation of laws, provisions and behind government actions, that shouldn’t make climate change litigation even needed.