The Progressive Recognition of the Fundamental Right to a Healthy Environment and the Role of the Courts in Ensuring Its Protection1
| 02 mar 2024
Publicado en línea: 02 mar 2024
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DOI: https://doi.org/10.2478/wrlae-2023-0009
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© 2023 Nadia Sima Spadaro, published by Sciendo
This work is licensed under the Creative Commons Attribution 4.0 International License.
The effectiveness of environmental protection in the present climate emergency is a global problem and the need for a common action has been the ground of important negotiations and international agreements in the last fifty years. This awareness has often pushed the European legislators to recognise a healthy environment as the object of a fundamental right, and, even where it does not find an express recognition as such, the courts often give it such a value.
Recognising the fundamental human right to a healthy environment has relevant consequences on the widening of its protection, particularly in climate litigation, where it adopts an evolutionary interpretation of the substantive and procedural rules that hinder the full satisfaction of victims of climate change.
This trend, on one hand, is praised and considered a fundamental tool to overcome the inertia of the competent authorities in implementing the commitments undertaken at the international level. On the other hand, it has raised many questions among scholars on whether it befits the role of the judiciary in constitutional democracies to adjudicate on climate change: scholars have warned that the balance between the branches of democratic government will be threatened when judges interfere with the political issue of climate change.
This paper seeks to highlight how the path taken by the courts at both supranational and domestic levels represents the expression of the progressive recognition of the right to a healthy environment as an indispensable prerequisite for the existence of the human being and of his participation in political life and, therefore, for the very existence of a democratic society. This interpretation, when endorsed by the explicit constitutional recognition of the right to the environment as a fundamental human right, makes legitimate the courts’ assertive approach, especially in climate litigation.
The word ‘environment’ is not mentioned in the provisions of the European Convention on Human Rights (ECHR), much less the concept of the right to a healthy environment.
The lack of express protection of the environment can be explained by the fact that the approval of the Convention dates back to the 1950s, when awareness of the need to protect human environmental rights had not yet emerged in the collective consciousness. This awareness matured over time and was later reflected in the work in progress at the Parliamentary Assembly of the Council of Europe, which, on 29th September 2021, presented a proposal for an additional protocol to the ECHR on the right to a ‘healthy, clean, safe and sustainable environment’, which provides, in Article 3, that Parliamentary Assembly of the Council of Europe (PACE), ‘Anchoring the Right to a Healthy Environment: Need for Enhanced Action by the Council of Europe’, Resolution 2396 (2021), < UN Resolution A/76/L.75, 26 July 2022, <
The European Court of Human Rights played a key role in bringing about this awareness since the 1980s, when it started to progressively modulate the intensity and type of obligations arising from the violation of Conventional provisions, distinguishing the ‘classic’ negative content of fundamental freedoms, in terms of a duty of abstention on the part of the State from obligations with a positive content, having as their object not a prohibition but the protection and enjoyment of the right itself. This hermeneutic attitude, together with a necessarily evolutionary interpretation of conventional rights in relation to changes in the temporal context, extended the protection of certain rights provided by the Convention to other rights not directly protected by it
Vitaliano Esposito, ‘Danno ambientale e diritti umani’ (2012) 4 Diritto Penale Contemporaneo 3 et seq. Michele De Salvia, ‘Ambiente e Convenzione europea dei diritti dell’uomo’ (1997) 10 Rivista internazionale dei diritti dell’uomo 246 et seq.; Nicola Colacino, ‘La tutela dell’ambiente nel sistema della Convenzione europea dei dritti dell’uomo: alcuni elementi di giurisprudenza’ (2001) 2 Diritto e gestione dell’ambiente 191 et seq.
The Conventional provisions that the Court used to ensure environmental protection are Article 2 (right to life) and Article 8 (right to respect for private and family life) of the ECHR
For an overview of the issues related to the environment which could affect the human rights protected by the ECHR, see Council of Europe,
Regarding Article 2, in Judgement of the European Court of Human Rights of 30 November 2004 (48939/99) See,
Hence, in protecting the right to life, the Strasbourg Court’s interpretation extends to the protection of individuals from environmental or industrial disasters that may endanger this right
Judgement of the European Court of Human Rights of 20 March 2008 (15339/02, 21166/02, 20058/02, 11673/02 and 15343/02) Judgement of the European Court of Human Rights of 12 July 2016 (34661/07)
In the context of hazardous activities, if it is not established that the risk to which a person was exposed was lethal, so that Article 2 does not apply, his or her situation may be examined under Article 8 when his or her private or family life is affected. The Court has held this to be the case when individuals had been exposed to asbestos but had not developed any pathology
Judgement of the European Court of Human Rights of 24 October 2014 (60908/11, 62110/11, 62129/11, 62312/11 and 62338/11)
Relating to Article 8 ECHR, following some initial pronouncements in which the Court’s openness to consider the environment an integral aspect of the individual’s private and family life was glimpsed
The first important rulings by the European Court of Human Rights on the individual right to a healthy environment were made in 1980 (decision of the 15 July 1980 on the admissibility of the application 7889/77, Judgement of the European Court of Human Rights of 9 December 1994 (16798/90)
In that case, the Court, in addition to finding a violation of Article 8 ECHR, condemned the State to pay compensation on the basis that not only had the Spanish government violated Article 8 by allowing the plant to be located on that site, but above all it had not acted, at a later date, to stop the emissions and had even challenged the judgements of the courts that had suspended the plant’s activity. The Court emphasises that ‘
Although there have been some pronouncements to the contrary
Judgement of the European Court of Human Rights of 22 May 2003 (41666/98) For an overview of the European Court of Human Rights’ case law on Article 8, see Tullio Scovazzi, ‘L’interpretazione e l’applicazione ‘ambientalista’ della Convenzione europea dei diritti umani, con particolare riguardo al caso Urgenda’, (2019) 3 Rivista giuridica dell’ambiente, 622 et seq. Judgement of the European Court of Human Rights of 19 February 1998 (14967/89),
If the environment has been protected, albeit indirectly, in the case law of the European Court of Human Rights, it should be therefore protected, in the light of the same guiding principles, by the Courts of the contracting States
Scovazzi (n 13) 624.
Thus, the Constitutional Courts of European countries often refer to the protection of the environment as a fundamental principle of the Constitutional context, sometimes developing a case law that plays a fundamental function for the introduction of the environment in the Constitutional text.
In Italy, for instance, the role of the Constitutional Court was decisive in allowing the constitutional revision process to succeed and, thus, to introduce the environmental protection in the part of the Italian Constitution dedicated to the fundamental principles, which never had been modified before
For a review of the Constitutional Court case law on the environment see Alberto Predieri, ‘Significato della norma costituzionale sulla tutela del paesaggio’ in VV.AA., Judgement of the Italian Constitutional Court of 30 December 1987 (641); Id. judgement of 15 November 1988 (1029); Id. judgement of 15 November 1988 (1031); Id. judgement of 5 February 1992 (67); Id. judgement of 7 July 1994 (318). Judgement of the Italian Constitutional Court of 23 May 2019 (179). Judgement of the Italian Constitutional Court of 23 March 2021 (71).
This interpretative evolution, from landscape to environmental protection, was also affected by the reform of Title V, modifying the second paragraph of Article 117 of the Constitution. There, in 2001, the provision of the ‘protection’ of the environment and of the ecosystem, reserved to the exclusive legislative power of the State was introduced. In its efforts to interpret the new structure of constitutional competences, the Court has had the opportunity to state again
Judgement of the Italian Constitutional Court of 10 July 2002 (407).
The recent introduction of the express reference to environmental protection within the framework of the fundamental principles of the Constitution is clearly in line with the hermeneutic approaches of the Constitutional Court. The revised Article 9 of the Italian Constitution now also lists the concepts of environment, biodiversity and ecosystem
The constitutional revision introduces a new paragraph to Article 9 of the Constitution according to which the Republic ‘Protects the environment, biodiversity, and ecosystems, also in the interest of future generations. The law of the State regulates the ways and forms of animal protection’.
The introduction of such a duty in the constitutional context is of great importance, especially for future generations: Constitutions, thanks to the attribute of rigidity, are designed to last over time and to be beyond the reach of political majorities. Also, Constitutions affirm universal principles that are above the political debate and represent a prerequisite of democracy, since they have the capacity to offer protection to those subjects who, in the democratic arena, would not have a voice, granting them tools of protection – including judicial ones – to guarantee their constitutional rights
Francesco Gallarati, ‘Tutela costituzionale dell’ambiente e cambiamento climatico: esperienze comparate e prospettive interne’ (2022) 52 (2) DPCE <
On the other hand, where a solid case law on environmental protection is missing in the constitutional jurisprudence, we could see the failure of the proposals of revision of the constitutional text, as happened in France, where the Constitution still does not refer directly to the environment, but merely to the rights and duties enshrined in the 2004 Environmental Charter, which became a constitutional law in 2005
The French Environmental Charter expressly provides, in Article 1, that everyone has the right to live in a balanced environment which is favorable to his health. It also provides a series of duties to all individuals, such as the duty to participate in the protection and improvement of the environment; the duty, within the terms defined by law, to prevent or, failing that, limit any damage to the environment; the duty to contribute to the repair of damage caused to the environment, under the conditions defined by law. Most importantly, it provides that, if damage to the environment is realised, however uncertain the state of scientific knowledge may be, the public authorities ensure, by reason of the precautionary principle and within the scope of their action, the application of risk assessment procedures and the adoption of provisional and specific measures to remedy the damage. In France, a preliminary issue of constitutionality can only be based on an infringement of ‘the rights and freedoms granted by the Constitution’ (Article 61-1 of the Constitution). Articles 1 to 4 of the Charter of the Environment are among the rights and freedoms granted by the Constitution, but Article 6 and the seven paragraphs preceding the ten Articles of the Charter of the Environment cannot be invoked in support of a priority question of constitutionality based on Article 61-1 of the Constitution, because they do not establish a right or freedom. See judgement of Conseil Constitutionnel of 23 November 2012 (2012-283 QPC) and judgement of 7 May 2014 (2014-394 QPC).
Indeed, it was only fifteen years after the adoption of the Charter of the Environment as a constitutional law that the French constitutional Judge gave unprecedented force to the objective of environmental protection. In a decision of 31 January 2020, it held that it is up to the legislator to ensure the reconciliation of the constitutional objectives of environmental protection and health protection with the exercise of entrepreneurial freedom and noted that ‘ Judgement of Conseil Constitutionnel of 31 January 2020 (2019-823).
Three draft constitutional revisions have been prepared to introduce the environment in the constitutional text. The first draft of the constitutional revision ‘for a more representative, accountable and efficient democracy’ of 2018 was rather small in scale, since it was limited to the insertion into Article 34 of the Constitution an additional assertion under which it was also up to the legislator to determine the fundamental principles relating to ‘the preservation of the environment’ as well as those concerning ‘the fight against climate change’. The Council of State, in its opinion of 11 May 2018, pointed out the minimum effect of a reform which, in its view, ‘will probably have little impact on the respective competences of the legislator and the regulatory authority’. This is one of the reasons why the constitutional legislator decided to go straight to the point to complete Article 1 of the Constitution. The 2018 reform bill was, therefore, amended to incorporate elements of revision of Article 1 of the Constitution. This second constitutional revision bill was not included in the parliamentary agenda and was therefore abandoned. The third and most recent attempt came from a constitutional bill registered in the National Assembly on 20 January 2021. Its sole Article was intended to complete Article 1 of the Constitution to affirm, as in 2019, that ‘the Republic guarantees the preservation of the environment and biological diversity and fights against climate change’. Once again, due to a lack of agreement between the Chambers, the Prime Minister announced on 6 July 2021 that the constitutional revision would be abandoned
Fanny Jacquelot, ‘Lecture française de la révision constitutionnelle italienne en matière environnementale’ (2022) 1 Corti supreme e salute <
The progressive awareness of the environmental problem and the need to guarantee effective protection for the victims of environmental damage also find expression in the extensive jurisprudential interpretation of certain crucial aspects of climate litigation, namely the disputes that are in some way connected to climate change resulting from global warming.
It is now ascertained by science with irrefutable evidence that human activity can modify the biophysical, geological, and ecological processes of the Earth system. Our epoch, the first that scientists have defined by man’s overwhelming impact on the Earth’s life systems—the Anthropocene
See 2023 Assessment Report of the Intergovernmental Panel on Climate Change <
In such awareness, increasingly often, Courts both in Europe and overseas
Among the best-known cases, see: judgement of the Hague Court of First Instance of 24 June 2015 For an overview on the subject, see Wolfang Kahl, Marc-Philippe Weller,
The main expressions of this trend are traceable in the consolidation of an evolutionary interpretation of the substantive and procedural rules that hinder the full satisfaction of victims of environmental damage and climate change. More specifically, this is done through a flexible interpretation of the conditions for the recognition of environmental damage such as the causal link and legal standing.
The demonstration of the existence of a causal link in climate litigation is particularly complex. It is, first, difficult from a scientific point of view to isolate a given factor from others in the causation of the harm and, therefore, to identify the extent to which the polluting emissions produced by a State have contributed to the determination of the specific harm. Moreover, the injury suffered by the plaintiff because of climate change may also arise long after the polluting emissions have been produced, remaining hidden and inert for a considerable period, thus causing a time lag between its infliction and its perception by the injured party
Siobhán McInerney-Lankford, ‘Climate Change and Human Rights: An Introduction to Legal Issues’ (2009) 33(2)
Such difficulties have often been, in the past, the main reason for the Court dismissal of cases in climate litigation. As in the well-known case of the Supreme Court of the United States 20 May 2013
Nevertheless, more recent decisions seem to avoid identifying the specific defendant’s share of responsibility in global warming and, thus, in the causation of the damage. For instance, in the well-known case
Another topic on which there is a significant hermeneutical evolution is the legal standing. Traditionally, the intrinsic collective nature of the interest in environmental protection makes it possible for the case to be brought only by associations representing that interest. In the recent years, thus, Courts seem to admit a flexible interpretation of the legal standing in environmental and climatic litigation, which considerably widens the scope of admissibility of proceedings.
On the one hand, the jurisprudential recognition of the essential role of the environment in granting some fundamental rights such as the right to life, to health, to property, leads to admission of individual interest in bringing proceedings. On the other hand, the ongoing recognition of the right to a healthy environment as a fundamental human right, would allow the individual to take legal action to obtain its protection, even without the demonstration of the harming of other rights, such as property or health, which are affected by the defendant’s conduct. With reference to climate litigation, some courts seem to be recognizing the specific right to climate stability as a fundamental right, entailing the standing of the individual to bring an action. This is the case, for instance, in United States Court of Appeal 17 January 2020 See,
The widening of environmental protection emerges not only in the jurisprudential trend to give a flexible interpretation of key points of environmental and climate litigation, but also in the use of procedural tools to compel public authorities to overcome their inaction towards global warming.
Indeed, one of the main problems in relation to the effectiveness of judgements condemning the State to act to reduce atmospheric emissions is the concrete possibility of enforcing them. As it has been noted, the judgement against the State often ends up representing a mere instrument to urge the government to act, according to the principles of the separation of powers
Monica Delsignore, ‘Il contenzioso climatico nel suo costante crescendo dal 2015 ad oggi’ (2022) 2 Giornale di diritto Amministrativo 265 e seq.
However, the Courts have made use of enforcing measures capable of conditioning the exercise of public power, whilst respecting the division of competences between the powers of the State. This is the case, for instance, of the use of penalty payments, which aim to obtain the compliance of the convicted by a final judgement (even a Public Administration), by the threat of an injunction to pay a sum of money that increases for each day of delay in the execution of the judgement. The amount of the penalty is generally left to the discretion of the Court and is also related to the relevance that the Judge attaches to the enforcement of the judgement in the specific case.
Recently, for instance, the French Council of State issued a ten million Euro penalty payment against the French government for failing to comply with a previous ruling in which it was ordered to take the necessary measures to reduce air pollution and comply with the limits imposed by the 2008 European Air Quality Directive
Conseil d’Etat 4 August 2021
The interpretative framework provided by the Courts to favour the recognition of the fundamental right to a healthy environment, extending its protection to the point of ordering States to take appropriate measures, did not go without criticism. Many scholars have defined this trend as a real activism of the Courts, sometimes talking about ‘regulation through litigation’ and questioning its legitimacy
Kars de Graaf, Jan Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27 (3)
In general terms, the task of defining policy objectives and translating them into legal rules is primarily assigned to the legislature, which provides democratic legitimacy to lawmaking, since the legislative process involves representative bodies that give a voice to and are accountable to those who will be governed by the rules coming out of this process. The judiciary, on the other hand, would not be able to rely on such legitimacy and, therefore, should not, in principle, enter into the making of new rules
Chantal Mak, ‘First or second Best? Judicial law-making in European private law’ (2016) 48 (2) Amsterdam Law School Legal Studies Research Paper 1 et seq.
These arguments sometimes brought the Courts to impose self-restraint in the face of the plaintiffs’ claims about the inadequacy of the measures taken by States in mitigating emissions, arguing that it is not possible to uphold the plaintiffs’ claims since governments had acted in the exercise of the discretionary powers conferred on them by law
Nevertheless, it is also typical of a democratic system that the judiciary and the legislature influence each other significantly. In theoretical models of a constitutional division of powers, Courts perform different functions. Courts are, in the first place, responsible for the interpretation and application of the law and in the second place, the judiciary may have an influence in processes of shaping new rules. Especially in times of social change, Courts assume a different type of legal-political role, which places them in a position to sometimes respond to the developments in a more effective manner than the legislature
Mak (n 39) 2.
On the other hand, we should recall that the principle of separation of powers is based on the attribution of specific competences to the three powers of the State, which is not necessarily declined in the same way in the various legal systems
Pablo Rivas-Robledo, ‘What Is Judicial Activism? Part I. Desiderata for a Definition of Judicial Activism’ (2022) 31 (1) Rivas-Robledo (n 43) 81, refers the example of Colombia, where there have been several important expressions of what is called judicial activism in climate litigation. The High Court of Justice of Colombia, in the judgement of 5 April 2018 (4369)
But, most importantly, we need to consider that once a given right is recognised as a fundamental human right, its protection is essential for the protection of the entire democratic system, no matter how much it may move against the choices democratically made by Parliament. The choice to introduce a certain right into the text of the Constitutional Charter, as far as it may be favoured by jurisprudential interpretation, is always a choice that requires a vast majority, to guarantee a broad democratic consensus. Therefore, whenever a government decision is likely to invade the sphere of constitutionally (and internationally) guaranteed fundamental rights, it is an obligation of the decision-making body to carefully assess the potential impact on human rights of the measure to be adopted: when the requirements related to the protection of fundamental rights are not taken into account in any way by the deciding authority, the measures adopted by the latter will inevitably be open to challenge for violation of human rights.
In this sense, constitutionally established fundamental rights operate as limits or content constraints on the otherwise absolute will of majorities and their protection is the very prerequisite of democracy.
Indeed, the will of the electorate is only authentically expressed if it is free, and for it to be so, in addition to the right to vote, everyone must be guaranteed the exercise of fundamental freedoms: of thought, of the press, of information, of assembly and of association. These freedoms, on the other hand, are only effective if they are in turn supported by the guarantee of social rights to positive benefits, that is, to subsistence, health, education. Without the protection of these rights and the fulfilment of the public obligations corresponding to them, both political rights and fundamental freedoms would remain on paper: there is no participation in public life without a guarantee of the minimum subsistence, nor the formation of conscious wills without education and information
Luigi Ferrajoli, ‘The normative paradigm of constitutional democracy’ (2011) 17
The fundamental human right to a healthy environment, which is now enshrined in many Constitutions, expressly recognised by the United Nations General Assembly (UNGA) and by the European Court of Human Rights, becomes the indispensable guarantee of the minimums necessary to be able to participate in public life. Climate change, pollution and loss of biodiversity impair or impede the attainment of people’s human rights, such as the right to life, health, food, water, or adequate housing. Therefore, they represent a direct threat to democracy
The trend that has been emerging for some decades now, both in supranational Courts and in the supreme Courts of European and non-European countries, is that of recognising in the environment an essential element for the wellbeing of the individual, a prerequisite for fully enjoying fundamental rights such as life, health and family life.
This progressive recognition, now also present in many Constitutions all over the world, has a crucial importance for future generations, insofar as constitutional principles have a universal value, are placed above political debate and have the capacity to offer protection to minorities, granting them judicial tools for protecting their fundamental rights. From this perspective, the constitutional right to a healthy environment has particularly important implications on the power that can and must be exercised by judges in protecting it and in requiring public authorities to take concrete action in its defense.
As we have seen, however, there is a great debate on the limits of judicial power in the protection of the environment vis-à-vis the other powers of the State. Many Authors define the attitude of the Courts, particularly in climate litigation, as a form of ‘activism’, inappropriate for a democratic system, where only the legislature has the power to choose the policy to balance opposing interests such as economic and employment development, competition and environment. The increasingly frequent convictions of governments for failing to take adequate measures to reduce polluting emissions and the flexible interpretation of crucial aspects of climate litigation, such as legal standing, causal link, and indirect coercive measures, have often been criticised.
Beyond the questionable generalisation of the concept of ‘jurisprudential activism’, where the principle of the separation of powers must be declined in relation to the country involved from time to time, the very qualification of a healthy environment as the object of a fundamental and constitutionally protected human right justifies and requires the ‘injunctive’ attitude of judges towards legislators. Indeed, if we consider the right to a healthy environment as an essential element for the wellbeing of the individual and we give it the same value as the right to life or the right to health, its protection becomes a fundamental requirement for the free exercise of all civil and political rights and, ultimately, for the protection of the entire democratic system. Therefore, judges have a duty to protect it.