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While the 1948 Universal Declaration of Human Rights does not include an explicit reference to ‘environment’, there has been slow but steady recognition of the right to a clean, healthy and sustainable environment at the international level and in the EU.
‘A safe, clean, healthy and sustainable environment is necessary for the full enjoyment of a vast range of human rights, including the rights to life, health, food, water and development’
Article 191 of the TFEU provides the legal basis for EU policy on the environment. It enunciates the objectives of EU policy on the environment, which include preserving, protecting and improving the quality of the environment, protecting human health and promoting measures at the international level to deal with regional or worldwide environmental problems. Article 11 of the TFEU requires that the EU integrate environmental protection requirements into the definition and implementation of its policies and activities. Several treaty provisions allow the EU to adopt measures to protect the health, safety and economic interests of consumers (Article 169 of the TFEU). Article 37 of the Charter provides the principle of environmental protection, as shown below.
Legal corner - Charter of Fundamental Rights of the European Union: Title IV Solidarity: Article 37: Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the EU and ensured in accordance with the principle of sustainable development. |
Although Article 37 of the Charter is a principle and not a right, it can be read in conjunction with other Charter rights to enhance the protection of the individual in the context of the environment.
The general EU commitment to environmental protection has generated a range of legislative measures. These include Directive 2011/92/EU,which requires Member States to conduct environmental impact assessments to identify any direct or indirect effects of a project on its environment – including human beings, fauna, flora, soil, water, air, climate, the landscape, material assets and the cultural heritage – and the interactions between any of these factors in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being embedded in Article 191 of the TFEU and the Aarhus Convention. The Green Deal is the EU’s response to tackling climate and environmental-related challenge and to meeting the commitments and global climate objectives of the Paris Agreement. It is a comprehensive package of policy initiatives adopted in 2019, aimed at setting the EU on the path to a green transition, with the ultimate goal of reaching no net emissions of greenhouse gases by 2050 and reducing net greenhouse gas emissions by at least 55 % by 2030. The European climate law sets the legally binding target of the Green Deal to reach net zero greenhouse gas emissions by 2050. The EU has established a regulatory framework to ensure the timely and effective implementation of the targets and objectives of the Green Deal. EU institutions and the Member States are bound to take the measures necessary at the EU and national levels to meet the target, taking into account the need to promote fairness and solidarity among Member States.
The European climate law refers to the rights and principles laid out in the Charter, particularly Article 37, but much of the remaining EU environmental legislation does not. The legislative package for implementation of the Green Deal and fit for 55 comprises more than 100 legal and policy documents with only limited references to fundamental rights or the Charter. Although the Charter strategy demands that proposals that have a particular link with fundamental rights include specific recitals explaining how the proposal complies with the Charter, this requirement is not always applied.
An initial screening of the respective impact assessments undertaken for legislation under the Green Deal does not show that the fundamental rights checklist was used or that it makes reference to the Charter. For example, the most recent nature restoration law within the EU biodiversity strategy refers to a limited number of rights, such as judicial protection (point 82) and rights of indigenous peoples and local communities (point 4), but without a general reference to fundamental rights or to the Charter itself. The memorandum accompanying the proposal for the nature restoration law states that the proposal respects fundamental rights and the Charter but with no further details.
However, some other measures do include limited references to the Charter or to rights protected by the Charter. The EU chemicals strategy for sustainability (point 2.5) recognises chemical pollution as a threat to the right to a life with dignity, notably for children, especially in low- and middle-income countries. The new regulation concerning batteries and waste batteries (point 138 of the recital) aims to reduce environmental and social impacts throughout the life cycle of the battery by establishing clear due diligence rules. It links the application of the regulation with the principles of the Charter, but does so solely in respect of procedural safeguards for the imposition of penalties.
Energy poverty has been on the EU legislative agenda since 2009 and became a high priority since the energy crisis accelerated due to the Russian war of aggression against Ukraine. Since then, the Commission has set a number of legislative initiatives to not only control energy prices and enhance energy efficiency, but to protect and target the households most vulnerable to energy poverty. For example, the most recent revised energy performance of buildings directive, which entered into force in May 2024, makes explicit reference to Article 17 of the Charter (the right to property) and Article 34, which ‘recognises and respects the right to social and housing assistance in order to combat social exclusion and poverty’ (see also Section 3.2).
A number of other key policy files reflect environmental and social considerations, and even concerns relating to vulnerable groups, but none of the final legislative acts explicitly refer to the Charter. Examples of this approach include:
- the EU forest strategy for 2030,
- the EU strategy on adaptation to climate change,
- the EU new industrial strategy.
In addition to its signature climate law, the EU has adopted a range of legislative measures on the reporting of social and environmental risks and on corporate responsibility relating to environmental and social impacts; several of these refer to or are anchored in fundamental rights and in international human rights law instruments and standards:
- the non-financial reporting directive enhances greater business transparency and accountability on social and environmental issues;
- the corporate sustainability reporting directive established reporting requirements on social and environmental risks;
- the EU taxonomy regulation introduced a green classification system that translates the EU’s climate and environmental objectives into criteria for specific economic activities for investment purposes;
- the CSDDD, adopted in 2024, introduces mandatory human rights and environmental due diligence obligations across various stages of a supply chain, and requirements to adopt transition plans for climate change mitigation for larger companies operating in the EU.
The Charter applies universally to all EU legislation, regardless of whether the legislation includes an explicit mention of it. However, when secondary law lacks specific and explicit reference to the Charter, there is a heightened risk that the legislation may overlook or downplay pertinent Charter provisions. This risk is particularly pronounced when fundamental rights impact assessments are conducted on a case-by-case basis rather than systematically. Thus, the absence of a reference to fundamental rights is not indicative of whether rights were considered or somehow (de facto) reflected in the legislation. However, this absence is of some concern, as a thorough assessment of fundamental risks and impacts actually did take place. Indeed, without such an explicit reference, it is difficult to substantiate the assertion that such impacts were thoroughly considered and to understand how such impacts could be effectively monitored going forward. Moreover, it is important to acknowledge that merely referencing Charter articles in Commission impact assessments – which is the case for most of the legislative proposals analysed – does not constitute a fundamental rights impact assessment. A comprehensive evaluation of potential impacts on fundamental rights requires a more thorough and systematic approach and, it is argued here, a fundamental rights impact assessment.
The 1992 Rio Declaration on Environment and Development was a key instrument recognising the link between human rights and the environment and the importance of local citizen participation in environmental issues. The 2012 Rio+20 UN Conference on Sustainable Development launched a process to develop SDGs and adopted the ground-breaking guidelines on green economy policies. And in 2022, 50 years after the UN Conference on the Human Environment, the UN reconvened in Stockholm, addressing the ‘triple planetary crisis of climate change, pollution and waste, nature and biodiversity loss, as well as other planetary ills that are affecting current and future prosperity and wellbeing.’ The ‘Stockholm+50’ report underscored the urgent need for bold and deliberate actions, as well as clear political will to accelerate action on these commitments. It also highlighted the need for a combination of incentives and policies, finance and capacity support to achieve sustainable development, putting human well-being at the centre of a healthy planet and prosperity for all.
The now defunct UN Sub-Commission on Prevention of Discrimination and Protection of Minorities had long emphasised the relevance of human rights, including the right to life, health, food, water, housing, culture, property and the right to privacy in the environmental context, effectively ‘[greening] existing human rights.’ The term ‘the human rights to a healthy environment’ emerged as a denominator ‘for the environmental aspects of the entire range of human rights’.
The Aarhus Convention was the first international treaty to include an explicit reference to the right to a healthy environment, providing for ‘the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’ (Article 1). The EU and its 27 Member States are all parties to the Aarhus Convention.
In 2012, the Human Rights Council established the mandate for an independent expert on human rights and the environment (resolution 19/10), whose first report mapped the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.
FRA activity - enforcing consumer rights to combat greenwashing A 2024 FRA report examines legal frameworks and case-law in selected Member States to assess whether they ensure consumers’ access to accurate information about the environmental effects of products and services, and whether they hold companies accountable for making misleading green claims (‘greenwashing’), in line with Articles 11, 37, 38 and 47 of the Charter. The study also analyses the application of the Aarhus Convention, which allows individuals to access environmental information held by public agencies, potentially including information related to specific products or services. In this context, the findings show that exceptions, such as those applicable to cases which involve protected data, ongoing legal cases, public security concerns or where a company’s competitive position is harmed, are sometimes applied too broadly. Furthermore, challenging such denials of access to information can be ineffective and slow, and the relevance of the information may decrease over time. Source: FRA (2024), Enforcing consumer rights to combat greenwashing. |
In October 2021, at the recommendation of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, the United Nations Human Rights Council adopted a resolution on the ‘right to a safe, clean, healthy and sustainable development’. A resolution soon followed in the United Nations General Assembly. The UN has published a user guide on the human right to a clean, healthy and sustainable environment. It provides guidance on how the right can be used to prevent unsustainable and unjust laws, policies, projects and plans proposed by governments and businesses, and how it can be used to advance the transformative and systemic changes urgently needed to achieve a just and sustainable future.
In its 2023 General Comment 26, the UN Committee on the Rights of the Child outlines a child-rights-based approach to environmental protection, with a special focus on climate change, and recognises the principle of intergenerational equity. It underscores the role of children’s rights in both the process and the outcome of protecting children rights in the context of climate change.
The 2015 Paris Agreement enshrines global obligations in response to the urgent threat of climate change, aiming to cut greenhouse gas emissions and ‘to limit the temperature increase to 1.5° C above pre-industrial levels.’ In doing so, the agreement acknowledges that ‘parties should, when taking action to address climate change, respect, promote and consider their respective obligation on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations, and the right to development, as well as gender equality, empowerment of women and intergenerational equity.’ The Paris Agreement and its goals are reflected in the Green Deal to make Europe climate-neutral by 2050 and to reduce greenhouse gases by at least 55 % by 2030.
The issue of environmental or climate justice has continued to gain traction at the international level. This is because the disproportionate impacts of climate change on marginalised groups require a broader conceptualisation of climate or environmental justice, in order to tailor mitigation and adaptation efforts to mitigate those impacts and effectively protect the most vulnerable. In this regard, the European Economic and Social Committee calls for a ‘drafting of an EU Bill of Climate Rights to encapsulate the rights of EU citizens and nature in the context of the challenges of climate change and encourages EU institutions and National Governments to examine the application of the principles of Climate Justice at all levels’.
Neither the ECHR nor the ESC include an explicit provision on the protection of the environment or the right to a safe, clean, healthy and sustainable environment. However, the Council of Europe’s Manual on Human Rights and the Environment sets out principles derived from the ECHR and the ESC. For example, Article 2 of the ECHR – the right to life – entails not only the obligation to avoid deaths directly related to acts and omissions of the state but also, as part of the ‘doctrine of positive obligations’, a duty of public authorities to take positive steps in anticipation of threats that may derive from non-state actors.
ECtHR case-law points to important links between the enjoyment of human rights enshrined in the European Convention of Human Rights and the environment. For example, the Court has recognised that environmental hazards can pose a threat to the right to life (Öneryıldız v. Turkey). Environmental pollution has been found to interfere with the right to respect for private and family life (López Ostra v. Spain). The Court has also acknowledged the importance of environmental protection in relation to freedom of expression (Steel and Morris v. the United Kingdom). Environmental regulations and their impact on property rights have been addressed in Fredin v. Sweden and in Taşkın and Others v. Turkey. In these judgments, the ECtHR emphasised the importance of access to information and public participation in decision-making processes related to environmental issues.
More recently the ECtHR affirmed the human rights link to climate policies in three landmark rulings delivered on 9 April 2024, confirming for the first time in its jurisprudence that the adverse impacts of climate change fall within the ambit of human rights protection under the convention (see Legal corner - ECtHR recognises climate action as a human right).
On 27 September 2022, the Council of Europe Committee of Ministers adopted a recommendation to Member States to actively consider recognising the right to a clean, healthy and sustainable environment as a human right in national law. The 2023 Reykjavik Declaration underscored the need for coordinated action for the protection of the environment. It emphasised an inter-generational and sustainable approach, affirming that ‘human rights and the environment are intertwined and that a clean, healthy and sustainable environment is integral to the full enjoyment of human rights by present and future generations.’ In March 2024, the Council of Europe Drafting Group on Human Rights and Environment adopted a draft report on the need for and the feasibility of a further Council of Europe instrument on environment and human rights.
Legal corner - ECtHR recognises climate action as a human right The ECtHR case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland of 9 April 2024 represents a milestone in climate change litigation and the interpretation of Article 8 of the ECHR. The ECtHR has significantly advanced the interpretation of Article 8 in the context of climate change, and established important precedents for climate action.
The ECtHR’s ruling includes the Court’s interpretation of standing (locus standi) and victim status.
Source: European Court of Human Rights (9.4.2024): Verein KlimaSeniorinnen Schweiz and Others v. Switzerland; Duarte Agostinho and Others v. Portugal and 32 Others; Carême v. France. |
While recognising that national authorities enjoy wide discretion in the implementation of legislation and measures, the Court held that the Swiss authorities had not acted in time and in an appropriate way to devise, develop and implement relevant legislation and measures in this case. The rulings are expected to lead to similar challenges to governments’ climate policies in the future and influence litigation strategies against both States and companies. The Council of Europe’s Committee of Ministers will now supervise the implementation of the judgment by the Swiss authorities.