Adria NIESSNER: The Right to a Healthy Environment – A Corporate Obligation?
Heatwaves, wildfires, and storms have marked the past months, showing alarming signs of climate change. It is not surprising, for this reason, that decarbonization objectives, emission reductions, and new legislation have made headlines for the past several years. A focal point of the climate change debate has been the existence – or lack thereof – of the universal right to a healthy environment. Recently, a Global Coalition advocating for the universal recognition of the human right to a clean, healthy, and sustainable environment was the recipient of the prestigious 2023 UN Human Rights Prize, which gives reason for optimism for future generations. This article will touch on recent developments of the right to a healthy environment, and how in light of this the new Corporate Sustainability Due Diligence Directive proposal (CSDDD proposal) could help in achieving ESG (environmental, social, and governance) goals.
Though the right to a healthy environment is not explicitly guaranteed in international human rights law, several treaties make reference to it, and it is accounted for in most national legislation as well. According to a report of the UN Human Rights Council’s Special Rapporteur, by 2020, 110 States protected the right to a healthy environment in their constitution, and 101 States incorporated it into their national legislation. In total, more than 80 percent of Member States of the United Nations legally recognized the right to a safe and healthy environment either through their own acts, or by ratifying treaties and regional agreements.
The role of international law is non-negligeable when establishing international legal standards and offering last-resort protection through international courts, however in reality, the protection and enforcement of rights is mostly a national task. Hungary presents a good example in this case, as the right to a healthy environment is protected under Article XXI Paragraph (1) of the Fundamental Law. The Fundamental Law not only is the highest level of legal norm in Hungary, meaning all other laws and regulations must be consistent with it, but it also contains the most essential values and norms of society. The formulation of Paragraph (1), recognizing and endorsing the right of “everyone” does not delimitate a special group of persons, or give basis to a subjective right, but rather highlights the duty of the state to ensure the enforcement and protection of this right. Paragraph (2) of this Article also provides that anyone who causes damage to the environment shall be obliged to restore it or bear the costs of restoration as provided for in other acts. This not only guarantees a tangible protection, but also the status quo of the right to a healthy environment and the prohibition of rollbacks, also known as the ‘non-derogation principle’ or ‘principle of non-regression’, meaning the possible future weakening of environmental policies already in place. Non-regression [LK(1] was already declared in 1997 by the Hungarian Constitutional Court, stating that the level of protection provided for under national acts may not be reduced, unless it is unavoidable during the enforcement of another constitutional right or value, and even so, it must not be disproportionate to the objective pursued.
Although some international treaties made indirect references to the right to a healthy environment, such as the 1966 International Covenant on Economic, Social and Cultural Rights, as well as the 1989 Convention on the Rights of the Child, and some explicitly mentioned it (1998 Aarhus Convention, 1991 African Charter on Human and Peoples’ Rights), the biggest step forward until recently was the Parliamentary Assembly of the Council of Europe’s (PACE) recommendation to draft an additional protocol to the European Convention of Human Rights and the European Social Charter to protect the right to safe, clean, healthy and sustainable environment. This was deemed necessary by the PACE because even though it acknowledged that the ECHR’s case law provided indirect protection in cases where other human rights were also infringed upon, no per se protection was ensured. In its resolution of 5 October 2021, the United Nations Human Rights Council recognized the universal human right to a safe, clean, healthy, and sustainable environment.
With the progressive recognition of the right to a healthy environment as a basic right, companies and businesses will also have to adjust their practices to comply with regulations and requirements. It is in this context that the Corporate Sustainability Due Diligence Directive proposal, as the most recent development in CSR, will bring changes to companies’ environmental duties as well. At its current state, the proposal’s scope extends to most large companies formed in accordance with the legislation of a Member State fulfilling certain conditions regarding its employees and yearly turnover, as well as to companies formed under the legislation of a third country with a net yearly turnover of at least 150 million euros in the EU, or with a turnover between 40 million and 150 million euros, of which 50% concerns one of the highlighted sectors, such as agriculture, mining, the textile industry, agriculture, food and beverages. This makes the scope of the proposal rather wide, encapsulating the major actors in sectors with the highest environmental impact. In fact, according to research, agriculture made up to 8.5% of all greenhouse gas emissions, and the fashion industry 10% of the globe’s carbon emissions.
Under Article 6 of the proposal, companies will have to take appropriate measures to identify actual and potential adverse environmental impacts arising from their own operations or those of their subsidiaries or established business relationships. Companies will have to take appropriate measures to prevent or adequately mitigate these impacts among others through prevention action plans, by asking for contractual assurances, by making necessary investments into production processes and infrastructures. In the case of an adverse impact, they shall take action to minimize the extent of such impact, or develop a corrective action plan, and in some cases even suspend commercial relationships with the partner in question or terminate the business relationship with respect to the activities concerned.
The proposal for the new directive also contains an article specifically combating climate change and an obligation for companies to comply with the 1.5 Celsius degree global warming limit laid out in the Paris Agreement. Supervisory authorities with adequate powers and resources to carry out tasks assigned to them, and to request information and carry out investigations will also have to be appointed.
Though the new Directive lays down the foundation for an extensive environmental company policy, the implementation of mandatory environmental practices raises greenwashing concerns. Greenwashing, or the act or practice of making a product seem more environmentally friendly or less environmentally damaging than it really is, has been on the rise since an increase of demand for environmentally conscious products and practices have lead some firms to prioritize communication to maximize profits, instead of being actually concerned for the social good. Research found that in case of a “background threat” such as legislation, companies are less likely to implement actual beneficial action, as opposed to joining voluntary agreements. Though consumers are willing to make their everyday life greener, a lack of information at the point of sale and misleading commercial practices to the sustainability of products makes them easily fall victim to greenwashing practices. It was recently found in a study conducted by the European Commission that over 80% of websites surveyed contained green claims, with 53.3% of them being vague, misleading, or unfounded. This also raises the question of whether companies will comply with the CSDDD proposal, or will content themselves with continuing misleading practices and merely putting up a façade for authorities.
Nevertheless, the recognition of the right to a safe and healthy environment by the United Nations Human Rights Council and the proposal to implement it in both the European Convention of Human Rights and the European Social Charter will greatly enhance the safeguarding of this right, while also opening the possibility for litigation in front of the European Court of Human Rights, adding an extra barrier of protection. The new Corporate Sustainability Due Diligence Directive also points in this direction, reaffirming environmental duties of care, while also hopefully ensuring real incentive for companies to comply with the new rules.
 For example: Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, opened for signature June 25, 1998, 2161 UNTS 447 (entered into force October 30, 2001). African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 UNTS 3 (entered into force Sept. 2, 1990).
 Annex 2 of ’Right to a Healthy Environment: Good Practices: Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment’ (EA/HRC/43/53) https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/355/14/PDF/G1935514.pdf?OpenElement (Accessed: 31 July 2023)
 CSDDDP, Article 2.
 CSDDDP, Article 18.
Adria NIESSNER is a final year law student at Eötvös Loránd University and Master student at the joint Hungarian and French law program of Panthéon-Assas and Eötvös Loránd Universities. She is a Corporate Legal Intern at a leading international law firm in Budapest and she specializes in corporate and employment law.