In the wake of the most recent European victory for climate change litigation and future generations, the Swiss KlimaSeniorinnen case, it is important to briefly look the broader context of environmental protection under the aegis of the right to a healthy environment.

From almost 200 countries worldwide, in 2019, more than 110 countries had implemented the protection of a healthy environment in their national legal systems and more than 80% of the world’s countries (around 156) had recognized this right in some way in their own jurisdictions. Most European Union Member States have incorporated the right to a healthy environment on a constitutional level into their legal system, but interestingly, some highly developed Member States missed to do so such as Austria, Sweden, Netherlands, and Denmark which are often considered environmentally cautious countries. Most of these counties are, however, members of the Aarhus Convention which protects this right as well.

The 1966 International Covenant on Economic, Social and Cultural Rights already acknowledged the right to a healthy environment in Article 12 stating 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.” This provision only indirectly addresses the issue of the environment and climate due to the fact that is originates from the sixties where the focus was not on climate protection. Article 5, however, in that sense allows for a broader interpretation of the General Assembly Resolution’s provision. But as these Resolutions are mere recommendations and are not binding, only their customary nature can be referenced before courts.

The Preamble of the Aarhus Convention from 1998 already incorporated in its preamble – similarly to other previous General Assembly resolutions mentioned in the Preamble – the right to a healthy life recognizing that “[…] every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”. This paragraph highlighted the individual and group responsibility to protect and preserve the environment for human beings in an anthropocentric (with human beings in the focus of the legislation) but not stressed the importance of states in accepting this right.

From the legal instruments dealing with environmental protection and climate crisis, the Preamble of the Paris Agreement in 2015 was the first legally binding document to directly address the human element of fundamental rights when it comes to climate change stating that “[…] climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations 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.” This provision talks about obligations regarding health and human rights in the works for a greener Earth. This was also reaffirmed as an obligation in the Glasgow Climate Pact in 2021 (COP26) with the exact same wording.

The definition of the right to a healthy environment is not determined in the abovementioned legal instruments. The term is first described in detail in the United Nation’s General Assembly Resolution from July 2022 with unparalleled support without any votes against the proposition. Despite the fact that there is no universal definition for the term, it is described – consisting of substantive and procedural elements – as follows:

„The substantive elements include clean air; a safe and stable climate; access to safe water and adequate sanitation; healthy and sustainably produced food; non-toxic environments in which to live, work, study, and play; and healthy biodiversity and ecosystems. The procedural elements include access to information, the right to participate in decision-making, and access to justice and effective remedies, including the secure exercise of these rights free from reprisals and retaliation.”

The Charter of Fundamental Human Rights of the European Union does not explicitly mention the right of a healthy environment. Only Article 35 highlights the importance of a high level of health as an obligation but it is not linked to any environmental context in the Charter. In the Hungarian Constitution, Article XXI (1) refers directly to the right in the Freedom and Responsibility part of the Fundamental Law.

The Council of Europe remains the last international organisation that has not recognized the right to a healthy environment as a fundamental human right. Its Court, the ECtHR, approaches the subject matter from the point of view of the right to property or the right to privacy, both protected by the European Convention, applying the instrument as a living instrument with a state-of-the-art mindset. Recently, however, a group of more than 2000 elderly Swiss women won before the Court having it declare important obligations – examined by Katalin Sulyok here. The landmark ruling of the European Court of Human rights creates a precedent that can shape further decisions by the Court. The ruling stated that Switzerland failed to act against climate change properly and declared it as a human rights violation which had been unprecedented before. The win of KlimaSeniorinnen likely sets the tone for the other more than 100 cases that are currently being investigated and processed by the Court and it might have an increasing impact in other jurisdictions globally as well, as analyzed by Vernon Rive from the University of Auckland.

The revolutionary decision is expected to cause a seismic disruption in the current legal mechanisms regarding climate change and environmental protection. However, as the Court ruled in favour of the claimants only in this case so far and dismissed other two cases resting on the same legal grounds, it is yet to be determined where the line is drawn and what the Court will see admissible in the future and how it will shape the national judicial and legislative environments.

Dorina BOSITS is a law student at the Széchenyi István University of Győr, Hungary, and an international finance and accounting graduate of the University of Applied Sciences of Wiener Neustadt, Austria. The main area of her research includes freedom of speech, digitalization, data protection, and financial law. She is a student at the Law School of MCC and a member of ELSA Győr.