CYIL vol. 12 (2021)

CYIL 12 (2021) THE (MISSING) RIGHT TO A HEALTHY ENVIRONMENT IN INTERNATIONAL HUMAN … 1. Introduction When we look at developments in society as well as in nature, we cannot help but notice that the emphasis which is being placed on the environment is stronger not only every decade but in fact every year. This is of course also reflected by law, both national and international. We can take the example of the Urgenda decision in the Netherlands. 1 The issue in this case was whether the State was obliged by the end of 2020 to reduce emissions of greenhouse gases by at least 25% compared to 1990, and whether the courts can order the State to do so. Prior to 2011 the Dutch government planned to reduce emissions by 30% but it later lowered its ambition to 20%. Therefore, the Urgenda Foundation sued the State and won in 2015 at the District Court, which bound the State to reduce emissions by at least 25%, the minimum needed according to the scientific consensus, by the end of 2020. 2 The decision was upheld by the Court of Appeals and at the end of 2019 also by the Supreme Court of the Netherlands, which argued for the positive obligations of the State in relation to Article 2 (right to life) and Article 8 (private and family life) of the European Convention on Human Rights. The Supreme Court stressed that each country is responsible for its own share and needs to do its part in necessary reductions. Although it can be argued that the courts crossed the line of division of powers between the judiciary and the government, the Urgenda decision is widely viewed as the first successful climate justice case. In addition, the need for an increased emphasis on the environment is currently being deliberated also at the UN human rights level as well as among policymakers. 3 As not only experts but also the general public are becoming increasingly aware of the dangers of environmental hazards including climate change, we can expect developments not only in international law instruments, but also in the way current laws and treaties are interpreted. Therefore, should governments not effectively lead their countries towards a carbon-neutral future, we can envision a growing role of courts, whether national or international. In this context, the relationship between environmental rights and international human rights law should be closer explored. 2. Right to a healthy environment in international law With regard to terminology, when we talk about the right to a healthy environment, what is meant is the right to a safe, clean, healthy and sustainable environment as is sometimes mentioned in full. Nevertheless, for the purpose of the text it is sufficient to mention the short version, which implicitly includes the above characteristics. 1 ECLI: NL: HR: 2019: 2006, judgment of the Supreme Court of the Netherlands of 20 December 2019 is available also in English accessed 1 August 2021. 2 For more information on the first instance judgment, see GRAAF, K. J., JANS, J.H. The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change. Journal of Environmental Law , vol. 27, no. 3, 2015. 3 On the part of the UN, see HRC Res. A/HRC/RES/46/7 of 23 March 2021 on human rights and the environment. As for environmental policies, see for example European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions. European Commission 14 July 2021, accessed 1 August 2021.


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