CYIL vol. 12 (2021)

CYIL 12 (2021) THE (MISSING) RIGHT TO A HEALTHY ENVIRONMENT IN INTERNATIONAL HUMAN … amend the Climate Change Act, setting out reduction targets of 65% by 2030 instead of the previous 55%, and to become carbon neutral in 2045, instead of 2050. 26 In addition, interesting rulings on environmental rights and climate change were recently handed down by the highest courts in France, Ireland, Belgium and Australia. 27 This was to show that there are a number of important legal developments in the area of environmental human rights at all levels – universal, regional and national. Therefore, the question of how the European Court of Human Rights could develop its jurisprudence on the matter is gaining importance. 5. Conclusions In recent years there has been a distinct development in society’s perception of the need to protect the environment. As part of that, a certain shift from the anthropocentric approach towards a more eco-centric worldview can be observed. Legal considerations are one of the many different areas that have been influenced by these developments. When we look at the regional human rights systems, the African Court on Human and Peoples’ Rights can make use of an explicit provision for environmental rights and the Inter-American Court of Human Rights extracted the right to a healthy environment from a provision on economic, social and cultural rights. In addition, many of the highest national courts can use their constitutional provisions on the protection of the environment. As the European Convention on Human Rights lacks a specific article on environment, the European Court of Human Rights may be seen as standing on a crossroads. Either it will develop its current case law, mainly on Articles 2 and 8 (right to life and right to private life) to include more environmental issues, or a new protocol on the right to a healthy environment could be elaborated and formally included in the Convention system. It is suggested in this article that from the long-term perspective, a new protocol with an explicitly defined right would provide a legal basis that is needed. This would, however, not mean that the case law with regard to Articles 2 and 8 could not develop in parallel. In the case of an absence of political support for drafting and ratifying the new protocol, we can expect a more extensive interpretation of the current provisions when it comes to environmental matters. In this regard, interconnection of all human rights needs to be stressed, as well as intergenerational justice. In accordance with the living instrument doctrine, major interpretational developments are possible and sometimes needed. However, it needs to be stressed that courts cannot serve as substitutes for responsible decision- making of governments. They can (and should) be part of the mix of activities leading to protection of the environment and prevention of climate change, as these developments lead to deterioration of human rights standards. Nevertheless, we cannot forget that the primary responsibility for tackling environmental problems lies in the hands of governments. 26 See also the summary of the decision by Pinsent Masons accessed 1 August 2021. 27 See Webinar on States’ Human Rights Obligations to Mitigate Climate Change. Norwegian National Human Rights Institution accessed 1 August 2021. In addition, for a comparison of environmental rights in several European countries including the Czech Republic, see MÜLLEROVÁ, Hana. Právo na příznivé životní prostředí: Zkušenosti vybraných evropských zemí a návrhy pro budoucí uplatňování v ČR [The right to a favorable environment: Experiences of selected European countries and proposals for future application in the Czech Republic]. Praha: Ústav státu a práva AV ČR, 2018.


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