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International Law Section

Recent developments in constitutional environmental rights

Scientists have been ringing alarm bells about the state of biodiversity and global warming and its destructive consequences for decades and some doubt if a global climate catastrophe is preventable at this stage at all.[1]

Therefore, it comes as no surprise that the protection of the environment is being incorporated into many constitutions.[2] An important approach that a country can take is to rely on implied rights deriving from fundamental rights that are already enshrined in the constitution, which can also or additionally contain  a proactive right of demand against the state (a performance right), which equips individual citizens with a positive claim to certain state behaviour. The reasoning behind the positive protection aspect of the fundamental rights is the interpretation of fundamental rights as an objective value order.[3] Thus, fundamental rights, in particular the right to human dignity, property, physical integrity or even life, can be used in their function as a defensive mechanism against harmful environmental effects of the state and can even create a duty of care by the state to protect against harmful environmental effects (not caused by the state itself, but) by third parties.[4]

This is a rather important observation, as most harmful environmental impacts are caused by private parties, not the government.[5] A good example for this, is a case filed by Mr. Lliuya, a mountain guide and farmer from Peru, who sued RWE[6] in Germany for the costs of preventing damage from a potentially devastating outburst flood from the Palcacocha Lake, arguing that the aforementioned lake is on the brink of flooding as a result of rising greenhouse gases and that RWE, as an emitter in the area, is at least partially liable for this.[7] If successful, German fundamental laws would provide a remedy for the behaviour of a European company which took effect overseas.

A good example for implied rights against the state itself is the case brought by Mr. Teitiota, from the Kiribati archipelago, which is exposed to such a degree due to climate change and rising sea levels, that it might disappear altogether by 2050.[8] For Mr. Teiotita the island may be inhabitable far sooner  as consequences of the rising waters include, among other things, salinization, which leads to scarcity of drinking water, pollution, destruction of crops, frequent flooding and is like to lead to a decrease in habitable land within the next 10-15 years.[9] After the courts in New Zealand rejected his asylum request he turned to the UN Human Rights Committee arguing that New Zealand violated his right to life which is protected by art. 6 of the International Covenant on Civil and Political Rights.[10]

In the case Daniel Billy and others v Australia (Torres Strait Islanders Petition) [11]  the UN Human Rights Committee found, on 23 September 2022, that Australia failed to adequately protect indigenous Torres Straight Islanders against adverse impacts of climate change and violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home. This upon a joint complaint filed by eight Australians and six of their children from low-lying islands in Australia’s Torres Strait region, claiming that Australia failed to adapt to climate change by reducing greenhouse gas emissions or by upgrading seawalls. The Committee also ordered Australia to pay compensation to the litigants.

Generally a global trend can be identified, that - in the absence of enforceable material constitutional rights directly addressing nature or environment - citizens rely on litigation of a broad interpretation of their civil liberties such as human dignity, property or the right to physical integrity or life in order to obtain protection and to secure enforceability.[12]

Bosselmann, K. (2015). Global Environmental Constitutionalism: Mapping the Terrain, 21 Widener Law Review 2015, pp. 171-185.

Boyd, D. R. (2015). The right to a healthy environment: A prescription for Canada, Can J Public Health. 2015, pp. 353-354.

Durner, W., in Herdegen, Masing, J., Poscher, R., Gärditz, K. F., Burkart, N., & Bäcker, M. (2021). Handbuch des Verfassungsrechts : Darstellung in transnationaler Perspektive. C.H. Beck.

Jeffords, C./ Gellers, J. C. (2017). Constitutionalizing Environmental Rights: A Practical Guide, Journal of Human Rights Practice, Volume 9, Issue 1, February 2017, pp. 136-145.

O’Gorman, R. (2017). Environmental Constitutionalism: A Comparative Study, Transnational Environmental Law, 6:3 (2017), pp. 435-462.

Pepper, R./Hobbs, H. (2020). The Environment is All Rights: Human Rights, Constitutional Rights and Environmental Rights (January 30, 2020). Melbourne University Law Review, Vol. 44, No. 2, 2020, pp.634-678.

 

[1] See the Technical Summary of the IPCC WGII Sixth Assessment Report, p. 69, avaialbale at https://www.ipcc.ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_FinalDraft_TechnicalSummary.pdf.

[2] Jeffords/Gellers (2017), p. 136ss; O’Gorman (2017), p. 436; Pepper/Hobbs, (2020), p. 648ss. For an overview see Bosselmann, (2015), p. 177.

[3] Ibid(2021), p. 1645ss.

[4] Compare Durner, 2021, p. 1645.

[5] Ibid.

[6] RWE is Germany’s largest electricity provider.

[7] See https://www.theguardian.com/environment/2022/may/27/peru-lake-palcacocha-climate-crisis-lawsuit?CMP=Share_iOSApp_Other.

[8] Malafosse, C./Zipoli, D. (2020). “Climate refugees”: an historic decision of the UN Human Rights Committee? Available at https://www.kaldorcentre.unsw.edu.au/news/%E2%80%9Cclimate-refugees%E2%80%9D-historic-decision-un-human-rights-committee.

[9] Ibid.

[10] See CCPR/C/127/D/2728/2016.

[11] See CCPR/C/135/D/3624/2019.

[12] The platform https://climate-laws.org/litigation_cases of the Grantham Research Institute on Climate Change and the Environment of the London School of Economics systematically lists climate litigation.

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