International Obligations Calling for Constitutional Protection of the Right to a Healthy Environment

Abstract

The international recognition of a universal right to a healthy environment is reaching its pinnacle. At least 156 States have recognised this right through the adoption of international treaties and 161 States have recognised it through their endorsement of UN General Assembly Resolution 76/300. While codified in several regional agreements, the right is not binding on all States through treaty law. The European Convention on Human Rights makes no explicit reference to the environment which might lead to the conclusion that States Parties are under no obligation to implement a right to a healthy environment into their domestic legal systems. However, the jurisprudence of the European Court of Human Rights indicates that this right may be a precondition to the enjoyment of other rights safeguarded by the Convention. Furthermore, it may be becoming universally binding as a standalone right under customary international law. This article concludes that various international obligations require States to ensure an explicit or implicit right to a healthy environment and that such a right should enjoy constitutional status. It explains that elements of the right may be implicitly embedded in constitutions even if they have no environmental provisions, as is the case of the Icelandic constitution. However, that is not an appropriate implementation of the standalone right to a healthy environment.