Pandemics and climate change from the legal point of view

On 11 March 2020, the WHO declared COVID-19 a pandemic. Since then, discussions of the origins of the disease have proliferated and new studies have appeared on the relationship between the environment and health. Respected scientists believe that the appearance and spread of viral diseases are connected to the actions of man on nature.

The challenge of containing the damage linked to the climate emergency concerns the health and well-being of everyone. Neither changes in the climate nor pandemics can be combated without recognition and protection of the right to live in a healthy environment and have access to non-renewable resources as a basic human right.

International law and jurisprudence have been moving in this direction since the Stockholm Conference (1972), followed by the UN Convention on the Rights of the Child (1989) and the Malé Declaration (2007, Governments of small developing islands). Overarching them all is the  «Declaration on Human Rights and Climate Change» of the Global Network for the Study of Human Rights and the Environment (GNHRE) which states:

5. All human beings, animals and living systems have the right to the highest attainable standard of health, free from environmental pollution, degradation and harmful emissions and to be free from dangerous anthropogenic interference with the climate system such that rising global temperatures are kept well below 2 degrees centigrade above preindustrial levels.

Beyond the declarations and general recognitions, the protection of the environment has gradually become associated with specific human rights: to life, health, water, food, family life, information, a place to live, an adequate standard of living, as well as the cultural rights of indigenous people. Certainly the linking of the right to the environment and human rights is an important achievement, although it does present some important operational limits: the most important of these relates to the fact that the protection of human rights is centered on individuals (apart from rare cases of groups such as indigenous populations), which is a significant problem precisely in relation to climate change.

The international context created thanks in part to the international climate conferences (including the Paris conference of 2015), allowed States’ courts to create legal precedents. For example, the Federal High Court of Nigeria which declared the practices of Shell to be unconstitutional; the action of Greenpeace and the citizens of South East Asia with their petition to the Philippines Human Rights Commission against a group of fossil fuel producers; the Urgenda case against the Kingdom of the Netherlands in which the Dutch supreme court confirmed the legality of the action of an environmental organisation that accused the Dutch government of failing to fulfil its duties in the matter of greenhouse gas emissions.

A similar tendency can be detected in Europe, where the European Court of Human Rights (ECHR) has become a reference point for the protection of environmental law, in particular the right to live in a healthy environment. Art. 37 of the EU Charter of Fundamental Rights foresees “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”  Over the years, the Court in Strasbourg has interpreted convention norms in a way that includes environment law from a dual perspective: on the one hand, as the characteristic element of individual rights including especially the right to life (art. 2) and the right to a home and to a private and family life (art. 8); on the other and less centrally as a limit on the expansion of property rights.

In this context, the most significant rulings for the environment-health link in which violations of art. 8 of the ECFR are undoubtedly those relating to industrial pollution: Lopez Ostra against Spain in 1994; Tatar against Romania in 2009; Cordella and others against Italy, of 24 January 2019 (connected with the Ilva matter); Guerra and others against Italy, from 1998 and Taskin and others against Turkey, in 2004, for failure to inform the public of the risks of continuing to live in a place exposed to the dangers of pollution.

Finally the communication of the case of Di Caprio and others against Italy on 5 February 2019 with which the  ECHR informed the Italian government of the presentation of four appeals from 34 appellants including individuals and organisations, complaining of very serious violations of the basic rights caused by the area of pollution in Campania known as the “Terra dei Fuochi” (land of fires).

Unfortunately, despite all these efforts, there is a serious limitation to this kind of legal action: the ECFR itself interprets human rights on a purely individual level, where the integrity of the environment is not a value in itself but a way of measuring the negative impact of a particular activity on the life, property and family life of an individual.

The approach adopted by Italian law is of particular interest, in that environmental law has a hybrid character, both individual and collective. As is well known, in fact, the Constitution – which does not include an actual right to the environment – recognises in art. 32, the right to health, stating that «the Republic guards health as a fundamental right of the individual and interest of the collectivity, and guarantees free care for those who cannot pay for it». The right of the citizens to have their health protected implies, on the one hand, an obligation on the part of the state to provide all the activities needed for such a right to be effectively protected and on the other that private individuals cannot violate this right, even if the activities are in themselves lawful.

Italian statute and jurisprudence have, then, specified that the inviolable right to health includes the «right to a healthy environment», which is an absolute subjective right, that applies to everyone and can be exercised not only in relations between private individuals but also in relation to government. And indeed the judgment of the United  Sections of the Court of Appeal (Sezioni Unite della Cassazione) confirms the absolute character of the right to health, even in relation to the actions of the government.

Although international agreements and legal precedents are still few in number and the results obtained variable, citizens themselves are paying more attention to the relationships between climate change, environmental protection and health: the path has been set out and the law, despite the usual law lag, will adapt to it.

Taken from ” Pandemics and Climate Change: What are the challenges for the Law?”


More info can be obtained from Veronica Dini: vd@veronicadini.com