The European Union and global warming: A fundamental right to (live in) a sustainable climate?
Published date | 01 June 2023 |
DOI | http://doi.org/10.1177/1023263X231202481 |
Author | Ottavio Quirico |
Date | 01 June 2023 |
Subject Matter | Articles |
The European Union and global
warming: A fundamental right to
(live in) a sustainable climate?
Ottavio Quirico*
Abstract
Multiple developments are taking place in the European Union (EU) as concerns climate action
through fundamental rights. On the one hand, the Court of Justice of the European Union
(CJEU) might afford protection from climate change via first- and second-generation human rights;
on the other, the EU is progressively recognizing the human right to a sustainable environment,
and possibly to a sustainable climate, via Article 37 of the Charter of Fundamental Rights. These
developments are nonetheless restrained by the limited possibility for individual natural and legal
persons to act in the Court. On the other hand, EU Member States are parties to the European
Convention on Human Rights (ECHR), to which the EU will also foreseeably accede in the future
and through which a string of claims has been brought to the attention of the European Court of
Human Rights (ECtHR). Also in this context, protection from climate change might be afforded via
first- and second-generation fundamental rights, and possibly via the third-generation right to a
sustainable environment and climate. Contrary to the CJEU system, however, there are no pro-
cedural limits to action by individual natural and legal persons in the ECtHR. The article argues
that an extensive interpretation of first- and second-generation human rights, particularly the
as the rights to live in a sustainable environment and climate in line with the jurisprudence of
the ECtHR, reverses the burden of proof and is essentially tantamount to acknowledging an inde-
pendent fundamental right to a sustainable environment and climate, thus ensuring adequate cli-
mate protection in the EU from a human rights perspective.
*
School of Law, University of New England, Australia
Department of International Humanities and Social Sciences, University for Foreigners of Perugia, Italy
Centre for European Studies, Australian National University
Department of Political Science, University of Pisa, Italy
Law Faculty, Federal University of Paraiba, João Pessoa, Brazil
Corresponding author:
Ottavio Quirico, School of Law, University of New England, 211 Church Street, Sydney Parramatta 2150 NSW and
Trevenna Road, Armidale 2351 NSW, Australia.
Email: oquirico@une.edu.au
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(3) 236–254
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231202481
maastrichtjournal.sagepub.com
Keywords
European Union, climate change, fundamental rights, right to life, right to private and family life,
right to a sustainable environment and climate, European Convention on Human Rights, right
to live in a sustainable environment and climate.
1. Introduction
Whilst climate change is relevant to different areas of the law, key developments are taking place from the
standpoint of fundamental rights.
1
Indeed, under the impending threat of climate change, there is a clear
development of international human rights law from first- and second-generation human rights, that is,
individual civil, political, economic, social and cultural claims, to the recognition of third-generation
human rights, which have a collective nature, particularly the human right to a sustainable environment
within the context of the fundamental right to sustainable development.
2
This is proven by the adoption of
Resolution 48/13 of the UN Human Rights Council (HRC) in 2021 and Resolution A/76/L.75 of the
GeneralAssemblyin2022ontherighttoaclean, healthy and sustainable environment.
3
Does, or
should, the EU follow the same trajectory? Such is the focus of the present article.
Whilst there are no such significant developments in the human rights approach to climate
change as in the international legal sphere, global warming has been approached from a human
rights perspective also in the context of the European Union (EU), at least to a certain extent. This
is particularly reflected in the ‘internal’evolution of the Charter of Fundamental Rights of the
European Union (EUCFR) and the ‘external’development of the European Convention on Human
Rights (ECHR) towards the possible recognition of a third-generation right to a sustainable environ-
ment and even of the human right to a sustainable climate. This article assesses critically such trajec-
tories, particularly in light of the jurisprudence developed by the Court of Justice of the European
Union (CJEU) and the European Court of Human Rights (ECtHR), aiming to understand what nor-
mative toolsare most suitable to addressclimate change from a humanrights perspective in theUnion.
The analysis is divided into two parts. The first part outlines key EU developments in the area of
fundament rights with respect to climate change. On the one hand, this section considers essential
EU regulatory initiatives, on the other, it focuses on relevant jurisprudential developments before
the CJEU. The second part of the article critically assesses the practice of the ECtHR, including
the recent breakthrough of climate cases and the possibility of approaching them via first-,
second- and third-generation human rights.
2. Climate change and fundamental rights in the European Union
A. EU climate regulation and fundamental rights: towards a human right to a sustainable
environment and climate?
Only to a certain extent has the EU followed the pace of international law in recognizing a link
between climate change and human rights. At the international level, studies on the relationship
1. J. van Zeben, ‘The Role of the EU Charter of Fundamental Rights in Climate Litigation’,22GermanLaw Journal (2021),
p. 1499.
2. S. Domaradzki, M. Khvostova and D. Pupovac, ‘Karel Vasak’s Generations of Rights and the Contemporary Human
Rights Discourse’,67Netherlands International Law Review (2020), p. 319.
3. UN HRC, The Human Right to a Clean, Healthy and Sustainable Environment, Resolution 48/13, 8 October 2021; UN
GA, The Human Right to a Clean, Healthy and Sustainable Environment, Resolution A/76/L.75, 26 July 2022.
Quirico 237
To continue reading
Request your trial