


































Economics, Law and Policy 
ISSN 2576-2060 (Print) ISSN 2576-2052 (Online) 

Vol. 8, No. 1, 2025 

www.scholink.org/ojs/index.php/elp 

187 
 

Original Paper 

The Right to a Healthy Environment Is Litigable From a Global 

Perspective Pathway Study 

Liu Xvwei
1
 & Xing Zheng

1 

1
 Institute of Problem Solving, Dalian Ocean University, Dalian, China 

 

Received: May 12, 2025        Accepted: May 22, 2025       Online Published: May 23, 2025 

doi:10.22158/elp.v8n1p187               URL: http://dx.doi.org/10.22158/elp.v8n1p187 

 

Abstract 

The right to a healthy environment has long been the application of human rights in the field of 

environmental rights. Despite the fact that countries around the world have explicitly recognized and 

adopted this right, judicial remedies still face severe tests. Justicitization is one of the core ways to 

achieve judicial remedies for the right to a healthy environment. Starting from the framework of 

international law and combining with regional judicial practice, this article will analyze the theoretical 

basis, practical obstacles and breakthrough directions for the litigability of the right to a healthy 

environment, and promote the transformation of the right to a healthy environment from an abstract 

right to a litigable right. 

Keywords 

The right to a healthy environment, litigable, collaborative governance 

 

1. The International Law Basis for the Litigation of the Right to a Healthy Environment 

The international law basis for the litigability of the right to a healthy environment lies in the 

intersection of international human rights law and international environmental law, specifically in the 

normative promotion of some treaty obligations, customary law principles, etc. Under the promotion of 

this basis, the realization space of the litigability of the right to a healthy environment is not just empty 

talk on paper, but also provides a blueprint for the future litigability of the right to a healthy 

environment. 

1.1 The Extension of Rights within the Framework of International Human Rights Law 

In October 2021, the UN Human Rights Council adopted resolution 48/13, officially for the first time 

declaring the right to a clean, healthy and sustainable environment as a fundamental human right and 

calling on UN Member States to cooperate in implementing this right. This marks a shift in the right to 

a healthy environment from a moral claim to a legal right. Although the resolution is not binding, it has 



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reached an international consensus, providing a new authoritative basis for the legislative and judicial 

practices of various countries.  

On July 29, 2022, the United Nations General Assembly adopted a historic resolution on environmental 

health with 161 votes in favor and 8 abstentions, declaring the enjoyment of a clean, healthy and 

sustainable environment as a universal human right. The resolution highlights the immediate threat of 

environmental destruction to human rights and calls on countries to accelerate the fulfillment of their 

environmental and human rights obligations. This historic resolution establishes the legal status of the 

right to a healthy environment at the global level for the first time, providing a practical legal basis for 

subsequent climate change lawsuits and domestic legislation. 

In addition, Article 24 of the Convention on the Environmental Rights of the Child requires States 

parties to safeguard the child’s right to health. In August 2023, the United Nations Committee on the 

Rights of the Child issued General Comment No. 26, clarifying children’s right to a clean environment, 

demanding that countries be held accountable for environmental damage both within and outside their 

countries, phasing out fossil fuels and ensuring children’s participation in environmental 

decision-making. 

1.2 Obligations and principles in International Environmental Law 

1.2.1 The Principle of Common but Differentiated Responsibilities 

Article 3 of the United Nations Framework Convention on Climate Change clearly states: “Each Party 

shall, on a fair basis and in accordance with their common but differentiated responsibilities and their 

respective capabilities, protect the climate system for the benefit of the present and future generations 

of humanity. Therefore, developed contracting parties should take the lead in addressing climate 

change and its adverse effects”. Since then, the same rule has been made in international documents 

such as the Kyoto Protocol and the Montreal Protocol. The principle requires developed countries to 

take on more obligations in responding to climate change, while developing countries enjoy policy 

flexibility. Although Article 8 of the Paris Convention does not explicitly define the litigability of the 

right to a healthy environment, its recognition of the connection between climate and human rights 

provides indirect support for judicial practice. 

1.2.2 The Precautionary Principle 

The precautionary principle was first introduced in the Vienna Convention for the Protection of the 

Ozone Layer in 1985, requiring states to take forward-looking measures to avoid environmental 

damage. The principle mainly prevents countries from harming their foreign environment when they 

develop their sovereign rights. Based on this principle, the EU’s 2024 Prohibition Investigation 

Directive on Corporate Sustainability also requires companies to assess environmental risks in their 

supply chains and strengthen transnational responsibilities. 

1.2.3 The Principle of Not Harming the Foreign Environment 

Article 21 of the Stockholm Declaration of 1972 and Article 2 of the Rio Declaration of 1992 establish 

the obligation of states not to harm other countries or the global public environment through their own 



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activities. For example, the Inter-American Court of Human Rights made it clear in its 2017 advisory 

opinion that states must ensure citizens’ rights to clean air, water and a habitable climate, a principle 

that was cited as the legal basis for holding the Peruvian government accountable in the 2024 La Oroya 

case. 

1.3 The Promotion of Judicial Precedents and Legal Interpretations 

International and domestic judicial precedents have expanded the litigability of the right to a healthy 

environment through legal interpretation. 

In 2023, a Montana court ruled in Youth v. State government that the government needs to review the 

climate impact of fossil fuel projects based on the state Constitution’s “right to a healthy environment” 

clause, marking the first climate victory in the United States. While the case relied on state law, its 

logic can be extended to international law, demonstrating a direct link between climate change damage 

and the right to health. In the 1993 Minors Oposa case, the Supreme Court of the Philippines 

interpreted the “right to healthy ecology” in the Constitution as a negotiable right, demanding that the 

government revoke logging permits for deforestation. The case established the principle of 

“intergenerational justice” and laid the legal basis for the protection of environmental rights across time 

and space. While playing the advisory role of the International Court of Justice, the International 

Tribunal for the Law of the Sea (ITLOS) plans to issue an advisory opinion on state obligations on 

climate change, which may clarify the judicial review criteria for state emission reduction 

responsibilities and further enhance the enforceability of the right to a healthy environment. 

 

2. Real Obstacles to the Litigability of the Right to a Healthy Environment 

2.1 Fragmentation of the International Law Framework and Ambiguity of Norms 

The treaty rules and provisions of international law in the field of the right to a healthy environment are 

characterized by high fragmentation. There are currently over 1,100 international environmental 

agreements around the world, but there is a lack of a unified enforcement mechanism, resulting in 

overlapping or conflicting obligations under different treaties. For example, the Paris Agreement 

emphasizes the connection between climate action and human rights protection, but does not clarify the 

grounds for the right to a healthy environment. Although the United Nations Convention on the Law of 

the Sea (UNCLOS) regards greenhouse gas emissions as Marine pollution, its liability provisions need 

to be interpreted in conjunction with documents such as the Stockholm Declaration, adding to the 

complexity of judicial application.  

In addition, there is no consensus on the legal nature of the right to a healthy environment. Although 

UN Human Rights Council resolution 48/13 affirms its human rights status, it has not translated into a 

binding treaty obligation, and there are differences among countries regarding the specific standards for 

a “clean, healthy and sustainable environment”. For example, in La Oroya, the Inter-American Court of 

Human Rights regarded the right to a healthy environment as a combination of the right to life and the 

right to health, while the European Court of Human Rights protected environmental rights more 



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indirectly through the right to private life (such as Article 8 of the European Convention on Human 

Rights). The ambiguity of such norms makes it difficult to unify the standards of judgment in judicial 

practice. 

2.2 Conflict between the Principle of Sovereignty and State Jurisdiction 

International law is based on sovereign equality of states, but the transboundary nature of the right to a 

healthy environment challenges this principle. According to the draft articles on Liability of States for 

international wrongful acts, states are only liable for acts within their territory or effectively controlled 

areas, while global issues such as climate change and cross-border pollution are often held accountable 

beyond traditional sovereignty. For example, when small island states resort to the International 

Tribunal for the Law of the Sea due to rising sea levels, it is difficult both scientifically and legally to 

prove that there is a direct causal relationship between the emissions of a particular country and the loss 

of its territory.  

Furthermore, the regulatory dilemma of the activities of transnational corporations highlights the 

conflict between sovereignty and extraterritorial obligations. Although the United Nations Guiding 

Principles on Business and Human Rights encourage home countries to restrain the overseas activities 

of enterprises, there is a lack of mandatory rules. In Peru’s La Oroya case, the US Renco Group, as the 

parent company of polluting enterprises, evaded accountability because Peruvian courts had no 

extraterritorial jurisdiction, and ultimately only the Peruvian government was held liable for 

compensation. Such cases show institutional deficiencies in international law in balancing sovereignty 

with the responsibility of multinational corporations. 

2.3 Deficiencies in Causality Proof and Accountability Mechanisms 

The cumulative and lagging nature of environmental damage makes it difficult to clarify the chain of 

causality. In the case of climate change, the link between greenhouse gas emissions and specific health 

damages, such as respiratory diseases, relies on long-term scientific data, and the International Court of 

Justice lacks uniform standards for assessing environmental damage. While the 2024 advisory opinion 

of the International Tribunal for the Law of the Sea acknowledges that emissions constitute Marine 

pollution, it does not specify the proportion of responsibility allocated among countries and merely 

calls for “necessary measures”. 

2.4 Weak Enforcement Mechanisms and Limited Relief Effects 

The lack of enforceability in international law is a fundamental obstacle to the litigability of the right to 

a healthy environment. The resolutions of the United Nations General Assembly and the judgments of 

regional human rights courts, such as La Oroya, are symbolic but rely on voluntary fulfillment by states. 

For example, although the Peruvian government was ordered by the Inter-American Court of Human 

Rights to compensate the victims and restore the environment, its implementation progress was 

constrained by domestic political unrest and a shortage of funds, and the actual restoration results were 

far from what was expected.  

 



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In addition, the jurisdiction of international judicial institutions is limited. The International Court of 

Justice (ICJ) only accepts disputes between states, and individuals or communities cannot directly 

prosecute; The rulings of regional human rights courts, such as the Inter-American Court of Human 

Rights, require pressure from the Organization of American States and lack direct sanctions. Even if 

the Beijing Fourth Intermediate People’s Court promotes environmental restoration through the 

“three-in-one” trial mechanism, its experience is still limited to domestic judicial collaboration and has 

difficulty dealing with transnational environmental disputes. 

2.5 The Imbalance of Interests between Developing Countries and Developed Countries 

The right to a healthy environment is facing structural contradictions between the North and the South. 

Developed countries advocate “universal obligations”, demanding that all countries assume equal 

responsibility for emissions reduction; while developing countries emphasize “common but 

differentiated responsibilities” and assert that historical emitters should undertake more obligations. 

This divergence is particularly evident in climate change lawsuits: small island states demand 

compensation for climate losses from wealthy countries, but the latter defend themselves on the 

grounds of “sovereign immunity” and “policy discretion”, leading to a deadlock in the lawsuit.  

At the same time, the technical funding gap has exacerbated enforcement difficulties. The lack of 

environmental monitoring and remediation technology in developing countries and the failure of 

developed countries to fulfill the $100 billion annual climate funding promised under the Paris 

Agreement have reduced judicial remedies for the right to a healthy environment to “paper rights”. 

African countries, for example, have incorporated environmental rights provisions in their constitutions, 

but due to insufficient financial capacity, they are unable to establish effective public interest litigation 

systems. 

 

3. Paths to the Realization of the Right to a Healthy Environment Being Litigable 

3.1 Innovation and Strengthening of International Justice Mechanisms 

3.1.1 Expansion of the Advisory Function of the International Court  

Justice International judicial institutions provide authoritative interpretations of the right to a healthy 

environment through the accumulation of advisory opinions and precedents. For example, the 

International Tribunal for the Law of the Sea (ITLOS) plans to issue an advisory opinion on state 

obligations regarding climate change, making it clear that greenhouse gas emissions constitute Marine 

pollution and requiring countries to take emission reduction measures in accordance with the United 

Nations Convention on the Law of the Sea. Such opinions, though not binding, provide a legal basis for 

global climate change litigation and promote the formation of a uniform standard of responsibility by 

the international community. 

3.1.2 The Establishment of Specialized International Environmental Tribunals 

Drawing on the model of the International Criminal Court, a judicial institution dedicated to handling 

cross-border environmental disputes will be established to address the fragmentation of existing 



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international law. For example, in the La Oroya case in Peru, the Inter-American Court of Human 

Rights provided a judicial precedent for transnational pollution cases by demanding that the 

government compensate the victims and restore the environment through enforcement. Such special 

tribunals can focus on cases such as climate change and cross-border pollution, and define judicial 

review standards for state and corporate responsibilities. 

3.1.3 Legislation on the Enforcement of Corporate Supply Chain Liability 

The EU’s Due Diligence Directive on Corporate Sustainability (2024) requires large enterprises to 

assess the environmental and human rights impact of global supply chains and drive industry 

transformation through market pressure. For the first time, the directive incorporates enterprises’ 

overseas environmental responsibilities into the legal framework, strengthening the extraterritorial 

applicability of the right to a healthy environment. Similar legislation can fill regulatory vacuums for 

multinational corporations, such as in Peru’s La Oroya case where the US Renco group evaded direct 

accountability but its home country’s legislation could restrain its actions. 

3.1.4 Technology Empowerment for International Criminal Justice Assistance 

Enhance the efficiency of cross-border evidence acquisition and enforcement through digital tools. For 

example, Chinese procuratorial organs have enabled rapid tracking of pollution sources through data 

sharing platforms, and blockchain technology has been used to make carbon emissions data transparent 

and enhance the credibility of international compliance. The revision of the supporting rules of the 

International Criminal Judicial Assistance Law could also clarify the review standards for foreign 

evidence and reduce the cyclical uncertainty of judicial assistance. 

3.2 Regional Collaboration and Transnational Judicial Linkage 

3.2.1 The Exemplary Role of Regional Human Rights Courts  

In the La Oroya case, the Inter-American Court of Human Rights established standards for state 

compensation and ecological restoration, promoting procedural protection of the right to a healthy 

environment. Latin America’s Escassu Agreement (2021) requires contracting states to guarantee the 

right to public participation in cross-border projects and to resolve environmental disputes through 

judicial relief mechanisms, providing a model for regional collaboration. 

3.2.2 Construction of Cross-Regional Judicial Cooperation Mechanisms  

Take China, a developing country, as an example to implement coordinated governance in the 

Beijing-Tianjin-Hebei region. The Fourth Intermediate People’s Court of Beijing signed the 

“Memorandum of Cooperation on Judicial Protection of the Ecological Environment in the 

Beijing-Tianjin-Hebei Region” with courts in Tianjin and Hebei, promoting the unification of 

cross-regional case filing, joint enforcement and restoration standards, and solving the problem of 

pollution in the river basin. At the same time, international coordination was achieved. The Nanjing 

Environment and Resources Court promoted the establishment of the country’s first judicial protection 

facility for biodiversity, and its “9+1” trial mechanism was recommended by the United Nations 

Environment Programme to provide a Chinese solution for global ecological restoration. 



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4. Conclusion 

The litigability of the right to a healthy environment needs to be advanced through multiple paths such 

as international judicial innovation, regional collaboration and technological empowerment. The core 

lies in bridging the gap between law and enforcement, strengthening international responsibility, and 

ultimately achieving the leap from “textual rights” to “substantive relief”. China’s localization practices 

as a developing country, as well as the regional mechanisms of the EU and the Americas, provide 

replicable governance paradigms for the world. 

 

References 

Shi, X. Y., & Tian, J. (2023). Interpretation of the Right to a Healthy Environment and Its Generation 

of Rights in China. Journal of Ningxia University (Humanities and Social Sciences Edition), 

45(03), 154-161, 178. 

Ye, Z. X. (2023). The Right to a Healthy Environment in Climate Change Litigation: A Case Study of 

Mexico to Explore the Possibility of Localization. Law, 11(6), 6577-6587. 

https://doi.org/10.12677/OJLS.2023.116943 

Zou, H. (2009). On the Basic Principles of International Environmental Law. Environmental Protection, 

2009(04), 81-83. 

  

https://doi.org/10.12677/OJLS.2023.116943

