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CONCEPTUAL PROBLEMS OF THE RIGHT TO BREATHE CLEAN AIr
Ashurova Mohlaroy Biloliddin qizi
TSUL, master.
https://doi.org/10.5281/zenodo.16949671
Abstract
The claim that every person holds a human right to breathe clean air has
moved from moral intuition to emerging legal norm. Yet the concept remains
contested and under-specified. This thesis maps the principal conceptual
problems that impede coherent recognition and enforcement of the right. It
shows, first, that legal sources are fragmented—some systems protect clean air
as an autonomous right, others as a dimension of life, health, or private life, and
many rely on soft-law guidance. Second, the right lacks a stable definition of
“clean,” oscillating between health-based thresholds, technology-feasible
standards, and context-dependent balancing tests. Third, attribution and
causation are unusually complex because air pollution is cumulative,
transboundary, and often generated by myriad private actors. Fourth, the scope
of duties (respect, protect, fulfill) and their immediacy versus progressive
realization are not consistently articulated, especially with respect to indoor air
and corporate conduct. Fifth, justiciability turns on evidence, monitoring
capacity, and access to information—areas characterized by inequality and
uncertainty. The thesis argues for a principled framework that: treats WHO Air
Quality Guidelines as a presumptive minimum core; clarifies duty-bearers and
due-diligence standards across state and corporate actors; adopts precaution
and non-regression as default interpretive canons; and guarantees participation
and remedies consistent with access-rights treaties. This framework would
convert an inspiring aspiration into an enforceable, context-sensitive right.
Key words:
air quality, monitoring capacity, transboundary, cumulative
harm, environmental degradation, sustainable environment.
Introduction
Few propositions feel as self-evident as the claim that people should be able
to breathe air that does not harm them. Epidemiology ties ambient and
household air pollution to millions of premature deaths annually, with
disproportionate impacts on children, the elderly, and low-income communities.
Normatively, the right to clean air sits at the intersection of the rights to life,
health, private and family life, and an adequate standard of living. Legally,
however, the path from aspiration to obligation is uneven. Recent resolutions of
the UN Human Rights Council (HRC 48/13, 2021) and the UN General Assembly
(UNGA 76/300, 2022) recognize the human right to a clean, healthy, and
sustainable environment, within which clean air is a core component. Regional
jurisprudence—from the European Court of Human Rights (ECHR) to the Inter-
American human rights system and the African Commission—supplies doctrinal
footholds. National constitutions and statutes in many states expressly protect
environmental rights.
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Despite these advances, substantial conceptual problems remain. What
exactly does the right protect? Who owes what to whom, and when? How should
courts handle diffuse, transboundary, and cumulative harms? What baselines
and metrics are appropriate as science evolves? This thesis diagnoses these
problems and proposes a structured framework for resolving them.
Literature and Normative Baselines
The academic literature traces two routes to environmental rights. One
route argues for an autonomous right to a healthy environment, grounded in
dignity and ecological integrity. The other derives environmental entitlements
from existing rights—primarily the rights to life and health—thus safeguarding
the environment instrumentally, insofar as environmental degradation impairs
other rights. Both routes appear in practice.
Internationally, several instruments and decisions are pivotal. The 2021
HRC Resolution and 2022 UNGA Resolution elevate the right’s normative status;
the WHO’s Air Quality Guidelines offer health-based benchmarks; and the
Aarhus Convention (1998) and the Escazú Agreement (2018) constitutionalize
access rights: information, participation, and justice in environmental matters.
Analysis of the results of the study
This patchwork advances the right discursively but leaves gaps in
definition, duty allocation, and adjudicability.
Conceptual Problem 1: The Right’s Identity—Autonomous or Derivative?
Should “the right to breathe clean air” stand alone, or be protected through life,
health, or private-life rights? The derivative model benefits from mature
doctrines (minimum core of health, due diligence to protect life). Yet it risks
under-protection: courts may require individualized proof of health harm or
construe “private life” too narrowly for ambient pollution. Conversely, an
autonomous right offers conceptual clarity and expressive power but invites
questions about its content and limits.
Proposed resolution. Treat clean air as both: (a) an autonomous
environmental right within the broader right to a clean, healthy, and sustainable
environment, and (b) a derivative component enforceable via life, health, and
private-life rights. This “nested rights” approach maximizes justiciability while
preserving conceptual coherence.
Conceptual Problem 2: Defining “Clean” and Choosing Baselines. What
counts as “clean” air? Three candidates recur:
1. Health-based thresholds. WHO guidelines for PM₂.₅, PM₁₀, NO₂, O₃, SO₂,
and CO minimize population health risk. Their strength is scientific credibility;
their challenge is political feasibility and evolving science.
2. Feasibility standards. Some legal regimes calibrate limits to what is
technologically and economically achievable. This may incentivize incremental
progress but risks normalizing harmful exposure where pollution sources are
entrenched.
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3. Context-sensitive balancing. Courts sometimes weigh health risks against
competing interests (energy access, employment). Without guardrails, balancing
can dilute the right.
Proposed resolution. Adopt WHO guidelines as a rebuttable minimum core:
a presumptive baseline every state must strive to meet without retrogression.
States may pursue even stricter standards; departures downward require
compelling, evidence-based justification, time-bound plans, and mitigation for
vulnerable groups. This embeds precaution and non-regression while
accommodating varied capacities.
Conceptual Problem 3: Scope—Outdoor vs. Indoor, Urban vs. Rural, Present
vs. Cumulative Exposure. Legal texts often emphasize ambient (outdoor) air, yet
the global disease burden heavily involves household air pollution from solid
fuels and poor ventilation. Rural burning, agricultural ammonia, and dust storms
complicate attribution, while urban transport and industry create continuous
exposure. Moreover, harm accrues cumulatively over years and across sources.
Proposed resolution. Define the right to clean air as medium-agnostic
(indoor and outdoor), source-agnostic (mobile, stationary, agricultural,
domestic), and time-sensitive (addressing cumulative lifetime exposure).
Require integrated air-quality plans that coordinate transport, energy, housing,
and land-use policies, including household energy transitions and building-code
ventilation standards.
Conceptual Problem 4: Duty-Bearers and Standards of Conduct. Who owes
duties? The state’s obligations are typically framed as respect (avoid arbitrary
licensing and policies that worsen air), protect (regulate private polluters), and
fulfill (plan, monitor, inform, and remedy). Yet many emissions arise from
private actors in complex supply chains.
Proposed resolution. For states: (i) set binding, time-bound air-quality
standards aligned with the WHO minimum core; (ii) maintain monitoring
networks and publicly accessible data; (iii) adopt air-quality management plans
with sectoral targets; (iv) enforce permits and penalties using the polluter-pays
principle; (v) ensure effective remedies.
For businesses: recognize human-rights due diligence as the operative
standard—identify, prevent, mitigate, and account for air-pollution impacts
across operations and value chains. High-emitting sectors (energy, transport,
construction, agriculture) bear heightened responsibilities proportionate to risk
and leverage.
Conceptual Problem 5: Causation, Evidence, and Attribution. Air pollution
harms are probabilistic, cumulative, and often transboundary. Plaintiffs struggle
to show that this emitter caused that illness. Traditional tort-style causation can
undercut rights-based claims.
Proposed resolution. Shift from strict “but-for” causation to risk-based and
contribution-based tests in rights adjudication: if an actor materially contributes
to exceedances or fails to exercise due diligence to prevent foreseeable risk,
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responsibility can attach even without pinpointing individual illnesses.
Statistical epidemiology (exposure-response functions), dispersion modeling,
and source apportionment should be admissible and sufficient for prima facie
cases, triggering a rebuttable presumption of violation where exceedances
persist.
Conceptual Problem 6: Transboundary and Extraterritorial Dimensions. Air
masses cross borders; upwind activities can cause downwind exceedances.
International law prohibits significant transboundary harm, yet remedies for
individuals downwind are thin.
Proposed resolution. Combine two moves:
1. Cooperative due diligence. States must coordinate monitoring and
mitigation through regional airshed agreements, emission inventories, and
early-warning systems.
2. Functional extraterritoriality. Where state conduct (or controlled
activities) foreseeably causes significant cross-border exposure, obligations to
prevent and cooperate attach. Individuals affected should access information
and participate in decision-making, consistent with access-rights treaties.
Conceptual Problem 7: Emergency Derogations and Balancing with Other
Interests. States sometimes cite energy security, industrial policy, or wildfire
emergencies to justify temporary exceedances. Unchecked, such derogations
become chronic.
Proposed resolution. Permit narrow, time-limited derogations only where
(i) strictly necessary; (ii) evidence-based; (iii) paired with mitigation (e.g.,
masks, shelters, filtration, traffic restrictions); and (iv) subject to independent
review. The principles of precaution, prevention, and non-regression should
govern interpretation. Socioeconomic trade-offs must be addressed through just
transition measures, not by diluting health protections.
Conceptual Problem 8: Inequality, Vulnerability, and Environmental Justice.
Exposure is not evenly distributed; proximity to roads, industrial zones, and
waste sites maps onto income, race/ethnicity, and other vulnerability markers.
Children and pregnant people face heightened risk; workers may experience
high occupational exposure.
Proposed resolution. Embed equality and non-discrimination within the
right’s content: require cumulative-impact assessments that account for
baseline burdens; (b) prioritize reductions in overburdened communities;
ensure meaningful participation through language access, community
monitoring, and funding for civil-society experts; and guarantee targeted
remedies health screenings, filtration subsidies, relocation assistance where
necessary.
Conceptual Problem 9: Institutions, Monitoring, and Data Governance.
Rights are only as enforceable as the data that prove violations. Many
jurisdictions lack dense monitoring networks, open data, or enforceable short-
term limits. Indoor air is scarcely monitored at all.
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Proposed resolution. Treat monitoring and disclosure as core obligations:
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Minimum network density and quality-assurance protocols;
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Hourly public reporting with alerts and health guidance;
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Independent auditors and community science integration;
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Legally enforceable short- and long-term limits;
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Real-time compliance tools (e.g., low-emission zones tied to measured
exceedances).
Conceptual Problem 10: Climate Co-benefits and Black-Carbon Linkages.
Short-lived climate pollutants (black carbon, methane, tropospheric ozone
precursors) drive both local air pollution and global warming. Courts and
regulators risk siloing “air quality” (health) from “climate” (emissions totals),
undermining efficient remedies.
Proposed resolution. Interpret the right to clean air as climate-aware:
prioritize measures with dual benefits—vehicle electrification, clean cooking,
industrial process electrification, agricultural best practices, and methane
controls. Remedies and plans should disclose co-benefits and avoid locking in
carbon-intensive infrastructure that perpetuates air-quality harms.
A Principled Framework for the Right to Breathe Clean Air. Drawing
together the above, the right should be articulated through five pillars:
1. Normative Baseline (Minimum Core). WHO Air Quality Guidelines
operate as a rebuttable minimum core. States must adopt binding standards
aligned with these guidelines, with time-bound implementation plans and non-
regression guarantees.
2. Duties and Due Diligence. State duties: respect (no arbitrary rollbacks),
protect (regulate private actors), fulfill (planning, monitoring, disclosure,
remedies). Corporate duties: human-rights due diligence proportional to risk,
including supply chains; emission prevention plans; public reporting.
3. Procedural Guarantees (Access Rights). Free, timely access to air-quality
data; effective public participation in permitting and planning; access to justice
with affordable expert support and collective redress.
4. Equity and Vulnerability. Prioritize reductions for overburdened
communities; conduct cumulative-impact assessments; adopt just-transition
measures to avoid regressive effects.
5. Accountability and Remedies. Mixed portfolio of ex ante controls
(permits, standards, zoning, traffic policies) and ex post remedies (cleanup
orders, damages, health services, relocation). Causation standards should allow
contribution-based liability with rebuttable presumptions where exceedances
persist.
Conclusion
The right to breathe clean air is conceptually compelling and normatively
urgent, yet legal realization is hindered by ambiguity about identity
(autonomous vs. derivative), baseline selection, scope (indoor/outdoor;
cumulative exposure), attribution, cross-border effects, emergency derogations,
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inequality, and institutional capacity. Treating WHO guidelines as a presumptive
minimum core, clarifying state and corporate duties through due diligence, hard-
wiring access rights, and adopting equity-first remedies can convert a
patchwork of norms into a coherent, enforceable right.
With these clarifications, courts and policymakers can better protect human
dignity where it is most intimate and universal: each breath.
References:
1.
African Commission on Human and Peoples’ Rights. (2001). Social and
Economic Rights Action Center (SERAC) and Center for Economic and Social
Rights v. Nigeria, Comm. No. 155/96.
2.
Aarhus Convention. (1998). Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental
Matters.
3.
Boyd, D. R. (2018). Report of the Special Rapporteur on human rights and
the environment (A/HRC/37/59). United Nations.
4.
Escazú Agreement. (2018). Regional Agreement on Access to Information,
Public Participation and Justice in Environmental Matters in Latin America and
the Caribbean.
5.
European Court of Human Rights. (1994). López Ostra v. Spain, App. No.
16798/90.
6.
European Court of Human Rights. (2005). Fadeyeva v. Russia, App. No.
55723/00.
7.
Inter-American Court of Human Rights. (2017). Advisory Opinion OC-
23/17 on the Environment and Human Rights.
8.
UN General Assembly. (2022). Resolution 76/300: The human right to a
clean, healthy and sustainable environment.
9.
UN Human Rights Council. (2021). Resolution 48/13: The human right to a
clean, healthy and sustainable environment..
