Air pollution- a threat to human rights
19th March 2021
Air pollution is a pervasive problem which affects the world’s population at an alarming rate. 90% of persons live in places where air quality fails to meet established guidelines by the WHO. It is responsible for 7 million premature deaths annually, including approximately 600,000 children. Air pollution threatens the right to life, health and the right to live in a safe, clean and healthy environment. Air pollution has come to be an issue which is examined by courts and legal scholars in serval jurisdictions.
Some states explicitly recognize the right to breathe clean air. This is the case in the Philippines under the Clean Air Act. The right is also recognized at subnational level in some Countries. The state Constitutions of Pennsylvania and Massachusetts recognize this right. Courts in other Countries have read the right to breathe clean air into their constitutions as something integral to the right to life and the right to health. Without clean air these rights cannot be realized. The right to breathe clean air is not acknowledged in Irish law.
Many of the same activities which contribute to climate change harm air quality. Air quality is degraded by ambient and household air pollution which also have a direct effect on climate change. Fine particulate air pollution is the largest environmental risk to health worldwide but does not affect everyone equally. Vulnerable populations are more at risk of being affected negatively from air pollution. Fine particles can be breathed into the lungs and passed into ones bloodstream. Recently, the burning of plastic has been found to be polluting the air in India creating thick smog which have an impact on people’s health.
At the international level air pollution could fit under the right to a safe, clean and healthy environment. The right to a safe, clean and healthy environment is not included in the main human rights treaties reflecting the time that they were written in- when the science and evidence on the impacts of climate change were mostly unknown. There is now a debate at international level whether the right should be considered an autonomous one. Adding this right would give claimants a tool to state that air pollution is a direct violation of their right to a safe, clean and healthy environment and means that they would not have to shoehorn their claims into other rights violations such as considering air pollution as a violation of the right to life.
“In France, a Bangladeshi man’s deportation order was overturned after acknowledging that the air quality in Bangladesh would pose a threat to his life and health in a legal first.”
In Ireland the right to a safe, clean and healthy environment is not recognized in law. In FIE v Ireland the Supreme Court argued that the right could not be derived from the Irish constitution and was too vague and ill-defined. This argumentation is not convincing as it could be applied to a litany of human rights. The Court also stated that other rights can be utilized when looking at environmental damage such as the right to life. Although this is true it ignores the fact that where the right exists it has been proven to contribute to strong environmental performance including cleaner air.
Air pollution also threatens the right to life and the right to health- two cases which have been in the news recently exemplify this.
In the UK the death of nine-year-old Ella Adoo-Kissi-Debrah was recognised for the first time as one where air pollution ‘made a material contribution’. Ella had a rare type of asthma and was vulnerable to air pollution. Levels of N02 near her home exceeded the WHO and EU guidelines. As the Court was a coroner’s court established to inquire into the causes and circumstances of death the ruling is not a legal precedent but may have wide ranging impacts as the first case to formally recognise that air pollution was a contributing factor to her death.
In France, a Bangladeshi man’s deportation order was overturned after acknowledging that the air quality in Bangladesh would pose a threat to his life and health in a legal first. The man had asthma and the court took into consideration his condition. They noted that the medication he was taking in France was not available in Bangladesh and that the health system could not provide the man with the night time ventilation system outside of hospital. Also taken into consideration was the fact that his respiratory capacity had increased from 57% in 2013 to 70% in 2018. These reasons meant that returning the man to Bangladesh would put his life at risk and the court stated that “respiratory failure as a result of an asthma attack would be almost inevitable”. This case may set a precedent and mean that the courts will engage more in environmental matters when considering migration matters.
It is clear that clean air affects the enjoyment of our rights. Without clean air our right to health, life and the right to a safe clean and healthy environment are jeopardized. States must act to ensure our rights are not threatened by the air we breathe.