Conceptual Problems of the Right to Breathe Clean Air

Abstract

This Article undertakes the conceptual analysis of the right to breathe clean air, concentrating predominantly on the perplexities of this highly important environmental right. In its first part, this Article brings forward a few aspects illustrating general ambiguity and imprecision of the right. As will be shown, it is quite troublesome to firmly indicate which foundations (legal v. Moral) or character (individual v. collective) the right to breathe clean air has, as well as to which category (generations of human rights) it belongs to. Similarly, its temporal determination (present-day v. future) is uncertain, and it is easy to confuse or conflate the substantive right with procedural rights. In the second part, this Article identifies and describes more serious and specific difficulties surrounding the right, which negatively influence conceiving the right to breathe clean air as a legal right. In the beginning, the reference is made to its nonautonomous character. Subsequently, this Article explores the issues of the content of the right, outlining problems with the meaning, the indeterminacy of the subjects of the said right, and its absence at the international level. Finally, this Article highlights hurdles concerning the enforceability of the right. This Article concludes that, at present, it is troublesome to conceptualize the right to breathe clean air as hard law, however, the situation may change in the future.