Constitutional, International, and Practical Aspects of Protection
Abstract
The right to a healthy environment belongs to the newer generation of human rights, yet its significance is fundamental: without clean air, safe water, healthy food, a stable climate, and preserved ecosystems, it is difficult or almost impossible to exercise the right to life, health, private and family life, home, and property. In Bosnia and Herzegovina, this right is not explicitly and uniformly formulated across all constitutional levels. Nevertheless, it exists as a complex protection system comprised of the Constitution of BiH and the direct application of the European Convention, entity constitutions, the Aarhus Convention, environmental protection laws, and the jurisprudence of domestic and international courts.
1. Introduction: Why the environment is a human rights issue
Traditional environmental law is developed as a set of administrative rules: permits, emission limits, impact assessments, inspection powers, and remediation obligations. In that model, nature was considered primarily as an object of regulation, while the individual was considered as a secondary beneficiary of protection. The modern approach shifts this perspective. A healthy environment is no longer viewed merely as a goal of public policy, but also as a prerequisite for human dignity and a right that individuals and communities can assert against the state.
Such an understanding is particularly important in Bosnia and Herzegovina. Air pollution in urban and industrial areas, degradation of rivers, unregulated landfills, mining and energy projects, illegal construction, and biodiversity loss do not affect the population abstractly. They impact health, life expectancy and quality, property value, access to water, and citizens’ ability to remain in their own community. The consequences are often unevenly distributed: a heavier burden is borne by children, the elderly, chronically ill individuals, poorer households, and residents of areas dependent on a single major polluter.
Recognition of the right to a healthy environment therefore serves a dual function. Substantively, it requires the state to prevent serious harm and ensure a minimum quality of the environment. Procedurally, it grants citizens the right to know, participate, and challenge decisions that affect their environment. Without this procedural dimension, the substantive right easily remains a mere political declaration.
2. International Recognition of the Right
At the universal level, a significant turning point occurred in 2021 and 2022. The United Nations Human Rights Council, followed by the UN General Assembly, recognized the right to a clean, healthy, and sustainable environment as a human right. General Assembly Resolution 76/300 of July 28, 2022, is not an international treaty and does not itself create the same type of directly enforceable obligations as a ratified convention. Nevertheless, it holds strong interpretative and political-legal value. It affirms a global consensus that environmental protection belongs to the core of contemporary human rights and guides the interpretation of states’ existing obligations.
For Bosnia and Herzegovina, the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters—the Aarhus Convention—is particularly important. BiH acceded to it in 2008. The Convention rests on three pillars: the accessibility of environmental information, early and effective public participation in decision-making, and access to an independent procedure to challenge unlawful decisions or omissions. Its value lies in not reducing the citizen to a passive recipient of protection. The public, and environmental associations in particular, become procedural actors.
Aarhus rights must be exercised in a timely, fair manner and at the same time without excessive costs. Information provided after a permit has been issued, a public hearing held when a decision has effectively already been made, or judicial proceedings that outlast the project itself fail to fulfill the purpose of the Convention. For BiH, it is therefore crucial that the formal existence of public inspection and legal remedies does not replace an assessment of their actual effectiveness.
3. The European Convention and the “Greening” of Classic Rights
The European Convention on Human Rights does not contain a specific right to a healthy environment. The European Court of Human Rights has, however, developed a rich jurisprudence in which severe environmental damage falls within the protective scope of classic rights. The most important are Article 2, which protects the right to life; Article 8, which protects private and family life and the home; Article 1 of the Protocol No. 1, which protects property; and Articles 6 and 13, which require a fair trial and an effective remedy.
For Bosnia and Herzegovina, this jurisprudence is directly relevant. Under Article II/2 of the Constitution of BiH, the rights and freedoms set forth in the European Convention and its Protocols apply directly and take precedence over all other law. Therefore, the absence of an explicit environmental provision in the Constitution of BiH does not leave a legal vacuum. When pollution or a failure by public authorities reaches the required threshold of severity, an applicant can invoke Convention rights and the positive obligations of the state.
4. Constitutional status of law in Bosnia and Herzegovina
The Constitution of Bosnia and Herzegovina does not independently list the right to a healthy environment in its catalogue of rights under Article II/3. Nevertheless, the constitutional system provides several points of support. The first is the aforementioned direct application of the European Convention. The second is the obligation of all levels of government to ensure the highest level of internationally recognized human rights. The third is non-discrimination: environmental measures and the distribution of risk must not unfairly place certain communities or social groups at a disadvantage.
The Constitution of the Republic of Srpska is more explicit. Article 35 stipulates that every person has the right to a healthy environment and that everyone, in accordance with the law, is bound to protect and improve the environment within the scope of their abilities. This provision simultaneously recognizes a subjective right and expresses the principle of responsibility. It obliges the legislature, executive authorities, and courts to interpret environmental norms not merely as technical administration, but in light of a constitutionally protected good.
In the Federation of Bosnia and Herzegovina, the constitutional framework speaks more in terms of the division of competencies than of individual environmental rights. Environmental protection policy falls under the joint competencies of the Federation and the cantons, which allows decision-making to be tailored to local conditions, but creates a risk of fragmentation.
The Brčko District has its own legislative and institutional framework.
5. Legislative framework and positive obligations of the authorities
Entity regulations as well as regulations of the Brčko District govern environmental protection, air quality, water management, nature conservation, waste management, environmental impact assessments, environmental permits, and inspection oversight. In addition to horizontal environmental regulations, laws in the fields of spatial planning and construction, energy, mining, concessions, public health, and access to information are of key importance. On the path toward accession to the European Union, an additional trajectory is provided by the EU acquis, particularly the principles of prevention, precaution, “polluter is the one who pays,” remediation of damage at source, and a high level of protection.
The state has a negative obligation to refrain from unjustifiably infringing upon rights; however, in environmental cases, positive obligations are paramount. Public authorities must establish quality regulations, assess risk prior to issuing permits, monitor emissions, make relevant data accessible, enforce inspection measures, and ensure sanctions that deter violations. When danger is known and serious, an authority cannot remain passive under the pretext that the polluter is a private entity.
A positive obligation is not a guarantee that damage will never occur. The law requires a reasonable, consistent, and verifiable response from the state, along with a fair balance between economic development and individual rights. However, a broad margin of appreciation is limited. A decision based on outdated measurements, an incomplete study, concealed data, or the failure to account for cumulative impact can hardly meet the standard of legality and proportionality.
6. Procedural rights: information, public participation, and access to justice
Access to information enables citizens to understand risks. Relevant data includes information on air and water quality, emissions, waste, incidents, inspection findings, impact studies, and permit conditions. Exceptions for business secrets or the protection of other legitimate interests must be interpreted narrowly and balanced against the public interest.
Public participation must begin while all options are genuinely open. This implies clear and understandable notification, adequate timeframes, accessible documentation, and a reasoned response to substantive comments. A public hearing is not a referendum, and the authority is not required to accept every objection, but it must demonstrate that it has given each objection serious consideration. Particular efforts should be made to involve the population that will suffer immediate consequences, as well as professional associations that can offset the imbalance of knowledge and resources.
Access to justice completes the protective loop. A court or other independent body must be able to review the substantive and procedural legality of a decision, grant interim measures when irreparable harm is threatened, and ensure the enforcement of the decision. An overly narrow interpretation of legal standing, high expert witness costs, and lengthy proceedings can render remedies illusory. Environmental associations play a special role, as environmental harm often affects diffuse interests that no single individual can effectively represent alone.
7. Main weaknesses of the system in Bosnia and Herzegovina
The first weakness is the gap between permit issuance and actual enforcement. A permit is meaningful only if its conditions are measurable, monitoring is trustworthy, and the inspectorate possesses the personnel and technical capacity to act. The second weakness is insufficient transparency. Documentation is frequently technical, scattered, or accessible only upon request. The third is the limited effectiveness of legal protection: judicial disputes can drag on while a project is already producing irreversible consequences. The fourth is the socioeconomic dependence of communities on major employers. Fear of job losses can narrow public debate into a false binary choice between the economy and health, even though sustainable development requires both.
Climate change further exacerbates these existing shortcomings. Floods, droughts, heatwaves, wildfires, and stress on water resources demand a transition from reactive post-damage response to initiative-taking risk management. In this context, the right to a healthy environment also encompasses the obligation to plan, adapt, and protect particularly vulnerable groups.
8. Directions for improvement
The first step is strengthening procedural guarantees: earlier public participation, reasoned consideration of objections, reasonable access to documents, broader legal standing for environmental associations, and effective interim measures. The second is enhancing the capacity of inspectorates, prosecution services, and courts, including specialized training and access to independent expertise. The third is the consistent application of polluter liability, including remediation, compensation for damage, and financial guarantees for high-risk activities.
Finally, European Union integration should serve as an instrument of real, rather than merely formal, transformation. The transposition of directives without monitoring, enforcement, and public participation does not alter environmental quality. The benchmark of success is not the number of enacted regulations, but the reduction of pollution, prevented harm, accessible data, and public trust that institutions act before damage becomes irreversible.
9. Environmental Justice and Intergenerational Responsibility
The right to a healthy environment also carries a strong dimension of equality. Environmental risks are not evenly distributed: residents of industrial zones, settlements near landfills, mines, or thermal power facilities often bear a heavier health and property burden, even though they possess fewer resources to influence decisions or fund expert and legal assistance. Formally equal procedures are not always substantively fair. Therefore, public authorities must identify vulnerable communities, make information understandable, enable meaningful participation, and assess the cumulative burden rather than merely the isolated contribution of a single project.
Children, elderly persons, persons with disabilities, and chronic patients require special protection. Their vulnerability to air pollution, extreme temperatures, contaminated water, or noise can be significantly higher than average. Risk assessments that rely solely on an abstract “average citizen” can overlook real-world consequences. The principle of non-discrimination therefore requires policies and permits to account for the varying capacities of the population to protect and adapt themselves.
Intergenerational responsibility further expands the temporal horizon of rights. Future generations do not participate in today’s proceedings, yet they will bear the consequences of depleted water resources, contaminated soil, lost forests, and climate change. The precautionary principle justifies preventive action even when full scientific certainty is lacking, provided there is a credible risk of serious or irreversible harm. This does not halt development; rather, it requires investors and public authorities to internalize long-term costs into their decision-making instead of transferring them onto the public.
10. Conclusion
The right to a healthy environment in Bosnia and Herzegovina already exists, but not in the form of a single, simple constitutional sentence that operates identically across all levels. Its substance derives from the directly applicable European Convention, explicit entity-level guarantees, the Aarhus Convention, environmental legislation, and contemporary international recognition. This right protects more than nature as an abstract value: it protects life, health, home, dignity, and the ability of future generations to live in a safe community.
Its effectiveness depends on whether public authorities accept three fundamental obligations. First, to assess and prevent serious risks before harm occurs. Second, to enable citizens to be informed and participate while decisions can still be altered. Third, to ensure a swift and effective legal remedy against unlawful action and passivity. Otherwise, the right remains merely declarative, and the cost of development is transferred onto public health and future generations.
Author: Aleksandar Sajic
