Based on our analysis of the legislative preparatory materials of the years 2019-2023, the right to a healthy environment is a versatile fundamental right in Finland. Thus, the legislature may use it to pass novel legislation as well as to limit other fundamental rights guaranteed in the Finnish Constitution. In addition, the right to a healthy environment itself can also be subjected to limitations.  

The right to a healthy environment as a basis of legislative process  

The legislature has a key role to play in responding to environmental problems; after all, the legislation it enacts influence the decisions of social actors and guide their behaviour. Fundamental and human rights can either limit the actions of the legislature or provide a constitutional mandate for legislation. 

Since the constitutional reform of 1995, the right to a healthy environment has been included in the Finnish Constitution. In Section 20, Subsection 1, the right is formulated as everyone’s responsibility for the environment, nature and its biodiversity, as well as the national heritage. The government proposal on the subject described this as mainly declaratory, i.e. without legal effect unless other legislation is passed. Section 20, Subsection 2 stipulates that the “public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment”. The related government proposal thus emphasised that, in the Finnish context, the right to a healthy environment also mandates the legislature to promote the right to a healthy environment. 

We examined how the legislature used the right to a healthy environment in the legislative drafting processes in 2019-2023. In our analysis, “legislature” referred to the combination of the government and parliament, and the studied materials consisted of the government proposals for new legislation and the parliamentary committees’ statements regarding those proposals. Of particular relevance to the right to a healthy environment is the Constitutional Law Committee, which issues statements on the constitutionality of proposals submitted to it. Hence, we focused on government proposals that both refer to the right to a healthy environment and in which the Constitutional Law Committee analysed Section 20 of the Finnish Constitution.  

Legal scholars have tried to explain the value of fundamental rights in terms of their legal effects. The so-called mandate effect, for instance, obliges the legislature to act, while the competence effect grants the legislature a power that would not otherwise exist because of another fundamental right. The legislature is also prohibited from reducing the level of a fundamental right that has already been achieved (non-deterioration effect). In addition, a fundamental right may create a political or moral obligation to promote certain goals (programmatic effect). We used this framework of legal effects to analyse the legislative preparatory materials. 

The versatile legal effects of the right to a healthy environment 

Our research shows that the right to a healthy environment is a versatile right: it can be used to enact new legislation, to limit other fundamental rights, and it, too, can be limited.  

In the case of new legislation, the right to a healthy environment can oblige the legislature to enact regulation or, alternatively, to establish some kind of political or moral obligation to promote the implementation of the said right. For example, the proposed ban on salmon fishing in the River Teno was intended to ensure the long-term survival of salmon stocks. The legislature framed the ban as being directly related to the realisation of the right to a healthy environment, which meant that the legislature had a duty to act. In other proposals, the legal effect given to the right to a healthy environment was more readily linked to a political or moral obligation to promote its realisation. In such cases, the legal effect of the right to a healthy environment cannot be described as an obligation to legislate, but it rather stands as a background in promoting political will. 

The implementation of the right to a healthy environment also justified the adoption of legislation limiting another fundamental right. The aforementioned ban on salmon fishing in the River Teno constituted a limitation of the right to property, the freedom to conduct a business, and the right of the Sámi people to maintain their culture. All three rights are enshrined in the Finnish Constitution. However, the limitations were justified on environmental grounds, as the restoration of salmon stocks to sustainable levels would allow salmon fishing in the future and thus the continuation of the Sámi fishing culture. If the realisation of other fundamental rights were to take precedence now, the future realisation of both the right to a healthy environment and other fundamental rights would be jeopardised. 

The legislature, particularly the Constitutional Law Committee, has developed the grounds for limiting fundamental rights by legislation. For example, a limitation that fulfils these requirements needs to be precise and clear and its ground must be acceptable. The limitation must also be proportional when compared to its aim, and must not violate the core of the fundamental right. This means that the right to a healthy environment can also be limited by legislation, if acceptable grounds for such a limitation exist. In the case of certain environmental permit procedures, the legislature accepted that limiting the public’s access to information was necessary to ensure that confidential information was not disclosed to the public. As such, the limitation was justifiable, because the interests underlying the proposal related to the national defence.  

When analysing the material, we also found that the existing categories of legal effects did not adequately capture all our findings. That was why we ended up identifying new types of legal effect. One of them enabled the legislature to use the right to a healthy environment as a tool for interpreting other fundamental rights. Another consisted of the indirect promotion of the right to a healthy environment as a background to legislative proposals. Finally, the government proposal could refer to the right to a healthy environment in cases where the Constitutional Law Committee found no link between the right and the proposal. We called this a “pseudo-effect”.  

The future 

Based on our research, we conclude that the legislature has used the right to a healthy environment in a variety of ways. During the Finnish constitutional reform in the 1990s, the right to a healthy environment was described as partly declaratory and its realisation was thought to happen primarily through enacting legislation. However, our study shows that in recent years, the right has developed and gained more leverage. The legislature has given the right multiple legal effects in the legislative processes. Only time will tell how they will develop in the future; however, it is likely that the right to a healthy environment will continue to be used extensively in legislative work. 

The legal effects of a fundamental right can be conceptualised in different ways, a popular one being the framework that stipulates that they need to be respected, protected, and fulfilled. This framework states that the legislature has a duty not to infringe fundamental rights, that it must actively seek to protect the rights from infringement by other actors, and that it must create opportunities for the individuals to exercise their rights. On the basis of our analysis, however, we suggest that analysing the legal effects of the right to a healthy environment would benefit from a more nuanced analytical framework. The one we used provides one model for this.  

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