16 April 2003
Environment and human rights
Committee on the Environment, Agriculture and Local and Regional Affairs
Rapporteur: Mrs Cristina Agudo, Spain, SOC
Although environmental protection has become a matter of global concern, international environmental law is characterised by an excess of treaties and a number of lacunae. Some important principles have, however, been affirmed: the concept of sustainability, the precautionary principle, the principle of causal responsibility and the need to protect the environment for future generations.
The rights protected by the European Convention on Human Rights (ECHR) must be constantly developed to keep pace with the changes in society. The ECHR was the first international treaty to lay down a catalogue of human rights with a supervisory machinery. It could and should also become the first treaty to recognise a fundamental right to the environment and provide the individual with effective legal protection in that respect.
This report examines the situation in the member states and of legal doctrine, considers the possibilities for implementing an additional protocol to the ECHR and discards other proposals, such as an extension of the European Social Charter or the drafting of a European environmental charter.
The right to the environment is definable if it is limited to specific elements, and some procedural aspects have already been recognised (Aarhus Convention of 1998 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters).
This report accordingly recommends that an additional protocol to the ECHR be drafted so as to strengthen environmental protection, particularly by the recognition of certain individual rights.
I. Draft recommendation
1. The Assembly is convinced of the importance of a healthy, viable and decent environment. It has always endeavoured to promote environmental protection and to defend the role of the Council of Europe which, among other things, was responsible for drawing up the Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979), the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (Lugano, 1993) and the Convention on the Protection of the Environment through Criminal Law (Strasbourg, 1998).
2. It draws special attention to Recommendation 1431 (1999) on future action to be taken by the Council of Europe in the field of environment protection, which already proposed linking this subject to the European Convention on Human Rights by adding an environmental component to it.
3. The Assembly believes that, in view of developments in international law on both the environment and human rights and in European case-law especially that of the European Court of Human Rights, the time has come to consider including a right to the environment in the human rights protection system.
4. It also believes that the Council of Europe, which has always been at the forefront in recognising and protecting human rights, should play a pioneering role in this field too and distinguish itself by recognising a fundamental right to the environment, guaranteed to individuals, subject to appropriate procedural safeguards.
5. In this context the Assembly refers to Principle 1 of the Stockholm Declaration (1972): “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”.
6. The Assembly also refers to Article 1 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 1998): “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters”.
7. The Assembly also notes that many European countries have added the principle of environmental protection to their Constitution, thus expressing their desire to give greater legal recognition to environmental rights.
8. Finally, the Assembly refers to the case-law of the European Court of Human Rights concerning states’ positive obligations in the area of protection from environmental nuisances which are harmful or dangerous to health. It wishes to encourage this development by adding provisions concerning the recognition of a right to the environment to the rights set out in the European Convention on Human Rights.
9. The Assembly recommends that the governments of member states:
a. ensure appropriate protection of the life, physical integrity and health of persons by also taking account of the need for environmental protection,
b. recognise a human right to a healthy, viable and decent environment, including the objective obligation for states to protect the environment,
c. safeguard the individual rights set out in the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,
d. harmonise their laws on environmental protection and safety.
10. The Assembly recommends that the Committee of Ministers:
a. draw up an additional protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning recognition of the right to a healthy, viable and decent environment;
b. provide for Assembly representation on the group of experts or intergovernmental committee entrusted by the Committee of Ministers with responsibility for drafting this text.
II. Explanatory memorandum by Mrs Agudo1
1. Why should the Council of Europe act? ………………………………………………………. 3
1.1. Current situation …………………………………………………………….. 3
1.2 Defects in international environmental law ……………………………….. 3
1.3. The Council of Europe’s own environmental policies ……………………. 4
2. Recognition of a human right to the environment ……………………………………………. 5
2.1 Background …………………………………………………………………. 5
2.2 Terminology ………………………………………………………………… 5
2.3 Situation in member states ……………………………………………….. 6
2.4 Current criticism ……………………………………………………………. 6
2.5 Feasibility: the case in favour ……………………………………………… 7
3. Implementation alternatives …………………………………………………………………… 11
3.1 Protocol to the Convention on Human Rights …………………………… 11
3.2 Extension of the European Social Charter …………………………….. 13
3.3 European Environmental Charter ………………………………………… 13
3.4 Critical assessment of the alternatives …………………………………… 14
4. Summary ………………………………………………………………………………………… 14
5. Looking to the future ……………………………………………………………………………. 15
1. Why should the Council of Europe act?
1.1. Current situation
1. Climate change, destruction of the ozone layer, desertification, fresh water shortages, etc. - the list of current environmental problems, which are assuming ever more menacing dimensions, could be extended indefinitely. The present state of our environment is alarming – as countless publications by institutions like the European Environmental Agency remind us.
2. The UN conferences in Stockholm, Rio and Johannesburg showed that the international community sees environmental protection as a matter of global concern and is stepping up its efforts at international level. For a long time now, people have been wondering whether - on top of the many important bilateral and multilateral treaties – something could be done to tackle this problem from the human rights angle. Inclusion of a right to the environment in the European Convention on Human Rights might thus be one of the next aims of the Council of Europe’s international environmental policy.
1.2 Defects in international environmental law
3. International environmental law is characterised by an excess of legal rules, which are more of a patchwork than a systematic corpus. At present, there are an estimated 300 multilateral and 900 bilateral treaties on environmental protection, as well as some 200 other texts, prepared by various international organisations. One common feature is that many of them were adopted only when a permanent danger, long foreseen by scientists, had been disastrously realised (e.g. Exxon Valdez, Chernobyl, etc.). Their number is also largely out of keeping with the extent to which they are enforced. Nevertheless, they do play an important role in international environmental protection because, for one thing, they help to forge an international environmental awareness by focusing on protection of the environment as a global concern. As a result, states are slowly shifting their sights from outworn national policies to an international approach to the environment.
4. The following are the main problems posed by international environmental law:
- Conflict between economy and ecology: Economy and ecology invariably clash when a project has environmental implications, and the state has to weigh up various justified interests when deciding whether to approve it. When ecology wins out (the rarest of cases at the moment) and approval is withheld, the state leaves itself open to the charge of preventing economic development. Experience shows, however, that the companies which are increasingly investing in environmentally friendly technologies reap considerable economic benefits as well. Various examples relating to the use of renewable energies show this market has great economic development potential. Globalisation intensifies ecological problems even further. Some people fear that the WTO’s dispute settlement system may decide conflicts between commercial and environmental organisations in favour only of the former, and not in the broader public interest.
- Fragmentation of environmental law: The provisions of environmental law have their roots in many different areas of life (and so constitute a cross-section) and display strong regional differences. However, one precondition for the success of a national and international policy on the environment is the existence of clear legal rules, and a coherent pan-European approach is needed to influence behaviour in this area, directly and indirectly. Recognising a human right to the environment might bolster this attempt at harmonisation.
- Non-compliance: Even in areas where clear legal rules do exist, the hoped-for successes do not materialise because states do not respect those rules or do not respect them sufficiently. States thus become central to the discussion, since any significant environmental change is ultimately linked to state planning, approval or lifting of controls.
5. To improve the situation, it is repeatedly suggested that the public should be given easier access to environmental information, and that supervision by the courts should be extended. Giving the people concerned a say in decision-making would be another possibility. The essential problem is the procedural difficulties which individuals face when trying to assert their rights before public authorities and the courts. Their attempts to defend themselves against violations of their basic rights, which are also harmful to the environment, often fail because they are required to prove their claims. Specifically, they have to show that there is a causal, i.e. that the anticipated or actual violation of their rights is due to action taken by the state. To prove this, however, they need access to environmental data collected by government agencies. With the exception of EU members2, states have not so far been required to record such data or recognise an individual the right to environmental information.3
6. International environmental policy-makers should therefore pay more attention to the principles and guidelines they have repeatedly proclaimed4 - including sustainability, the precautionary principle, the principle of causal responsibility and the need to protect the environment responsibly for future generations. From an economic standpoint, the concept of sustainability now needs to be extended to include the new idea of “strong sustainability” – which is based on the assumption that there is a core stock of natural capital, that cannot be replaced and must therefore be kept constant over time. The basic idea is that some environmental assets are irreplaceable, or that some kinds of environmental damage cannot be repaired.
1.3. The Council of Europe’s own environmental policies
7. The human rights included in the Convention must be constantly developed to reflect the growth of consensus between the member states and keep pace with change. The Council of Europe has recognised this necessity and given itself the necessary remit in Article 1 (b) of its Statute. With the year 2000 in mind, the former President of the Parliamentary Assembly, Dr. Karl Ahrens, described the Assembly’s role as follows: “The Assembly must remain conscious of the developments that made the inclusion of new rights in the Convention possible or desirable”.5 The Colombo Commission emphasised that the Convention’s system of protection must be adjusted to match current needs and social developments.6
8. The Council of Europe has dealt with this subject in the past. In this connection, it is worth mentioning P. Staes’ Motion for a recommendation (Doc 8369), L. Rise’s report (Doc. 8560), Recommendation 1431 (1999) and the Committee of Ministers’ reply (Doc 8892), as well as Recommendation 1192 (1992) which advises strengthening existing environmental protection instruments.
9. Human rights protection conveyed the message that the basis of international law was not the state, but the individual human being, for whom the state assumed protective functions at most. The Convention was the first international treaty to lay down a binding catalogue of human rights and provide for supervisory machinery to ensure that states respected them. Since 1993, the Council of Europe has developed in an astonishingly dynamic way, especially as a result of its enlargement to the east, and the adoption of Protocol No. 11 has substantially improved legal protection. Its effect as a model for other systems, especially the United Nations, cannot be overestimated. Why should the Convention not lead the way once again and become the first treaty to recognise a human right to the environment and provide the individual with effective legal protection at the same time?
2. Recognition of a human right to the environment
10. The introduction of a human right to the environment has been the subject of intense legal, philosophical and ethical discussion since the early 1970s. There is a recognisable trend in the development of international law towards recognition of this human right in "soft law”. Examples include the first principle of the Stockholm Declaration (1970)7, the Rio Declaration8 (1992) and the recent Bizkaia Declaration on the right to the environment9. On the other hand, there are very few international hard law texts expressly guaranteeing such a right, e.g. Art 24 of the African Charter of Human and Peoples’ Rights (Nairobi, 1981)10 or the American Convention on Human Rights11. Forty-four national constitutions now contain provisions on environmental protection, either as individual rights or state obligations, or both.
11. The question of whether a human right to the environment should be recognised in an additional protocol to the ECHR has already been discussed at the Council of Europe. The first step was taken when the European Conservation Conference was held in 1970, in response to the proposal, made at the 1968 UNESCO Conference on the Biosphere, that such a right be included in the Universal Declaration of Human Rights. Another proposal for incorporation of this right in the European Convention was that made at the Council of Europe’s Ministerial Conference on the Environment (Vienna, 1973), which was not successful. The Parliamentary Assembly further mentioned it in its report on the European Ministerial Conference on the Environment (Doc. 3338) and recalled it in its Recommendation 1431 (1999).
12. Different terminology is used in provisions recognising this new human right as binding or non-binding and also in writings on this subject since the early 1970s. There are references, for example, to a salubrious (or humane, adequate, clean, habitable) environment, to the right to protect the public from unreasonable environmental degradation or simply to government bodies’ legal obligations to protect the environment or “natural life support systems”. The variations are partly due to differences in legal policy objectives, but they reflect the way in which this new right has developed in the last thirty years.
13. Every proposal so far has triggered heated discussions and so made an indirect, but constructive contribution to establishment of this new right. The expert bodies concerned must come up a proposal which is both workable and generally acceptable, since careless drafting will reduce the effectiveness of the legal protection provided and the utility of the new human right. We cannot explore important questions of wording in this report, so - to avoid misunderstandings and keep the discussion from becoming too narrow – we shall use the neutral term, “right to the environment”.
2.3 Situation in member states
14. A brief overview follows, but we must point out that, owing to differences between national legal systems, comparisons are not always possible, and the classification of almost all provisions is a matter of legal debate.
15. An individual right to environmental protection has been recognised in the constitutions of Belgium (Art. 23-4), Hungary12, Norway (Art. 110, b), Poland (Art. 71), Portugal (Art. 66-2), Slovakia (Art. 44 & 45), Slovenia (Art. 72 & 73), Spain (Art. 45-1) and Turkey (Art.56). Protection of the environment is included as a so-called “state objective”13 in the constitutions of Austria (Art. 10-12), Finland (Art. 20), Germany (Art. 20, a), Greece (Art. 24), Netherlands (Art. 21), Sweden (Art. 2-2) and Switzerland (Art. 24-7).
16. Since some of these member states are also EU members or applicants, the constitutional debate within the EU14 will be briefly described - but the EU’s current environmental policy15 and legislative activities16 cannot be discussed in any depth here. The draft constitution of 199417 recognised18 an individual right to protection of the environment, but the EU’s Charter of Fundamental Rights of 200019, which provides a first basis for the establishment of a right to the environment, was again more cautious20. Neither of these texts is legally binding. In view of the current constitutional convention, there have recently been increased calls for a binding guarantee.21
2.4 Current criticism
17. The obvious difficulties involved in exactly defining the content and scope of an individual right to the environment, and in deciding who is to have, or may have, this right, make some writers reject it.
18. Economy and development: Since the Rio conference, greater efforts have been made to link development with protection of the environment (Global Environmental Facility). In the conflict between economy and ecology, we need to ask how the new human right will affect economic development. Will competition suffer, or will development even be arrested? These anxieties are unfounded, at least when put in dramatic terms like these. The best answer was given by Schmidt: “Economic, social and ecological developments are intimately connected with one another [...] The relationship of economy and ecology is too complex to be described only as a pair of opposites”22. Modern writers on both environmental policy and economic theory have long since abandoned this narrow vision. The aim today is to preserve a broadly defined ecological minimum and avoid developments which offer very short-term gains, but are very likely to damage the environment permanently. The main point to remember is that protecting the environment is not something that has to wait until the state’s economic and social development has reached a satisfactory level.
19. The priority which Principle 21 of the Stockholm Declaration gives the state’s own economic development over environmental protection is incompatible with the individual’s statutory right to that protection. Under pressure from the third world, all the declarations adopted since then have reiterated this “right to exploit resources”, although it is now emphasised that, for reasons of fairness, environmentally friendly technologies should be made available (“know-how transfer”). After all, the third world states, which justifiably claim this “right to development”, are not obliged to repeat the mistakes made by the industrial nations. Human rights are not a reward for development but an indispensable prerequisite for it.
20. Conflict with the Convention’s character as a code of negative rights? In fact, basic rights theorists have stopped seeing these rights as merely negative, and have added various new elements, including the basic duty to protect, which is one essential aspect of the new right.
2.5 Feasibility: the case in favour
21. Although the nature of the human right to the environment is essentially imprecise, its existence cannot be denied. The lack of precision merely highlights the need to define it by breaking it down into workable elements and attaching clear criteria to each. This right, like all the others guaranteed by the Convention, also needs to be defined in the domestic law of member states.
22. Two basic models are conceivable for recognition of this right: one that combines an objective duty on the state’s part with specific individual rights (“combination model”), and one that ascribes this duty to the state, but does provide for individual rights (“separation model”). The first combines specific individual rights with the state’s objective duty to protect them. For the sake of clarity, the general principles of environmental law might also be mentioned (see 1.2 above).
23. In the separation model, only the state’s objective duty would be laid down, and individual rights could be added later. The advantage of this model is that - unlike the one which involves the (partial) inclusion of individual rights - it is more amenable to consensus. Not every gap in the protection offered can be filled simply by establishing an objective, but, given the momentum which some constitutional provisions are able to develop in both the political and the legal process, including such a duty in the constitution goes far beyond merely stating a principle which has no legal effect. This would help to drive home the idea that the state has a duty to look after its citizens by warding off specific environmental dangers (as a precondition for the exercise of individual rights), protecting the environment against private individuals, and (even more important) repairing any damage and restoring environmental assets.
24. Individual right? How can the existence of individual rights be inferred from the rules on environmental protection, which is in the interest of the whole community? Recognition of an individual right depends on individualising that interest. The “natural environment”, or, putting it another way, “environmental assets” cannot be assigned to an individual or group, but belong to all humankind, which depends on the environment as the basis of human life. This being so, it is only logical to argue that the international community should recognise everyone’s right to “his or her” environment (in the sense of natural life support systems) as a human right. For the international community, protecting the environment via a human right means fair distribution of rights to enjoy common assets (“property” in the legal sense would be too narrow) and the duties resulting therefrom (burden sharing). From the individual’s standpoint, the right to the environment must thus be defined as the right to preservation (protection and improvement) of the environment through government action. The realisation that environmental protection is a matter of global concern will lead to the further realisation that states do not owe their duties in this area to all other states individually, but to the international community as a whole.
25. We shall now consider how individual rights can be established, and the elements of the individual right to protection (scope of protection) defined. Current European constitutions (see 2.3 above) tend to recognise environmental protection as an objective state duty, but stop short of granting a personal human right to the environment. This is the point at which discussion of feasibility must start. If the human right to the environment is to be at least partially organised as an individual right, then it must be restricted to a number of feasible elements.
26. The advocates of an individual right to the environment agree that it essentially involves three things: the individual’s right to participate in public decision-making on matters relevant to the environment, the right to access to a court and - as a necessary precondition for exercising the two others - the right to information on the environment (see 1.2 above). This “procedural triad” - most recently referred to in the Arhus Convention23 - must logically be expanded to include the individual’s right to active protection of the environment by the state, which matches (only here) the state’s objective duty to protect. The individualised right to the environment would thus contain, in addition to the procedural element24, a component allowing measures to be challenged. This is about the individual’s right to require the state either to refrain from causing environmental strain itself or, as the licensing and supervisory authority, to prevent this from being done by third parties.
2.5.1 Object of protection
27. The object protected is the environment referred to in environmental protection (not the “environment” in its broadest sense), i.e. the natural life support systems which constitute humankind’s basic ecological requirements. It is not, in other words, an individual legal asset, which would always require definition in national law, but a common asset, which everyone may use, in accordance with the principle that the assets of humankind are indisposable. If an individual nevertheless secures exclusive rights of use in a specific case, e.g. by acquiring ownership, then he/she is protected by the laws on basic rights concerning use of property, but has a duty to the community to refrain from causing damage to the environment. This means that, for the first time, both aspects are covered by human rights provisions. Property rights are by no means absolute, and so partial restrictions dictated by the need to balance the individual’s interest in his/her property against the public’s interest in preservation of the natural life support systems are both possible and necessary.25
28. This human right, in the form in which we understand it here, belongs to every living person. To grasp its nature, we need to remember its very close connection with the protection of life, physical integrity and health. However, the Convention on Human Rights and most of the member states’ constitutions provide protection only against dangers which actually put life at risk, and are present or immediate. Interference with the environment that does not endanger life, health or property is scarcely covered by the existing instruments. Moreover, the restriction imposed by Article 8(2) of the Convention involves a danger of overemphasising the community’s economic well-being.
29. This protection is insufficient from an environmental standpoint, since, even when the potential danger is considerable, violation occurs only when an individual is directly endangered. A judge at the Court of Human Rights recently commented on this: “Does the local population first have to be irradiated before being entitled to exercise a remedy?”26 The state’s obligation to assess a risk comprehensively and take any action needed is not clearly specified. At least, the individual has so far had no direct legal possibility of influencing fulfilment of this obligation. The core issue is thus the need to provide protection in advance by applying the precautionary principle, as stated in Principle 15 of the Rio Declaration.
2.5.3 When is the right to the environment violated?
30. According to Calliess, the procedural dimension of the human right to the environment - a right recognised by most states today - should have a compensatory effect when the protection afforded by substantive human rights provisions is insufficient in the environmental area. “Accordingly, the position of a party to proceedings must be strengthened in line with the importance of the asset protected by legislation on basic rights, the seriousness of the interference with that asset, the increased likelihood of that interference and the scope the legislature has granted the public authorities through discretionary powers and imprecise legal concepts”.27
31. If conduct by the state – action, interference or failure to fulfil positive obligations28 - has already caused harm (death, physical injury, permanent damage to health) to one or more persons, identifying those affected is not particularly difficult. It is usually sufficient to interpret the law narrowly with reference to the requirement in Article 34(1) of the Convention on Human Rights, as restated in Protocol No. 11 (previously Article 25) that the person concerned must be the victim of a violation. Minor damage, i.e. injuries which are neither very serious nor long-lasting, are not enough for a person to be considered a victim.
32. It is harder to identify the victims in cases where the danger has (not) yet led to damage, and there are “only” threats to life, physical integrity or health. In such cases, end-results must be considered (teleological interpretation), i.e. one has to ask when violation by state authorities is possible.
33. The dividing line between general concern and an urgent need to act cannot be drawn, in the abstract, for all situations, but - like the duties of protection specified by, inter alia, the European Court of Human Rights in its case-law (see 3.1.2 below) - emerges from an interpretation carried out in an individual case. Deciding where it should be drawn in a specific case is undoubtedly the biggest challenge with regard to the right to the environment, since it involves assessing, among other things, whether the state has weighed the risks properly. It is necessary to consider whether the state possessed disturbing information or failed to inform itself (environmental diagnosis). Risk assessments are also dependent on political priorities (economic development), but especially on scientific and technological know-how, without which a risk cannot be correctly diagnosed and the right action taken.
34. This brings us to the question of impossibility as a major restriction on the scope of protection. The human right to the environment only requires states to do things which are possible in the present state of technology. It does require them, however, when weighing up the interests of individuals and the community in specific cases29, to take a fair decision, bearing in mind the need to take precautions to protect life and physical integrity, and to assess the risks as accurately as the current state of science and technology will permit. Protection obviously cannot cover all the general dangers, and the state cannot be obliged to take precautions against purely hypothetical dangers, such as potential health risks from high-frequency fields around mobile telephone installations.
35. One of the main limitations on the scope of protection results from the fact that large parts of the earth do not come under the sovereignty of a particular state. Most environmental assets are so-called “free assets”, i.e. are not subject to specific legal entities or exploited by specific states. States, at which the provision is aimed, can guarantee the human right to the environment only within their own territory. This inherent weakness of the new system can be overcome only if the international community accepts the principle that humankind’s assets are indisposable and collectively protects those parts of the world which are not sovereign territory. States or the international community then becomes the “guardian of the environment”. This increased responsibility of states and the international community has not been matched by a corresponding increase in government powers.
36. Another restriction results from individualisation itself. Only that part of the environment which must be protected, because it comprises humankind’s natural life support systems, is covered. If restrictively interpreted, this would mean that only human life support systems in the narrow sense would be protected, while animal and plant species, and large natural and landscape areas, would not. Today, the realisation that nature is a unit, comprising inseparable systems and cycles, and that human beings are part of it, makes it impossible to draw a distinction between humankind’s natural life support systems and those of nature itself. Not every threat to an animal species or ecosystem is an (admittedly indirect) threat to human beings, but the deliberate extermination of a species or destruction of an ecosystem by human beings is a direct attack on the natural unit and will eventually, and to varying degrees, affect human life as well. It remains to be seen how the concept of “natural life support systems” will develop.
37. The human right to the environment cannot be granted without imposing any limits. Restrictions by governments are unavoidable simply because the rights of others must be protected. Many people fear that this right could become a “super basic right”, because it influences many existing human rights, and abuses could occur, owing to the very broad scope of protection. This concern is understandable but unfounded. The principle that human rights are indivisible30 means that there is no hierarchy, and that no one right can be upgraded at another’s expense. The question of weighting therefore comes into play only when a fair balance is struck between the legally protected interests affected in an individual case.
38. Rights of future generations? The (non-binding) Universal Declaration of Future Generation Rights of 199431, for example, grants future generations the right to a clean environment. However, a legally binding convention can grant rights only to living persons. The reason why we take environmental protection measures in the present is our consideration for future generations, since we know that some of the environmentally harmful effects of the things we do now will affect only them directly. This proclamation of the ethical duty to respect “intergenerational equity” and of the political will as a programmatic principle is therefore best inserted in the preamble.
39. Separate rights for animals and plants? Some people have called for nature to be given its own rights in order to release it from the loser status resulting from the permanent conflict between human beings concerning the distribution of environmental assets. Nature has therefore been discovered as an “object of protection in its own right”. The danger of this “ecocentric” (as opposed to anthropocentric) approach is that it can become emotionalised. It is also misleading. At any rate, no practical conclusions can be drawn from it. Since human beings and nature cannot be separated from one another - on the contrary, human beings are an inseparable part of nature - the right to the environment can only be granted to them. This is also the view of Déjeant-Pons: “They [human beings] should therefore be granted the possibility of claiming a right [...], of which they are not legally owners but for which they may feel ‘responsible’”32. Protecting the environment thus means protecting human beings as well.
40. The new human right will not affect private liability law. It is addressed to the contracting parties - ie, states - so that any effect on relations between individuals (direct third-party applicability33) can be ruled out. Changes to the law on official liability may only result indirectly through the more stringent obligations imposed on states, for example when their legislation is totally inadequate.
2.5.5 Right of petition
41. However, it is necessary to distinguish between a person’s capacity as a right-holder and his/her entitlement to file a complaint (or “application” in Convention terminology). Therefore, before the European Court of Human Rights can accept an application and decide whether specific action or inaction by a member state has violated the human right to the environment, it is necessary to ask what individual (or group) is entitled to file such an application. The right of petition draws a line between the individuals actually affected and those who only have a general interest, and thus serves to protect the Court from an excessive case-load.34 It is only a criterion for establishing the admissibility of an application and says nothing about whether there has actually been a violation.
42. Therefore, in order to define the guarantee of legal protection enshrined in Article 13 of the Convention, it is necessary to have a clear but flexible defining criterion, because dangers vary considerably in their extent and scope, according to the situation. For example, a group of people directly affected by a plant emitting strong smells must be assessed differently from those living near a large airport or an atomic power station. The right that individuals affected have in principle to file an application is therefore apparently broader in scope than in the case of other human rights.
43. According to current legislation, one criterion defining an admissible application is that the person concerned must be the victim of a violation (see 2.5.3 above). Here too, a clear distinction must be drawn between the objective duty (of the state) and the individual right, which is the subject of the application. The right to the environment in this individualised part is an extension of the human right to life, physical integrity and health. Victims entitled to file applications are always distinguished from other people involved in this context.
44. These criteria thus take sufficient account of the Court’s need to be protected against excessive demands on its time.
3. Implementation alternatives
3.1 Protocol to the Convention on Human Rights
45. The opinion expressed above (see 2.5.1) that inclusion of a human right to the environment in the Convention is not only possible, but also necessary to ensure effective protection, is shared by various writers. These include Steiger35, Déjeant-Pons36, Désgagne37, Cohen-Jonathan38 and Kley-Struller39. A group of UNEP legal experts also consider that the human rights protection system is the best place for rules on environmental protection.40 We agree, since the procedural dimension of the human right to the environment is increasingly becoming the focus of discussions (see 2.5) and is also structurally closest to the Convention guarantees.
46. Some authors, on the other hand, reject incorporation. For example, in 1974 Rauschning set out the following preconditions, which he did not consider were met at that time: “A right to a healthy environment or to its protection can only be incorporated directly into the Convention or an additional protocol when it corresponds to the human rights and fundamental freedoms set out in the Convention with regard to the person entitled to exercise it, the body with the duty to observe it and the nature of its application and when it is likely to be enforced nationally and internationally in the way provided for by the Convention”.41 A glance at the above discussion (see 2.4 and 2.5) shows that these preconditions have now been met.
47. Some of the critics discuss the conflict between the EU and the Council of Europe and fear disputes regarding jurisdiction, since the EU has not yet acceded to the Convention. They also say that, given the nature of environmental protection and the issues involved, it is better for the EU to be responsible for this area.
48. However, the EU legislation and the Convention do not compete with but complement one another. For member states outside the EU, the expansion of environmental protection via the Convention has far more advantages. Moreover, the fear that the Court might examine the compatibility of ECJ judgments with the Convention, and so become a “super supreme court of appeal”, is also unfounded. All the EU organs are bound by the Treaty on European Union to observe the Convention rights.42 The Convention has up to now been the most important legal source43 for the ECJ, so it is doubtful that parallel jurisdiction of the ECHR and the ECJ, the relationship between which is one of coexistence and co-operation, will actually lead to disputes.
49. The best recent example of the expansion of the Convention system and the European Union’s progress in the area of environmental protection is that the European Court of First Instance recently expressly recognised the right of (environmental) organisations to bring actions.44 Interestingly, the court based this change in its case-law on Articles 6 and 13 of the Convention and stressed that the EC Treaty45 had created a comprehensive legal protection system.
3.1.1 Current version of the Convention
50. An opinion widely held by legal writers is that the Convention does not contain a human right to the environment. Although Article 2 provides for the protection of physical integrity, it applies only when the harm to a person’s health or physical integrity leads to an actual and immediate danger to his or her life.46 From the point of view of environmental protection, Articles 2 (right to life), 6, 8 (right to respect for private life) and 13 of the Convention, and also Article 1 of Protocol No. 1 (right to property), could be relevant here if they also related to areas of environmental law (indirect protection). In fact, Article 8 has developed into the core provision for environmental protection. It also applies in cases of harm done to a person’s well-being and health as components of physical integrity, this being a necessary precondition for private life.
3.1.2 The Convention bodies’ case law
51. The Strasbourg authorities have considered the ecological challenge in the area of human rights and increasingly focused on procedural aspects of national environmental law. By adopting an evolutive, dynamic approach, based on the principle that an interpretation must not render a legal text ineffective, they have interpreted the classical negative rights enshrined in the Convention with reference to ecological considerations and given them the character of “ecological human rights”. Numerous judgments and decisions dealing with classical areas of environmental protection have been given under Article 8 of the Convention in particular.47
52. According to the Commission and the Court, there is no provision in the Convention for a human right to the environment.48 Environmental protection can thus be dealt with in Strasbourg proceedings only indirectly: (1) as the subject of the procedural guarantee enshrined in Article 6, when a case involves civil rights or a criminal charge; (2) when in an individual case environmental protection measures limit the rights guaranteed; (3) when damage to the environment also violates rights guaranteed by the Convention. The Court has, for example, been forced to subsume protection against nuisance under the right to respect for the home. Although Strasbourg case-law has a law-making aspect, it cannot modify the content of Convention guarantees, so an amendment to the Convention, taking the form of a protocol, is clearly needed to create a human right to the environment, even if only selected rights and obligations are specified.
53. The state’s duty (positive obligation) to provide protection against annoying or unhealthy environmental nuisance49 - a duty inferred for the first time from Article 250 and, especially, Article 8 of the Convention in cases involving aircraft noise51 - is an important area of emphasis in the Strasbourg case-law. The Commission understood this duty only in the sense of an obligation to enact laws and not as a general requirement to provide protection against dangers to life, and its case-law was confirmed by the Court in López Ostra v. Spain52 and Guerra and others v. Italy53 and extended to cover almost all environmental nuisances. Since then, the duties of protection arising from Article 8 have included comprehensive guarantees and supervisory measures relating to the enforcement of environmental law. It is a fundamental principle that the state must strike a fair balance between the individual’s interest in enjoying an undisturbed private life and the interests of the community as a whole. In doing so, it has a “margin of appreciation”54, which the Court now subjects ever more stringent review.
54. There are important parallels for the application of the new human right between the Court’s case law and that of the German Federal Constitutional Court: violation occurs only when the state has taken no precautionary measures whatsoever, or when the measures it has taken are either completely unsuitable or totally inadequate to achieving the necessary aim.55 However, the Federal Constitutional Court considers that the legislature is duty-bound to carry out a competent risk assessment by examining and evaluating the extensive research in this area56 and, if necessary, modifying protective measures57 which are clearly obsolete.
3.2 Extension of the European Social Charter58
55. Very few authors59 support incorporation of the right to the environment in the European Social Charter (ESC). As there is a general connection between environmental protection and Article 11 (the right to protection of health), the idea suggests itself of enshrining a right to the environment in this article.
56. However, there are basic reasons for not including the human right to the environment, as understood in this report, in the ESC, since this text does not give individuals any right to require the state to act or refrain from acting (“subjective public rights”), but contains a detailed mandate to establish social rights and obligations.
57. Although new life has been breathed into the ESC by giving non-governmental organisations the right to file collective complaints, its supervisory machinery is far less effective than that of the Convention. In spite of the amendments made, some of them designed to bring it into line with the UN covenant60, the ESC still has little binding effect and is hard to enforce. Like other treaties, it is based on a reporting system - a typical feature of international treaties. Since it usually involves only a minor loss of sovereignty for contracting states. Success is possible only when, as with the Convention, contractual obligations are precisely formulated and sanctions of a political, quasi-judicial or judicial nature are written into the text.
3.3 European Environmental Charter
58. Kiss61 has put forward the idea of a universal environmental convention, modelled on the Universal Declaration of Human Rights and the Convention. For member states, an environmental charter would result in a very small loss of sovereignty, although this argument is becoming less and less important. Losses of sovereignty will be accepted the more it is realised that environmental protection is a matter of global concern and the more the international community sees itself as collectively responsible for protecting the environment. As a result of the legal principles enshrined in environmental international law, the exercise of state authority is already limited today, insofar as it must not lead to environmental damage in neighbouring states.62
59. The experience of the last few decades teaches us that legally non-binding “soft law” has little influence on national and international environmental policy. However, non-mandatory documents do have a political and moral effect over time and are therefore precursors of future “hard law”. Here, we may mention the Final Declaration of the Stockholm Conference (1972)63, the World Charter for Nature (1982)64, the Rio Declaration (1992)65 and the documents66 produced by the OECD and UNEP.
60. It was also suggested that the central and eastern European states might adopt their own environmental charter. Although there are a few particularly deplorable instances of environmental damage in these states, this idea must be rejected, because it would divide the member states into two groups and impede East-West dialogue. It also assumes - incorrectly – that such a charter would make environmental protection more effective. It is vital to forestall any fragmentation of international environmental law, which would indisputably be counter-productive (see 1.2 above). Evtimov compares a nature-friendly policy for a clean environment with the search for positive peace after the second world war and believes it can be implemented only as a pan-European initiative.67
61. Since about the mid-1990s, many member states in eastern Europe, such as the Russian Federation68, have been devoting more attention to the protection of the environment. The lack of an efficient public administration capable of implementing the new regulations has proved a serious problem. 69
3.4 Critical assessment of the alternatives
62. The legally binding nature of the Convention and the effective legal protection granted are arguments in favour of a protocol. The Convention exerts great influence on national case-law, since it is based on the principle that international law takes priority over all levels of domestic law. Comparable legal protection is not possible with the ESC, and can be achieved with a separate environmental charter only if a new court is set up - which would needlessly raise questions concerning jurisdiction.
63. The Convention grants procedural and substantive rights to individuals, and its currently expanding procedural dimension (see 2.5) makes it an ideal treaty setting for the human right to the environment. Judicial enforcement of this right requires the presentation of evidence (see 1.2 above), and only an extension to the Convention could guarantee applicants access to environmental information and oblige states to record environmental data.
64. Apart from uncertainty as to whether a European Environmental Charter would, like the ESC, oblige states to respect certain standards, or merely list policy objectives which they should do their best to fulfil, this proposal has one crippling drawback: like the ESC, it could be accepted only by states that met the minimum requirements when it became binding. Owing to the defects of international environmental law (see 1.2) and the modest successes of the ESC, it can be taken that there would be very little movement on environmental policy in Europe.
65. The human rights system is the best place for the right to the environment.70 As a tried and tested system for the protection of human rights, the Convention offers the possibility of focusing the efforts of all European states in the field of environmental protection, because international protection needs all the support it can get. Matters of fundamental importance in this area cannot be dealt with under the present version of the Convention, especially Article 8.
66. From a legal standpoint, discussion of the viability of the new human right to the environment is far from over. The way to make this right definable - and therefore actionable – is to limit it to specific elements (see 2.5). Its procedural aspects, and the protection obligations inferred from the right to life and physical integrity, have become the focus of discussion.
67. With a common European awareness of basic rights growing steadily stronger at present71, policy-makers in the member states will have to recognise the new human right internationally and bindingly, since current human rights protection is inadequate to cover environmental protection (see 2.5). On the other hand, the necessary and close link between socio-political environmental concerns, and the environmental protection claimed with reference to individual rights, is becoming increasingly evident.72 Recognising a human right to the environment means strengthening the existing Convention rights (protection of life and physical integrity) by providing protection in advance. This will be achieved by applying the precautionary and sustainability principles (see 2.5).
68. Recognising a human right to the environment, in pursuit of the aims and in the form described here, is neither utopian nor superfluous. This would accord with essential aspects of Strasbourg case-law (see 3.1.2). As our discussion of the objections raised so far makes clear (see 2.4), no basic contradiction with the human rights protection system is discernible. On the contrary, this would be a further development of human rights, wholly in keeping with the times.
69. The best way to implement the proposal is to recognise the right in a protocol to the Convention (see 3.4). If the international consensus on a common European environmental policy proved insufficiently strong to carry the “combination model”, (i.e. recognition of a limited individual right), laying down state objectives (see 2.5) would still be a major first step in the right direction.
5. Looking to the future
70. The ECHR’s case law on states’ obligations to provide protection would no longer be limited to risks resulting from various types of nuisance. Recognition of a human right to the environment, as understood here, would forge a better link to the protection of life than that provided by Article 8 of the Convention. Moreover, it would not simply be the serious cases of environmental pollution which would come before the Court. Since the latter now applies an increasingly stricter standard when examining the margin of appreciation enjoyed by member states in fulfilling their protection obligations, we can take it that it will devote more of its attention in the future to the problems of environmental protection. As a logical extension of its present case-law, the Convention would come closer to providing dynamic, comprehensive human rights protection, taking account of the rapid changes to the environment.
71. Implementation via a protocol is an appealing option, since it is logical, legally binding and provides a way of integrating the new human right within the European human rights protection system.
72. It will not, of course, be possible to solve all the problems of environmental law by recognising a new human right to the environment - but the signal it will send, and influence on the conduct of states, must not be underestimated.
Reporting committee: Committee on the Environment, Agriculture and Local and Regional Affairs
Committee for opinion: Committee on Legal Affairs and Human Rights
References to committee: Doc. 8369, Reference No. 2377 of 26 April 1999
Draft recommendation adopted by the committee on 9 January 2003
Members of the committee: Mr Martinez Casañ (Alternate: Fernandez Aguilar) (Chairman), MM. Behrendt, Hornung, Stankevic (Vice-Chairmen), Mr Agius, Mrs Agudo, MM. Akçali, Akselsen, Mrs Angelovicova, MM. Annemans, Blaauw, Sir Sydney Chapman (Alternate: Mr O’Hara), MM. Churkin, Ciemniak, Cosarciuc, Delattre, Dokle, Ekes, von der Esch, Etherington, Frunda, Giovanelli, Gonzalez de Txabarri (Alternate: de Puig), Graas, Grachev, Grissemann, Gubert, Ms Hajiyeva (Alternate: Mr Huseynov), MM. Haraldsson, Hladiy, Ilascu, Janowski, Juric, Kalkan, Mrs Kanelli, Mr Kharitonov, Lord Kilclooney, MM. Klympush, Lachat (Alternate: Ms Fehr), Lobkowicz, Loncle, Lozancic, Libicki, van der Linden, Manukyan, Masseret, Mauro, Meale, Mesquita, Meyer (Alternate: Goulet), Müller, Nazaré Pereira, Oliverio (Alternate: Crema), Podobnik, Pollozhani, Popov, Rafaj, Salaridze, Ms Schicker, MM. Schmied, Skoularikis, Ms Stoejberg, Mr Stoica, Ms Stoyanova, MM. Tabajdi, Theodorou, Timmermans, Tiuri, Truu, Vakilov, Velikov, Volpinari, Wright, Yürür, Mrs Zetterberg, MM Zhevago, Zierer.
N.B. The names of those members present at the meeting are printed in italics.
Secretariat to the committee: Mrs Cagnolati, Mr Sixto, Mr Torcatoriu and Ms Odrats.
1 The Rapporteur wishes to thank Mr Dirk Vollmer for his valuable assistance in the preparation of this report.
2 Directive 90/313/EEC on Freedom of Access to Information on the Environment, OJ L 158, p. 56.
3 Recommendation R (81) 19 of the Committee of Ministers of 25.11.1981 on access to government information.
4 Eg, Stockholm Declaration (1972), the UNEP guidelines (15.5.1978) and Agenda 21 (Rio 1992).
5 Ahrens, “En route vers l’an 2000”, Matscher/Petzold (eds.), Protecting Human Rights (1987), p. 18.
6 Report by Colombo Commission (II) of June 1986, concerning the further development of human rights within the framework of the Council of Europe, Council of Europe Publications.
7 “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”
8 Cf. principle 1: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”
9 Final declaration of the Bizkaia Conference (Spain) of 12.2.1999.
10 “All peoples shall have the right to a general satisfactory environment favourable to their development.”
11 Art. 11-1 of the Additional Protocol adopted in San Salvador on 17.11.1998: “Everyone shall have the right to live in a healthy environment and have access to basic public services.”
12 Ch. I, Section 18 and Ch. XII, Section 70/D of the Hungarian Constitution of 1990.
13 The concept originates from German constitutional theory.
14 As early as 1992, in connection with the negotiations on the Treaty of Maastricht, a kind of right to the environment was proposed: “Every Union citizen shall have the right to enjoy a healthy environment and the obligation to contribute to protecting it. To this end, he shall have the right to information and the right to consultation where appropriate.” Cf. Doc. SEC (91) 500 Final. of 15.5.1991, p.5. The “Greening the Treaty” initiative of the leading environmental organisations proposed amending Art. 130r(1) of the EC Treaty (now Art. 174(1) EC) by adding a further objective: “to guarantee citizens the right to a clean and healthy environment”. In 1999, in the light of the forthcoming Intergovernmental Conference (Treaty of Amsterdam), the Commission proposed recognising an individual right to the environment in Arts. 8 ff. of the EC Treaty (now Arts. 17 ff. EC) and to amend Art. 2 of the EC Treaty by adding the following: “to promote sustainable development throughout the Community, to secure its inhabitants the right to a clean and healthy environment.”
15 Declaration of the European Council on the EC´s environment policy (“Environmental Imperative”), Dublin 1990, Cf. OJ 1990, D 396, pp. 407 ff.. : “The development of higher levels of knowledge and understanding of environmental issues will facilitate more effective action by the Community and its Member States to protect the environment. The objective of such action must be to guarantee the right to a clean and healthy environment …”.
16 Cf. Community environmental protection objective in Art. 174 EC, Title XIX (formerly Art. 130 r, Title XVI Environment).
17 Resolution on a draft Constitution of the European Union of 9.11.1994.
18 Cf. Title VIII (21): “Everyone has the right to the protection and conservation of his natural environment.”
19 Solemnly proclaimed by the European Council in Nice on 7.12.2000, OJ 2000/C 364/01 (18.12.2000).
20 Cf. Art. 37: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”
21 Eg. Spain. See the motion nr 250, tabled by the Parliamentary Group “Senadores Nacionalistas Vascos”, adopted by the Senate on 5.11.2002.
22 Schmidt/Müller, Einführung in das Umweltrecht, p. 1.
23 Art. 1 of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters states: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention”. This was previously stated in Principle 10 of the Rio Declaration.
24 Procedural rights: right to access to the courts (by individuals and environmental organisations), right of participation (party to approval proceedings) and right to environmental information.
25 Cf. ECHR in Fredin v. Sweden: “The aim of the Nature Conservation Act is to control the use of property with a view to the protection of nature.”, EGMR Series A 192, paragraph 48 = HRLJ Nr. 93 1991.
26 Cf. dissenting opinion in the Balmer-Schafroth and Others v. Switzerland judgment.(see below).
27 Calliess, ZUR 2000, p. 255. This follows from the application of the principle of proportionality.
28 In many cases, it is not possible to separate the two, as the ECHR repeatedly points out. Cf., as one example of many cases, López Ostra v. Spain (see below): “Whether the question is analysed in terms of a positive duty on the State - to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 (art. 8-1) -, as the applicant wishes in her case, or in terms of an “interference by a public authority” to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation.”(paragraph 51 of the judgment).
29 Case law of the ECHR, see López Ostra v. Spain (see also below), paragraph 51: “(…) regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (…)”.
30 On the concept of the indivisibility and interdependence of all human rights, see for example United Nations Resolution 32/130 (Yearbook of the United Nations 1977).
31 Published on 26.2.1994 in La Laguna (Tenerife) by UNESCO and Equipe Cousteau. Art. 1 states: “Persons belonging to future generations have the right to an uncontaminated and undamaged Earth, including pure skies; they are entitled to its enjoyment as the ground of human history, of culture and of social bonds that make each generation and individual a member of one human family”.
32 Déjeant-Pons, Revue Juridique de l’environnement 1994 (4), p. 415.
33 Neither an individual nor group of individuals can be called to account under Art. 34 in the version of Protocol No. 11 (previously Art. 25 of the Convention) for a violation of the Convention. Cf. Alkema, in Matscher/Petzold (eds.), Protecting Human Rights (1987), pp. 33 ff.
34 Additional effective measures are the joinder of applications (in accordance with Art. 43 of the Rules of the Court or Human Rights of 4.11.1998) or test cases.
35 Steiger, Mensch und Umwelt (1975). For the draft protocol drawn up under his leadership, see “The Right to a Humane Environment/Das Recht auf eine menschenwürdige Umwelt”, Beiträge zur Umweltgestaltung (Heft A 13), 27-54 (1973).
36 Déjeant-Pons, RUDH 1991, pp. 461 ff., and Revue Juridique de l’environnement 1994, p. 373 (414).
37 Désgagné, AJIL 1995, pp. 263 ff.
38 Cohen-Jonathan, CEDH (1989), p. 567.
39 Kley-Struller, EuGRZ 1995, p. 512.
40 Cf. Pathak in Brown Weiss (1992), p. 221
41 Rauschning, Festsschrift für Weber (1974), p. 727.
42 This is now expressly laid down for the first time in Art. 6 EU
43 Cf. Lecourt in Matscher/Petzold (eds.) Protecting Human Rights, pp. 335 ff.; Kingreen in Calliess/Ruffert, EUV und EGV, Art. 6 EU, marginal nos. 35 und 40 ff.
44 ECJ judgment of 3.5.2002 in case T-177/01, Jégo-Quéré et Cie SA v. Commission.
45 Art. 230(4) EC; cases involving Art. 234 EC on the one hand and Arts. 235 and 288(2) EC on the other.
46 Grabenwarter/Thienel, Kontinuität und Wandel der EMRK (1998), p. 25; Holoubek, Grundrechtliche Gewährleistungspflichten (1997), p. 289.
47 Arrondelle against United Kingdom, EComHR, DR 19,186 und DR 26,5 (Gatwick airport); Baggs against United Kingdom, EcomHR, DR 44,13 und DR 52,29 (Heathrow airport); Powell and Rayner against United Kingdom, EcomHR, DR 47,5 and ECHR, Series A no. 172, p. 18 (Heathrow airport); Fredin v. Sweden (No.1), ECHR Series A no. 192, paragraph 48; G. and E. against. Norway, EcomHR, DR 35, 30 (reservoir); S. against France, EComHR, DR 65, 250 (atomic power station); López Ostra v. Spain, judgment of ECHR, Series A no. 303-C (smell nuisance); Balmer-Schafroth v. Switzerland, ECHR judgment of 26.8.1997, A 1997, 1346 = HRLJ 1997, 196 (atomic power station); most recently: Hatton and Others v. United Kingdom (36022/97), ECHR judgment of 2.10.2001 (Heathrow).
48 In its judgment in Airey v. Ireland, the court states: “(The ECHR) is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. Source: Villiger, Handbuch der EMRK, Art. 8 of the Convention, para. 24, note 32.
49 Especially the EcomHR´s case law, eg in Arrondelle against the United Kingdom.
50 Eg, EcomHR in Arrondelle against the United Kingdom ; EComHR in Baggs against the United Kingdom ; ECHR in Powell und Rayner v. the United Kingdom; most recently: ECHR in Hatton v. the United Kingdom.
51 EComHR, decision of 28.11.1995 in L.C.B. against the United Kingdom, 23413/94, DR 83, p. 31.
52 López Ostra v. Spain ; discussed in Rest, NuR 1997, p. 212.
53 Guerra and Others v. Italy, ECHR judgment of 19.2.1998, published in Reports 1998-I.
54 See, as one example of many, Rees v. United Kingdom, ECHR, Series A no. 106, p. 15; Van der Meersch, Matscher/Petzold (Eds.), Protecting Human Rights. The European Dimension (1987), p. 201 (206 ff.).
55 Decision of 28.2.2002, 1 BvR 1676/01 = EuGRZ 2002, pp. 276 ff.; BVerfGE 56, 54 (81) = EuGRZ 1981, p. 225 (230); BVerfGE 70, 3p. 81 (405) = EuGRZ 1988, 71 (77 f.); established precedents.
56 Decision of 28.2.2002, 1 BvR 1676/01 = EuGRZ 2002, pp. 276 ff.
57 Especially the court’s judgments in cases involving atomic power stations: BVerfGE 49, pp. 89 ff (Kalkar); BVerfGE 53, pp. 30 ff. (Mülheim-Kärlich); most recently in a case concerning aircraft noise: BVerfGE 56, pp. 54 ff.
58 European Social Charter (18.10.1961).
59 Eg, Rauschning, Festsschrift für Weber (1974), p. 728; Rest, NuR 1997, p. 214.
60 International Covenant on Economic, Social and Cultural Rights of 16.12.1966.
61 Cf. Kiss, Brown Weiss (1992), p. 200 (see n. 19).
62 Hobe, Juristische Arbeitsblätter 1997, p. 160 (p.163 f.).
63 Principles 1 and 21 especially interesting in this context.
64 Solemnly proclaimed by the UN General Assembly on 28 October 1982, Res. 37/7 .
65 United Nations Conference on Environment and Development UNCED, Rio de Janeiro.
66 Eg, Shared Resources Declaration of 1978, Montevideo Programme for the Development of Environmental Law (1982).
67 Evtimov, “Umweltpolitik der Europäischen Union und die Osterweiterung“, Wirtschaft und Recht in Osteuropa (WiRO) 2002, p. 225 (227).
68 The new law on environmental protection of 10.1.2002 contains comprehensive provisions on citizens’ duties, the establishment of limit values, liability for environmental damage, codetermination rights, etc. (Source: WiRO 2002, p. 115).
69 See EU study on “Administrative Capacity for Implementation and Enforcement of EU Environmental Policy in the 13 Candidate Countries”.
70 See Pathak, Brown Weiss (1992), p. 221.
71 Cf. Frowein, Einigkeit und Recht und Freiheit (1984), p. 337.
72 Rest, NuR 1997, p. 209.