Committee Opinion | Doc. 12043 | 29 September 2009

Preparation of an additional protocol to the European Convention on Human Rights, on the right to a healthy environment

Committee on Legal Affairs and Human Rights

Rapporteur : Mr Christopher CHOPE, United Kingdom, EDG

Origin - See Doc. 12003 tabled by the Committee on the Environment, Agriculture and Local and Regional Affairs. 2009 - Fourth part-session

A. Conclusions of the committee

(open)

The Committee on Legal Affairs and Human Rights, while recognising the importance of healthy, viable and decent environments, does not believe that extending the Convention through the proposed additional protocol is the correct solution.

B. Explanatory memorandum by Mr Chope, rapporteur for opinion

(open)

1. The Committee on the Environment, Agriculture and Local and Regional Affairs has recently recommended that the Committee of Ministers:

“draw up an additional protocol to the European Convention on Human Rights, recognising the right to a healthy and viable environment”.

2. In June 2003, the Committee on Legal Affairs and Human Rights rejected this position as being unjusticiable and potentially counterproductive.

This new draft recommendation affords the committee the opportunity to re-examine this position, and the justifications and viability of such a right.

3. In considering whether it is desirable and necessary to introduce a new protocol on the right to a healthy environment, it is necessary to consider the background history and existing case law.

1. Introductory remarks

4. This issue was last considered by the Parliamentary Assembly in June 2003, when the Assembly recommended that the Committee of Ministers draw up an additional protocol to the European Convention on Human Rights concerning the recognition of individual procedural rights intended to enhance environmental protection.

5. On that occasion, the Committee on Legal Affairs and Human Rights accepted the report from its distinguished rapporteur, Mr Erik Jurgens, a member of the Socialist Group, from the Netherlands. Mr Jurgens expressed on behalf of this committee, in its role as legal adviser to the Parliamentary Assembly, apprehension that the European Convention on Human Rights and its Court would be given tasks beyond their competence and means. This committee was then keen to ensure that the mechanisms of judicially enforced human rights protection are applied only to those areas of environmental protection for which they are suitable.

6. The Assembly accepted the amendment of this committee to the effect that the Committee of Ministers should draw up a recommendation to member states setting out the ways in which the European Convention on Human Rights provides individual protection against environmental degradation, proposing the adoption at national level of an individual right to participation in environmental decision making, and indicating a preference, in cases concerning the environment, for a broad interpretation of the right to an effective remedy guaranteed under Article 13.

7. In its reply of 24January 2004 (Doc. 10041) the Committee of Ministers endorsed the opinion of the Steering Committee for Human Rights (CDDH) on the Assembly’s recommendation. The relevant extract setting out the CDDH’s reasoning is as follows:

8. “The CDDH acknowledges that neither the Convention nor its additional protocols expressly recognise a right to the protection of the environment. However, it notes that several member states have already included in their constitutions provisions on the protection of the environment, formulated as a right and/or as a state objective. A programmatic provision on environmental protection has also been included in the Charter of Fundamental Rights of the European Union in Article 37 which provides that, “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”.

9. “The CDDH recalls that the Convention system already indirectly contributes to the protection of the environment through existing Convention rights and their interpretation in the case law of the European Court of Human Rights (the Court). The Court has, for instance, interpreted Article 2 as protecting the rights of victims of fatal accidents caused by government negligence in the environmental field. Moreover, it has held that the state’s positive obligation which derives from Article 2 is also applicable to public activities in the environmental field, notably those liable to give rise to a serious risk for life. Furthermore, Article 8 has become a central provision in the sphere of environment protection: the Court has found that ‘severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely’. It is also worth recalling that Article 10 naturally covers the right to information in environmental matters, the right to hold opinions as well as to receive and to impart information and ideas. As to the right to the peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1, the Court has also held that it was applicable in environmental matters, for instance where (i) pollution causes loss or degradation of one’s property, or (ii) a victim does not receive the full compensation awarded by a domestic court for health deterioration resulting from grave environmental problems. Several judgments of the Court on Articles 6 and 13, notably concerning the protection against water pollution, or noise disturbance and air pollution caused by aircrafts, show that these provisions are for procedural protection to individuals in this area.”

10. “The CDDH considers that the Court’s case law shows that the Convention already offers a certain degree of protection in relation to environmental issues. Furthermore, it is likely that the Court’s case law will continue to evolve in this area. Therefore, the CDDH is of the opinion that it would not be advisable to draft an additional protocol to the Convention along the lines set out in the Assembly’s recommendation. Moreover, the CDDH considers that a recommendation of the Committee of Ministers to member states would not appear to be an appropriate measure either, notably in view of the case law of the Court in this field which is already binding on states parties. On the other hand, the CDDH does see merit in the idea of drafting an appropriate instrument, such as guidelines or a manual, recapitulating the rights as interpreted in the Court’s case law and also emphasising the need to strengthen environmental protection at national level, notably as concerns access to information, participation in decision making processes and access to justice in environmental matters. The CDDH believes that such an instrument, by making more explicit the protection indirectly afforded by the Convention to the environment, would also be a useful way of promoting greater awareness in member states of the implications of their existing obligations under the Convention in environmental matters.”

11. The instrument referred to was accordingly drafted and published in 2006 as the Manual on Human Rights and the Environment. It recites the principles emerging from the case law of the European Court of Human Rights (the Court). Its 87 pages include an appendix setting out relevant judgments and decisions of the Court from July 1980 to October 2005.

12. The manual makes clear that the Court has already identified in its case law issues related to the environment which could affect the right to life (Article 2), the right to respect for private and family life as well as the home (Article 8), the right to a fair trial and to have access to a court (Article 6), the right to receive and impart information and ideas (Article 10), the right to an effective remedy (Article 13) and the right to the peaceful enjoyment of one’s possessions (Article 1 of Protocol No. 1).

13. In answer to the question, “Is the environment protected under the Convention?”, it states that “The Convention is not designed to provide a general protection of the environment as such and does not expressly guarantee a right to a sound, quiet and healthy environment. However, the Convention indirectly offers a certain degree of protection with regard to environmental matters as demonstrated by the evolving case law of the Court in this area.”

14. Paragraph 6 of the draft recommendation of the Committee on the Environment, Agriculture and Local and Regional Affairs states that the case law already developed demonstrates that, to include the right to a healthy environment in the Convention, “would simply be to set down a material right which already exists”. As the manual referred to above makes clear, such an assertion is far too simplistic and not in line with the facts.

15. The rapporteur, at paragraph 18 of his explanatory memorandum, states that, “Applying precise criteria and defining the right to a healthy environment” would make it possible for it to become an individual right, enforceable by law. Yet, in paragraph 21, the rapporteur concedes the difficulties in definition and suggests that the Court “will gradually clarify the substance of the right”. To include a new protocol, which was so vague, would lead to uncertainty and be a recipe for a substantial increase in the Court’s case load. Furthermore, however great the difficulty in defining what is meant by a right to a healthy environment, those difficulties are compounded beyond measure by trying to define the concept of a right to a viable environment which, without explanation, is introduced in paragraph 10.1 of the draft recommendation.

16. It is worth restating similar concerns expressed by Erik Jurgens five years ago. He said, “It must be remembered that, despite its enormous success in advancing the protection of a particular range of human rights in Europe, the Convention is not an instrument that is appropriate for all forms of rights. The Convention was intended to protect a narrow range of rights and its mechanisms designed specifically with those rights in mind; it is not structured for, nor capable of, the protection of all rights addressed by international instruments. Its past achievements are not a guarantee of limitless resilience: indeed, this very success can generate risks to its future integrity and to the capacity of the Court to work effectively in enforcing its provisions. These risks include the temptation to extend its jurisdiction to other forms of rights of uncertain content, scope and application. The inclusion of such ‘untested rights’ – which to a large extent could require primary elaboration not on national political and legal levels but through the case law of a pan-European judicial body – could not only undermine the standing of the Court but threaten it with an unmanageable burden of new applications (at a time when the level of applications is already a serious problem), to the detriment of protection of the rights currently included.”

17. The rapporteur for opinion is also happy to quote Mr Jurgens’ warning that, “If we give citizens a broadly formulated, individual right to a healthy environment without being more specific as to the basis on which and against whom a citizen can in fact make a claim arising from that right, it becomes difficult for a judge to adjudicate”. Because the broadly formulated right does not define the measures which could be required of a respondent government, the type and extent of remedy could not be clearly determined which, in turn, would make it impossible to evaluate execution of judgments.

2. Case law of the European Court of Human Rights regarding the environment

18. The Court has considered environmental matters in a number of cases, but most pertinently and extensively in relation to complaints concerning private and family life under Article 8. The right to life, enshrined in Article 2, has also given rise to complaints with a significant environmental aspect, whilst there have been further relevant cases considered under Articles 1 of Protocol No. 1, 6 and 10.

Article 8

19. The Court has held that “where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8”.

Further, the Court has stated that “Article 8 may apply in environmental cases whether the pollution is directly caused by the state or whether state responsibility arises from the failure to regulate private industry properly.”

20. Therefore, there are two issues relating to the environment that could potentially arise under Article 8: the state’s responsibility not to subject citizens to an unclean environment, and the positive obligation of the state to ensure a clean environment through proper regulation.

21. These issues have been examined in a number of cases. The Court has given clear confirmation that Article 8 of the Convention can be used to guarantee the right to a healthy environment. It found, unanimously, violations of Article 8 in López Ostra v. Spain

and Guerra and Others v. Italy.

The first of these cases concerned nuisances (smells, noise and fumes) caused by a waste-water treatment plant close to the applicant’s home which had affected her daughter’s health. The other concerned harmful emissions from a chemical works which presented serious risks to the applicants, who lived in a nearby municipality.

22. Further elaboration of the Court’s approach to this issue occurred in Fadeyeva v. Russia.

Here, the Court observed that in order to fall under Article 8, complaints relating to environmental nuisances have to show, firstly, that there has been an actual interference with the individual’s “private sphere”, and, secondly, that these nuisances have reached a certain level of severity.

23. The nature of the state’s positive obligation was examined by the Court in Hatton and Others v. the United Kingdom, which concerned aircraft noise generated by an international airport. The Court considered that whilst the activity was carried on by private parties, Article 8 nonetheless applied on the grounds that the state was responsible for properly regulating private industry in order to avoid or reduce noise pollution. However, in this case the Grand Chamber did not find a violation of Article 8, stating that the state could not be said to have overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole.

Article 2

24. Article 2, as well as providing protection for the right to life against death resulting from actions of state agents, also lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction.

The Court has found that this obligation may apply in the context of dangerous activities related to environmental issues, such as nuclear tests

and the operation of chemical factories with toxic emissions or waste-collection sites,

whether carried out by public authorities or by private companies.

25. The Court has said, in relation to these preventive measures, that particular emphasis should be placed on the public’s right to information, as established in its case law. The Grand Chamber stated that this right, which has already been recognised under Article 8,

may also, in principle, be relied on for the protection of the right to life. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels.

26. As well as this requirement to regulate and inform the public about dangerous activities, there is also an obligation on the state to provide an adequate response – judicial or otherwise – to potential infringement of the right to life.

This includes the duty to promptly initiate an independent and impartial investigation, which must be capable of ascertaining the circumstances in which the incident took place, and identify shortcomings in the operation of the regulatory system.

27. The Court found a violation of Article 2 in the case of Öneryıldız v. Turkey. In this case, an explosion occurred on a municipal rubbish tip, killing 39 people who had illegally built their dwellings around it. Nine members of the applicant’s family died in the accident. Although an expert report had drawn the attention of the municipal authorities to the danger of a methane explosion at the tip two years before the accident, the authorities had taken no action. The Court found that since the authorities knew – or ought to have known – that there was a real and immediate risk to the lives of people living near the rubbish tip, they had an obligation under Article 2 to take preventive measures to protect those people. The Court also criticised the authorities for not informing those living next to the tip of the risks they were running by living there.

Article 1 of Protocol No. 1

28. Article 1 of Protocol No. 1 protects an individual’s right to the peaceful enjoyment of their possessions, which includes protection from unlawful deprivation of property. This does not, in principle, guarantee a right to peaceful enjoyment of property in a pleasant environment.

The second paragraph of this provision recognises the right of a state to control the use of property, if such control is in the public interest and in accordance with the law. In determining what is in the public interest, the Court has recognised that protection of the environment is “clearly a legitimate aim”

and that it is “an increasingly important consideration”.

Therefore, it is clear that the general interest of protecting the environment can justify certain restrictions by public authorities on the individual right to the peaceful enjoyment of possessions.

29. Article 1 of Protocol No. 1 may also entail positive obligations to protect property on the part of the state.

In Öneryıldız v. Turkey, the Court held that there were certain preventive measures that the national authorities could have taken to avert the environmental risk that they had been made aware of, and their failure to do so amounted to a breach of this positive obligation under Article 1 of Protocol No. 1.

Article 6

30. Article 6, which guarantees the right to a fair trial, has been interpreted by the Court as including a right of access to justice.

Applicability of Article 6, paragraph 1, depends on the existence of a dispute in relation to a “civil right or obligation”. In cases concerning environmental pollution, applicants may invoke rights such as the rights to physical integrity and enjoyment of their property, which are recognised in most European countries and therefore constitute “civil rights”. Indeed, the Court has recognised that an enforceable right to live in a healthy and balanced environment as enshrined in national law constitutes a “civil right” within the meaning of Article 6, paragraph 1.

The availability of Article 6 in relation to environmental issues, therefore, depends on the establishment of a relevant, enforceable right at domestic level.

Article 10

31. The right to receive and impart information and ideas is guaranteed by Article 10, and in the particular context of the environment, the Court has found that there exists a strong public interest in enabling individuals and groups to contribute to the public debate by disseminating information and ideas on matters of general public interest.

32. Public authorities may be under a specific obligation to secure a right to access to information in relation to environmental issues in certain circumstances, and obligation which arises from the rights protected by Articles 2 and 8 of the Convention.

This obligation is particularly pertinent in the context of dangerous activities within the responsibility of the state.

Summary

33. As can be seen by a number of these cases, the Court has endeavoured, where possible within the current Convention framework, to protect rights connected to the environment.

3. Justifying the right to a healthy environment

34. In its report, the Committee on the Environment, Agriculture and Local and Regional Affairs

has taken the opportunity to reflect on the position adopted in 2003.

Then, the Committee on Legal Affairs and Human Rights voiced its conviction of the importance of a healthy, viable and decent environment, but was apprehensive as to whether the Convention was, at that time, the appropriate means by which to achieve that aim. Six years later, the committee maintains its view.

35. It has been suggested that the necessity of environmental protection in realising a number of human rights, in particular the right to life, to health, to property and to respect for private and family life, logically leads to the conclusion that there is a real individual right to an environment of a reasonable standard.

International acceptance of the right to a healthy environment

36. Within Europe, the French Constitution now includes a Charter of the Environment, which affords all citizens the right to live in a “balanced environment, favourable to human health”.

The 1993 Constitution of the Russian Federation explicitly proclaims the citizens’ “right to a healthy environment” – in particular, rights to an unpolluted environment, to compensation for environmental damages, to environmental information, and to citizens’ involvement in environmental decisions. The Constitution of Belgium also includes “the right to protection of a sound environment” within the right to “lead a worthy life of human dignity”.

The Spanish Constitution provides that “everyone has the right to enjoy an environment suitable for the development of the person as well as the duty to preserve it”,

while Portuguese citizens have a “right to a healthy ecologically balanced human environment and the duty to defend it” under their constitution.

The constitutions of Albania, Belarus, Croatia, Czech Republic, Estonia, Finland, Hungary, “the former Yugoslav Republic of Macedonia”, Norway, Slovenia and Ukraine all contain a substantive right concerning the environment.

37. On a global scale, more than 100 constitutions throughout the world recognise or consider the right to a clean and healthy environment,

and it is also recognised in the African Charter on Human and Peoples’ Rights

and the Additional Protocol to the American Convention on Human Rights (San Salvador Protocol).

Existence of “supportive state practice” in relation to the right to a healthy environment

38. In perhaps the pre-eminent essay opposing the existence of a fundamental “right to a healthy environment”, Günther Handl argues that such legislative and constitutional recognition is insufficient to establish a human right. Rather, what is required is “actual supportive state practice”, which he views as an essential element of any persuasive argument that a given human rights claim is recognised by general international law.

39. It is beyond the scope of this opinion to examine specific state practices in depth in relation to protecting the environment, however it is worth highlighting the protection afforded in specific countries.

40. In terms of national practices, several legislatures have increased the protection afforded to the environment in legislation. In the United Kingdom, the Environment Act 1995 established the Environment Agency, and outlines its principal aim as protecting and enhancing the environment, and contributing towards achieving sustainable development.

The amendment to the French Constitution to include a Charter of the Environment occurred only four years ago. In Germany, 2002 saw a fundamental change in the federal legislation, and paragraph 61 of the Federal Law on Protecting Nature (BNatSchG) allows for an organisation protecting the environment to file a claim without any of its own substantive rights being concerned.

The Czech Republic legislature has promulgated Act No. 76/2002 on integrated pollution prevention and control and Act No. 123/1998 on the right to environmental information, while Estonian protection includes the Environmental Monitoring Act. In 2004, the Netherlands enacted the Environmental Management Act which, inter alia, establishes an Environmental Impact Assessment Committee.

The EU has also been very active in this area, passing a number of pieces of legislation including, for example, Regulation (EC) No. 2037/2000 on substances that deplete the ozone layer; Directive 2009/28/EC on the promotion of the use of energy from renewable sources; and Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles. These are by no way exhaustive examples, and do not in themselves establish the existence of a human right. Rather, they are intended to demonstrate that state practices protecting the environment do exist, and that they reflect the wide acceptance among states of the importance of the extensive number of constitutional provisions that also perform that task.

4. A substantive right to a healthy environment

41. Through its jurisprudence outlined above, the Court already protects certain environmental rights. Any new right to a healthy environment would need to be appropriately defined and restricted. Introducing a right into the Convention that is impossible to enforce endangers the whole system. Therefore, the right must be carefully defined and limited to what is actually enforceable.

42. In defining such a right, the following criteria could be considered:

i. the right must benefit recognised individuals;

ii. the right must impose duties on a recognisable group of actors for the benefit of the right holders;

iii. there must be a causal link between the duties and the right;

iv. the duties must be of a kind the courts, and as a last resort, the European Court of Human Rights, can identify and enforce.

43. The concepts of causation and liability must be inherent in this discussion. As has been written: “These concepts are important in the context of justiciability because their application summarises what a narrowly-defined right must provide in relation to an environmental violation that is also a human rights violation. Specifically: Who is to be held liable? And what is the action that caused the violation?”.

Sufficient clarity in these areas would allow the right to be applied in real-life situations with a degree of legal certainty, rather than just being a theoretical and thus illusory right. Consideration must therefore be given to whether only specific courses of state action should be protected against, or whether the provision should also include protection against state omissions. Also, shall the right imply an entitlement to a healthy and clean environment, or just one that does not result in death and disease? There is a significant difference between an environment that is healthy and one that merely supports life. In order for the Court not to be overwhelmed with ambitious and speculative applications, any additional protocol would need to clearly define which acts or omissions constitute a human rights violation. It must be remembered that not every environmental problem can be perceived as a potential human rights violation.

5. Conclusion

44. The Committee on Legal Affairs and Human Rights, therefore, while recognising the importance of healthy, viable and decent environments, does not believe that extending the Convention through the proposed additional protocol is the correct solution.

C. Amendments proposed by the Committee on Legal Affairs and Human Rights to the draft recommendation

(open)

Amendment A (to the draft recommendation)

In paragraph 6, replace the existing words with the following:

“The Assembly notes the case law in the environmental field developed by the European Court of Human Rights and commends the Manual on Human Rights and the Environment published by the Council of Europe in 2006 for its valuable insight and recital of the principles emerging from that case law from 1980 to November 2005 and expresses the hope that the manual will be regularly updated.”

Amendment B (to the draft recommendation)

Delete paragraph 7.

Amendment C (to the draft recommendation)

In paragraph 9, line 1, delete “must pass” and insert “may wish to pass on”.

Amendment D (to the draft recommendation)

In paragraph 9, line 2, replace the words “in accordance with the principle of solidarity between generations” with the words “in accordance with the principle of responsibility for future generations”.

Amendment E (to the draft recommendation)

In paragraph 10.1, delete existing words and insert “work with the Assembly and experts to produce a definition of the right to a healthy and viable environment”.

___________

Reporting committee: Committee on the Environment, Agriculture and Local and Regional Affairs

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc. 11729, Reference 3497 of 28 November 2008

Opinion approved by the committee on 29 September 2009

Secretariat of the committee: Mr Drzemczewski, Mr Schirmer, Ms Szklanna, Ms Heurtin