(p. 305)
CHAPTER VI
HUMAN RIGHTS AND THE ENVIRONMENT — RIGHT TO
A CLEAN ENVIRONMENT
Part I. General Survey of the Human Right to a Clean Environment
1. Issues Relating to the Nature and Existence of a Right
to a Clean Environment
As regards the right to a clean environment several fundamental issues are still
unresolved, as, for example, the very question of the existence of such a right. The lack of
an agreement and the feeling of general confusion which pervades the whole discussion is
quite noticeable in all publications on this topic.
This characterizes as well the most comprehensive study on the topic of the
relationship between human rights and the environment published in 1996, Human
Approaches to Environmental Protection 781. One of the authors and editors, Anderson,
lists several pertinent issues which can be singled out. For example, "how are
environmental rights defined, justified, and applied; and what are the advantages and
disadvantages of approaching environmental issues through a rights framework ?" 782
It may be observed that the outset of the whole problem of linking the environment
with the issue of human rights is vague and controversial 783. Despite the obvious doctrinal
differences concerning such a right, it can be said that it may exist in several different
forms, namely as a substantive right, as a procedural right or a constitutional right. The
difficulty in determining the existence of a human right to a clean environment and its
significance is not only doctrinal but also very practical; its existence may imply that it can
be (p. 306) claimed, and that is justiciable 784. However, even if we assume that there is
such a right, we do not know whether it is a "right to an environment", or to a "decent",
"healthy", or "safe" environment 785. The definitional questions of human rights in general
are a very complicated matter. Judge Higgins warned that the problem of drawing a line
between what are human rights and what are not is "more of an academic matter, because
the articulation of claims as human rights is part of the process of according priority to
decision-making processes" 786.
There are broadly three main schools of thought relating to the relationship between
human rights in general and an environmental human right 787. The first school strongly
supports the view that there are no human rights without an environmental right 788. In
short, the above-mentioned school takes the stand that a right concerning the environment
is absolutely fundamental to the existence of other human rights. In contrast, Handl
disagrees with this view, and states rather that a "generic international environmental
entitlement, both as an already existing and emerging human rights concept, is highly
questionable proposition" 789. Handl further observes that the so-called right to
environment (with all the modifications, such as the right to a "clean", or to a "safe"
environment) would be difficult to conceptualize as an inalienable right. He considers the
constant changes concerning environmental protection measures as being subject to the
reordering of socio-economic priorities, and to the adjustment to meet public policy
objectives, i.e. ensuring the continued (p. 307) "development" or "saving jobs". On a more
practical level, Handl finds not much evidence where States have accepted the existence of
a generic environmental right, which necessitates the claiming of an environmental
entitlement in an indirect manner. Finally, he correctly points out that environmental
entitlements differ according to the area where they arise, i.e. whether they relate to the
North and the South. There is also the most moderate group, which admits the existence of
some environmental right, but derives its existence from other human rights 790. There is
an increasing trend to deny the existence of the human right to a clean environment. For
example, Pevato writes as follows :
"Taken as a whole, the sources of international law do not lend overwhelming
support to the existence of a human right to environment within current international legal
theory and practice as a universally recognized human right or standard." 791
Another difficult consideration lies with the categorization of the environmental
right as being either a group right 792, an individual right 793 or third generation rights
794. Third generation rights are primarily viewed as being collective in nature, with regard
both to their objects and their subjects. Within this category of environmental rights belong
also to the right to development, the right to peace, the right to co-ownership of the
common heritage of mankind and the right to communicate. Human rights experts consider
these collective rights as immensely vague, some arguing, in fact, that they are so vast that
they encompass anything and anybody. This approach to human rights is sometimes
referred to as "globalist", "third worldist" (p. 308) or "nationalist" 795. Specialists of
human rights attempt to find a link between human rights in general and environmental
law, though it must be pointed out that these theories are not always self-explanatory. The
much needed connection can found in the preamble of the Universal Declaration of Human
Rights, "the inherent dignity and inalienable rights of all members of the human family".
The right to environment, according to this theory, derives from this dignity 796. Another
important approach bases the environmental right on the right to life and the right to health.
Another of the problems relating to an environmental human right is that the
contents of this right are not specified 797. There are many questions which remain without
answers, such as, is it a procedural right ; is it a right enforceable through legal proceedings
; is it merely a policy statement? 798 Some of the most prominent environmental lawyers
are of the view that procedural rights have the most impor-tant role to play in the protection
of environmental rights, "the existence of individual procedural rights helps shape domestic
environ-mental policy and facilitates the resolution of transboundary conflicts through
equal access to the same private law procedures" 799. The most convincing appears to be
the view that human rights and environmental rights represent different but overlapping
issues 800. The reasoning is based on a premise that although both fields share the same
objectives, it would be artificial to link them forcibly together, since not all violations of
human rights have an environmental context and likewise forcing all environmental issues
into the framework of human rights may damage fundamentally their concept. Only this
approach seems to take into account the possibility of these two fields coming into conflict.
According to these views environmental problems may be asserted through existing human
rights (such as the right to life) ; secondly, a set of environ-mental rights is proposed, based
upon the existing right to information ; and thirdly, a specific right to environment could be
formulated (p. 309) and added to the current catalogue of human rights 801. This link is not
entirely new. As early as 1972, the Stockholm Declaration on Human Environment stated
that "man has the fundamental right to freedom, equality and adequate conditions of life, in
an environment of quality that permits a life of dignity and well-being" 802. In comparison,
the Rio Declaration UNCED 1992 in its Principle I provides only that "human beings are in
the centre of concerns for sustainable development, entitled to a healthy and productive life
in harmony with nature" 803. It is understood that the main source for this formulation was
the tension between the protection of the environment and the right to economic
development which reflected the conflict between the North and the South — the theme of
the entire conference 804.
2. Recent Attention to the Issue
Recently, however, human rights and the environment have received more attention.
In 1994 there was the Draft Declaration of Principles on Human Rights and Environment.
The same year the United Nations Special Rapporteur, Madame Fatma Zohra Ksentini,
issued her final Report on Human Rights and the Environment to the Sub-Commission on
Prevention of Discrimination and Protection of Minorities. The two events are assessed as
"remarkable progress in the field of human rights and the environment" 805. The Draft
Declaration treats environmental rights as a comprehensive package which presents them
not as a new type of right but rather describes existing rights contained in the Draft
Declaration consisting of substantive rights and procedural rights. These substantive rights
include the right(s) for present and future generations to the following : safe food and water
; a safe and healthy working environment and living environment ; housing in an
ecologically sound environment ; and the right of indigenous peoples to control their
environment. The (p. 310) procedural rights include the right(s) to : environmental
information ; participation in environmental decision-making; and to environmental and
human rights education.
The presentation of the environmental rights as a package deal is considered an
invaluable and novel feature. In her report 806, Ksentini addresses the relationship between
human rights and the environ-ment, using examples from the link between indigenous
peoples and the environment, protection of environment during armed conflict and the
question of the environment and international peace and security. She also addressed the
position of the most vulnerable groups : children, disabled, environmental refugees.
Ksentini stresses the very significant point that development must evolve together with
environmental protection. Cameron and Mackenzie rightly point out that the Ksentini
Report reflects interdependence between procedural and substantive rights 807.
Certain views were expressed that the United Nations human rights system provides
for some possibilities in relation to redress of environmental rights 808. The most important
(and effective) channels to exercise environmental rights are within procedures established
in the committees set up under existing Conventions, i.e. the Committee on the Right of the
Child (CRC), the Committee on the Elimination of Racial Discrimination (CERD), the
Human Rights Committee (HR Committee), and the Committee on Economic, Social and
Cultural Rights (CESCR) play a relevant role in environmental matters. The procedures of
these committees (such as for example receiving reports from the parties to conventions),
do not include an explicit right to a clean environment. This right can be, however, drawn
from the existing rights such as the right to life or the right to health. In order to realize
such rights many measures may be taken which would have an effect on the environment.
For example, the HR Committee has interpreted the right to life in a broad sense — as the
adoption of positive measures to reduce infant mortality rate; (p. 311) prevent industrial
accidents ; and protect the environment in general and to take into account the problems of
indigenous peoples 809. The reporting guidelines of many human rights bodies requested
environmental information. For example, within the ICESCR regime, parties were asked to
provide information on access to safe water, measures taken to improve environmental and
industrial hygiene ; and measures to ensure the application of scientific progress for the
benefit of everyone, including these measures aimed a promoting of a clean and healthy
environment. The reporting procedure was quite successful in many environmental cases.
For example, under the ICESCOR, Tunisia reported measures taken to prevent degradation
by erosion; and to the Committee under the CRC, Bolivia reported on its action plan aimed,
inter alia, at improving the health situation of women and children by promoting full
attention to economy, housing and education 810. Another effective field of general human
rights mechanisms which are useful (and used) in environmental matters is the individual
complaints procedure. They are particularly attractive for environmental matters under the
ICCPR and ICERD, as they grant to an individual and to groups in case of ICERD, to
complain and seek a remedy beyond their Governments when their rights were affected.
However, all domestic remedies must be exhausted before the Committee is entitled to
consider an individual complaint. The HRC dealt with the cases which were concerned with
environmental issues. In fact, it has adopted General Comments (which although not legally
binding) are an authoritative interpretation of the ICCPR. On interpretation of Article 27
(minority rights), the Committee stated that
"culture manifests itself in many forms, including in particular a way of life associated with
the use of land resources, especially in the case of indigenous peoples. That right may include
use of traditional activities as fishing or hunting and the right to live in reserves protected by
law." 811
The problem of the right to a clean environment did not get more broader and
constructive attention at the forum of the United Nations. (p. 312) Worth mentioning
(although not much was clarified) were the issues raised in the Report of the SecretaryGeneral of the United Nations which reiterated problems listed by the Ad Hoc Committee
of the Whole of the Nineteenth Special Session of the United Nations General Assembly,
calling for a need for a greater integration at all policy-making levels — economic, social
and environ-mental — at all operational levels, including the lowest administra-tive levels
possible." 812 In general terms, the Ad Hoc Committee listed the following issues of
environmental and human rights concerns : harmonious co-operation between international
and national environment in the implementation of sustainable development; eradication of
poverty; recognition of interrelationship between poverty, economic growth, employment
and sustainable development and environment in order to encourage and promote current
decline in population growth through the expansion of education; capacity building and
transfer of technology ; access to fresh drinking water 813.
3. Right to a Clean Environment in National Constitutions
The human right to a clean environment may be distinguished between both the
international and national levels. Over 50 constitutions now include the right to a clean
environment. The formulations of the right to a clean environment are slightly different.
For example, they impose the duty on a State to preserve and protect the environment (the
Netherlands, Panama, Romania), or they declare the duty to be the responsibility of the
State and of the citizens (Albania, Ethiopia, Sweden), or of the citizens (Algeria, Russian
Federation), or declare that the individual has a substantive right to the clean environment
(Burkina Faso), or provide for an individual right together with the individual or collective
duty of the citizens to safeguard the environment (Korea, Spain), or provide for a
combination of State and citizen duties to an individual right (Chile, Colombia, Vietnam)
814. Yet another variation is provided for by the 1997 Constitution of Poland which
formulates the right to a clean (p. 313) environment as a procedural right, namely it
guarantees to every-body the right to environmental information (Art. 74, para. 3). This
Article is supplemented by Article 61 which provides citizens with the general right to
information on the activities of public authorities and all private entities that perform the
duties of public authorities. The 1997 Constitution provides, however, that the procedure
for the provision of information shall be specified by statute (Art. 11, para. 4).
4. Right to a Clean Environment in Relation to Other Human Rights
Mobilizing existing civil and political rights and economic, social and cultural
rights, as enshrined in the 1966 UN Covenants, crosses over national and international
levels. As mentioned above, several authors are of the view that human rights which
already have been protected under existing international instruments and domestic
constitutions may be utilized vis-à-vis the protection of environmental rights 815. Civil and
political rights, such as the right to life, and legal redress, are "necessary preconditions" for
mobilizing environ-mental issues, and naming effective claims to environmental protection
816. Economic, social and cultural rights, or the so-called second generation rights, lay the
groundwork for standards for human well-being. The right to health may be useful in
protecting the human right to a clean environment. Equally important is the right to
education, which forms a very important part of shaping human awareness about the
necessity of environmental protection.
5. International Conventions
On an international level, only two regional human rights treaties expressly
recognize environmental rights. Under Article 24 of the 1981 African Charter "all peoples
shall have the right to a general satisfactory environment favourable to their development".
The 1988 San Salvador Protocol to the 1969 American Charter of Human Rights (p. 314)
provides that "(1) everyone shall have the right to live in a healthy environment and to have
access to basic public services. (2) The States parties shall promote the protection,
preservation and improvement of the environment" (Art. 11). According to Sands, the San
Salvador Protocol distinguishes between the rights of individuals "to live in a healthy
environment" and the positive obligation of States to protect, preserve, and improve the
environment. Further, the same author claims that the failure of a State to carry out that
obligation can give rise to an enforceable right of action 817.
There are two international conventions, the 1989 Convention on the Rights of the
Child and the 1989 Convention concerning Indigenous and Tribal Peoples in Independent
Countries, which refer explicitly to environmental matters. In the first of these documents
(see below and Annex III), Article 29E requires "the development of the respect for the
natural environment". The second document calls for adoption of special measures to
protect and to preserve the environ-ment of indigenous and tribal peoples (Art. 4, para. 1;
Art. 7, para. 4). The latter convention also requires that the rights of the peoples to natural
resources of their lands must be especially safe-guarded (Art. 15, para. 1).
6. Substantive and Procedural Rights
In general, the right to a clean environment can be divided into substantive rights
and procedural rights. There are many proponents of the view that the procedural right is
more effective since it guarantees participation in decision-making on the one hand and
locus standi before national courts and tribunals on the other hand. There are many
examples of environmental litigation on both levels 818 ; the author of this study will
concentrate, however, on two landmark cases: Minors Oposa (see above), and Lopez-Ostra
v. Spain (hereinafter: Lopez-Ostra) 819. The first of these cases is particularly important
since it is based in part on the theory of intergenerational equity. This theory will be the
subject-matter of Part II below. (p. 315)
Part II. Jurisprudence of Tribunals in Relation to a Human Right to a
Clean Environment
1. The European Court of Human Rights
(a) Introductory
The Lopez-Ostra case was decided by the European Court of Human Rights. It was
not the first case with an environmental aspect before this Court, nonetheless in this case
the court made far-reaching pronouncements in relation to ecology issues in the context of
human rights.
The 1950 European Convention on the Protection of Human Rights and
Fundamental Freedoms (ECHR) does not contain any specific right to a clean environment
820. Thus far any environmental questions which were considered by the Court were
viewed in relation to other provisions of the Convention, such as Articles 8 (right to
privacy) 821; 3 (prohibition of torture and degrading treatment) 822 ; 2 (right to life) 823 ;
and 5 (right to liberty and security as a person 824; (p. 316) Article 11 (right to freedom
and peaceful assembly) 825 ; and 6 (right of tribunal) 826. (p. 317) Furthermore, Article 1
of the First Protocol 827 was considered.
The first decision of an environmental nature appears to be that of the European
Commission in case X and Y v. Federal Republic of Germany. The application was
submitted by the members of an environmental organization who owned 2.5 acres of land
for the nature observation. They complained that the adjacent area was used for military
purposes. The Commission, however, rejected the application is incompatible ratione
materiae with the Convention. It stated that "no right to nature preservation is as such
included among the rights and freedoms guaranteed by the Convention and in particular by
Arts. 2, 3 or 5 as invoked by the Applicant" 828. In 1981, the case X v. Federal Republic of
Germany, the Commission rejected as "manifestly unfounded" 829. There were many cases
which concerned noise from the airports in the United Kingdom, such as Arrondelle v.
United Kingdom. The applicant complained about noise from Gatwick Airport. He based
his claim on Article 8 of the ECHR and on Article 1 of the First Protocol. The Commission
admitted the case while recognizing for the first time that environmental issues (noise) are
connected with human rights matters. A second.case of this type was Baggs v. United
Kingdom which was also found to be admissible. Both cases were settled out of court.
The practice of the Commission and the Court was, however, not consistent. For
example, the case of S. v. France based on Article 8 of ECHR and Article 1 of the First
Protocol was not admitted by the Commission on the grounds of having been manifestly illfounded. (p. 318) The applicant complained about noise and other nuisance caused by a
near-by power plant. Powell and Rayner v. United Kingdom was yet another illustration of
the Court's perception of environmental matters.
This was also one of the airport cases which related to noise generated by Heathrow
Airport. Application was based on Article 8 and Article 1 of the First Protocol. The Court
decided that the case was manifestly ill-founded on the above-mentioned grounds but found
it admissible in part on the basis of Article 13 (right to effective remedy under domestic
law) 830
The Court has applied a test between community interests and those of an
individual. The Court has found that the existence of large airports is necessary to the
country's economic well-being and thus overrides environmental concerns. Moreover, the
UK Govern-ment has adopted measures in order to minimize noise and paid compensation
to affected individuals.
In Fredin v. Sweden, however, the European Court has made a pronouncement that
in "today's society the protection of the environment is an increasingly important
consideration" 831. Thus the decision of the Government to revoke for reasons of nature
conservation the applicant's licence to extract gravel from his property did not violate
Article 1 of the First Protocol.
(b) The Lopez-Ostra Case
The judgment in the Lopez-Ostra case is, on the other hand, of a ground-breaking
character. The applicant in this case was a resident in the city of Lorca, in Spain. Twelve
metres from her house was a plant erected in 1988 for treatment of liquid and solid waste
owned by a company SACURSA. Although the plant was built on the basis of municipal
subsidies, it did not obtain a licence required for activities classified as causing nuisance.
Fumes originating from the plant were polluting the atmosphere in this town, especially
affecting (p. 319) people living in its vicinity. In July 1988, the city council rehoused local
residents free of charge, including Lopez-Ostra and provided them with new apartments. In
October 1992, the applicant and her family returned to the old flat and lived there until
1992, when they were rehoused again by the municipality which paid the rent of the new
accommodation.
The applicant first lodged her claim on, inter alia, the following grounds : unlawful
interference with her abode ; impairment of her and of her family's physical and mental
health and safety. Courts of all instances in Spain, including the. Constitutional one, found
the applicant's claim manifestly ill-founded and dismissed it. Having all local remedies
exhausted, Ms Lopez-Ostra brought the case before the European Court of Human Rights.
The applicant based her claim on the grounds of Articles 3 and Article 8, paragraph 1, of
the ECHR. The Commission in Strasbourg considered the claim admissible on the grounds
of Article 8 but not on the grounds of Article 3 (832).
In the meantime, the plant was closed in 1992 on the judge's order, as hazardous to
human health but re-opened again as a result of an appeal. Finally, the plant was
temporarily closed in 1993.
The Commission found a causal link between emissions and the illness of the
applicant's daughter. Subsequently, the Court in connection with Article 8 decided that
severe environmental pollution even without causing serious damage to health can result in
affecting individuals' well-being and impede enjoyment of their homes in such manner as to
affect their private and family life adversely.
The Court made several other important pronouncements in this case. It decided to
apply the test, based on Article 8, paragraphs 1 and 2, which would balance competing
interests of an individual and those of the community as a whole. The Court has stated that
the payment of the rent for the substitute apartment did not completely compensate for the
nuisance suffered by the family for three years and that the State did not balance properly
between an individual interest and the public one, i.e. between general economic concern
and private well-being. It also found that although the plant was privately owned, the
nuisance was attributable to the State. The plant (p. 320) was built on public grounds and
subsidized by the municipality. Public authorities had knowledge of the harm caused by the
plant.
There are several interesting legal points in relation to the environment which can
be identified in the Court's Judgment : for example, the quantification of environmental
pollution. Pollution does not have to cause serious damage to human health but has to be
severe in order to constitute cause of action. Another issue is the attributability of a claim to
a State (see above). The most important, however, is the fact that the European Court
discerned environmental issues within the human rights structure and that even without
explicit environmental right in the ECHR, it found in Article 8 a proper and sufficient link
to connect these two. It also has to be emphasized that it was for the first time that the Court
granted a green slant to its decisions while weighing the interests of public and economic
nature against an individual environmental compliant 833
In conclusion, it may be said that the Court made the following important
statements: (1) serious effects of environmental degradation may affect individual wellbeing, since they may have adverse consequences on enjoyment of his private and family
life; (2) public authorities have the duty to protect family and private life and home; and (3)
the conditions suffered by the family of the applicant did not amount to degrading treatment
according to Article 3 of the ECHR.
(c) Balmer-Shafroth and Others v. Switzerland 834
This is another case with the environmental element before the European Court of
Human Rights. This case concerns the process of (p. 321) decision-making in connection
with environmental activities and was based on alleged breach of Articles 6, paragraph 1,
and 13 of the ECHR and procedurally concerned judicial review 835. The case was lodged
by 10 Swiss nationals.
The case concerned granting a licence to extend an operation, for an indefinite
period, and to increase production of the Bernische Kraftwerke AG, a company which
operated a Muhlenberg power station' which was considered obsolete. The licence was
granted by Federal Council despite 28,000 objections from France, Germany and
Switzerland. The objections were based on the ground of threat to safety of the local
inhabitants, since the power station had irremediable construction defects. All requests
were rejected by the Federal Council, including the one for provisional measures, on the
grounds of them being unfounded. The decision of the Federal Council was based on the
expert's report that the plant could be modernized.
The applicants all lived in the close vicinity of the plant. They alleged a violation of
the ECHR on the following grounds: (1) they were denied the right of the tribunal (in the
meaning of Article 6, the Federal Council is an executive organ) ; (2) Article 13 was
violated, since the were not given an effective remedy to enable them to com-plain of
breach of Articles 2 and 8 before the national authority. The applicants did not ask for
damages for any economic loss or pecuniary damage 836
The Commission admitted the application and found that Article 6, paragraph 1,
was violated. The case was referred to the Court both by the Commission and by
Switzerland. The Court did (p. 322) not find, however, that either Article 6, paragraph 1, or
13 were violated. This view was not adhered to by the strong minority, who held that both
Articles were breached.
The Swiss Government submitted to the Court three preliminary objections: (1) it
denied the relevance of Article 25 of the ECHR (consequences of the violation were too
remote to affect the applicants directly and personally) ; (2) they pleaded the nonexhaustion of local remedies ; and (3) non-applicability of Article 6, paragraph 1, to this
case.
The Court has made pronouncements as to objections 1 and 3. The Court found that
"victim" meant a person directly affected by the act or omission — without the requirement
to suffer any quantifiable harm.
The Court determined applicability of Article 6, paragraph 1, to the facts of the case.
It pronounced that it was also applicable in civil not only criminal proceedings in cases
where it was a "dispute over a right recognized under national law". The dispute must be
"genuine and serious" and the result of the proceedings "directly decisive" for the right
under dispute. Following this line of reasoning, the Court had to answer three questions :
was the subject-matter of the case determinative of civil rights and obligations ; did the case
involve a dispute over these rights and obligations 837.
The Court adhered to the argument produced by the Swiss Government that the
right relied upon by the applicants related to the adequate protection of their "physical
integrity" from the risks originating from the use of nuclear energy.
The Swiss Government claimed that "physical integrity" did not entail civil rights
and obligations. Craven interprets the finding of the Court as indirectly confirming that the
case indeed concerned civil rights and obligations, especially taking into consideration that
the rights and obligations in question were recognized by Swiss law (1959 Nuclear Energy
Act and under the Federal Constitution — right to life) 838. The Swiss Government further
argued that the case, even if it involved the rights under the Swiss law, was not justiciable,
since it concerned, inter alia, matters of technical nature within the competence of political
organs.
The applicants argued that judicial evaluation of technical questions (p. 323)
belonged to the judiciary who frequently seek the assistance of experts. The Court agreed
with this argument and said that the decision of the Federal Council resembled more a
judicial act than a general policy decision.
The Court disagreed with the applicants, as to applicability of Article 6, paragraph
1, and consequently Article 13 to this case, since certain conditions were not fulfilled (first,
the requirement of the proceedings being "directly decisive" ; and second, the existence of
the sufficiently close link, not too tenuous and remote, which should exist between the
decision of the Federal Council and the applicants' right to adequate protection and physical
integrity, in order to bring Article 6, paragraph 1, into play) .
The Court decided that the applicants failed to evidence that the operation of the
power plant exposed them personally to a danger which was not only serious but specific
and most importantly imminent. Thus the alleged danger was only hypothetical.
Furthermore, the lack of strong evidence, deprived the result of the proceedings as being
"directly decisive" and thus the right could not be relied on by the applicants. The decision
of the Federal Council was "too tenuous
and remote".
The environmental issues were really addressed by the dissenting judges 839. First
of all they admitted applicability and violation of Article 6, paragraph 1, in this case.
Taking into consideration the nature of nuclear plants, they reasoned, the connection was
not "too tenuous or remote" and the likelihood of danger was strong enough (without it
being imminent) to justify the claim.
The most interesting feature of dissenting opinions was that they relied on general
principles of international environmental law such as a precautionary principle and
common heritage of mankind, as enshrined in many international environmental law
documents. They found these principles particularly relevant in relation to installations
posing threat to persons and the environment. Although commend-able, the references to a
precautionary principle and common heritage of mankind in the context of the case appear
to be ill-founded. Craven remarks that reliance on these principles would not result in
discarding altogether the "directly decisive" test, purpose of which is "simply to exclude
from the requirements of Article 6, decisions of (p. 324) public authorities that do not have
direct bearing on a individual's civil rights and obligations" 840
The minority judges said that "directly decisive" test should be kept. Nonetheless,
the nature of nuclear installations is such that it is the task of the judiciary to determine the
safety of such installations ; and that it would be too long to wait for irradiation of the local
population before the remedies were allowed (according to dissenting judges such
reasoning could have been inferred from the majority judgment).
In conclusion, it may be said that this case, although, prima facie, involving
environmental matters, did not develop substantively the Court's environmental
jurisprudence, to the extent the Lopez-Ostra case did. It rather specified general procedural
rules, not related to the environment, such as what constitutes "directly decisive". The
Court confirmed that issues of nuclear safety were outside judicial review system and
belonged to political authorities. Judicial review could only be resorted to in cases of
"imminent nuclear danger", threatening enjoyment of individual human rights. The Court,
how-ever, did not interpret the term "imminent".
Dissenting opinions, more environmentally favourable, were vague in substance and
not well connected with the subject-matter of the case. They acknowledged, however, the
existence of the basic principles of international environmental law and a special character
of nuclear safety. They also relied on other than the ECHR provisions which is not the
usual feature of jurisprudence of the Court. This case also proves that it is not advisable to
draw general conclusions as to the future case-law of the Court concerning environmental
matters on the basis of a single case (such as Lopez-Ostra). Environmental considerations
are not the priority for the Court and are accounted for from the human rights law
perspective (substantive and procedural).
(d) Guerra and Others v. Italy 841
In the above case, the Court extended the scope of Article 8 to include failure of the
Government to provide information concerning (p. 325) pollution risks. In this case, the
Court found out that a failure by Italian authorities to provide the local population with
information about the risk factor from the chemical factory, and how to proceed in the
event of an accident, was a beach of Article 8. The plant was classified by an Italian law
incorporating the EU "Seveso Directive" as high risk. This plant was releasing huge
quantities of inflammable gas and toxic substances into the atmosphere. Various accidents
had occurred, and eventually in 1976, in a catastrophe, 150 had to be admitted to hospital
with acute arsenic poisoning. There were two main complaints : failure to take steps to limit
risk of pollution from the factory and to avoid the risk of major accidents ; and the failure to
take steps to provide information. The Court reiterated that severe environmental pollution
may affect individuals' well-being and pre-vent them from enjoying their homes in such a
way as to affect their private and family life adversely. The Court held that the Respondent
State did not fulfil the obligation to secure the Applicant's right to respect for their privacy
and family life, in breach of Article 8 of the Convention. Further, the Applicants had waited
in vain for essential information on risk they were exposed to, and therefore there had been
a breach of Article 8. The Court did not find the breach of Article 10 of the Convention (the
right to freedom to receive information), on the basis that Article 10 did not require positive
steps to collect and disseminate information by a State 842.
The last decisions of the Court, in the opinion of the present author, are an
indication that it is prepared, at least in certain cases, to infer the existence of an
environmental right from the catalogue of the existing rights. It is a positive development.
There are, however, other views on this matter. For example, Thornton and Tromans say
that : "[i]t is not possible to conclude that any `environmental rights' have been established
under the Convention". There is no express right to the environment of a minimum standard
of quality. The Court and the Commission have, however, accepted that the enjoy-ment of a
certain quality of environment is part of enjoying the right to a family life and to a peaceful
enjoyment of possessions. Yet only (p. 326) two applications have succeeded; the cases of
Lopez-Ostra v. Spain and Guerra v. Italy, and they were, on their facts extreme. The
protection granted by a substantive is limited by the wide margin of discretion allowed to
States as to how they choose to protect the environment. The emerging jurisprudence shows
a piecemeal and untidy picture. This perhaps because protection of the environment is
being squeezed into the ambit of other substantive rights. It may be in this respect that the
procedural rights, such as a right to a tribunal and to access to information, offer a better
opportunity for protection of the environment" 843
The present author agrees as to the fundamental role of a procedural environmental
right. Hence the importance of the Aarhus Convention (see below).
Part III. The Aarhus Convention
For the first time, an international convention which expressly acknowledged the
existence of the right to a clean environment is the 1998 United Nations Economic
Commission for Europe (ECE) Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental Matters (the Aarhus
Convention) 844, which makes the following stipulation :
"In order to contribute to the protection of the right of every person of present and future
generations to live in an environ-ment adequate to his or her health and well-being, each
Party shall guarantee the right of access to information, public participation in decisionmaking, and access to justice in environ-mental matters in accordance with the provisions of
this Convention." (Art. 1 — Objectives.)
Mary Robinson, the UN High Commissioner for Human Rights said, inter alia, as
follows :
"To secure the [fundamental rights] we need to have access to environmental information and
so I welcome the proposed (p. 327) convention — making such access binding — and I look
for-ward to the implementation of the details of the convention .. . This will put demands on
national and local authorities but it will also lead to better environmental management and to
sustainable development. Another important meeting point of human rights is the access to
justice. In [regard to] NGOs as having a public interest `watch dog' role which is vital in all
our societies and in need of our strong support." 845
The Resolution of the signatories to the Aarhus Convention emphasizes the key role
of parliaments, regional and local authorities and NGOs in addition to that of Governments
to be played in implementing the Convention.
The Aarhus Convention has many very welcome features. For example, no
expression of interest is required when request for environmental information is submitted
(Art. 4, para. 1 (a)). This Convention also contains quite a broad definition of
environmental information (Art. 2, para. 3). The State can refuse information, but the
grounds for refusal "shall be interpreted in a restrictive way, taking into account the public
interest served by disclosure and taking into account whether the information requested
relates to the emissions into the environment" (Art. 4, para. 4). The Aarhus Convention
requires a reasoned decision be made when an access to information has been refused (Art.
4, para. 7).
The Aarhus Convention propagates the development of a wide-spread information
system, as, for example, it requires parties to ensure that environmental information
progressively becomes avail-able electronically (Art. 5, para. 3). Article 7 specifies the
general conditions of public participation. It states, inter alia, that
"Parties shall make appropriate practical and/or other provisions for the public to participate
during the preparation of plans and programmes relating to the environment. . . . The public
which may participate shall be identified by the relevant public authority, taking into account
the objectives of this Convention. To the extent appropriate, each Party shall endeavour to
provide opportunities for public participation in the preparation of policies relating to the
environment." (p. 328)
This provision is mandatory ("shall") ; nevertheless, its mandatory character has
been weakened by inclusion of the phrase "to the extent appropriate". Article 6, paragraph
8, requires decisions on specific activities to take due account of the outcome of public
participation. There are provisions, however, which weaken the overall positive and brood
approach to a procedural environmental right. First of all the definition of the "public" in
Article 2, paragraph 4 — which is defined for the purposes of this Convention as "one or
more natural and legal persons, and, in accordance with national legislation or practice,
their associations, organizations or groups". More-over, the meaning of public, the
participation of which to the decision-making process is secured, is defined as "the public
affected or likely to be affected by, or having interest in, the environmental decisionmaking; for the purposes of the definition, non-governmental organizations promoting
environmental protection and meeting any requirements under national laws shall be
deemed to have an interest" (Art. 2, para. 5). As it was said,
"[i]n other words the Aarhus Convention does not accord to non-governmental organizations
rights and obligations, most of all locus standi in environmental litigation, if they do not
already enjoy such privileges under the national legislation of the contracting parties. At
most, the Convention shows the preference for such action, although demurely described in
paragraph 4 of Article 3 : `Each party shall provide for appropriate recognition of and support
to association, organization or groups promoting environmental protection and ensure that its
national legal system is consistent with obligation.' " 846
Some Conclusions
Without passing a definitive judgment on the existence (or not) of the human right
to the clean environment, we may conclude that there are certain procedural safeguards
which promote the clean environment and offer certain possibilities for individuals to enjoy
their rights in environmental matters (without specifying that these procedural safeguards
reflect a substantive right to the clean environment). (p. 329)
These safeguards include the participatory right; the right to environmental
information ; and the access to environmental justice (see below).
Participatory rights are a prerequisite for environmental legislation. Participatory
rights in environmental decision-making were explicitly recognized in Agenda 21 and in
Principle 10 of the Rio Declaration, the two most important documents adopted during the
1992 Earth Summit in Rio. As stated above, these rights form part and parcel of the access
to environmental justice. It may be worth reminding that Madam Ksentini in her report (see
above), singled out participatory rights as the most important rights of all.
Part IV Animal Rights
Another problem which is related to environmental rights is animal rights. The
question may be formulated as follows : are environ-mental rights too anthropocentric? It is
sometimes submitted that the human right to a clean and healthy environment ignores the
rights of animals and nature 847. As mentioned above, the 1992 Rio Declaration, was
criticized as being unduly focused on a human being as the centre of the universe. Although
there are several international instruments which are devoted to the protection of animals
such as wildlife conventions, their context does not take into the consideration animals as
independent beings, entitled in their own name to respect.
Redgwell explains that broadly speaking, there are two possible approaches to
animal rights : one which is centred on protection of endangered species, i.e. "concerned
with the existence value of species" and the second one which is based on conventions
regulating animal welfare, i.e. focused on "preserving and/or enhancing the quality of that
existence" 848. Thus, the more enlightened approach views animals as a part of nature,
closely related to human beings, not just as being useful to them. The same author rightly
observes that the issue of animal rights has a very strong moral dimension. Nonetheless, the
combination of moral and legal right dilutes the notion (p. 330) of the legal right and
constitutes so-called "weak rights-based approach" 849
A different view was presented by D'Amato and Chopra 850 who do not
differentiate between legal and moral rights, since the line between the two is too difficult
to draw. For this reason, inter alia, the authors use the term "entitlement" by which they
understand the legally enforceable rights. According to them, enforceability is what
distinguishes moral right from the legal right and although the case-study is on whales (and
they are highly intelligent creatures) argumentation presented in the article may have global
application. The authors also make an interesting review of the broadening of cultural
consciousness as to the situation (moral and legal) of whales. The attitudes encompass six
periods : free resources, regulation, conservation, protection, preservation and entitlement.
The last stage (entitlement) is the result of general awareness in relation the environment as
a whole. It also affects the position of whalers as both the users of the environment and one
of its elements.
On a practical level 851 Redgwell suggests that in order to find a solution to the
animal rights dilemma, it should be ensured that non-human values are accounted for
within the gambit of procedural rights. These rights, although undoubtedly anthropocentric
in nature, may serve for the purpose of the enhancement of animal rights
Part V. Conclusions on a Human Right to a Clean Environment
As evidenced in the above survey of the problem, neither the existence of the
substantive right to a clean or decent environment has been fully acknowledged nor is there
an agreement as to what type of a human right it is.
The right to a clean environment may be discussed on a national and an
international level. On a national level these rights are enshrined in many constitutions. The
problem, as yet unsolved, is whether they are justiciable (sea below). As proved by the
Minors Oposa claim, doubts arose, eloquently expressed by Judge Feliciano, whether the
environmental right contained in the Constitution of the Philippines was justiciable or was
only a political principle (p. 331) which could not constitute the legal ground to bring the
claim before the Court. Furthermore, the purpose of the case was defeated by procedural
requirements such as one of due process. More practical are procedural rights (such as the
participatory right) and they are recognized in national laws of many countries.
On a international level, there are very few international instruments which contain
such a right. As, however, has been proved by the European Court of Human Rights in the
Lopez-Ostra case, even without an explicit right guaranteed by the European Convention,
the Court interpreted the rules of the Convention in such a manner as to give an effect to the
environmental entitlement.
Justiciability of the human right to a clean environment at the national level is an
integral part of the general question of judicial application of international environmental
law before the national courts 852. This problem forms the part of a general issue (which
exceeds the confines of this study) of binding force of international law within national
legal order and before national courts.
It is submitted, however, that international environmental law, notwithstanding,
direct or indirect application of international law within a State (on the grounds of selfexecuting treaty or customary law) is usually applied indirectly or not taken into
consideration at all 853
One of the most interesting cases of direct application is Vellore Citizens' Welfare
Forum v. Union of India where the Supreme Court "adopted a robust attitude to customary
law" 554. In this case the Court stated that sustainable development, as well as
precautionary principle and polluter-pays principle as essential features of sustain-able
development, are part of customary law.
Another way to acknowledge the existence of the norm of inter-national law by
national courts is to use international environmental law as a tool of interpretation of
national law. Such an example is jurisprudence of the Supreme Court of Canada, for
example in the case Daniels v. The Queen, where the Court held (as a general principle) (p.
332) that a legislature is not presumed to intend violation of inter-national law 855
It is not the practice in the United States and in Germany. In contrast in other States
such as Australia and the Netherlands decisions which involved human rights law made the
way for more extensive indirect application of international environmental law 856
In the Netherlands, according to Article 94 of the Constitution, inter-national
treaties and resolutions of international institutions which are binding on all persons have
the priority over conflicting rule of national law (i.e., which have direct effect). In the
Netherlands, inter-national environmental law is applied mostly before administrative
courts 857. For example, when the Provincial Executive of Gelder-land approved of a land
use that would have an adverse effect of salamander population, an interest group invoked
successfully the Berne Convention. The Court found that, inter alia, that due to obligations
under the treaty the decision to approve was unreasonable 858.
A small number of cases are brought in criminal and civil proceedings — in tort
cases — such as the case which was initiated against the bulb-growers who wanted to
expand the bulb growing area into the toad habitat. The public interest group "Save the
Toad" argued that it would violate the Berne Convention, and for that reason it would
partly wrong the interests of this group. The Court succeeded in bringing the parties
together to reach a workable agreement 859
Since NGOs play a fundamental role in securing and promoting environmental
rights, we are of the view that they should have access to justice in environmental matters.
"The question is no longer so much whether non-governmental actors should play a role,
but the extent and modalities of and procedural rules for such participation." 860 However,
as elaborated above, the access to environ-mental justice before the ECJ has suffered a setback due to its judgment (p. 333) in the Greenpeace case. There is a trend in many Member
States of the European Union, however, to give access to justice for the NGOs. The extent
of this access is, however, very varied. Ger-many and Great Britain appear to be the least
developed, as concerns locus standi for environmental NGOs. Other countries, such as Ireland, Spain and Greece, have very relaxed rules relating to locus standi in general, which
permit almost any citizen to bring an action against at least certain environmentally harmful
decisions of authorities. In France, the Netherlands, Belgium and Italy, access to justice for
NGOs does not only involve the right to challenge administrative decisions that affect the
environment, but also to enable an environ-mental organization to take part in criminal
proceedings as a "partie civile", and/or to bring an action directly against a private person
or company urging the defendant to bring an end to on-going pollution or to claim damages
for past activities. It must be said, however, that in Ireland the law, while allowing any
citizen or organization to sue a private investor, does rule out any action against most
projects in the public sector. As Ormond aptly states, the formal access to courts in
environmental matters does not mean that the remedies are necessarily effective 861. For
example, French procedural law, which strictly adheres to the separation of power, enables
the plaintiff in principle only to demand the nullification of an administrative act, and
excludes mandatory injunctions against administrative authorities. Finally, one must
mention that the high costs of counsel and experts have detrimental effects on the effective
availability of environmental litigation in some countries.
In the Netherlands, there has been, since 1994, the possibility to challenge the
validity of decisions made by the Dutch public authorities in the environmental sector
based on two acts : the General Administrative Act (GALA) and the Environmental
Protection Act (EPA). The passing of this legislation illustrated an important trend in the
Netherlands, namely departure from the piecemeal approach to environmental legislation
"towards consolidation in fewer broad, general Acts” 862. The GALA Act introduced an
interesting innovation (p. 334), namely, the possibility of actio popularis in environmental
matters. Most often this will apply to permits which involve usually a large number of
people. Also Dutch tort law permits organizations that according to their articles of
association promote environmental protection to bring legal action for injunctions in tort
solely on the basis of their description of purpose.
In Brazil, the Constitution, together with the Civil Public Action Act, established by
Federal law No. 7.347/1985, created the possibility for the defence of collective interests in
environmental matters 863. In Brazil there are three major legal instruments which
constitute the basis for legal action to defend collective values in the environment : the
traditional Acao Popular (Popular Action) ; the Mandado de Seguranca Coletivo
(Collective Writ of Mandamus) ; and, the most important, the Acao Civil Publica (Civil
Public Action). The last legal ground envisages the possibility of its use by NGOs against
the State, private corporations and individuals. This civil action together with the Federal
Law No. 8.078/1990 is without doubt "the most progressive legal instrument available for
both the Brazilian State and civil society to defend and enforce collective environmental
interests and rights." 864 The civil action law deals in particular with legal responsibility
for environmentally damaging activities and with liability for environmental restoration.
Locus standi in this action is granted to NGOs which have been legally constituted to
promote environmental protection. Any such entity can join proceedings initiated by
another participant in proceedings.
The most important thing of all for enforcement of collective environmental rights
and interests, however, is the widest possible participation in the environmental decisionmaking process. Participatory rights should be granted by new environmental laws. An
example of such a law is the 1993 Environmental Bill of Rights (EBR) of Ontario, Canada.
Part II of the EBR seeks to protect the environment through increased environmental
awareness and public participation in governmental decision-making. This is effected
through the use of the Statement of Environmental Values. Such a Statement includes the
following information: how the objectives (p. 335) expressed in the EBR will be applied by
the Ministry in question when it makes a decision that might affect the environment to a
significant degree ; and how the consideration of these purposes should be integrated with
other considerations, including social, economic, and scientific considerations. The
Statement must be prepared in consultation with interested persons and groups in order to
enable indirectly public participation in the decision-making process when decisions may
affect the environment. Part I of the EBR provides that any two residents of Ontario who
believe that the environmental policy, Act, regulation or instrument should be amended,
repealed or revoked in order to protect the environment may apply to the Commissioner for
a review. The same procedure applies in case of belief that there is the need for some policy
or legislation 865.
NOTES:
781. A. Boyle and M. Anderson (eds.), Human Approaches to Environmental Protection,
Oxford, Clarendon Press, 1996.
782. Ibid., p. 1.
783. M. Fitzmaurice, "The Contribution of Environmental Law to the Development of
Modern International Law", in J. Makarczyk (ed.), Theory of Inter-national Law at the
Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski, The Hague,
Kluwer Law International, 1997, pp. 909-914, 922-925.
784. P. Cullet, "Definition of an Environmental Right in a Human Rights Context",
Netherlands Quarterly of Human Rights 13 (1995), 25-40.
785. R. Desagne, 'Integrating Environmental Values into the European Convention on
Human Rights', American Journal of International Law, 89 (1995), 263-294.
786. Rosalyn Higgins, Problems and Process, International Law and How We Use It,
Oxford University Press, 1994, p. 96.
787. For the overview of existing approaches, see P. E. Taylor, "From Environmental to
Ecological Human Rights : A New Dynamic to International Law", The Georgetown
International EnvironmentalLaw Review, Vol. 10 (1998), pp. 309-395.
788. A. A. Cançado Trindade (ed.), Environmental Protection (1992); and K. E. Mahoney
and Paul Mahoney (eds.), Human Rights in the Twenty-first Century, Dordrecht, Martinus
Nijhoff, 1993.
789. G. Handl, "Human Rights and Protection of the Environment : A Mildly 'Revisionist'
Point of View", in A. A. Cançado Trindade (ed.), Human Rights, Sustainable Development
and the Environment, San José de Costa Rica/Brasilia, Instituto Interamericano de
Derechos Humanos/Banco Interamericano de Desarrolo, 1992, pp. 117-142, at pp. 120-122.
790. S. Weber, "Environmental Information and the European Convention on Human
Rights", Human Rights Journal 12 (1991), pp. 177-185. See also S. Schikoff, "Right to
Clean Environment" (text unpublished, 1994).
791. Paula Pevato, "A Right to Environment in International Law : Current Status and
Future Outlook", Review of European and International Environmental Law, pp. 309-321,
p. 318.
792. For example, see M. Simon, "The Integration and Interdependence of Culture and the
Environment", in Human Rights in the Twenty-first Century (supra footnote 788), at pp.
521-528.
793. M. Kamminga, "Mensrechten en milieubescherminng — en nuttige combinatie"
("Human Rights and Environmental Protection — a Good Match"), Nederlandse
Tijdschrifte voor Mensrechten, NIJCM Bulletin 18 (1993), p. 99.
794. P. Alston, "A Third Generation of Solidarity Rights : Progressive Development of
Obfuscation of International Human Rights Law", NILR 29 (1982), p. 309.
795. M. Galenkamp, Individualism versus Collectivism: The Concept of Collective Rights,
Ph.D. Dissertation, Erasmus University, Rotterdam, 1993, p. 35.
796. A. Kiss, "Concept and Possible Implications of the Right to Environ-ment", in Human
Rights in the Twenty-first Century (supra footnote 788), p. 55.
797. P. Birnie and A. E. Boyle, International Law and the Environment, Oxford, Clarendon
Press, 1992, p. 197.
798. Alston (supra footnote 794), pp. 307-322.
799. P. Birnie and A. Boyle (supra footnote 797), p. 196.
800. Ibid., p. 912.
801. D. Shelton, "Human Rights, Environmental Rights, and the Right to Environment",
Stanford Journal of International Law 103 (1991), pp. 104-105.
802. Declaration of the United Nations Conference on Human Environment, UN doc.
A/Conf./48.14, Rev.l (1972).
803. Rio Declaration (1992), International Legal Materials 31 (1992).
804. D. Shelton, `What Happened in Rio to Human Rights ?', Yearbook of International
Environmental Law 3 (1992), p. 93.
805. A. F. Aguila and N. A. Popovic, "Lawmaking in the United Nations : The UN Study
on Human Rights and the Environment", Review of European Community International
Environmental Law 3 (1994), p. 197.
806. Commission on Human Rights, Sub-Commission and Prevention of Discrimination
and Protection of Minorities, 46th Session, Final Report of Further Developments in Fields
with Which the Sub-Commission Has Been Concerned, Human Rights and the
Environment, FJCN.4/Sub.2/1994/9, 6 July 1994.
807. J. Cameron and R. Mackenzie, "Access to Environmental Justice and Procedural
Rights in International Institutions", in M. Anderson and A. Boyle (supra footnote 781), p.
133.
808. C. Dommen, "Claiming Environmental Rights : Some Possibilities Offered by the
United Nations' Human Rights Mechanism", The Georgetown International Environmental
Law Review, Vol. 1 (1998), pp. 1-47.
809. C. Dommen (supra footnote 808), p. 11.
810. Ibid., pp. 13-15.
811. General Comments, No. 25, The Rights of Minorities, UN CCPR, Human Rights
Committee, 50th Session, 13-14 May, UN doc. CCPR121Rev.1, Add.5 (1994).
812. UN doc. E/CN.4/1999/89 (22 December 1998), Promotion and Protection of Human
Rights: Report of Science and Environment. Secretary-General submitted in accordance
with Commission Decision 1997/102 (para. 11).
813. For critical assessment see Pevato, pp. 310-312.
814. P. Sands, Principles of International Environmental Law, Manchester, Manchester
University Press, 1995, p. 224.
815. For example, see J. G. Merrills, "Environmental Protection and Human Rights:
Conceptual Aspects"; R. Churchill, "Environmental Rights in Existing Human Rights
Treaties", and A. Harding, "Practical Human Rights, NGOs and the Environment in
Malaysia" in A. Boyle and M. Anderson (supra footnote 781), pp. 25-42, pp. 89-108, and
pp. 227-244, respectively.
816. M. Anderson, "Human Rights Approaches to Environmental Protection : An
Overview", in A. Boyle and M. Anderson (supra footnote 781), p. 5.
817. P. Sands (supra footnote 814), p. 225.
818. S. Deimann and B. Dyssli (eds.), Environmental Rights: Law, Litigation and Access to
Justice, London, Cameron May, 1995.
819. See P. Sands, "Human Rights, Environment and the Lopez-Ostra Case: Context and
Consequences", 6 EHRLR (1996), 597-618. See also R. Desagne, "Lopez-Ostra v. Spain"
(Casenote), American Journal of International Law 89 (1995), 788-791.
820. See J. Thornton and S. Tromans, "Human Rights and Environmental Workings,
Incorporating the European Convention on Human Rights : Some Thoughts on the
Consequences for the UK Environmental Law", Journal of Environmental Law, Vol. 11,
Issue 1 (1999), pp. 36-57.
821. The 1950 European Convention on the Protection of Human Rights and Fundamental
Freedoms, Article 8:
"1. Everyone has the right to respect for his private and family life. His home and
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as in accordance with the law and is necessary in a democratic society in the interest of
security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for protection of the rights and
free-doms of others."
822. Article 3: "No one shall be subjected to torture or to inhuman or degrading treatment
or punishment."
823. Article 2:
"1. Everyone's life shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a crime for which
this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary ; (a) in defence of
any person from unlawful violence ; (b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained ; c in action lawfully taken for the purpose of quelling a
riot or insurrection”.
824. "1. Everyone has right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law : (a) the
lawful detention of a person after conviction be a competent court; (b) the lawful arrest or
detention of a person for non-compliance with the lawful order to secure the fulfilment of any
obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on reasonable suspicion of
having committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so ; (d) the detention of a minor by lawful
order for the purpose of education supervision or his lawful detention for the pur-pose of
bringing him before the competent legal authority ; (e) the lawful detention of persons for the
prevention of spreading infectious diseases, of persons of unsound mind, alcoholics or drug
addicts or vagrants ; (B the lawful arrest or detention of person to prevent his effecting an
unauthorized entry into the country or of person against when action is being taken with a
view to deportation or extradition ;
2. Everyone who is arrested shall be informed promptly, in language which he understands,
of the reasons of his arrest and of any charge against him;
3. Everyone charged with a criminal offense has the following minimum rights: (a) to be
informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him ; (b) to have adequate time and facilities for the preparation of
his defense ; (c) to defend himself in person or through legal assistance of his own choosing
or, if he has no sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require ; (d) to examine or have examined witnesses on his behalf under
the same conditions as witnesses against him".
825. Article 11,
"1. Everyone has the right to freedom and peaceful assembly and to freedom of association with
others, including the right to form and join trade unions for the protection of his interests ;
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by
law and are necessary in a democratic society in the interest on national security or public
safety, for the prevention of disorder or crime, for the protection of health or morals or the
protection of the right of freedom of others. This Article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by members of the armed forces, of the
police or of the administration of the State."
826. "1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the interest of
morals, public order or national security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances when publicity would prejudice
the interests of justice.
2. Everyone charged with a criminal offense shall be presumed to be innocent until proved
guilty according to law.
3. Everyone charged with a criminal offense had the following minimum rights; (a) to be
informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him ; (b) to have adequate time and facilities for the preparation or
his defense ; (c) to defend himself in person or through legal assistance of his own choosing
or, has he not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require; (d) to examine or have examined witnesses against him and to
obtain the attendance and examination of wit-nesses on his behalf under the same conditions
as witnesses against him."
827. Article I of the First Protocol :
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the
conditions provided for by law and by general principles of international law. The preceding
provisions shall not, however, in any way impair the right of a State to enforce such laws as it
deemed necessary to control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties."
828. Application No. 7407/76, Dec. 135.76, D.R.15, p. 161.
829. Application No. 9234/81, Dec. 14.7.81, D.R. 26, p. 270.
830. Article 13:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have
an effective remedy before a national nationality notwithstanding that the violation has been
committed by a person acting in official capacity."
831. European Court of Human Rights, Fredin v. Sweden (1990) 13 EHRR 784, Series A,
No. 192, para. 48.
832. European Court of Human Rights, Lopez-Ostra v. Spain, Series A, No. 303-C;
European Human Rights Reports 20 (1995) 277.
833. C. Miller, Environmental Rights, Critical Perspective, London/New York, Routledge,
1998. This author said as follows :
"[i]f, as in Lopez-Ostra judicial reasoning in human rights case is ultimately based upon an
assessment of a `fair balance' between conflicting land uses, then it is replicating the role of
the national civil court; it becomes, in effect, another court of appeal. Of course, it is possible
to conceive of a decision so manifestly unbalanced — so skewed against the individual — as
to violate any notion of reasonableness ; and human right is undeniably violated if national
jurisdiction overturns it. That conclusion, I suggest should not be reached lightly by a court
which is outside that national jurisdiction." (Pp. 18-19.)
834. Judgment of 3 August 1996, see on the case M. Craven, "Human Rights and the
Environment: The Case of Balmer-Shafroth and Others v. Switzerland", Review of
European Community International Environmental Law, Vol. 7, Issue 1 (1998), pp. 93-96.
835. Article 6, paragraph 1, is as follows:
"In the determination of his civil rights and obligations or any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be pronounced publicly but press
and public may be excluded from all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests of juveniles or the protection
of private life of the parties so require, or to the extent exactly necessary in the opinion of the
court in special circumstances where publicly would prejudice the interest of justice."
Article 13 is as follows:
"Everyone whose rights and freedoms set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
836. M. Craven (supra footnote 834), p. 94.
837. M. Craven (supra footnote 834), p. 94.
838. Ibid.
839. Judges : Pettiti ; Golcuklu ; Walsh ; Russo ; Valticos ; Lopess-Rocha ; Jambrek.
840. M. Craven (supra footnote 834), p. 95.
841. European Court of Human Rights (1161/1996/735/952) 4 BHRC, p. 63; J. Thornton
and S. Tromans, "Human Rights and Environmental Wrongs. Incorporating the European
Convention on Human Rights : Some Thoughts on the Consequences for the UK
Environmental Law", Journal of Environmental Law, Vol. 11, Issue 1 (1999), pp. 35-57; C.
Miller, "The European Convention on Human Rights : Another Weapon in the
Environmentalist's Armory, Guerra and Others v. Italy", Journal of Environmental Law,
Vol. 11, Issue 1 (1999), pp. 177.
842. See information from J. Thornton and S. Tromans (supra footnote 841), pp. 40-41.
843. J. Thornton and S. Tromans (supra footnote 841), p. 45.
844. For the text see : http://untreaty.org/English/notpubllnotpubl.asp; see also M.
Gavouneli, "Access to Environmental Information : Delimitation of a Right", Tulane
Environmental Law Journal, Vol. 13, Summer 2000, Issue 2 (2000), pp. 303-327, in
particular pp. 315-320.
845. Citation and all other information from K. Brady, "Aarhus Convention Signed",
Environmental Policy and Law, 28/3-4 (1998), p. 171.
846. M. Gavouneli (supra footnote 844), p. 320.
847. See on the topic, C. Redgwell, "Life, the Universe and Everything : A Critique of
Anthropocentric Rights", in A. E. Boyle and R. Anderson (eds.), Human Rights
Approaches to Environmental Protection, Oxford, Clarendon Press, 1996, pp. 71-87.
848. Ibid., p. 73.
849. C. Redgwell (supra footnote 847), p. 85.
850. A. D'Amato and S. Chopra, "Whales : Their Emerging Right to Life", American
Journal of International Law, Vol. 85 (1991), pp. 21-62.
851. Ibid., pp. 86-87.
852. On this topic see Review of European Community International Environmental Law,
Vol. 7, Issue 1 (1998).
853. D. Bodansky and J. Brunnée, "The Role of National Courts in the Field of
International Environmental Law", Review of European Community International
Environmental Law, Vol. 7, Issue 1 (1998), pp. 11-20, at p. 15.
854. M. Anderson, "International Environmental Law in Indian Courts", Review of
European Community International Environmental Law, Vol. 7, Issue I (1998), p. 25.
855. J. Brunnée, "International Law in Canadian Courts", Review of European Community
International Environmental Law, Vol. 7, Issue 1 (1998), pp. 47-56, at p. 49.
856. D. Bodansky and J. Brunnée (supra footnote 853), p. 15.
857. A. Nollkaemper, "Judicial Application of International Environmental Law in the
Netherlands", Review of European Community International Environmental Law, Vol. 7,
Issue 1 (1998), p. 41.
858. Herpetologische StudieGroup Gerdeland v. Provincial Executive Gerdeland,. Council
of State, Administrative Justice Division, 22 April 1991, No. 592; cited in A. Nollkaemper
(supra footnote 857), p. 41.
859. Ibid.
860. J. Cameron and R. Mackenzie (supra footnote 807), p. 152.
861. T. Ormond, "Access to Justice for Environmental NGOs in the European Union", in S.
Deimann and B. Dyssli (eds.), Environmental Rights: Law, Litigation and Access to
Justice, London, Cameron May, 1995, pp. 71-86.
862. G. Betlem, "Environmental Locus Standi in the Netherlands", Review of European
Community International Environmental Law, Vol. 3, Issue 4 (1994), pp. 238-254.
863. E. Fernandes, "Defending Collective Interests in Brazilian Environmental Law: An
Assessment of the 'Civil Public Action"', Review of European Community International
Environmental Law, Vol. 4, Issue 3 (1994), pp. 253-258.
864. Ibid., p. 254.
865. M. A. Schofield and D. S. Thompson, "Access to Justice and the Right to Healthful
Environment in Canada : Public Participation in Environmental Decision-Making", Review
of European Community International Environmental Law, Vol. 4, Issue 3 (1994), pp. 233234.
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