Abstract
The scope for environmental protection through existing and internationally protected human rights is conditioned upon the establishment of a ‘link’ between environmental degradation and the impairment of a protected right. This constitutes a limit for the use of human rights as a tool to promote environmental protection.The aim of this article is to briefly illustrate how this is true with regard to the case law of the European Court of Human Rights, where the environment is usually protected through article 8 of the ECHR –Right to respect for private and family life.
These were the cases considered:
– Hatton and Others v. the United Kingdom, no. 36022/97;
– Kyrtatos v. Greece, no. 41666/98;
– Tatar v. Romania, no. 67021/01;
– Ivan Atanasov v. Bulgaria, no. 12853/03.er
A brief overview of the cases
The European Convention on Human Rights do not grant individuals with a right to an environment of a certain quality or other environmental rights; as repeatedly stated by the European Court of Human Rights: «Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such»[1]. However, through the interpretation of certain provisions of the ECHR, the ECtHR in its case law have developed environmental rights –stemming from existing human rights– which addressees are individuals, and which corresponding duties lie upon states. However, there is a limit: «The State’s obligations […] come into play […] only if there is a direct and immediate link between the impugned situation and the applicant’s [right]»[2].On this basis, the environment received protection in the case of Tatar v. Romania[3]. According to the Court, a link between environmental degradation and the impairment of article 8 of the ECHR existed; more specifically, Romania failed to assess the risks related to the mining company’s activity and to take measures so as to grant respect of home and family life of the applicant. On the other hand, no environmental protection was granted under article 8 ECHR in the case of Hatton and Others v. the United Kingdom[4]. In fact, the Court held that restrictions to private and family life are allowed when the economic well-being of the country is involved. However, the fact that the claimants lacked an effective remedy at national level toward the enforcement of their rights resulted in a violation of article 13 ECHR. As a consequence, the court outlined a positive –but still indirect– obligation on the state to grant procedural rights relating to environmental protection. Moreover, in the case of Atanasov v. Bulgaria the ECtHR held that, even if the respondent state had not satisfactorily responded to the applicant’s concerns regarding the impact of the mining activities on the health of his family, «in the absence of proof of any direct impact of the impugned pollution on the applicant or his family, the Court [was not] persuaded that Article 8 [was] applicable»[5]. In that occasion, the Court acknowledged the existence of certain damages to the environment and thehealth risks for those living nearby the polluted pound. However, the judges were prevented to apply article 8 because the applicant had «not apparently suffered any actual harm to date»[6]. The limits of environmental protection by means of existing human rights are here the more evident. In fact, the Court missed the opportunity to recognise a collective interest in the preservation of the environment, a public good; in addiction, even in front of illegal activities[7], it subordinates environmental protection to individual rights’ impairment.
Considerations on the approach of the Court
The approach of the ECtHR is individualistic and in line with the international human rights tradition that dates back to 1948, when the objective was to affirm individual dignity and freedom. As a result, some major peculiarities of environmental issues cannot be addressed by the Court as things are. More specifically, damages to the environment involve individuals collectively: collective claims should be allowed as well as collective remedies should be granted. Furthermore, the “link” requirement entails the fact that a damage to the environment have already occurred and is of sufficient severity so as to impair a Charter right; the set of preventive measures that characterise European environmental law is lost when the Court makes restrictive interpretations of the Charter.
A brief overview of the approach of other Human Rights courts
On the other hand, the Inter-American Court of Human Rights in its case law have adopted innovative and collective interpretations of article 21 of the American Convention on Human Rights –right to property– so as to grant indigenous communities with the means to protect their ancestral territory and its environmental integrity. However, this approach is still bound to two main limits: the community has to prove its indigenous identity; the territory must be proved to be ancestral. In addition, environmental protection is still instrumental to the right of indigenous people to live their traditional way of life.Finally, the African Charter directly recognises «the right to a general satisfactory environment»[8]. Nonetheless, it seems that environmental protection as such is not granted yet, unless a simultaneous violation of other rights –together with, or as a consequence of, environmental pollution– occur. Moreover, the wording “general satisfactory environment” leads to problems of interpretation due to its indeterminacy.
A path beyond the limit of the “link”
The ECtHR appears to be favourable to the introduction of new environmental-human rights[9]; in two occasions the Council of Europe’s Parliamentary Assembly adopted recommendations suggesting the introduction of a right to a “healthy and viable environment”[10],[11]. However, the brief overview on the american and african experiences suggests another path, which is supproted by Francioni[12]: a more liberal interpretation of the ECHR.
It is clear that in Kyrtatos v. Greece[13] major positive results could have been achieved by the ECtHR if the applicants’ interest in the environmental integrity of the area surrounding their home was considered susceptible to entitle them with a right to stop the illegal construction activity. In the case, protection from illicit environmental degradation was subordinated to the existence of an impairment of the right to private and family life. This limit is no way functional to the protection of the environment.
In recent years, the legal basis for a more liberal interpretation of human rights have been set. The two cornerstones are the 1972 Stockholm Declaration on the Human Environment, where in principle 1 traditional human rights are followed by an explicit right/responsibility to protect and improve the environment; and the 1992 Rio Declaration, in which human beings are entitled to the right to live in harmony with nature. Here comes into play the sustainable development framework, in particular with regard to its integrated approach to the social and environmental pillar at the light of which the Court is allowed –if not spurred– to pursue environmental protection through human rights and vice versa.
Human rights cannot be fulfilled in a polluted environment.
NOTES
[1] Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003.
[2] Atanasov v. Bulgaria, no. 12853/03, § 66, ECHR 2011.
[3] Tatar v. Romania, no. 67021/01, § 98-125, ECHR 2009.
[4] Hatton and Others v. the United Kingdom [GC], no. 36022/97, ECHR 2003.
[5] Atanasov v. Bulgaria, no. 12853/03, § 78, ECHR 2011.
[6] See supra note 5.
[7] Kyrtatos v. Greece, no. 41666/98, ECHR 2003.
[8] Article 24 of the African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 Oct.1986.
[9] Atanasov v. Bulgaria, no. 12853/03, § 56-57, ECHR 2011.
[10] Council of Europe’s Parliamentary Assembly, Recommendation 1431 (1999), Future action to be taken by theCouncil of Europe in the field of environment protection, 4 November 1999.
[11] Council of Europe’s Parliamentary Assembly, Recommendation 1614 (2003), Environment and human rights, 27June 2003.
[12] F. FRANCIONI, International Human Rights in an Environmental Horizon, in The European Journal of InternationalLaw, Vol. 21 no. 1, 2010.
[13] See supra note 7.
