The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

Most key treaties on human rights were introduced before the issue of environment protection emerged. Human rights were widely recognised in positive law only in the 20^th century [Leroy 2006: 66].

The Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 [The Convention… 1950; ‘the European Convention’ below] is the most important Council of Europe treaty on human rights. It sets the standard for respecting human rights in all member states of the organisation. Obedience to the European Convention’s provisions is guarded by the European Court of Human Rights in Strasbourg (‘the European Court’ hereafter), which, by means of its decisions, interprets the rights and freedoms incorporated in this act.

The European Convention fails to directly guarantee the human right to the natural environment in its catalogue of rights and freedoms expressed in provisions of the document. This is most likely due to the fact that scant attention was paid to problems emerging on the interface of human and environmental rights at the time. The international interest in environment protection is commonly associated with the UN Conference on human environment in 1972.

A. Przyborowska-Klimczak points out the Action plan for the human environment adopted at the Stockholm conference in 1972 established mechanisms of cooperation as part of the UN and their specialised agencies. Institutional and financial details were specified in the General Assembly’s resolution No. 2997 (XXVII) of 15 December 1972 [Przyborowska-Klimczak 2004: 261].

The question arises, therefore, whether the European Convention ensures environment protection in the context of absence of the human right to the environment in its regime and if, consequently, entitled entities may make this right the ratione materiae of their individual complaints to the European Court. A review of the Strasbourg decisions with reference to this question indicates the thinking of the authorities on watch of the European Convention’s provisions has evolved. To begin with, the European Commission of Human Rights (‘the Commission’ below) found complaints against violations of the environmental right inadmissible. This position has changed, as later decisions of the Commission and rulings of the European Court pointed out the natural environment and its protection are closely related to the human rights as they are guarantees by the European Convention. This is corroborated by individual complaints submitted to the European Court, where the environment is the subject matter. The European Court has had the opportunity, therefore, to consider and resolve cases of violations associated with environmental issues from the perspective of other rights incorporated in the European Convention as well as its protocols.

Due to the space constraints of this article and the extensive objective scope of the environmental rights as expressed by the European Convention, only selected aspects of legal individual protection are addressed in connection with the environment degradation by force of Article 8 of the European Convention, which guarantees the right to respect for private and family life.

Analysis of the environmental right as a human right ought to commence with the source of this right, namely, human dignity. Dignity of a human person is an ontic value, enduring, inherent, inalienable and binding. This is the ontic value that decides a human person has dignity regardless of their conduct and behaviour. Human dignity is an unconditional and fundamental good of the entire humankind. Man is the only living creature with a potency and capacity for moral duty and scientific exploration, a creative being capable of bearing responsibility [Mazurek 2001: 17–19].

The attribute of human dignity, in conjunction with identical legal status of each individual, has propagated the idea of universal human rights, natural, inherent and appendant. Philosophical concepts stress the rank and significance of human rights, defining the personalist approach, entrenched and developed both in current theory and international law by emphasising and standardising the attribute of native dignity. This philosophical idea has additionally become a legal category. The institution of human dignity has a quite long history in philosophy and a rather short tradition in law [Liżewski 2018: 211–212].

As a condition of belonging to the human species, the dignity results from a man’s existence as an individual being. As a legal value, it is also a foundation, basis of human rights and the goal, crowning of their legal construct. Dignity makes an individual a subject in the axiological system of human rights, granting them the instruments of rights and freedoms. In practice, this means each man, regardless of time and place they happen to live in, cannot be treated instrumentally by any subject of international law due to the absolute value of their dignity [Orzeszyna, Skwarzyński, Tabaszewski 2020: 20].

As far as human rights are concerned, it needs to be said there are uniquely stratified, natural human possibilities that are individual as a matter of principle, yet socially determined, equal, inalienable, enduring in time, subjectively, objectively and geographically (and to some extent culturally) universal, necessary (necessitating legal protection) and always arising from personal dignity inherent in every human being [Mik 1994: 87].

The human rights are, therefore, a domain where humans can exercise their liberty as a sphere of potential conduct, entitlement or competence, while the state must actively provide legal protection in this case by instituting norms in positive law. A human right is a type of liberty, entitlement or competence for the sake of whose exercise an individual has the right to demand protection to be ensured by the state [Orzeszyna, Skwarzyński, Tabaszewski 2020: 13–14]. As the human civilisation develops, we keep discovering more rights due to humans. After the positive law sanctioned political, social and economic rights, legislators have faced another challenge – a new right or even a whole new complex of human rights to the natural environment [Karski 2006: 310].

Growing awareness of the significance of natural environment is motivated by shrinking availability of natural resources both on the macro scale and in the local conditions. A clearer recognition of links between nature and other areas of social life and activities, as well as international importance of at least some ecological issue are some more reasons for demanding protection of the environment [Hołyst 2001: 199].

The question of reasons for regarding environmental right as a human right (a de lege ferenda postulate) is distinct from the question of the current status of the environmental right as a human right (de lege lata status). In the former case, the question needs to be answered if treating the environmental right as a human right can improve environment protection. The problem of whether adding the environmental right to the catalogue of human rights will not impair protection of the latter must be addressed as well. The possibility of filing individual complaints to specialised human rights authorities like the European Court is an undoubted advantage of such a solution [Alfredsson, Ovsiouk 1991: 19].

An indissoluble link between human rights and environmental issues cannot be denied.

The relation may seem difficult, which is perfectly illustrated with the European Court’s decisions. Cf. Manual… 2012; Gronowska et al, ed. 2018.

The European Convention principally incorporates the classic human rights and freedoms. With the consecutive additional protocols numbered 1, 4, 6, 7, 12 and 13, writers of its original text expanded the catalogue of rights and freedoms contained in the 1950 treaty.

Texts of these additional protocols to the European Convention are available at https://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/treaty/results/subject/3.

The European Convention is a living instrument of human rights and fundamental freedoms whose provisions should be interpreted in the light of present-day conditions.

The European Court’s judgement of 25 April 1978 in the case Tyrer versus Great Britain, complaint No. 5856/72; the European Court’s judgement of 13 July 2004 in the case Pla and Puncernau versus Andorra, complaint No. 69498/01.

It has been indicated above the Strasbourg authorities initially rejected complaints about environment issues, motivated by absence of the environmental right from the catalogue of rights and freedoms of the European Convention. A complaint against the Federal Republic of Germany, charged with combined violations of Articles 2, 3 and 5 of the European Convention in connection with inconvenience caused by military use of real estate adjacent to the complainant’s home, was one of the first suits of this type.

The European Commission on Human Rights decision of 13 May 1976 in the case X. and Y. versus the Federal Republic of Germany, complaint No.7407/76; the European Commission on Human Rights decision of 5 August 1969 in the case Dr. S. versus the Federal Republic of Germany, complaint No.715/60 (unpublished). A similar stance was presented by the European Court in its judgement of 8 July 2003 in the case Hatton and Others versus the United Kingdom, complaint No. 36022/97.

This position was modified, however, since the European Commission of Human Rights accepted continuing complaints about breaches of the environmental right, indicating adverse impacts on the environment may in some cases interfere with effective exercise of individual rights and freedoms incorporated in the European Convention.

See e.g. the European Commission on Human Rights decision of 19 January 1985 in the case Baggs versus the United Kingdom, complaint No. 9310/81, DR 44, p. 13; the European Commission on Human Rights decision of 14 October 1992 in the case Zander versus Sweden, complaint No. 14282/88. The former related to noise issues, the latter to water pollution.

Since then, the European Court has issued a number of decisions on the border of human and environment protection rights where the environmental right has been admitted by means of a broad interpretations of other rights expressed in the European Convention.

It has resolved in approximately 300 cases related to the environment, cf. https://www.coe.int/en/web/portal/human-rights-environment [accessed: 12.11.2020].

The European Court has not found Article 8 of the European Convention, however, to be an instrument of environment protection as such, clearly expressing this position in its decisions. It has said neither Article 8 nor any other provision of the European Convention had been expressly designed to provide overall protection of the natural environment as such. Other international legal instruments and national legislations serve this purpose, better governing this particular issue.

Cf. the European Court’s judgement of 22 May 2003 in the case Kyrtatos versus Greece, complaint No. 41666/98.

In the European Court’s opinion, any adverse consequences to a complainant’s private or family domain are key to establishing if certain harm to the environment led to breaches of a right guaranteed by Section 1 of the said provision. The general degradation of the natural environment is not sufficient.

The European Court’s judgement of 9 December 1994 in the case Lopez Ostra versus Spain, complaint No. 16798/90.

Article 8 of the European Convention can only apply where an environmental breach has direct adverse effects on private and family life of a complainant. An environment infringement will trigger application of Article 8 of the European Convention where it reaches a certain level whose determination is relative and dependent on a variety of circumstances. The European Court believes overall standards of environment protection in a given country are not without importance. Article 8 is not violated if harm, compared to ecological risk of living in the contemporary city, is slight [Nowicki 2006: 142].

In the right to privacy cases in conjunction with the environmental right, the European Court points out states have certain procedural duties like, for instance, following decision-making processes that consist of appropriate investigation, provision of public access to information and of effective legal remedies to parties concerned.

Cf. the European Court’s judgement of 9 December 1994 in the case Lopez Ostra versus Spain; the European Court’s judgement of 10 November 2004 in the case Taşkin versus Turkey, complaint No. 46117/99.

My review of Strasbourg decisions concerning problems connected with interferences with the environmental right as a consequence of infringements on Article 8 of the European Convention identified issues of noise and industrial pollution, deforestation and urbanisation issues. As far as noise is concerned, the European Court has inter alia taken a stand in the famous case against the United Kingdom, charged with violations of Article 6, Section 1, Articles 8 and 13 of the European Convention and Article 1 of Protocol 1 to the European Convention in connection with excessive noise levels near the Heathrow Airport. The European Court accepted the complaints by force of Article 8 in conjunction with Article 13 of the European Convention. It pointed to unreasonable state interference as a result of noise generated by air traffic. It concluded sounds produced by aeroplanes had effects, varying in each case, on private lives of the complainants. In the context of both positive duties and interference of authorities pursuant to Article 8, Section 2 of the European Convention, it found it very important to determine conflicting interests of individuals and the entire community.

Cf. the European Court’s judgement of 21 February 1990 in the case Powell and Rayner versus the United Kingdom, complaint No. 9310/81.

In Deés versus Hungary, the complainant declared they had sustained suffering caused by noise, vibrations and adverse impacts of pollution due to unregulated heavy traffic in their street (breach of Article 8 of the European Convention). The European Court found that, despite measures taken by authorities to restrict and reorganise road traffic in the street of the complainant’s residence, they suffered direct and grave harm from excessive noise they had been exposed to for a long time. As a consequence, they could not enjoy the right to respect for their home and private life, a violation of Article 8 of the European Convention.

The European Court’s judgement of 9 November 2010 in the case Deés versus Hungary, complaint No. 2345/06.

The Strasbourg decisions also relate to industrial pollution. In Guerra et al. versus Italy, residents within a kilometre of a chemical fertiliser factory were informed of pollution caused by the factory’s operations and could assess the risk of living near that plant to themselves and their families only after its production was discontinued (i.e., about six years after the factory was qualified as a high-risk enterprise in respect of environmental threat). Resolving the case, the European Court found a breach of Article 8 of the European Convention.

The European Court’s judgement of 19 February 1998 in the case Guerra and Others versus Italy, complaint No. 14967/89.

In Lopez Ostra versus Spain, the European Court found an infringement on Article 8 of the European Convention as a result of inconvenience sustained by the complainant when the local authority situated a waste treatment plant a few metres away from her home.

The European Court’s judgement of 9 December 1994 in the case Lopez Ostra versus Spain.

Fadeyeva versus Russia, concerning air pollution caused by a steel factory Severstal, constructed in the Soviet era and privatised in 1993, controlled by the state with regard to environment requirements to be fulfilled, was a famous case heard by the European Court. The factory was responsible for nearly 100% of industrial emissions in the city. The complainant ranked 6,820^th among those expecting the plant’s relocation. The European Court indicated the state had failed to provide an effective solution to assist the complainant with leaving the hazardous area (her home was in the vicinity of the steel manufacturer), although the situation around the steelworks required special treatment of the residents. Though operations of the factory continued to violate national standards of environment protection, the state was not prepared or would not apply effective means of reducing the pollution to acceptable levels. The Court found it an infringement upon Article 8 of the European Convention, therefore.

The European Court’s judgement of 9 June 2005 in the case Fadeyeva versus Russia, complaint No. 55723/00.

In di Sarno and others versus Italy, which concerned a persistent ‘rubbish crisis’ in an Italian region, the environmental harm caused by an ecological disaster and raised by the complainants had immediate impact on their situation. They could, thus, be regarded as victims and their complaint was not an actio popularis. The European Court stressed in its judgement it preferred to refrain from correcting national policies of natural environment protection. It would not be fair to adopt a different stance by invoking a special status of ecological human rights. It is certainly not in the Court’s competence to replace national authorities in determining what policies in this difficult technical and social area would be most effective. The state parties to the European Convention enjoy a wide margin of discretion in this domain. Therefore, the European Court’s actions in this respect are subsidiary.

The European Court’s judgement of 10 January 2012 in the case Di Sarno and Others versus Italy, complaint No. 30765/08.

Beginning with Powell and Rayner versus the United Kingdom, the European Court has developed two approaches to determining state’s responsibility under Article 8 of the European Convention. The first is derived from a state’s positive duties under this provision, the other from public authority interference pursuant to Section 2. It is stressed both the approaches utilise similar principles that comprise the duty of assuring a fair balance between impaired individual rights and interests of the community, with a ‘wide margin of assessment’ remaining available to the state.

Cf. the European Court’s judgement of 21 February 1990 in the case Powell and Rayner versus the United Kingdom; the European Court’s judgement of 9 December 1994 in the case Lopez Ostra versus Spain.

The European Court has stated the environment, without being explicitly protected by the European Convention, is a value per se and care for its well-being is in the interests of both society and public authorities. Economic considerations, and even the right to property, should not take precedence over environment protection, especially if the state has introduced legal regulations in this respect. Public authorities are bound to act for protection of the environment.

The European Court’s judgement of 27 November 2007 in the case Hamer versus Belgium, complaint No. 21861/03.

It must be concluded the key Council of Europe’s treaty on human rights protection, the European Convention or any of its additional protocols do not contain any guarantees of the environmental right. However, this right exists in the European Convention system in connection with protection standards of other rights. It has been affirmed indirectly, by way of interpretations of the European Convention by the Strasbourg decisions of the European Commission on Human Rights and the European Court to begin with and subsequently by the Court itself. It regularly hears complaints of individuals claiming violations of their rights arising from the European Convention as a result of adverse environment factors.

The complaints against infringements on the environmental right most commonly cite Article 8 of the European Convention. However, not every reference to this provision is reasonable, as it has been often stressed it does not institute the right to environment protection in all and any cases. On the one hand, interference with the natural environment is bound to have direct adverse effects on the quality of complainants’ private lives, yet on the other hand, the extent of such interference is not necessarily hazardous to individual health or life.

In its decisions, the European Court has adopted the view grave harm to the environment may affect the well-being of individuals. In line with the Strasbourg decision-making, states are not only obliged to refrain from arbitrary interference but also have a positive duty of adopting reasonable and appropriate measures to protect individual rights.

The doctrine of ‘living instrument’ has made the environmental right part of the right to respect for private and family life as well as other rights guaranteed by the European Convention by way of a gradual specification of the environmental dimension of this act.

This discussion clearly indicates a significant role and influence of the system envisaged by the European Convention and European Court in counteracting crime against the environment in the Council of Europe member states. The European Convention can be said, therefore, to be an effective legal instrument protecting individuals in cases of environmental threats that affect human living.

The European Court’s decisions clearly demonstrate an ongoing process of gradual supplementation of certain traditional rights guaranteed by the European Convention in respect of environmental issues. This is due to growing awareness of and care for the environment. It has been noted here the European Convention is a ‘living instrument’ that should be interpreted and applied in the context of contemporary conditions.