‘The Development of the Right to
Healthy Environment in International
Case - Law’
Konstantina Bouskouta
Master‟s Thesis in International and European Law: Public International Law Track
University of Amsterdam
Supervisor: Prof. Antoinette Hildering
Abstract
The main component of this thesis is the problematic over the substantive human right to healthy environment, its content and more specifically whether the right should be individual or collective.
An explicit substantive human right to healthy environment exists only in the African Charter of Human and Peoples Rights. Binding and non - binding documents confirm the importance of the right to healthy environment from the 1970‟s till recently. Also, case- law is not ignorant to environment when, environmental circumstances impair human way of living.
This thesis provides an overview of the current legal status of the human right to healthy environment in international law. It makes references to relevant legal documents affirming the value of such a right. Then discusses the advantages and disadvantages pertaining the creation of a separate substantive human right to healthy environment, with the employment of legal literature. The link between the environment and human rights is discussed and through comparative analysis of case - law from ECtHR on the one hand and ACommtHPR, IACtHR on the other, the importance of the interpretation of the content of the right to healthy environment is illustrated. The former only implicitly recognizes the right to healthy environment through other human rights enshrined in ECHR, such as article 8, and only individual claims to bring violations of human rights linked to environment before the ECtHR. The latter two, recognize a collective dimension of the right, the ACommtHPR by way of the explicit article 24 ACHPR, whereas IACtHR by means of interpretation of other provisions on property, brings out the collective nature of a right to healthy environment.
The procedural environmental rights enshrined in Aarhus Convention are widely accepted. Notwithstanding the promotion of environmental concerns through procedural guarantees, they cannot offer complete protection without a substantive human right to healthy environment.
The analysis concludes that the creation of a substantive right to healthy environment (besides the respective provision in ACHPR) is imperative to cover the gap that exists in
international environmental and human rights law concerning the protection of persons from environmental harm and more importantly, the possibility of invoking a separate provision to healthy environment, not only from victims directly affected from environmental degradation, but also from everyone having an interest in healthy surroundings, is a significant advantage of the potential right, making its creation an important promotion for the protection of the right - holders.
Contents
Introduction 1
1. The legal status of the right to healthy environment in international law 5
1.1 Legal disadvantages of the right to healthy environment 11
1.2 Legal advantages of the right to healthy environment 12
2. Legal relationship of the right to environment with other human rights 15
2.1 European Convention on Human Rights: individual rights 17
2.2 European Court of Human Rights case - law 18
3. Collective right to healthy environment 25
3.1 African Charter on Human and Peoples‟ Rights 27
3.2 American Convention on Human Rights 29
3.3 Procedural environmental rights: collective interest of the public 30
General Conclusion 33
Introduction
“How to keep - is there any, is there none such, nowhere known some, bow or brooch or braid or brace, lace, latch or catch or key to keep back beauty, keep it, beauty, beauty, beauty, … from vanishing away?”
The Leaden Echo and the Golden Echo, Gerard Manley Hopkins
Over the last 20 - 30 years radical changes in the environment make an appearance. Environmental degradation is a fact and it affects human way of living. After World War II the main focus of societies was the revival of their economies, social and political changes and only during the 1970‟s the environment started to become a concrete issue, drawing the attention of international legal agenda. The environment is conditio sine qua
non for human life and future.1 However, while seemingly there is a large consensus
between states on the idea of safeguarding our environment,2 indicated by the
proliferation of international environmental law treaties and UN General Assembly
Resolutions,3 obligations remain at inter - state level, they are focused on specific
1
Even to the point that it is suggested that environmental rights belong to a “third generation of human rights” see Karel Vasak, „Human Rights: A Thirty-Year Struggle: the Sustained Efforts to
give Force of law to the Universal Declaration of Human Rights‟ (1977) XXX (11) The UNESCO Courier: a window open on the world 29.
2
More specifically, the “Ksentini Final Report” concludes that there exists presently "universal
acceptance of the environmental rights recognized at the national, regional and international levels" and the Draft Declaration recognizes that "all persons have the right to a secure, healthy and ecologically
sound environment" in U.N. ESCOR Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities 46th Sess, Final Report Prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur (1994) U.N. Doc. E/CN.4/Sub.2/1994/9.
3 According to Rodriguez Rivera “Thus, the last thirty years have witnessed a proliferation of international
documents specifically addressing global and regional environmental concerns. More specifically, over 350 multilateral treaties, 1,000 bilateral treaties, and hundreds of intergovernmental instruments, such as declarations, resolutions, and programs of action addressing a plethora of environmental issues have been adopted during that period” in Luis E. Rodriguez-Rivera, „Is the Human Right to Environment Recognized under International Law – It Depends on the Source‟ (2001) 12 Colo. J. Int'l Envtl. L. & Pol'y 1.; See for instance United Nations General Assembly, World Charter for Nature (28 October 1982) A/RES/37/7 <http://www.refworld.org/docid/3b00f22a10.html> [accessed 6 July 2018]; Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989)
environmental issues, and a provision enshrining a human right to a healthy environment exists only in regional human rights conventions.
United Nations Population Fund made an accurate connection on the relevance of the environment to the right to health: “Environmental conditions help determine whether people are healthy or not, and how long they live. They can affect reproductive health and choices, and they can help determine prospects for social cohesion and economic growth, with further effects on health. Changes in the environment – pollution and degradation, climate change, extremes of weather – also change prospects for health and
development”,4
making it clear that a healthy environment is an essential element of the human life.
All the disturbing consequences of environmental degradation affect not only human
health, but also the enjoyment of other human rights.5 This observation lead me to
dedicate my thesis to the right to healthy environment, in order to cover the legal aspects pertaining such a right and contribute to its understanding and protection.
The next logical step is to focus on the right to a healthy environment. My main research question concerns the value of the potential existence of a separate substantive human right to healthy environment. Towards that end the distinction of an individual right to healthy environment and its collective dimension is at the epicenter, as the added value of such a right would be the possibility to be invoked at an individual and at a mass - collective level. To that aim, the evolution of the right to healthy environment will be discussed and the current status of the right in different human rights regimes.
In the first chapter, there will be first a discussion about the legal status of the right to healthy environment in international law. Definitions will be given used by authoritative sources, trying to define the concept of healthy environment and the problematic of what components it could comprise. Binding and non – binding legal documents which make
1522 UNTS 28 („Montreal Protocol‟) worldwide ratification; Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 („CBD‟).
4 United Nations Population Fund, „State of World Population Report 2001: Footprints and Milestones:
Populations and Environmental Change‟ (UNFPA 2001) <www.unfpa.org > accessed 5 May 2018.
5 Office of the High Commissioner on Human Rights, „Analytical Study on the Relationship Between
reference implicitly or explicitly to the right will indicate the development of the right. In addition to that, this thesis then turns to discuss the main hurdles, the critics of the creation of a right to healthy environment use as opposing arguments, preventing the emergence of the right to healthy in a relevant treaty provision (with the exception that will be discussed in the third chapter). Counterarguments in favor of the existence of the right to healthy environment will be also discussed along with the issue of the right- holders, namely the value of acknowledging individual or collective claims before judicial bodies.
In the second chapter the reasons behind the linkage of environmental protection to human rights are illuminated, namely that the environment is an intrinsic part of human well - being. The jurisprudence of the European Court of Human Rights (hereinafter „ECtHR‟) on various relevant cases is a significant part of the chapter. What is helpful to focus here on, is that the ECtHR has handled cases regarding environmental considerations and assesses them through human rights provisions of the Convention on
the Protection of Human Rights and Fundamental Freedoms6 (hereinafter „ECHR‟).
Emphasis will be given on article 8 of the ECHR on the respect for family and private life and the criteria and principles the ECtHR has developed over the years, as prerequisites to verify violations of article 8 when they originate from environmental harm. What characterizes ECHR is the focus on the individual aspect of the right, confirmed by ECtHR case - law.
The third chapter is dedicated predominantly to the assumption that a right to healthy environment needs to be created, outside regional frames and be elevated in its collective dimension, in contrast to merely individual claims, by promoting collective interests. To substantiate this conceptualization, the thesis first points to the African Charter on
Human and Peoples‟ Rights7
(hereinafter „ACHPR‟) or else called the „Banjul Charter‟, which already includes a provision on a “satisfactory environment” and the American
Convention on Human Rights8 (hereinafter ACHR). Pertinent cases which indicate the
possibility of realization of a collective right (of indigenous peoples and tribes) to healthy
6 (adopted 4 November 1950, entered into force 3 September 1953) ETS No 5. 7 (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 363.
environment, that are considered to be justifiable by the African Commission on Humans and Peoples Rights (hereinafter ACommHPR), also the Inter - American Commission on Human Rights (hereinafter IACommHR) and the Inter - American Court (IACtHR) respectively will be examined for their unique features and judicial reasoning. In furtherance of the main argument, reference will be made to procedural environmental rights, their scope and benefits regarding the protection of the environment and their aim to create obligations for the states to offer information and environmental protection to the wide public.
The final part introduces an overview of the previous chapters, leading to the conclusion that there should exist a right to healthy environment per se, put into words in its collective dimension. Moreover, the concept of sustainable development will pervade this thesis. Although out of the three pillars, the environmental one will be stressed, as it is relevant to the right to healthy environment.
Methodologically, as the title indicates, the thesis will be built on related case - law from the ECHR, ACHPR, ACHR and comparative analysis. It is a research containing descriptive parts as a starting point and incorporating advisory parts on how a potential right to healthy environment should be captured. The focus is on case - law, in order to understand the difference in interpretation by the respective Courts of the content and scope of the right to healthy environment and especially the emphasis on the individual or collective aspect of the right. Concerning ECtHR the focal point will be article 8 ECHR and its expansive interpretation by the Court to cover environmental issues. Regarding ACHPR and the ACHR the main provisions discussed are article 24 and article 21on property respectively. Important details for each chosen case will be provided, and an evaluation of the outcomes. Legal literature (journals and books) from scholars familiar with both human rights and environmental law will complement the findings of the case -law, drawing conclusions to support the main concept of the thesis, the development of the right to healthy environment and the changes in favor of which the author of the thesis advocates in the last part. Reports from international bodies, including the Office of the United Nations High Commissioner for Human Rights and the Council of Europe are also introduced in support of this thesis.
1. The legal status of the right to healthy environment in international
law
The right to healthy environment has been discussed on various occasions in international law. In the following chapter some of the instruments framing this right will be mentioned, binding and non - binding, in order to understand the difference in the wording of each source and draw some conclusions. After making these observations, this thesis will turn to the disadvantages and advantages of a separate right to healthy environment as they have been debated by scholars in relevant legal literature.
An example of binding legal sources, supporting the importance of the right to healthy environment is the International Court of Justice case - law, which has argued that “The need to reconcile economic development with protection of the environment [which] is
aptly expressed in the concept of sustainable development”.9 In the Pulp Mills Case,10
ICJ reiterated that “interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection, that is the essence of sustainable development”. The significance of these quotations cannot be overstated, as they accept the sovereignty of the state to define its economic policies, nonetheless, the pursuit of economic development ought not to be an end at itself, at the expense of environmental development and protection. Judge Weeremantry affirmed environmental protection as “a vital part of contemporary human
rights doctrine” calling it “a sine qua non for numerous human rights”,11
giving prominence to the importance of the environment for human life.
Other Courts such as the ECtHR and the IACtHR interpret other human rights provisions to bring into consideration environmental pollution, such as article 8 ECHR for the former and article 21 ACHR for the latter. The right to healthy environment is perceived
9 Gabcikovo Nagymaros Dam Case (Hungary v Slovakia) (Judgement) [1997] ICJ Rep 7 para 140. 10
Pulp Mills on the River Uruguay Case (Argentina v Uruguay) (Judgement) [2010] ICJ Rep 14 para 177.
11 Gabcikovo-Nagymaros Project (Hungary v Slovakia) (Judgement) [1997] ICJ, Separate Opinion of Judge
Weeramantry <http://www.icj-cij.org/files/case-related/92/092-19970925-JUD-01-03-EN.pdf.> accessed 28 June 2018.
on its individual basis in ECtHR, in contrast to chapter 3, were it is indicated that there is another approach, as a collective right that stresses its character of a solidarity right.
A potential right to healthy environment is best harmonized with the other economic,
social and cultural rights, as it is connected to water or food.12 Regardless the fact that
article 1 of the ICESCR13 reiterates the right of people to “freely pursue their economic,
social and cultural development” and to “freely dispose of their natural wealth and resources (…)” it does not include a provision on the right to healthy environment. Unlike ICESCR, the ACHPR contains an explicit right to healthy environment.
The environment is also protected by international environmental law. The international environmental law corpus has not been notably conducive to the improvement of environmental circumstances. One of the reasons behind this drawback is the fact that the existing legal framework is not that effective and “There is no institutional machinery to evaluate gaps that may be found in the international framework of agreements or to
develop means of assigning priorities among competing claims for attention”.14
One of the issues not addressed by international environmental law is the legal implications and legal means to address environmental pollution, when it affects human way of living and
when the violation of human rights stems from the victim‟s state of nationality.15 One
more limitation is that international environmental law agreements “bind only state-parties, offer little in the way of substantive obligation, and provide no recourse when
violations occur”.16 In this instance the international environmental problems and
international human rights overlap and the gap in protection needs to be addressed.
The Aarhus Convention17 provides procedural environmental rights on access to
information, public participation in decision making and access to justice. The society as
12 Alan Boyle, „Human Rights and the Environment: Where Next?‟ (2012) 23 (3) EJIL 613.
13 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1996, entered
into force 3 January 1976) 993 UNTS 3.
14
Rivera (n 3) 9.
15 ibidem.
16 Rebecca Bratspies, „Do We Need a Human Right to a Healthy Environment?‟ (2015) 13 Santa Clara J.
Int'l L 31, 45.
17 The United Nations Economic Commission for Europe, Aarhus Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) UNTS 2161.
a whole can participate in these procedures and the aim of the Convention is not only to protect the subjects of the rights, but also the environment as such. Further clarification on the Aarhus Convention will be given in the third chapter. At this stage it suffices to be said that due to the fact that it recently entered into force, drawing firm conclusions on its
legal effects on the protection of the environment is not an easy assignment.18
The absence of a substantive human right to healthy environment in international context does not mean that the idea of it is rejected. It was the origin of the transformation of constitutions, national laws and political footprint of states worldwide. The acceptance of a right to healthy environment delineates a social decision that environmental protection could not stay anymore in the background of law making and that it should be enacted and enforced.
A brief reference could be made at this point to national law. In domestic arenas, the right
to healthy environment has gained ground. According to scholar David Boyd,19 from the
vast majority of the United Nations member states, 193 states have recognized such a right. 92 of them included a provision in their constitutions and the others offer protection to the environment through their national laws. It brings into sharp focus that the right to healthy environment may be becoming „a general principle of law recognized by civilized
nations‟, under the auspices of article 38 of the ICJ Statute20
and even further an indication of consistent state practice and belief (opinio juris) leading to the formation of
customary law.21 Even if customary law status is still premature, by embodying the right
to a healthy environment in a state‟s constitution, research shows that stronger environmental laws were created and national case - law setting precedents in
18
Malgosia Fitzmaurice, „Some reflections on public participation in environmental matters as a human right in international law‟ (2002) 2 N.S.A.I.L. Law 1,19.
19 David R. Boyd, „The Constitutional Right to a Healthy Environment, Environment: Science and Policy
for Sustainable Development‟ (2012) 54 (4) Environment: Science and Policy for Sustainable Development 3.
20
The earliest constitutional recognitions of an explicit right to a healthy environment were in Yugoslavia (1974), Portugal (1975), and Peru (1979)."Current states with explicit recognition of the right include: South Africa, Bulgaria, Burkina Faso, Chile, Korea, Hungary, Poland, Sweden, and the Philippines” in Erin Eacott, „A Clean and Healthy Environment: The Barriers and Limitations of This Emerging Human Right‟, (2001) 10 Dalhousie J. Legal Stud. 74,83; Statute of the International court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 15 UNCIO 355.
environmental cases, in 78 out of 92 nations.22 Even if some constitutions (for instance India or Korea) do not create justiciable environmental rights, they are used as an
interpretative basis for other rights contained in the constitution or in national laws.23 And
in states where a constitutional provision of a healthy environment does not exist, the courts can, inside their jurisdiction and having an amount of leeway, to apply
environmental standards, deciding upon state‟s operations.24
Beyond the above mentioned legal instruments, soft law sources also deal with the right to healthy environment. The legal instruments that address the right to healthy environment belonging to the realm of soft law, do not introduce binding obligations for
states. The first reference was in Principle 1 of the Stockholm Declaration 1972,25 which
reads as follows: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for
present and future generations (…)”. In 1987, a report titled „Our Common Future‟26
from WCEO27 introduced the concept of sustainable development, which consists of
three pillars, namely economic development, social development and environmental protection. A few years later, using different wording, Principle 1 of the 1992 Rio
Declaration28 on Environment and Development states that “Human beings are at the
center of concerns for sustainable development and they are entitled to a healthy and productive life in harmony with nature”. Attempting a more analytical interpretation of Principle 1 of the Rio Declaration, it conceptualizes sustainable development and a
healthy environment in anthropocentric terms. In comparison to its predecessor29 it seems
22 David Boyd ,„The Constitutional Right to a Healthy Environment, Environment: Science and Policy for
Sustainable Development‟ (2012) 54 (4) Environment: Science and Policy for Sustainable Development 36.
23 Boyle where next (n 12) 481. 24
Dinah Shelton,„Developing Substantive Environmental Rights‟, (2010) 1 J. Hum. Rts. & Env't 89, 104.
25 Declaration of the United Nations Conference on the Human Environment, (adopted 16 June 1972,) UN
Doc.A/CONF.48/14/Rev.1.
26 Pierre - Marie Dupuy and Jorge E. Viñuales, International Environmental Law (Cambridge University
Press 2015).
27 World Commission on the Environment and Development, „Our Common Future‟ (WCEO 10 March
1987) „Brundland Report‟ <file:///C:/Users/User/Downloads/our_common_futurebrundtlandreport1987.pdf
> accessed 15 July 2018.
28 Rio Declaration on Environment and Development (adopted 13 June 1992) UN Doc.
A/CONF.151/26.Rev.1 („Rio Declaration‟).
to “water down” environmental protection concerns in the human rights field30
and by the choice of words “productive life” it raises concerns that the importance of environmental protection is minimized, in order for a state to seek economic profit.
The right to a healthy environment could be an effective tool to protect the environment and through it safeguard other fundamental human rights. A broad and comprehensive definition of the environment is promoted by sources such as the UN International Group of Experts. It could include multiple forms of environmental elements, necessary for a human life to be sustained and is proposed to be addressed as an environment that is satisfactory for health and protected from perils endangering health, including uncontaminated food. It could be broad enough to encapsulate ecological balance concepts and to ensure sustainable development. Soil, air and water are components of a
healthy environment.31
In literature, there are different wordings used by authors to encapsulate its meaning, such as the right to a good environment, to a healthful environment, clean environment,
pure, decent, satisfactory or ecologically sound environment.32 This disagreement on the
terminology indicates the underlying ambiguity of the content of the right. While there is dissent on the choice of the descriptive adjectives, all of them share a common element, that is to say they underscore the need to perceive environmental degradation per se as a violation of human rights, even if there are no individuals directly harmed. It is questionable if there needs to be “a precise minimum standard of environmental quality,
especially when scientific uncertainty exists”,33 as precision when the environment itself
is a vague concept, is difficult to be achieved even in order to reach an agreement on the minimum level. However, qualitative environmental standards can occur even under the
30 M. Pallemaerts, „A human rights perspective on current environmental issues and their management:
evolving international legal and political discourse on the human environment, the individual and the state‟, (2008) 2 Human Rights and International Legal Discourse 149, 173.
31 For a list of such rights that should be protected by a right to a healthy environment see the UN
International Group of Experts on Human Rights and Environmental Protection, „Draft Declaration of Principles on Human Rights and the Environment Draft Principles on Human Rights and the Environment‟ (1 May 1994) E/CN.4/Sub.2/1994/9 Annex I <http://hrlibrary.umn.edu/instree/1994-dec.htm> accessed 28 May 2018, arts 2, 5, 6.
32
Bridget Lewis, „Environmental rights or a right to the environment? Exploring the nexus between human rights and environmental protection‟ (2012) 8(1) Macquarie Journal of International and Comparative Environmental Law 36, 40.
obstacle of vagueness. National and international judicial bodies throughout legal history narrowed down and specified vague terms even with other human rights, like the expansive interpretation of article 11 on adequate standard of living to include the right to
water.34
The right to healthy environment is categorized as a solidarity right or third-generation right. These categories of rights are distinguished from the other previously existed categories of rights (first generation: civil and political rights, second generation:
economic and social rights)35 as they encompass not only individual, but also collective
rights, requiring for their realization the solidarity from all international actors, namely individuals, states, legal persons and the international community as a whole
incorporating aspirations that require cooperation for their realization.36
The apparent consequence as it turns out is that, no right to healthy environment exists as such at an international level (with the exceptions that will be discussed in chapter 3). Principle 1 of the Rio Declaration recognizes at the very least, an implicit right. Ms. Ksentini's Report on Human Rights and Environment ascertains that an international right
to a healthy environment is beginning to emerge in international agreements.37 Over the
years debates have taken place on whether a right to healthy environment per se should be included in a treaty or a protocol to a treaty, in order to bind states at the international level.
It has been explained in the previous paragraphs that despite the recognition of the importance of the right, a separate substantive right does not exist (with the exception in chapter 3). The main disadvantages that discourage its integration in a separate provision are enumerated in the following part.
34 UN Committee on Economic, Social and Cultural Rights (CESCR), „General Comment No. 15: The
Right to Water (Arts. 11 and 12 of the Covenant)‟ (20 January 2003) E/C.12/2002/11.
35
Yvonne Donders , „Foundations of Collective Cultural Rights in International Human Rights Law‟, In A. Jakubowski (Ed.), Cultural Rights As Collective Rights: An International Law Perspective (Leiden: Brill Nijhoff, 2016).
36 Rivera (n 3) 22.
1.1 Legal disadvantages of the right to healthy environment
Some academics have criticized38 the need of a creation of the right to healthy
environment. In general, one of the biggest hurdles that a possible inclusion of the right
in a human right‟s treaty would entail is its vagueness leading to definitional problems.39
Construing this particular right, is inherently very broad.40 There may also exist
discrepancies between the articulation of a right in a treaty and its realization in practice, the former being the law as it is (lex lata) and the latter the law as it should be (lex
ferenda).41 Accordingly, some scholars fear that the gap between expectation and
application in reality might undervalue the right to a healthy environment and “erode
confidence in human rights more generally”.42
The difficulties of giving content to this right result to the objection that it cannot be justifiable (be invoked before courts) and thus enforceable, due to the variability of the ways the environmental degradation
occurs.43 A generic human right to environment is doubted that will further the protection
of the environment and that it will retain its anthropocentric character,44 which in turn,45
avoids addressing the necessity to distinguish human rights violations from the right to
avoid potential harm of the environment per se.46 If a right to environment becomes
widely accepted as part of the human rights catalogue, there remains the problem of balancing it with other human rights.
Apart from issues of legal architecture, the biggest challenge is the unambiguous will of the states for the creation of the right, indelible in a provision. The indeterminacy of
38 See Giinther Handl, „Human Rights and Protection of the Environment: A Mildly'Revisionist' View‟, in
A. Cançado Trindade ed., Human Rights and Environmental Protection (1995), 117.
39 Alan Boyle , „Human Rights or Environmental Rights - A Reassessment‟ (2007) 18 Fordham Envtl. L.
Rev 471, 507.
40 Fitzmaurice (n 18) 5. 41
Bratspies (n 28) 42.
42 Rodriguez - Garavito, Cesar, „A Human Right to a Healthy Environment? Moral, Legal and Empirical
Considerations‟, in John H. Knox & Ramin Pejan, eds. The Human Right to a Healthy Environment (Cambridge University Press, Forthcoming) <http://dx.doi.org/10.2139/ssrn.2955357>.
43
Dinah Shelton, „Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized?‟ (2006) 35 Denv. J. Int'l L. & Pol'y 129, 131.
44 Handl (n 38). 45
Council of Europe, Manual on Human Rights and the Environment (Council of Europe Publishing, 2nd edn 2012) <https://www.echr.coe.int/LibraryDocs/DH_DEV_Manual_Environment_Eng.pdf> accessed 28 June 208.
governments to act towards that way is still unlikely, 47 as it will be a binding provision for the states to fulfill, counterweighing interests of economic nature. Even more, the Western states have not so far often encountered problems from unclean environment, to raise their determination towards the consideration of ratifying a treaty with a provision
on the healthy environment.48 The traditional or classical international law doctrine
perceives international law as bodies of rules governing inter - state relations.
Consequently, in order for a provision to be binding for a state, its consent is required.49
The issue pertaining the consensual doctrine is that, legal provisions do not take into account the needs of individuals, although the government of each state is expected to cover individual‟s fundamental needs and it‟s the same government that breaches its
duties towards individuals, so the latter have no legal tools against the state.50
In the Ogoniland case (Chapter 3), where article 24 ACHPR on the separate right to environment was applied, the AComHPR stated that the government should take reasonable measures to prevent pollution, promote conservation and sustainable
development,51 thus binds the states and creates obligations for their governments. A
separate provision would be declaratory of a state‟s duty to provide a sound environment
for its citizens.52 That is among the main advantages of the right to healthy environment,
as explained in the sequent part.
1.2 Legal advantages of the right to healthy environment
Contrary to the above literature, it is supported that the right to healthy environment would provide certain benefits, such as greater precision and it would be a basis to legally address issues of nature protection and other areas not generally protected by human
47 Fitzmaurice (n 18) 9.
48 Eacott (n 20) 101. 49 Rivera (n 3) 2.
50 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1995). 51
Ebeku Kaniye S.A.,‟ The right to a satisfactory environment and the African Commission : recent developments‟ (2003) 3(1) AHRLJ 149
rights law, due to their anthropocentric character.53 This way a right to healthy environment can be placed on equal footing with other human rights.
The question of what is the added value of a separate human right to healthy environment right remains. As mentioned above, a significant gap exists in the protection of individuals from threats originating from the pollution of environment. Human rights serve as a vehicle to close the gap. A separate, substantive human right to environment would be binding upon states, which will have the obligation to respect protect and fulfill. Respect by not taking measures that will violate the right, protect proactively individuals from third private parties and fulfill by legislating effective laws, which will have to be
implemented.54 According to Kiss and Shelton,55 it is meritless to give emphasis on the
potential non - justiciability of such a right, linked to the ambiguity of its content and scope. Should the latter be the case, there already exists a system for the implementation of human rights provisions and tribunals illustrate that a human right to environment could be justiciable, just like other human rights. Even further, if such a right has not yet achieved justiciability status, that does not preclude the very existence of the right and on the contrary, it would make human rights forums more open to claims when the level of environmental degradation prevents individuals from the enjoyment of other human rights, such as health, private and family life.
Handl criticized the creation of a substantive right to environment on the basis that environmental protection requires a balancing act of other socio-economic priorities, specifically "environmental entitlements have been and will continue to be susceptible to restrictions for the sake of other, socioeconomic objectives, such as ensuring continued
development or saving jobs”.56 There is some substance in that objection, but Shelton
provides a counterargument on that critique, namely that Handl uses "the conclusion as a
53 Shelton specific (n 43).
54
Frederic Megret, „Nature of Obligations‟ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran (eds), International Human Rights Law (Oxford University Press 2nd edn 2013); The ICESCR recognizes both progressive implementation on state‟s obligations and some of immediate application. See UN Committee on Economic, Social and Cultural Rights (CESCR), „General Comment No. 3: The Nature of States Parties' Obligations (Art. 2, Para. 1, of the Covenant)‟ (1 January 1991) E/1991/23.
55 Alexandre Kiss and Dinah Shelton, ‘International environmental Law’ (1991). 56 Handl (n 38).
criterion."57 A separate right to environment would have a trumping effect, just like other human rights. On the argument related to anthropocentricity, the answer is that a different approach can be evolved on cases in need of balancing human and environmental interests. Finally, the other side of the argument of redundancy is that a human right to environment will supplement international environmental law, where the latter fails to provide sufficient protection and especially for persons seeking redress for environmental harm touching upon their enjoyment of human life.
In practice, the role of courts could be of considerable assistance, through jurisprudence and enforcement mechanisms and interpretation of provisions, they can help to the progressive realization of a right to healthy environment, just the way they have been doing when applying existing human rights provisions. There is no gainsaying that the Courts do that to widen the scope of protection of the right and to achieve a better level of protection of human rights. For instance, as will be seen in the next chapter, although ECHR does not explicitly include a right to healthy environment, the Court interpreted article 8 in a way to render environmental pollution and situations such as nuisance,
which interfered with enjoyment of that right, a violation of article 8.58
As mentioned above (chapter 1) the idea of a healthy environment conduced to the transformation of national laws and impacted political state of mind globally. Moreover, the increasing number of international environmental law treaties, which can circumscribe economic and political profit of states through the aims they pursue, such as the restriction of specific profitable activities or the use of harmful substances to environment, could indicate that state‟s concern over the environment is no longer based only on economic and political factors, but on the acceptance of the importance of the
environment and even further, the recognition of a right to environment.59
Furthermore, the fact that a right to healthy environment is not yet realized, or even not realizable suggests that it needs work, persuasion and strong support in order to make it realizable.
57 Dinah Shelton, „What Happened in Rio to Human Rights?‟ (1992) 3 Y.B. Int'l Envtl L 75, 91. 58 Bratspies (n 41).
In conclusion, the definitional problems and the lack of state consensus on all the issues mentioned above, lengthening the shadow of the future can make cooperation difficult. Nonetheless, these arguments fail to explain the importance of the existence of a right to healthy environment and the advantages seem to outweigh the disadvantages of the creation of the right. Upon the existence of a right to healthy environment, an important issue would arise, regarding who are its subjects and in specific, if it would add more value as an individual or a collective right.
A healthy environment is a requirement for the enjoyment of other human rights. After briefly discussing the interaction and cross- fertilization of environmental considerations with existing human rights, ECtHR case-law will be introduced, which not ignorant to that interaction applies article 8 on environmental cases, however only on an individual basis.
2. Legal relationship of the right to environment with other human
rights
The dominant idea is that they can be mutually supportive and the focus can be on environmental dimensions of human rights that are already being applied, offering a
significant level of environmental protection.60 The United Nations General Assembly
has advocated on the indivisibility, interdependence, interrelatedness, and universality of
all human rights.61 In the case of a conflict with other existing human rights a balance
shall be encouraged.62
Because national laws are not always implemented and upon the exhaustion of local remedies, the claimants could not further pursue their case, an effort to assess environmental cases through the filter of existing human rights began. Taking the leap forward to the connection of environment to human rights guarantees is largely a
60 Lewis (n 32) 47.
61 Shelton specific (n 43) 170. 62 ibidem.
progress of the 21st Century,63 when a slow emergence of such a right through jurisprudence can be found.
When examining the relationship between the fields of human rights and environment, arises the question on why environmental protection should be treated as a human rights issue. This question requires a multifaceted answer. Accordingly, a human rights perspective can shed light to the effects of environment on the life, health, property and family life of the individuals. Secondly, for the protection of the abovementioned rights states are obliged to take measures to mitigate the deterioration of the environment and forward standards, through national laws. When the latter are encroached, the
governments can be rendered responsible.64
Keeping that in mind, there have been developed three approaches concerning the relationship between human rights and environmental protection. The precursor of these
approaches is OHCHR study.65 First, a healthy environment is considered a condition for
the enjoyment of human rights. Second, human rights can be used as a legal tool to achieve environmental protection and third, that human rights should be seen as
important element of the concept of sustainable development.66 In 2012 the United
Nations Independent Expert on Human Rights and the Environment gave a preliminary report, which manifests the need of progress in that field. The latter can take two forms, namely either the recognition of a direct right to a healthy and satisfactory environment, or the continuance of the environment‟s protection through the corpus of existing human rights.67
In effect, it cannot be denied that there is an understanding of the interaction between human rights and environmental protection, leading to the proliferation of case - law with
63 Eacott (n 20) p 86.
64 Ben Boer and Alan Boyle, „Human Rights and the Environment‟, (13th Informal ASEM Seminar on
Human Rights, Copenhagen 21-23 October 2013), <http://www.asef.org/images/docs/Background%20Paper%20-%20FINAL.pdf> accessed 12 May 2018, 11.
65 OHCHR (n 5). 66
Seminar (n 64) 11.
67 Ksentini Report (n 2); UN Human Rights Council, „Report of the Independent Expert on the issue of
human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment John H. Knox‟ (24 December 2012) A/HRC/22/43, 1.; Manual (n 45).
environmental elements. Human rights treaties (with the exception of the African Convention) still do not guarantee a right to a healthy environment unless there is a link between environmental harm and a human right‟s violation.
2.1 European Convention on Human Rights: individual rights
When ECHR was adopted in 1950, it didn‟t include a right to healthy environment, because back then it wasn‟t a serious concern, the pollution was not global and the awareness on environmental issues was not a protagonist on the social and political stage of states.68
In the Tyrer case in 197869 the ECtHR declared one of its principles, namely that ECHR
is a living instrument and its provisions should be interpreted and applied under the light of contemporary developments and “present - day conditions”, namely the ECtHR is not bound be precedents and on the contrary, can take into consideration changes in the
society.70 The Court affirmed that position in subsequent cases, such as Loizidou in
1995.71 It was a milestone that paved the way for the protection of the environment and
permitted wider interpretational possibilities to include environmental factors in human rights cases.
Henceforth, the right to healthy environment has started to crystallize. Nowadays, trends indicate that for the enjoyment of human rights, a minimum of environmental quality is a strong prerequisite. Human rights can be in certain cases trumped by the general interest
in a democratic society, to protect the environment.72
Article 8 of the ECHR concerns the individual right to respect for family and private life. If the private and family sphere of an individual is violated, then redress could be sought
68 Manual (n 45) 11.
69 Tyrer v. The United Kingdom [15 March 1978] ECHR, 5856/72. 70 Shelton substantive (n 24) 96.
71
Loizidou v. Turkey [23 February 1995] ECHR 40/1993/435/514.
72
Emelie Folkesson, „Human Rights Courts Interpreting Sustainable Development: Balancing Individual Rightsand the Collective Interest‟, (2013) 6 Erasmus L. Rev 142, 146.
before the ECtHR. It does not explicitly refer to the right to healthy environment.73 Nonetheless, the Court throughout its case - law interpreted the right to include environmental pollution factors when the latter reaches a certain level and negatively affects an individual‟s private life. Each of the following cases is unique by adding a new element in the development of the ECtHR criteria of environmental conditions as factors affecting human rights. Apart from the background of the case, the innovative element of each case is introduced and at the end an overview is provided.
2.2 European Court of Human Rights case - law: individual claims
One of the earliest cases where the ECtHR dealt with environmental protection was
Powell and Raynor v. United Kingdom of 1990.74 It concerned residents living near
Heathrow airport, who were affected by the excessive noise from the flights. The applicants claimed a breach of their rights among others, article 8 of ECHR, by way of the nuisance taking its toll on their private lives and family. The Court rejected the case on its merits, after trying to balance the economic interests of the community and the violation of the individual rights of the applicants. It found that, although the residents experienced disturbance, the importance of the Heathrow airport flights to the flourishing of the UK economy superseded the rights of the individuals. It furthermore underlined that the UK government had taken regulatory measures to mitigate the noise pollution and that this field of regulation is better addressed at national and administrative level, as states are better equipped to deal with such issues and they enjoy a wide margin of appreciation.
This case was characterized as disappointing,75 nevertheless it was the beginning of a
sequence of cases that approached the human right to healthy environment.
In 1994 in the landmark case of Lopez Ostra v. Spain,76 Mrs. Lopez Ostra complained
against a company called SACURSA that operated a treatment plant for wastes, 12
73
Ole W Pedersen, „European Environmental Human Rights and Environmental Rights: A Long Time Coming?‟ (2008), 21 Georgetown International Environmental Law Review 73, 91.
74 [24 January 1990] ECHR 3/1989/163/219.
75 Harry Post, „The Judgment of the Grand Chamber in Hatton and Others v. the United Kingdom or: What
meters from her family‟s house at the city of Lorca, Spain. The plant polluted the air of the city with fumes, fact that led Mrs. Ostra launching a case before the ECHR contending that article 8 of the ECHR was violated, by not letting her and her family enjoy their private life. The Court after balancing again the interests of the community as a whole on the one hand and that of individuals (in this case Mrs. Ostra and her family) on the other, it found that although the plant required a license, the company had not obtained one and emphasized on the supervisory obligations of the states concerning operations, even privately owned, which could potentially affect the private life and family of inhabitants in their territory. The ECtHR most important conclusions were that first, the threshold of damage caused to individuals due to pollution is that of severity, requiring severe damage of the right – holder. Secondly, damage caused by private companies and its operations can be attributed to the state. Hence it found that Spain was in breach of article 8 ECHR.
That case was groundbreaking in the way that the Court for the first time admitted a link between environmental degradation and human rights and utilized article 8 to address cases with environmental elements, signaling the greening of ECtHR jurisprudence.
Case law precedes with the case of Guerra and Others v. Italy of 1998.77 Located in
Italy the ENCHEM Agricoltura factory created hazards for the people of Manfredonia in Italy, leading to hospitalization of 150 residents. The Court followed the same reasoning as in Lopez Ostra case reiterating that “the direct effect of toxic emissions on the applicants‟ right for their private and family life means that Article 8 is applicable”. A
minority of the Court‟s judges78 favored the inclusion of article 2 ECHR on the right to
life in similar cases. They argued that the accident caused arsenic poisoning to 150 people, imperiling their life and thus rendering the inclusion of article 2 applicable in
cases with environmental implications.79 Also the protection of article 8 was extended to
76 [9 December 1994] ECHR 16798/90.
77
Guerra and others v. Italy [19 February 1998] ECHR 116/1996/735/932.
78 Guerra and Others v Italy, Concurring opinion of Judge Palm, joined by Judges Bernhardt, Russo,
Mac-Donald, Makarzyk and Van Dijk (19 February 1998).
cover the duty of the state to provide information concerning hazardous activities and
responsibility of the state upon failure to provide this information.80
A more recent case is Fadeyeva v. Russia of 2005.81 Again the applicant was affected by
a privately-owned steel plant, which polluted the air. The Court reiterated that article 8 can serve as a basis for cases linked to the deterioration of the environment. However, some requirements must be first fulfilled. Namely there must be a direct link between applicant‟s private and family life deterioration and environmental degradation. Furthermore, there must exist a minimum level of environmental pollution affecting the applicant, dependent in concreto by relevant factors (for instance noise, bodily effects). The Court stressed the importance of the margin of appreciation given to states and that the right to healthy environment is not an explicit direct right, however article 8 can be construed in a way that includes environmental considerations for the enjoyment of private and family life.
Taskin and Others v. Turkey of 200582 is an important case, because ECtHR confirmed
that states have obligations of procedural nature, concerning adequate information, public
participation, and access to judicial review.83 The Court based its decision largely on the
principles of the Aarhus Convention,84 although Turkey had not ratified the Convention.
This case regarded the licensing of a mine and the Court held that “whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests of
the individual as safeguarded by Article 8”. 85
This passage welcomes the acceptance that the participation of the public in decision - making is a requirement for the state to fulfill
80 Oliver, Dawn & Jorg Fedtke. Human Rights and the Private Sphere. (Routledge Cavendish 2007,)
433-434.
81 [30 November 2005] ECHR 55723/00. 82
[30 March 2005] ECHR 46117/99.
83 ibid [118-125]; Boyle where next (n 12) 630.
84 The United Nations Economic Commission for Europe, Aarhus Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001).
Note that under Article 6 of the Aarhus Convention, participatory rights are available only to „the public concerned‟, defined in Article 2(5) as „the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest‟; Shelton (n 24) 97.
its obligations under article 8 of ECHR. The Court thus accepts the obligation of the states to initiate studies prior of the commencement of the intended activities, to evaluate possible adverse effects upon individuals rights, implying the need of an environmental
impact assessment.86
In Tatar v. Romania of 2009 87 the ECtHR despite giving more weight to its subsidiary
role in cases dealing with environmental issues so far, showed an inclination to further environmental protection through Article 8. It concerned the negative health effects of using sodium cyanide in a gold mine close to the applicants‟ homes. Interestingly, the Court for the first time used the precautionary principle in its assessment regarding risk of serious irreversible damage to the environment. The Court shows intent of expansion of state‟s procedural obligations by requiring studies and monitoring as a precautionary measure before the operation of an activity.
ECtHR does not always find a violation of article 8 in cases of environmental nature. A
prominent example is the legacy of the two Hatton cases,88 the first in 2001 and the
second in 2003, before the Grand Chamber (the first environmental case in front of Grand Chamber). In 2001 the Court held that article 8 was violated and that the UK government had failed to strike a balance between the economic interests of the community on the one side and that of the claimants affected by the nuisance of the night flights at Heathrow airport on the other. Consequently, the UK government requested the referral of the case to the Grand Chamber, stressing that the margin of appreciation of the state was in that way diminished and that the state itself is better qualified to solve issues
regarding local particularities.89
The Grand Chamber further stated that it:
“Must consider whether the State can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbance,
86 Seminar (n 64) 29.
87[27 January 2009] ECHR 67021/01, <
file:///C:/Users/User/Downloads/003-2615810-2848789%20(7).pdf> accessed 28 May 2018 [107, 120-121]; Manual (n 45) 85.
88 Hatton et al. v. United Kingdom [October 2001] ECHR Judgment of the Chamber.
89 The states have direct democratic legitimation: see for instance Handyside v. the United Kingdom
including the applicants‟. Environmental protection should be taken into consideration by States in acting within their margin of appreciation and by the Grand Chamber in its review of that margin, but it would not be appropriate for the Grand Chamber to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Grand Chamber must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (…)”
However, there was a minority of judges, who dissented the decision, clarifying their objections with a joint opinion. They underscored that the Court in previous cases recognized the right to healthy environment through the utilization of the ECHR as a living instrument stating that “In the field of environmental human rights, which was practically unknown in 1950, the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore protection against nuisance caused by harmful chemicals, offensive smells, agents which precipitate
respiratory ailments, noise and so on”.90
They considered the decision to be a retrograde development, underlined that the Convention is a living instrument and made the suggestion that the ECtHR could deploy its potential, through interpretation to align with the modern conditions.
In Kyrtatos v. Greece of 2003,91 ECtHR reiterated that "neither Article 8 nor any of the
other articles of the Convention are specifically designed to provide general protection of
the environment as such (…)”.92
Regarding the degradation of the swamp, the Court reiterated that Article 8 was the relevant statutory provision and referred to the case of Lopez Ostra v Spain. However, the Court stated that Article 8 does not include a protection against “general deterioration of the environment” and that the pollution must affect the individual or his home directly. The Court held that the damage caused to the swamp was not directly affecting the applicants‟ rights under Article 8. Otherwise, the Court admitted, had it been a forest destructed in the “vicinity” of Mr. Kyrtatos house and
90 Hatton et al. v. United Kingdom [8 July 2003], ECHR 36022/97 Judgment of the Grand Chamber, Joint
Dissenting Opinion of Judges Costa, Ress, Turmen, Zupancic and Steiner (8 july 2003) [2].
91 [22 May 2003], ECHR 41666/9822 [51-54]. 92 ibid [52]; Boyle reassment (n 39) 505.
affected him in a more direct way, there might have a violation of article 8. Judge
Zagrebelsky disagreed 93 by stating that the Court should have found a violation of article
8, emphasized that the dynamic interpretation of ECHR should have been used to address contemporary challenges, such as environmental deterioration.
Returning to the Hatton cases, in contrast to previously mentioned cases where the ECtHR found a violation of article 8, there was not an irregularity in domestic law. In the Lopez Ostra case the plant was working without license and it was closed down at the
end,94 in the Guerra case the government had failed to provide the residents with
information on the risks of the operations. 95 In Hatton case the government tried to strike
a fair balance and took into account studies concerning the level of noise pollution, thus in the eyes of the Court, the UK with its 1993 policy on night flights used proportionately
its margin of appreciation.96
The Hatton case is a tangible example of the conflict between the elements of sustainable development. The environmental protection is not prioritized under the dominance of economic interests, which are also important for the society. Article 8 paragraph 2 allows
the state to deviate from paragraph 1 in order to attain higher economic interests.97 The
Grand Chamber may have concluded that economic interests concerning the society as a whole prevailed, nevertheless the environmental considerations remained untouched and the Court did not refuse the existence of an implicit right to environment, which under
different circumstances can lead to violation of article 8 ECHR.98 So states starting from
article 8.1 are required to make an assessment, as to whether the planned activities are going to potentially affect the environment to a level that poses threats to the enjoyment of the right to privacy and family life. Paragraph 1 is complemented by paragraph 2, enshrining the principle of the margin of appreciation of states and promoting a fair- balance test. The Court in the end should take into consideration both paragraphs and in Hatton the weight was on a wide margin of appreciation.
93 Kyrtatos v. Greece, Partly Dissenting Opinion of Judge Zagrebelsky (8 July 2003). 94 Ostra (n 76) [16–22]; Manual (n 45) 55. 95 Guerra (n 77) [25–27]. 96 Post (n 75) 150-151. 97 ibid 140. 98 ibid 144 - 145.
However, it can be argued that the Court does not shy away from assessing the policies of states in connection with the benefits enjoyed by the community and conclude if a fair balance has been reached when environmental implications may arise. The „States must
have regard to the whole range of material considerations‟.99
Moreover, the Court made clear that states carry not only negative obligation not to interfere with individuals rights,
but also positive obligations to actively safeguard the rights.100
Recapitulating with some more remarks, the Court is consistent on requiring the link to individual human rights violations, thus does not recognize an explicit environmental human right. An actio popularis (action to seek redress by a person or a group in the
name of the general public) is incompatible with the case - law.101 In that sense
environmental rights are indirect, derivative rights. It also admits that its role is subsidiary and states benefit for that reason from a wide margin of appreciation, by enacting laws adjusting them to the local demands. Environmental considerations are only one of the factors in the equation of the states trying to counterweigh the interests of the community when they clash with individual rights. The Court may assess the national laws and the level of compliance of the state, as the latter has a positive duty to apply the
rights originating from the ECHR.102
The applicants need to be directly and severely affected, requiring a minimum level of
impact on the private sphere of the individual.103 It could be argued, that the Court
softened its approach on the threshold of the standard of proof. Instead of proof beyond any reasonable doubt “very strong combination of indirect evidence and presumptions” can link the environmental pollution to the harm of applicant‟s rights and to the
encroachment of article 8 ECHR.104 Furthermore, the state needs to pass the fair balance
test, by achieving equilibrium between economic interests of the society, conflicting with individual rights. Admittedly, the Court under the light that a separate provision
99 Harry Post, „Hatton and Others: Further clarification of the „indirect‟ individual right to a healthy
environment‟(2002) 2 Non-St. Actors & Int'l L 259, 270, 273; Post (n 75) 135, 145, 148-150.
100
The so-called “doctrine of positive obligations”. Hatton and Others v. the United Kingdom [100, 119, 123].
101 Fadeyeva (n 81) [68]; Kyrtatos (n 91) [52]; Manual (n 45) 91. 102
Malgosia Fitzmaurice, „Environmental Degradation‟ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran (eds), International Human Rights Law ( 2nd edn, Oxford University Press 2013).
103 Guerra (n 77) [51]; Taskin (n 82) [69]. 104 Fadeyeva (n 81) [79-88].
protecting the human right to environment per se does not exist has done remarkable progress in order to transpose ecological concerns in its case - law. Nonetheless, as
Sadeleer105 argues, article 8 is conceived in anthropocentric context and the environment
“deserves to be protected not only because it is used by humankind”.
3. Collective right to healthy environment
There is a nexus between the collective right to healthy environment and its individual dimension. A community is composed of people and regarding environmental implications they share a collective destiny. Insofar that is true, the individual and collective dimension of such a right represent the two sides of the same coin.
The term „collective rights‟ is an umbrella term, which covers rights that have collective dimension. The idea of formally recognizing collective rights is in ascendance. Human rights so far offer a view of the world through an individualistic prism and tend to ignore problems such as the protection of the environment, which concerns collective interests and even further, the fact that individuals are integral part of a larger community, permeated by the cross – cutting component of human dignity. Of immense importance is to reassess whose rights have been encroached, in a way to allow mass claims, by a larger class or community and not only by individuals. When there is a large scale and widespread environmental catastrophe, it does not affect only a few individuals, but numerous people, some of which may not have the ability (resources-wise) to raise a claim. Thus granting compensation to the few persons who raised a claim and provided sufficient evidence that they have been affected, detracts from the concept of collective
legitimation.106 Consequently, the right to healthy environment could facilitate large
number of individuals to seek redress for the deterioration of the environment per se, without having to link it with adverse effects on other human rights.
105 Nicolas Sadeleer,„Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases (2012)
81 Nord.J.Int'l L 39.
