Analyses Of The Courts Approach Law European Essay

Published Date: 02 Nov 2017

When assessing the case law of the ECtHR it is possible to point out a few advantages and disadvantages, contributions and set-backs to the promotion of environmental rights and the combating of environmental degradation. First of all, it is easy to notice that the Court sees the concept of ‘environment’ as a very broad one. There is no attempt to define the concept by the Court and hence ‘environmental issues’ considered in the case law, range from general ones, such as local planning of land and protection of agriculture and forestry, to more specific components such as protection of nature reserves, fish stocks and particular species of animals such as the woodpecker 66. This positive approach and broad interpretation, allows for the Court to get involved in a wide range of specific global environmental issues, promote the importance of the protection and monitoring of these, as well as highlight the fact that combating environmental degradation is a legitimate governmental purpose 67.

The Court applies the same technique in both of the contrasting approaches to the indirect protection of the environment; when adverse environmental factors interfere with the Convention Rights of the individuals and when upholding the protection of the environment as a general interest pursued by the State. In summary, it is a three step process of firstly establishing legality, then approving a legitimate purpose and finally judging proportionality. A difference in the rigidity of evaluation varies however, as the Court in situations where adverse environmental factors cause an interference with Convention Rights applies a much more rigid approach, when assessing the margin of appreciation of the Defendant State 68. For the interference in the applicants’ rights to be justified, the State must not simply provide relevant reasons, but show that the measures taken were strictly necessary and that there were no other less restrictive means available to achieve the desired legitimate governmental purpose 69. The test of proportionality is therefore applied much more strictly in these cases. For example, it has been demonstrated in the above cases that ‘protection of the economic wellbeing of the country’ is no longer considered to be a sufficient justification in itself, for the interference in rights protected by Articles 2 and 8 70.

In this first category of cases, of which Article 8 provides the most common basis, the Court takes a more cautious stance in relation to allowing States a wide margin of discretion when their actions or inactions interfere with the fundamental rights of the individual protected by the Articles of the Convention and by doing so indirectly harm the environment. The Court clarified that States do not only have a negative duty to not violate fundamental rights guaranteed by the Convention but also a positive duty such as to ensure that all reasonable and appropriate measures have been taken to prevent risks to the right to life and right to privacy. We can see the Court stepping away from the traditional negative approach to such cases and taking a tougher stance on the protection of human rights and hence indirectly protection of the environment; the ‘greening’ of existing human rights laws. This also leads to the Court applying a much more expansive interpretation of the particular Convention Rights. For example, when considering the right to privacy (Article 8) in the case of Lopez Ostra v Spain 71, the Court accepted that ‘severe environmental pollution may affect the individuals’ well being and prevent them from enjoying their homes in a way as to affect their private and family life adversely, without however seriously endangering their health’. Other examples that are now considered by the Court to be under the right protected by Article 8 include: right to be informed about real and potential risks 72 and the right to sleep peacefully at night 73.

Did the Court effectively create a right to a ‘clean’ environment? Dr. Nükhet Yılmaz Turgut believes that there is a commonly shared view, that human beings, at least at a theoretical level (if not at a practical one) have a right to a ‘decent environment’ 74. However as this right may only concern and be enforced by humans and not other organisms, perhaps it is more accurate to suggest ‘a right to live in a healthy environment’ 75. This right establishes a fundamental connection with the ‘right to live’ and furthermore live in a ‘healthy’ environment; perhaps the two most important aspects of survival for all organisms 76. In the series of cases investigated where the alleged environmental pollutions had caused a breach of the fundamental rights protected by Articles 2 and 8 of the Convention, it was made clear by the Court that the key issue was not the environmental harm caused, but the need to protect the rights and freedoms of the claimants guaranteed by the Convention. A number of issues flow from this - firstly we can conclude that effective protection of individual rights under these Articles leads to indirect protection of the environment. Secondly, only certain rights (Articles) have been considered in these cases. It seems also that the Court concentrated on the short term, identifiable interests of the claimants rather than considering the long term implications of the environmental harm in each case.

There is hence no requirement on States to eliminate environmental harm under the ECHR. Only if a definite link between the interference with the fundamental rights of the individual and the environmental harm has been established, will measures to stop the relevant environmental harm be ordered by the Court.  Furthermore, what level of adverse effect is tolerable and allowed? The Court is cautious on setting the ‘minimum level of harm’ and in the case of Fadeyeva v. Russia 77, stated that the relevant ‘minimum’ threshold depends upon all of the circumstances of the particular case and can include issues such as the duration and intensity of the nuisance, and the seriousness of the mental and physical harm. There must be a causal link between the interference and the applicant’s rights at issue. Although again there is no clear guideline on how to establish the link and how strong it has to be, looking at the terminology of the Court in relation to it, the following terms were used to describe the threat to the individual: immediate, personal, real, serious, imminent and specific 78.   

If the threat is superficial, tenuous, remote, and hypothetical (terms mentioned by the Court in the cases of Balmer-Schafroth and Others v. Switzerland 79, Athasanooglou and Others v. Switzerland 80 and Kyrtatos v. Greece 81), then it will not be substantially dangerous to warrant the Court making a declaration that the harm interferes with the fundamental rights of the individual. In the cases of Balmer-Schafroth and Others v. Switzerland and Athasanooglou and Others v. Switzerland both concerning the operation of nearby nuclear plants, the Court stated that because the applicants failed to show that they faced a real and immediate risk, any environmental risks were consequently also dismissed. In Kyrtatos v. Greece, the Court highlighted that the crucial element is the presence of a harmful effect on the claimant’s private or family life and not simply the general deterioration of the surrounding environment; neither Article 8 nor any other Article in the Convention are designed to provide general protection of the environment. Since the Court is primarily concerned with ensuring the health of individuals, ‘the right to live in a healthy environment’ is given a very narrow formulation in respect of Article 8. It is because of this very narrow approach it could almost be said that the protection of the environment in these cases was coincidental and it is very difficult to suggest that the Court has established environmentalist jurisprudence 82.

Desgagne discusses how this ‘victim requirement’ is another factor which particularly limits environmental protection by the Court 83. Applications are generally brought forward by individuals, a group of individuals or non-governmental organisations and inter-state applications to the Commission have been rare. The applicant must be a "victim of a violation of (his or her) rights" as mentioned in Article 34 which governs the application procedure for individuals and non-governmental organisations. In Klass v Federal Republic of Germany 84 the term "victim" was held to be a "person directly affected by the contentious act or omission." Therefore applications by non-governmental organisations must initially show that they have been affected by the adverse environmental factors and not that they are simply acting in the interests of their members or the public 85. Although it is important to point out that there is no requirement of injury to be caused to the individual or group of individuals.

The victim requirement prevents people from submitting applications to the Court simply because they may believe that a certain action by the State is wrong or contravenes the Convention; infringements must be concrete and as mentioned before, a direct link between the environmental damage and the infringement must be established. This procedure makes it very difficult to protect the environment and prevent environmental degradation. The Court has recognised the importance of environmental protection but "thus far, the Court and the Commission have not completely closed the circle of the interrelationship between the enjoyment of human rights and the level of environmental quality" 86. Collective and individual aspects have not been merged and the thresholds for success remain high.

It is widely accepted that protection of the environment is in the interest of the common good or the general interest. The cases above, were examples where this general interest conflicts with the fundamental rights of individuals or in other words the interests of the individuals. Could this show that in this category of cases, the environment has supremacy over certain other interests? Is this because long term interests are considered giving the environmental issue more weight? Although it is recognised that in some cases governments are able to pursue the legitimate aim of protecting the environment and by doing so limiting certain fundamental rights and freedoms of individuals, human rights law does not directly protect the environment. The above judgements do not provide a direct legal basis for the right to the environment, therefore it could be said that the Court did not in fact challenge the traditional concepts of human rights protection. Handl 87 further states that the ‘right to an environment’ is a mixture of economic, social, political and cultural rights. This is exactly what makes it rather vague in nature and therefore its implementation in practice, very difficult. As it represents such a wide spectrum of various human rights issues, compliance would be very problematic. He also agrees that this method of protection is biased towards the individualist approach. Minimum standards of the environment should be made clear by the Court, which should ideally take into account not only the effect on health and private lives of the applicants but also the nonmonetary value attached to the quality of the surrounding environment.

Effects of the judgements on Member States

There is a clear change occurring in the interpretation of the 1950 ECHR, which does not include any express provisions relating to the environment, yet what effect does this have on the Member States? Since the case of X and Y v Federal Republic of Germany 88 which was rejected as incompatible rationae materiae by the Commission as there is ‘no right to nature preservation included among the rights and freedoms guaranteed by the Convention’, an alternative approach has emerged. Lopez Ostra 89 was a significant turning point in the protection of the environment through the ECHR, it was the first time the Court found a breach of the Convention Rights as a result of adverse environmental factors present in a Member State. In general however, the cases studied above show that the Court has demonstrated an unwillingness to order the State to take specific actions to mitigate the damage to the environment 90. It reiterates continuously that it is best for the State to choose how to implement environmental protection policies and the specific means to be used in its domestic legal system in order to ensure compliance with the provisions of the Convention or to tackle the situation which has given rise to a violation of the Convention 91.

The Convention is directly applicable in the countries that ratified it. In other words, the national courts in those jurisdictions are bound to apply the European Convention in the same way as they apply their own provisions of national law 92. In the United Kingdom for example, the provisions of the ECHR are given direct effect in domestic law by the 1998 Human Rights Act 93. To what extent are the judgements of the European Court of Human Rights applied by the national courts of the member states of the Council of Europe? A number of member states view it as legally binding while others may only show humble respect for it. A good example of a national resolution accepting the authority of the judgements of the European Court can be seen in a 2003 resolution of the Russian Supreme Court which states:

"The Russian Federation, as a Member-State of the Convention on Protection of Human Rights and Basic Freedoms recognises the jurisdiction of the European Court on Human Rights as mandatory with respect to interpretation and application of the Convention and Protocols thereof in the event of an assumed breach by the Russian Federation of provisions of these treaty acts when the assumed breach has taken place after their entry into force in respect to the Russian Federation. . . . [Therefore] the application by courts of the said Convention should take into account the practice of the European Court on Human Rights to avoid any violation of the Convention on Human Rights and Basic Freedoms." (Resolution "On application by courts of general jurisdiction of the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation, . . . The courts within their scope of competence should act so as to ensure the implementation of obligations of the State stemming from the participation of the Russian Federation in the Convention. . . ." 94.

Therefore it is regardless whether the Court’s judgements were issued in relation to the Russian Federation or any other country, when a case concerns the provisions of the ECHR, they are to be considered and applied in national courts. Furthermore, if the case reaches the European Court, then the parties involved are obliged to accept the jurisdiction of the Court and abide by its judgement 95. The protection of the environment at national level is ideal, especially as the Court has a mammoth backlog of cases; 120,000 recorded in 2010 96. One of the ways the ECtHR can contribute to more successful protection of the environment at national level is by upholding orders made by the national courts, as it did in Okyay v Turkey 97. In this case, the ECtHR upheld the decision of a local court to close down three power plants which were polluting the environment. The applicants successfully demonstrated that there was a violation of the right under Article 6 of the ECHR when the national authorities failed to implement an order made by the domestic court.

An optimistic future?

At this time there are only two international conventions which directly grant people the right to a decent environment: the 1981 African Charter on Human Rights and People’s Rights (Article 24) 98 and the 1988 San Salvador Protocol on Economic, Social and Cultural Rights to the 1969 American Convention on Human Rights (Article 11) 99. The Stockholm Declaration (1972)100 and Rio Declaration (1992) 101 are both clear signs of the development of the area of law relating to the environment, however it could also be said that the language used in the documents is much too general and vague to grant a direct human right to the environment. Instead the two declarations refer to topics such as ‘sustainable development’ and ‘intergenerational equity’, which are themselves expressed rather vaguely in these soft law documents 102. Therefore it is difficult to see how these documents will form a basis for a human right to the environment in the future. Similarly, the Aarhouse Convention 103 did contribute to the creation of the procedural right (right to information), which is much easier to implement and enforce, but not any substantive right to the environment. Christian Schall 104 suggests that a possible step forward in the development of international environmental law could be the creation of more Multilateral Environmental Agreements, the provisions of which should be enforced by relevant compliance bodies and not the European Court of Human Rights. It seems that without any procedural or substantive treaty changes, the ECtHR is doing all it can to indirectly protect the environment through existing human rights.

Judging the Court’s very cautious approach in the cases summarised above - a very complicated relationship exists between human rights and environmental protection in international law. Should the environment even be a human rights issue for the Court? Alan Boyle gives a number of reasons for this 105. First, looking at international environmental law from a human rights perspective allows for a direct assessment of its impact on individuals’ private lives, property and health and not merely how it affects governments or the environment in general. Second, it may ensure that states work towards higher standards of environmental protection and environmental quality, if it could be demonstrated that it significantly affects individuals’ health and private life. Third, by enforcing environmental protection laws, governments become directly accountable and this will promote the rule of law. Lastly, Boyle states that with the broadening of economic and social rights and the huge public interest in the protection of the environment, it is the right time to introduce in some form, a right to a decent environment.

Fitzmourice and Marshall outline that the interpretation of the Convention by the Court remains a very controversial area stimulating extensive jurisprudential debate 106. It is indeed questionable whether the Court is the right forum for cases involving environmental protection. It could be said that the judges of the Court lack experience and sufficient expertise to deal with cases concerning complex environmental issues; they are human rights judges and not environmental experts 107. Questions still remain about how the Court should analyse and calculate the margin of appreciation allowed for States and also how to fairly balance the interests of the individual against that of the State when applying the proportionality test in cases concerning human rights and the environment. The doctrine of ‘margin of appreciation’ is especially a matter of interest as it is not provided for in the Convention but instead is derived from the jurisprudence of the Court. As described by McInerney - "one of the most complex features in international human rights law is the challenge of balancing international human rights norms and the particularity of the contexts in which their application arises. Aligned to this is the delicate task of mediating the tensions between effective international supervision and the upholding of established human rights norms on one hand, and primary domestic responsibilities and socio-cultural choices on the other"108.

The doctrine of the margin of appreciation shows that the Court is not so willing to step in immediately and safeguard human rights in all situations, instead it approaches such issues with great care, stating that the national authorities are best suited to deal with such intricate issues as they are more aware of the particular conditions prevalent in their country. The ECtHR therefore acts in a supervisory capacity, ensuring that although national sovereignty is well respected, fundamental human rights are defended as fairly as possible. Some state however that such an approach is not sufficient and undermines the fundamental human rights protected by the Convention, by allowing states too much freedom with a wide margin of appreciation, such a view is taken by Benvenisti 109. Similarly Shelton agrees that ‘the lack of common standards, insufficient specification of comparative methods, standards of evidence and the extent of the enquiry are significant drawbacks in the process 110. The compensation to the victims, if any, is often small and merely acts as a statement that the Convention has been violated. Furthermore, Kravchenko states that "the reliance on the good faith of officials, the great solicitude for national sovereignty, or a combination of both verges on naiveté; but it seems unlikely that this will change" 111.

Francesco Francioni points out that the Manual on Human Rights and the Environment 112 published by the Council of Europe is a sign of recent progress, as it outlines and clarifies the main principles which directly impact the adjudication of environmental claims based on specific provisions of the Convention 113. However, the Manual remains rather conservative in relation to any development of an independent and progressive set of environmental human rights 114. It affirms instead that the general protection of the environment was never an aim of the Convention. Although Francioni admits that the progress made by the Court in its evolving interpretation of the link between environmental harm and human rights has been a remarkable step forward, he finds it hard to see how the acceptance and development of a legitimate aim to protect the environment "can work effectively without accepting a certain degree of internalization of environmental values within the system of human rights of the Convention" 115. What leads to this, is the fact that environmental harm is only relevant when it adversely affects the individual’s property, private and family life or poses a risk to their health or life. Furthermore, in relation to procedural protection, public interest proceeding are not admissible before the Court unless the applicants themselves are again adversely affected by the environmental harm. A less restricted approach would be preferable; the Court should consider claims affecting the life of collective individuals in a particular area more liberally 116. He concludes stating that the individualist approach adopted by the Court in the context of human rights and the protection of the environment is inadequate and outdated 117.

Another point is the fact that before an application can be brought before the European Court of Human Rights, all available national remedies have to be exhausted. Therefore, perhaps the Court should not be the main focus of development for prevention of environmental degradation and promotion of environmental protection, but the national courts of the States. This view is backed up by the European Council’s Recommendation on Environment and Human Rights and is in line with the aims of the Rio Declaration. In Article 9(2) of the Recommendation, the Member States recognise that the "human right to a healthy, viable and decent environment which includes the objective obligation for states to protect the environment, in national laws, [is] preferable at constitutional level"118. The Recommendation does not mention any addition of a ‘right to the environment’ to the ECHR. Perhaps one of the reasons for this, is the fact that such a right is already existent in many national constitutions of the Member States 119. Alan Boyle points out that the addition of such a right to the ECHR would indeed create high levels of uncertainty and ambiguity 120. Even at the moment, the Court is very unclear on certain concepts such as the minimum requirement of harm caused by the adverse environmental factors to amount to an interference with the rights protected by the Convention – determining the minimum environmental standards to be protected would prove even more difficult. In addition to this, evidence from the negotiations of the Rio Declaration shows that the majority of the states involved were not in support of an international right to the environment being officially created 121. Such a right could interfere with national sovereignty and lead to complications in enforcement. The well respected principle of sovereignty means that states generally have full control over how to utilise their natural resources. These environmental policies are of course subject to the relevant agreements the state has signed and customary international law. The recognition of a general right to the environment may counter balance this principle.

Turgut broadly suggests that perhaps a step forward for the Court in this area of law would be to begin to give greater considerations to the long term effects of its decisions rather than simply looking at the outcome for the individual. Although at the same time, he shows praise for the good balance the Court demonstrates between its dynamic approach of protecting individuals and exercise of self restraint when the State is acting in the general interest of the community. He suggests that the Court should modernise its approach further:

"The Court can and should go further beyond the present interpretation concerning classical human rights, which indeed reflects the established concept of human rights by considering the very specific characteristics, concepts and principles of environmental protection. The concepts of general interest in the protection of the environment, the long term interests, duty of individuals on the protection of the environment, and the participation principle, which are commonly accepted crucial themes, should be considered during the analysis of all the relevant criteria, such as fair balance by the Court. This consideration would be lead the interpretation of the causal link between individual interests and environmental issues more broadly, and make a valuable contribution to specify the core of established human rights under the convention, the content and scope of the term of general interest as well as clarifying the relationships between different general interests. As a final word, it should be noted that the rise of environmental consciousness in societies would be a determining factor in the acceleration of all steps to be taken on the above mentioned analysis. The increasing of serious negative effects of the environmental problem set will increase such a consciousness, and it would be inevitable for the Court to follow a more teleological interpretation reflecting these new concerns as the daily facts are required" 122.

The Influence of the United Nation on the future of the Court

The United Nations Conference on Environment and Development 1972 produced the Stockholm Declaration, Principle 1 of which expresses the fundamental right of individuals to "adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being". The United Nations Conference on Environment and Development 1992 produced the Rio Declaration which enunciates in Principle 1 that "[Human beings] are entitled to a healthy and productive life in harmony with nature". Although these principles do not create ‘a right to an environment’ they nevertheless form an ‘indirect formula’ for such a right and affirm in the simplest sense that the protection of human dignity and welfare is inseparable from the protection of the environment 123.

Furthermore, the United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities produced a final report 124 on human rights and the environment headed by Special Rapporteur, Mrs Ksentini. In her report, Ksentini concludes that "[the right to a healthy and decent environment] is part of existing international law and is capable of immediate implementation by existing human rights bodies. Its substantive elements include the right to development, life, and health, and it also has procedural aspects such as due process, public participation, and access to effective national remedies" 125. Alan Boyle has commented on the Report claiming that the principles on human rights and the environment discussed by Ksentini amount to a clear and extensive statement on environmental rights and appreciate the fact that human rights and the environment are closely interdependent 126.

It has been almost 20 years after the report was published and we still struggle to see widespread implementations of Ksentini’s recommendations and conclusions in international law instruments. Currently there are only regional and domestic examples of the implementation of a right to an environment. Article 24 of the African Charter on Human and Peoples' Rights 1981 states that "all people shall have the right to a general satisfactory environment favourable to their development". There is however no judicial interpretation of this article as there is no specific court to enforce provisions of this Charter. Article 11 of the Additional Protocol of 1988 to the American Convention on Human Rights (1969) "everyone shall have the right to live in a healthy environment. The States Parties shall promote the protection, preservation, and improvement of the environment". Aggravated individuals however may not make this article the subject of their petition before the Inter-American Court of Human Rights 127. It’s effect on the European Court of Human Rights also remains insignificant and at most one of broad guidance.

Lauterpacht noted in 1949, ‘[codification which constitutes a record of the past rather than a creative use of the existing materials – legal and others – for the purpose of regulating the life of the community is a brake upon progress’ 128. Therefore the creation and addition of a new protocol to the ECHR specifically relating to the protection of the environment may not be necessarily beneficial if it will merely state that which is already known. Simply codifying the rights to life, private life and property in an environmental context will not benefit or clarify the law in relation to overall protection of the environment. Judging by the high workload of the Court, it would be unlikely that it is willing to introduce a substantive right to the environment such as the ones discussed in the proposals above 129.

Conclusion

In conclusion, although there is a clear attempt made by the Court in recent years to utilise and ‘green’ the existing human rights provisions of the ECHR – there is still no substantive right to the environment. The dynamic approach of the Court in these cases, of balancing judicial activism on the one hand and judicial self restraint on the other is praised by some and perhaps could be the only way to protect the environment without any substantive changes being made to the ECHR. There is no doubt that progress has been made so far in the Court’s approach to environmental protection and the combating of environmental degradation. Developments led to a modernised, evolutive interpretation of the provisions of the Convention which gives rise to indirect protection of the environment and its recognition as a legitimate aim in a democratic society. The Court has also developed a three step process of establishing legality, a legitimate purpose and proportionality in its judgements on environmental matters, which definitely take into account considerations relating to the rule of law when establishing a ‘fair balance’ between the interests of the State and the individual.

On the other hand, many would criticise the Court’s role in environmental protection as a very limited one. It does not in reality question the boundaries set by the ECHR and shows little imagination and ambition in the continuous development and strengthening of environmental protection. The process of the Court in itself seems flawed, as it is biased towards the individualist approach and fails to consider the long term environmental effects of its decisions. This seems contradictory to principles such as sustainable development and intergenerational equity. Its unwillingness to even provide a definition of the ‘environment’ or establish clear thresholds for concepts such as the margin of appreciation afforded to States or the level of environmental damage that it considers as an ‘interference’ with the fundamental rights of the individual demonstrate the insecurity of its position.

Perhaps the limited progress we are seeing is resulting from the indirect influence of the growing global awareness, understanding and concern for environmental issues. Yet, there is little evidence in other international agreements of any definite advancement made in establishing a substantive right to the environment. Nations around the world accept the importance of the protection of the environment, yet most are still unwilling to accept any changes that will lead to a formal international right to the environment. It seems that there is little substantive recent development in the promotion of environmental rights and the combating of environmental degradation by the ECtHR and this is unlikely to change in the near future. For now, all the Court is able to do, is in a very limited way - indirectly protect the environment.