Are We There Yet? The Right to Environment
in International and European Law
Lynda Collins*
Recent decades have witnessed a progressive
integration of international human rights
law and international environmental law.
Environmental human rights have been widely
recognized in international environmental
policy, domestic constitutions, and the decisions
of international tribunals. A review of existing
scholarship and jurisprudence reveals three discernible approaches to environmental human
rights. The first is the recognition that environmental degradation may result in the violation
or deprivation of existing human rights such as
the right to life, the right to health, or the right
to culture. A second approach, which has been
codified internationally in at least two impor-
tant treaties, recognizes procedural environmental rights, including the right to environmental information, the right to participate in
environmental decision-making, and the right
of access to justice in environmental matters.
Finally, commentators, states, and tribunals are
increasingly recognizing a free-standing “right to
environment” which overlaps with, but extends
beyond, other existing human rights. This Article
will evaluate the content and current status of
these three categories of environmental human
rights in international law, and in the law of
one of the most environmentally progressive
regions of the world – Europe.
Dans le courant des dernières décennies, le droit
international a vu apparaître l’intégration progressive des droits de la personne et du droit de
l’environnement. D’ailleurs, les différentes politiques environnementales, constitutions domestiques et décisions des tribunaux internationaux
reconnaissent maintenant la jonction des droits
environnementaux et de la personne. La doctrine
et de la jurisprudence révèle, à cet égard, trois
approches distinctes. Une première observation
suggère que la dégradation de l’environnement
entraîne la violation ou la destitution de droits
de la personne tels le droit à la vie, le droit à la
santé ou encore le droit à la culture. Une seconde
approche, d’ailleurs codifiée au sein d’au moins
deux traités majeurs, concerne l’émergence de
droits procéduraux de l’environnement, inclu-
ant le droit à l’information sur l’environnement,
le droit à la participation lors de prises de décisions environnementales, ainsi que le droit à la
justice quant aux enjeux environnementaux.
Finalement, un nombre grandissant d’auteurs,
d’États et de tribunaux reconnaît l’existence
d’un droit à l’environnement en tant que sphère
autonome du droit, qui coïncide avec certains
droits de la personne mais ayant une étendue
plus large. Cet article évaluera la substance et
le statut actuel de ces trois catégories découlant
de la jonction des droits environnementaux et
de la personne au sein du droit international,
et plus précisément telle que véhiculée par l’une
des régions les plus progressistes au niveau environnemental - l’Europe.
*
Assistant Professor, University of Ottawa Faculty of Law, Common Law Section, environmental law
group. The author expresses her gratitude to the anonymous Reviewer for her/his very insightful comments on the piece. Thanks also to Professors Natasha Affolder and Ian Townsend-Gault of the University
of British Columbia for their helpful input on an earlier draft.
1.
Introduction and Summary
2.Background
2.1 A brief historical overview
2.2 Controversy regarding the role of human rights in environmental protection
3.
Sources
4.
Recognition of Environmental Human Rights in International Law
4.1 Environmental deprivations of recognized human rights
4.2 Procedural environmental rights
4.3 The free-standing right to environment
5.
4.3.1
Development of the right to environment in international law
4.3.2
What level of protection is afforded?
Reception and Development of the Right to Environment in European Law
5.1 Recognition of environmental deprivations of existing human rights
5.2 Procedural Environmental Rights: Europe Leads the Way
5.3 The free-standing right to environment
6.
5.3.1
Recognition of the Right to Environment by the EU
5.3.2
Recognition of the Right to Environment at the European Court of Justice
5.3.3
Recognition of the Right to Environment by the European Court of Human Rights
5.3.4
National Constitutions
A Unitary Re-Formulation of the Right to Environment
6.1 Re-conceptualizing environmental human rights
6.2 Content of the “pure” right to environment
6.2.1
Intergenerational equity
6.2.2
Aesthetic protection
6.2.3
Precautionary Principle
7.Conclusion
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F
or better or worse, the consensus goal of environmental decision-making worldwide is
that of “sustainable development.”1 Defined by the Brundtland Report2 as “development that meets the needs of the present without compromising the ability of future
generations to meet their own needs,”3 sustainable development has now achieved widespread
acceptance as a guiding principle of international environmental law and policy.4 One com-
1
For an explanation and critical analysis of sustainable development, see generally Graham Mayeda,
“Where Should Johannesburg Take Us? Ethical and Legal Approaches to Sustainable Development in the
Context of International Environmental Law” (2004) 15 Colo. J. Int’l Envtl. L. & Pol’y 29 [Mayeda];
Christopher D. Stone, “Deciphering ‘Sustainable Development’” (1994) 69 Chi.-Kent L. Rev. 977. See
also Lynda M. Collins, “Revisiting the Doctrine of Intergenerational Equity in Global Environmental
Governance” (2007) 30 Dal. L.J. (forthcoming) [Collins, “Revisiting the Doctrine of Intergenerational
Equity”]; Bosire Maragia, “The Indigenous Sustainability Paradox and the Quest for Sustainability in
Post-Colonial Societies: Is Indigenous Knowledge All That Is Needed?” (2006) 18 Geo. Int’l Envtl. L.
Rev. 197.
2
World Commission on Environment and Development, Our Common Future (Oxford: Oxford University
Press, 1987).
3
Ibid. at 43.
4
For a discussion of the legal status of sustainable development, see John Martin Gillroy, “Adjudication
Norms, Dispute Settlement Regimes and International Tribunals: The Status of ‘Environmental
Sustainability’ in International Jurisprudence” (2006) 42 Stan. J. Int’l L. 1; Mayeda, supra note 1; Ved P.
Nanda, “Sustainable Development, International Trade and the Doha Agenda for Development” (2005)
8 Chap. L. Rev. 53; Dominic McGoldrick, “Sustainable Development and Human Rights: An Integrated
Conception (1996) 45 Int’l & Comp. L. Q. 796 at 802-803 [McGoldrick]; Gabcikovo-Nagymaros
Project, 1997 I.C.J. Rep. 7, 1997 WL 1168556 (I.C.J.) at 88 (separate opinion of Judge Weeramantry)
[Gabcikovo-Nagymaros cited to W.L.].
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mentator suggests that sustainable development is supported by three interconnected pillars:
international human rights law, international environmental law, and international economic
law.5 Further, given the ambiguity and malleability of the concept of sustainable development
itself, “it is the more specific international law principles and rules that lie within the three
pillars that must [be] develop[ed].”6
This article is an attempt to clarify and elaborate on the intersection between the human
rights and environmental foundations for sustainable development. The article will analyze
the development and current status of environmental human rights7 in international law and
European law, the latter including both European Union8 law and the law of the European
Convention on the Protection of Human Rights and Fundamental Freedoms.9 The analysis begins,
in Part 2, with a brief discussion of the context in which the debate regarding environmental
human rights arises. Part 3 examines the potential sources of environmental human rights in
international law, and provides a brief analysis of the tension between the traditional statist
approach to international law and the new norms created by both human rights law and international environmental law.
Part 4 considers the current status of environmental human rights in international law.
Part 4.1 discusses international legal recognition of environmental deprivations of existing
human rights (notably the rights to life and health). Part 4.2 introduces the category of procedural environmental rights (access to environmental information, participation, and access
to justice) which have been widely recognized in international instruments. Part 4.3 turns
to the development and current status of the substantive right to environment in international law, and also examines the kind of environment that is protected under the right (e.g.
a “healthy”, “decent”, “adequate”, or “ecologically balanced” environment). Part 5 traces the
reception and development of environmental human rights in European Union law and the
law of the European Convention, examining in turn the treatment of environmental deprivations of existing rights (5.1), procedural environmental rights (5.2), and the free-standing right
to environment (5.3).
In Part 6.1, the argument is made that instead of fragmenting environmental human
rights into three alternative approaches, scholars and jurists should conceptualize the right
to environment as i) encompassing both procedural and substantive environmental rights,
and ii) overlapping with other human rights (both existing and emergent). Part 6.2 explores
the unique content of the “pure” right to environment, that is, that part of the right to environment that goes beyond procedural environmental rights and existing human rights. The
5
McGoldrick, supra note 4 at 796-797.
6
Ibid. at 803.
7
The term “environmental human rights” will be used herein as an overarching catch-all category encompassing all manifestations of the application of human rights approaches in the realm of environment.
8
The European Union, created by the Treaty of Maastricht (effective November 1, 1993), is the successor
to the European Economic Community, a supranational entity formed by the Treaty of Rome in 1957.
The European Union consists of three pillars: the European Community, a common foreign and security
policy, and cooperation in justice and home affairs. For an introduction to European Union Law, see
P.S.R.F. Mathijsen, A Guide to European Union Law, 8th ed. (London: Sweet and Maxwell, 2004).
9
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europe
T.S. No. 5 [European Convention].
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paper proposes intergenerational equity, aesthetic protection, and the precautionary principle
as potential components of the pure right to environment.
Part 7 presents a brief conclusion arguing that the evidence for the right to environment
as an existing rule of customary international law (both globally and within Europe specifically) is very strong, and that the development of a robust, justiciable formulation of this right
is an important tool in the collective effort to protect our global environment. In particular, I
will argue that as a worldwide leader in sustainable development, the European Union should
amend its proposed constitutional recognition of environmental protection to include explicit
rights language.
2.BACKGROUND
2.1A brief historical overview
Although ecological thinkers have been sounding the alarm regarding industrial society’s
unsustainable relationship with the natural world since (at least) the nineteenth century,10 the
modern environmental movement did not emerge until the early 1960s. With the exponential
growth in the use of synthetic chemicals in the wake of the Second World War, industrialized
society faced a crisis of pervasive environmental contamination previously unknown in human
history. As Rachel Carson wrote:
For the first time in the history of the world, every human being [was] now subjected to contact with dangerous chemicals, from the moment of conception until
death. In the less than two decades of their use the synthetic pesticides [had] been
so thoroughly distributed throughout the animate and inanimate world that they
occur[red] virtually everywhere…[T]hese chemicals [were] stored in the bodies of
the vast majority of human beings…They occur[red] in the mother’s milk, and probably in the tissues of the unborn child.11
The 1962 publication of Carson’s pivotal book Silent Spring, highlighting the hazards of
chemical pesticides and fertilizers, “delivered a galvanic jolt to public consciousness.”12 Silent
Spring was highly influential in both North America and Europe,13 and is credited with catalyzing the birth of both grassroots environmentalism and modern environmental law.14
In the early 1970s, theorists such as E.F. Schumacher and the eminent Norwegian philosopher Arne Naess nurtured the emergent environmental movement, advocating a radical
10
See generally Joy A. Palmer, ed., Fifty Key Thinkers on the Environment (New York: Routledge, 2001)
[Palmer, Fifty Key Thinkers]; Dianne D. Glave and Mark Stoll, “To love the wind and the rain”: African
Americans and Environmental History (Pittsburgh, PA: University of Pittsburgh Press, 2006); Sylvia
Bowerbank, Speaking for Nature: women and ecologies of early modern England (Baltimore: Johns Hopkins
University Press, 2004). See also John G. Neihardt, Black Elk Speaks: Being the Life Story of a Holy Man
of the Oglala Sioux (Lincoln: University of Nebraska Press, 2004) (for an early 20th century example).
11
Rachel Carson, Silent Spring (New York: First Mariner Books, 2002) at 15-16 [Carson, Silent Spring].
12
Edward O. Wilson, “Afterward” in Carson, Silent Spring, supra note 11 at 357.
13
Jon Burchell & Simon Lightfoot, eds., The Greening of the European Union? Examining the EU’s
Environmental Credentials (London: Sheffield Academic Press, 2001) at 18 [Burchell & Lightfoot].
14
See H. Patricia Hynes, The Recurring Silent Spring (New York: Pergamon Press, 1989) at 9.
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restructuring of human relations with the natural world.15 A series of high-profile disasters in
the late 60s and 70s further raised public consciousness regarding the dangers of environmental
pollution.16 At the same time, major international environmental organizations were created,
successfully focusing media attention on the environmental crisis, and lobbying governments
at all levels to take effective action.17 The early environmental movement culminated in the
birth of international environmental law with the 1972 Stockholm Declaration on the Human
Environment. The Stockholm Declaration introduced the notion of a human right to environment into international law for the first time.
2.2Controversy regarding the role of human rights in environmental protection
It should be noted at the outset that the notion of environmental huhman rights has
stirred some controversy among ecological ethicists and environmental activists. Bosselmann
explains that “‘[r]ights talk’ is not very popular among non-legal ecologists. Deep ecologists
and ecofeminists tend to perceive rights as absolute, static, individualistic and deeply embedded in the anthropocentric (male) paradigm.”18
Critics argue that placing an emphasis on human rights “tend[s] to perpetuate the
values and attitudes that are at the root of environmental degradation.”19 Proponents of the
human rights approach counter that these criticisms are themselves influenced by an anthropocentric worldview that incorrectly sees humans as separate from the rest of the natural environment. As Dinah Shelton has observed, however, “humans are not separable members of
the universe. Rather, humans are interlinked and interdependent participants [in the natural
world]…” 20 Thus, a rights-based approach that protects humans from environmental degradation necessarily entails the protection of the ecosystems and species upon which human wellbeing depends. Once the fallacy of human separation from nature is abandoned, it becomes
clear that a human rights approach is capable of encompassing a high level of environmental
protection.
Some commentators argue that what is required is the integration of human rights
approaches into a broader, polycentric framework for environmental decision-making which
is capable of accounting for the intrinsic value of nature (among other values).21 Thus, at a
15
For a more detailed discussion of the lives and works of Carson, Naess, Schumacher, and other major
environmental thinkers, see Palmer, Fifty Key Thinkers, supra note 10; see also Louis P. Pojman, ed.,
Environmental Ethics: Readings in Theory and Application (Belmont, CA: Wadsworth Publishing Co.,
2001).
16
In Europe, key incidents included the 1967 Torrey Canyon oil spill in the English Channel and the 1969
chemical spill in the Rhine River. Burchell & Lightfoot, supra note 13 at 18.
17
Ibid. at 18-19.
18
Klaus Bosselmann, “Human Rights and the Environment: Redefining Fundamental Principles?” in
Brendan Gleeson and Nicholas Low, eds., Governing for the Environment: Global Problems, Ethics and
Democracy (Basingstoke, Hampshire: Palgrave, 2001) at 126 [Bosselmann].
19
Ibid. at 125.
20
Dinah Shelton, “Human Rights, Environmental Rights, and the Right to Environment” (1991) 28 Stan.
J. Int’l. L. 103, at 110 [Shelton, “Human Rights, Environmental Rights”].
21
See Bosselmann, supra note 18 at 125, citing P.W. Birnie and A.E. Boyle, International Law and the
Environment (Oxford: Oxford University Press, 1992). See also Collins, “Revisiting the Doctrine of
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minimum, the human rights approach constitutes an important additional tool in the project
of environmental protection. The recognition of environmental human rights gives advocates
access to human rights machinery in their efforts to arrest environmental degradation, and this
is highly significant given the absence of other binding enforcement mechanisms in international environmental law.22
3. SOURCES
As noted by scholar Luis E. Rodriguez-Rivera, “it is imperative that an analysis of the existence of a human right to environment focus on the sources from which [the right] purportedly
derives…”23 Article 38 of the Statute of the International Court of Justice recognizes two primary
sources of international law: treaties,24 and customary law (as evidenced by a generalized state
practice flowing from a perceived legal obligation).25 If the matter at hand is not readily resolvable by reference to either of these sources, the Court may also refer to “the general principles
of law recognized by civilized nations,”26 and, as an interpretive aid, judicial decisions and
scholarly opinions.27 In its classical formulation, both the subjects and objects of international
law are states, and state consent is the sine qua non of international legal norms.28
The emergence of international human rights law in the aftermath of the Second World
War introduced the “radical premise that a state’s treatment of its own citizens, its internal
governance on many significant matters, is subject to the norms of international [law].”29 Thus,
human rights law intruded on traditional values of state sovereignty,30 and, for the first time,
gave individual humans a voice in international law. Concomitantly, the emergence of human
rights law created a tension in the doctrine of sources. Although human rights were specifically
delimited in written declarations and conventions consented to by the States party,31 it may
Intergenerational Equity”, supra note 1 (on the need to balance environmental human rights with the
principle of responsibility to future generations).
22
See Sumudu Atapattu, “The Right to Life or the Right to Die Polluted: The Emergence of a Human Right
to a Healthy Environment Under International Law” (2002) 16 Tul. Envtl. L.J. 65 at 70 [Atapattu].
23
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 at 5 [Rodriguez-Rivera].
24
Statute of the International Court of Justice, June 26, 1945, Can. T.S. 1945 No. 7, art. 38 (a), online:
International Court of Justice <http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0>
[Statute of the ICJ].
25
Ibid., art. 38(b).
26
Ibid., art. 38(c).
27
Ibid., art. 38(d).
28
Rodriguez-Rivera, supra note 23 at 2-3.
29
Henry Steiner & Philip Alston, International Human Rights in Context: law, politics, morals (New York:
Oxford University Press, 1996) at 148.
30
Robert D. Sloane, “Outrelativizing Relativism: A Liberal Defense of the Universality of International
Human Rights” 34 Vand. J. Transnat’l L. 527 at 532 [Sloane].
31
The foundational Conventions are the International Covenant on Civil and Political Rights, 19 December
1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976) and
the International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S
3, Can. T.S. 1976 No. 46, U.K.T.S. 1977 No. 6 (entered into force 3 Jan 1976). Though technically
non-binding, the ancestor to the modern human rights system is the Universal Declaration of Human
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be argued that the very notion of universal human rights is conceptually inconsistent with a
requirement of state consent.32 Indeed, human rights are rooted philosophically in the Western
traditions of natural law and natural rights, which explicitly hold that universal principles of
morality, including certain individual rights, trump human-made law.33 Judge Higgins captures the dynamic well:
A human right is a right held vis-à-vis the state, by virtue of being a human being.
But what are those rights? The answer to that question depends…on the approach
you take to the nature and sources of international law. Some will answer that the
source of human-rights obligation is to be found in the various international instruments; and that whatever rights they contain and designate as human rights are
thereby human rights, at least for the ratifying parties…Others will say that the
international instruments are just the vehicle for expressing the obligations and providing the detail about the way in which the right is to be guaranteed…34
In common with human rights law, international environmental law has also challenged
the traditions of international law, though in a different manner. In the field of international
environmental law, non-binding, or “soft law” approaches35 have assumed a substantially
greater importance than is the case in classical international law. Because of the difficulty and
delay involved in reaching consensus on the language of binding environmental treaties, soft
law instruments predominate in international environmental law.36 “The basic role of soft
law is to raise expectations of conformity with legal norms, and to create uniformity in the
interpretation of these norms.”37 Soft law can mature into hard law when these “expectations
of conformity” bring about state practice (“accepted as law”)38 or through inclusion in binding
conventions, and this has become a significant pattern in international environmental law.39
Thus, the numerous soft law provisions addressing the human right to environment that will
be examined herein have more than mere rhetorical force. Rather, they are the likely precursors
to binding international legal obligations in this area.
4. RECOGNITION OF ENVIRONMENTAL HUMAN RIGHTS IN INTERNATIONAL
LAW
Scholars have described at least three possible outputs of the application of human rights
to environmental harm: the recognition of environmental deprivations of existing human
rights, the entrenchment of procedural environmental rights, and the recognition of a freeRights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [Universal
Declaration].
32
See Rodriguez-Rivera, supra note 23 at 3: “The protection of an individual’s life and dignity is not an
obligation to which states may consent or withhold consent.”
33
See generally Sloane, supra note 30 at 542-43.
34
Rodriguez-Rivera, supra note 23 at 5.
35
Layla A. Hughes, “Foreword: The Role of International Environmental Law in the Changing Structure
of International Law” (1998) 10 Geo. Int’l Envtl. L. Rev. 243 at 246 [Hughes].
36
Ibid.
37
Ibid.
38
Statute of the ICJ, supra note 24, art. 38(b).
39
See generally Hughes, supra note 35.
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standing right to environment.40 These three formulations are conceptually distinct and have
received different treatments in international instruments and judicial decision-making; each
will be discussed in turn.
4.1Environmental deprivations of recognized human rights
Because the biophysical environment underlies all aspects of human existence, serious
environmental degradation affects all human rights.41 Although some advocates of environmental human rights argue for the “reinterpretation” or “expansion” of existing rights,42 or the
recognition of “environmental components” of existing rights,43 in my view it is more helpful
to think in terms of environmental deprivations of existing rights. By “deprivation”, I mean
simply a violation or infringement of a recognized human right. As Justice Weeramantry, of
the International Court of Justice, explained in his separate opinion in the Case Concerning the
Gabcikovo-Nagymaros Project:
The protection of the environment is… a vital part of contemporary human rights
doctrine, for it is a sine qua non for numerous human rights such as the right to
health and the right to life itself. It is scarcely necessary to elaborate on this, as
damage to the environment can impair and undermine all the human rights spoken
of in the Universal Declaration and other human rights instruments.44
Taking the right to life, for example, it is not necessary to formulate a new “environmental component” of the right to life in order to address lethal environmental harm. Instead,
courts need only recognize that environmental harm may cause loss of life just as surely as
other means.45 If a citizen is asphyxiated by noxious gases emanating from a government-operated incinerator, she is equally dead as if she had been shot or beaten by government agents.
It would be irrational for human rights law to provide less protection in the latter scenario
than it does in the former; this would, in a sense, create an environmental exemption from
the right to life.46 Thus, recognition of environmental deprivations of existing rights does not
require the creation of any new doctrine, but merely an ecologically literate reading of existing
40
Terminology varies among authors. In her pivotal 1991 article, international law scholar Dinah Shelton
described the categories as “human rights,” “environmental rights” and the “right to environment”. See
Shelton, “Human Rights, Environmental Rights”, supra note 20 at 105.
41
See Jennifer A. Downs, “Note: A Healthy and Ecologically Balanced Environment: An Argument for a
Third Generation Right” (1993) 3 Duke J. Comp. & Int’l L. 351 at 367-68.
42
See e.g. Rodriguez-Rivera, supra note 23 at 18-20; Shelton, “Human Rights, Environmental Rights”,
supra note 20 at 117.
43
John Lee, “The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy
Environment as a Principle of Customary International Law” (2000) 25 Colum. J. Envtl. L. 283 at 29192 [Lee].
44
Gabcikovo-Nagymaros Project, supra note 4 at 91-92.
45
Contra Lee, supra note 43 at 291: “Claiming an environmental component to a recognized human right
is to give a new component of a presently-recognized right the same legal footing as the recognized definition. For this recognition to be accepted, the new component must develop as a principle of customary
international law, or else be accepted through a convention or binding multilateral treaty”.
46
Cf. Richard Desgangne, “Integrating Environmental Values into the European Convention on Human
Rights” (1995) 89 A.J.I.L. 263 at 269: “In view of the fact that the obligation to respect the right to life
encompasses avoidance of serious risks to human life, the source of such risks should not be relevant.”
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human rights. A number of international, regional and domestic judicial decisions support
this proposition.
The United Nations Human Rights Committee acknowledged the potential for environmental contamination to violate existing human rights in EHP v. Canada. 47 In that case, a citizens’ group alleged that the storage of nuclear waste in the community threatened their right
to life, and the Committee found that a valid prima facie claim had been articulated. Although
the claim was found inadmissible due to failure to exhaust national remedies, the Committee
stated that, “the present communication raises serious issues [under article 6(1)] with regard
to the obligation of States parties to protect human life.”48 In Yanomami Indians v. Brazil,49 the
Inter-American Commission on Human Rights found that Brazil had violated the Yanomami
people’s rights to life, liberty, and personal security by failing to prevent serious environmental
damage caused by resource companies. The European Court of Human Rights recognized a
violation of the right to life caused by a preventable explosion at a waste site in Oneryildiz v.
Turkey50 (discussed in greater detail in Part 5.1, below).
In addition to the right to life, commentators and tribunals have also recognized that environmental degradation may result in deprivations of the rights to health,51 privacy and family
life,52 property,53 suitable working conditions,54 adequate standard of living,55 indigenous
rights56 and/or culture.57 A number of “soft law” instruments have also explicitly acknowledged
the potential of environmental harm to violate existing rights.58 At the national level, courts
47
Human Rights Committee, 17th Sess., Communication No. 67/1980, U.N. Doc. CCPR/C/OP/1 at 20
(27 October 1982).
48
Ibid. at para. 8.
49
(1985) Inter-Am. Comm.H.R. No.7615, Informe Annual de la Comisión Interamericana de derechose
humanos: 1984-1985, OEA/Ser.L.V/II.66/doc. 10 rev. 1.
50
[GC], no.48939/99, [2004] XII E.C.H.R. 79.
51
Atapattu, supra note 22 at 101; World Health Organization, Our Planet, Our Health--Report of the WHO
Commission on Health and Environment (Geneva: World Health Organization, 1992). See also Adriana
Fabra Aguilar, “Enforcing the Right to a Healthy Environment in Latin America” (1994) 3 R.E.C.I.E.L.
215.
52
Atapattu, supra note 22 at 101-102.
53
See Romina Picolotti & Jorge Daniel Taillant, eds., Linking Human Rights and the Environment (Tucson,
AZ: University of Arizona Press, 2003) at xiv [Picolotti & Taillant, Linking Human Rights and the
Environment].
54
Shelton, “Human Rights, Environmental Rights”, supra note 20 at 112.
55
Ibid. See also Atapattu, supra note 22 at 102.
56
See generally Office of the United Nations High Commissioner for Human Rights, Fact Sheet No. 9: The
Rights of Indigenous Peoples (July 1997), online: <http://www.ohchr.org/english/about/publications/docs/
fs9.htm>. See also Office of the United Nations High Commissioner for Human Rights, Leaflet No. 10:
Indigenous Peoples and the Environment, online: <http://www.ohchr.org/english/about/publications/docs/
indileaflet10.doc>; Peter Manus, “Indigenous Peoples’ Environmental Rights: Evolving Common Law
Perspectives in Canada, Australia, and the United States” (2005) 33 B.C. Envtl. Aff. L. Rev. 1.
57
See Dinah Shelton, “The Environmental Jurisprudence of International Human Rights Tribunals” in
Picolotti & Taillant, Linking Human Rights and the Environment, supra note 53 at 18-19.
58
See e.g. Draft Declaration of Principles on Human Rights and the Environment, infra note 90; Council of
Europe, P.A., 24th sitting, Texts Adopted, Recommendation 1614 (2003), online: Parliamentary Assembly
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in India, Pakistan, several Latin American countries, and the Philippines have similarly found
environmental deprivations of the rights to life and/or health enshrined in their respective
constitutions.59
In sum, the proposition that existing human rights may be violated through severe environmental degradation has been accepted by courts at the international, regional, and domestic levels. Although there is no “hard law” evincing specific state consent to this proposition,
states did consent to be bound by the established human rights through the foundational
Conventions,60 and courts appear willing to recognize environmental mechanisms of deprivation just as they would any other.
4.2Procedural environmental rights
In Silent Spring, Rachel Carson articulated the imperative of informed public participation in environmental decision-making as follows:
We urgently need an end to…false [environmental] assurances, to the sugar coating
of unpalatable facts. It is the public that is being asked to assume the risks [of synthetic chemicals]…The public must decide whether it wishes to continue on the
present road, and it can only do so when in full possession of the facts…“The obligation to endure gives us the right to know.”61
Procedural environmental rights include access to environmental information, meaningful
participation in environmental decision-making, and access to legal redress for environmental wrongs (whether procedural or substantive).62 Although procedural environmental rights
involve the application of existing participatory rights63 to the environmental context, and
therefore could have been treated in subsection (a) above, most commentators accord such
rights their own conceptual category, probably because a substantial specialized body of law
has developed regarding participatory rights in the environmental context specifically.
For example, Principle 23 of the World Charter for Nature states that “[a]ll persons, in
accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and
<http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1614.htm>. No “hard
law” instruments have codified the connection, but again, this is unnecessary since we are dealing here
with rights that are already enshrined in existing Conventions.
59
See Rodriguez-Rivera, supra note 23 at 20; Atapattu, supra note 22 at 108.
60
See supra note 31.
61
Carson, Silent Spring, supra note 11 at 13.
62
See Shelton, “Human Rights, Environmental Rights”, supra note 20 at 117. Shelton and a number of
later commentators use the term “environmental rights” to refer to these procedural entitlements. See
e.g. Atapattu, supra note 22 at 72. I find the use of the generic term “environmental rights” to refer to
rights that are strictly procedural in nature to be counter-intuitive; thus, I will use the more specific term
“procedural environmental rights” herein.
63
See e.g. Organization of African Unity, African (Banjul) Charter on Human and Peoples’ Rights, June 27,
1981, Doc. OAU/CAB/LEG/67/3/Rev.5, 21 ILM 59 (1982), arts. 9, 10, 12 [African Charter]; American
Convention on Human Rights, Nov. 22, 1969, art. 4, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (1969),
9 I.L.M. 673, arts. 13, 23 [American Convention]; Universal Declaration, supra note 32, arts. 19-21;
European Convention, supra note 8, arts. 10-11.
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shall have access to means of redress when their environment has suffered damage or degradation.”64 Agenda 21 recognized that “one of the fundamental prerequisites for the achievement
of Sustainable Development is broad public participation in decision-making.”65 Principle 10
of the Rio Declaration on Environment and Development,66 articulates procedural environmental rights as follows:
Environmental issues are best handled with participation of all concerned citizens,
at the relevant level. At the national level, each individual shall have appropriate
access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall
facilitate and encourage public awareness and participation by making information
widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.67
Both Agenda 21 and the Rio Declaration were adopted by at least 178 countries at the 1992
United Nations Conference on Environment and Development.68
In addition to the substantial body of soft law regarding the existence and content of
procedural environmental rights, there is significant binding international law in this area.
Paragraph 8 of Article 3 of the Espoo Convention on Environmental Impact Assessment in a
Transboundary Context, requires the Parties to:
ensure that the public of the affected Party in the areas likely to be affected be
informed of, and be provided with possibilities for making comments or objections
on, the proposed activity, and for the [transmittal] of these comments or objections
to the competent authority of the Party of origin, either directly to this authority or,
where appropriate, through the Party of origin.69
Forty-one countries have ratified or acceded to the Espoo Convention thus far.70 In Europe, the
Aarhus Convention (discussed below in Part 5.2) has also codified procedural environmental
human rights in “hard law” as to the parties thereto. Further, many post-Rio multilateral and
bilateral treaties also contain provisions relating to procedural environmental rights.71
64
World Charter for Nature, G.A. Res. 37/7, UN GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/37/51
(1982), 22 I.L.M. 455.
65
Agenda 21, UN Conference on Environment and Development, 14 June 1992, UN Doc. A/CONF.
151/26/Rev.1, online: <http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.
htm>.
66
UN Conference on Environment and Development, 14 June 1992, UN Doc. A/CONF.151/5/Rev.1
(1992), 31 I.L.M. 874 (1992) [Rio Declaration].
67
See McGoldrick, supra note 4 at 805.
68
See UN Department of Economic and Social Affairs, Division of Sustainable Development: Documents,
online: <http://www.un.org/esa/sustdev/documents/agenda21/index.htm>.
69
Convention on Environmental Impact Assessment in a Transboundary Context, 30 I.L.M. 800 (1991).
70
See Ratification: Convention on Environmental Impact Assessment in a Transboundary Context, online:
United Nations Commission for Europe <http://www.unece.org/env/eia/convratif.html>.
71
Alexandre Kiss, “The Right to the Conservation of the Environment” in Picolotti & Taillant, Linking
Human Rights and the Environment, supra note (53) at 37-38. At the national level, 16 countries have
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Thus, procedural environmental rights have been widely recognized in binding international and regional instruments, as well as key non-binding international instruments that
may have given rise to a rule of customary international law. Moreover, in many cases procedural environmental rights may also be arrived at through the “environmental deprivation of
existing rights” approach.72 Thus, one way or another, these rights have emerged as binding
legal entitlements entailing correlative duties on the part of states.
4.3The free-standing right to environment
4.3.1 Development of the right to environment in international law
“The right to a healthy environment… denotes the identification of a separate, independent human right, not dependent on the existing protected rights recognized in the international covenants.”73 The human right to environment first appeared on the international law
scene in Principle 1 of the 1972 Stockholm Declaration on the Human Environment.74 That
Principle states:
Man [sic] 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.75
constitutional provisions recognizing the right to environmental information. See Mollo, infra note 100
at 38.
72
In Marcel Claude Reyes et al. v. Chile, for example, the Inter-American Court of Human Rights held
that the Chilean government’s refusal to grant access to information concerning a major logging project
violated section 13 of the American Convention on Human Rights. The Court held that Article 13 protects citizens’ rights to seek information and imposes a positive obligation on States party to supply such
information or provide an adequate justification (in accordance with the Convention) for its refusal. Case
of Claude Reyes et al. v. Chile, (2006) Inter-Am. Ct. H.R. (Ser. C) No. 151, at para. 59, online: Corte
Interamericana de Derechos Humanos <http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.
pdf>. See also Open Society Justice Initiative, Transparency and Silence: A Survey of Access to Information
Laws and Practices in 14 Countries (New York: Open Society Institute, 2006), online: <http://www.soros.
org/resources/articles_publications/publications/transparency_20060928>.
73
Atapattu, supra note 22 at 73.
74
Declaration of the United Nations on the Human Environment, 16 June 1972, UN Doc. A/CONF.48/14/
Rev.1, 11 I.L.M. 1416 [Stockholm Declaration].
75
Atapattu observes:
It is ironic that at the time of the Stockholm Conference, the United States--which vehemently opposed the inclusion of a similar right twenty years later in the Rio Declaration-proposed the inclusion of a specific right to a clean environment in the Stockholm
Declaration. The formulation proposed by the United States reads as follows: “Every
human being has a right to a healthful and safe environment, including air, water and
earth, and to food and other material necessities, all of which should be sufficiently free of
contamination and other elements which detract from the health or well-being of man.”
The conference participants, particularly those from developing countries, however, preferred the indirect formulation in Principle 1; therefore, the American formulation was
rejected.
Supra note 22 at 74-75 (internal citations omitted).
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Although a number of commentators argue that the Stockholm Declaration recognized only
a link between environment and existing human rights, the Travaux Preparatoires of the
Committee of the United Nations Conference on the Human Environment indicate that the
draft of the Stockholm Declaration “was based on the recognition of the rights of individuals to
an adequate environment.”76
Since Stockholm, the human right to environment has been recognized in numerous soft
law international reports, communications, and instruments, as well as in national constitutions and domestic judicial decisions. Thus, the draft principles on sustainable development
appended to the report of the Brundtland Commission (submitted in 1987) state that “[a]ll
human beings have the fundamental right to an environment adequate for their health and
well-being.”77 Similarly, the 1989 Hague Declaration on the Environment, signed by twentyfour states, declared that environmental degradation threatens “the right to live in dignity in a
viable global environment.”78 The following year, the United Nations General Assembly passed
resolution 45/94 “[r]ecogniz[ing] that all individuals are entitled to live in an environment
adequate for their health and well-being; and call[ing] upon Member States and intergovernmental and non-governmental organizations to enhance their efforts towards ensuring a better
and healthier environment.”79
The declaration produced at the 1992 UN-sponsored Rio Conference on Environment
and Development echoed this language of entitlement, stating in Principle 1 that “[h]uman
beings are at the centre of concerns for sustainable development. They are entitled to a healthy
and productive life in harmony with nature.”80 A number of commentators have argued that
this language represents a retreat from the overt rights-based approach taken in the Stockholm
Declaration,81 but Lee asserts that Rio’s Principle 1 still “captures the ideals of a human right to
a healthy environment, if not explicitly recognizing such a right.”82 If this is correct, then the
Rio Declaration provides strong evidence of a rule customary international law recognizing the
right to environment. Lee explains:
The Conference on Environment and Development was held at Rio de Janeiro in
1992 and attended by 178 nations and 100 heads of state…The language of Principle
1 of the Rio Declaration was reproduced verbatim, and accepted without reservation
by 179 nations at the 1994 UN Conference on Population and Development; by
76
Preparatory Committee for the United Nations Conference on the Human Environment, ¶ 77, U.N.
Doc.A/Conf.48/PC/17 (1972), cited in Rodriguez-Rivera, supra note 23, at 17. See also Neil Popovic,
“In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on
Human Rights and the Environment” (1995-1996) 27 Colum. H.R.L. Rev. 487 at 504. He contends
that Principle 1 of the Stockholm Declaration contains an “expansive statement of environmental rights.”
77
Experts Group on Environmental Law of the World Commission on Environment & Development,
Environmental Protection and Sustainable Development: Legal Principles and Recommendations (London:
Graham and Trotman Publishers, 1987) at 25.
78
Hague Declaration on the Environment, 11 March 1989, 28 I.L.M. 1308.
79
Need to Ensure a Healthy Environment for the Well-Being of Individuals, UN GAOR, 45th Sess., 68th Plen.
Mtg., UN Doc. A/RES/45/94 (1990).
80
See Rio Declaration, supra note 66.
81
See e.g. Mariana T. Acevedo, “The Intersection of Human Rights and Environmental Protection in the
European Court of Human Rights” (2000) 8 N.Y.U. Envtl. L.J. 437 at 451.
82
Lee, supra note 43 at 308.
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186 nations at the 1995 World Summit for Social Development; by 175 nations at
the 1996 Second Conference on Human Settlements (Habitat II); and by 17 nations
at the OAS-sponsored 1997 Hemispheric Summit on Sustainable Development …
While each of these reaffirmations is legally non-binding, the fact that almost every
nation made this reaffirmation without reservation – at least three times – is evidence
of a widespread and consistent state practice. Such practice can contribute to the
creation of a right to a healthy environment as a principle of customary international
law.83
Of course, the key question here is whether the assertion that Principle 1 captures the
“ideals of a human right” is valid. It is true that the notion of a legal entitlement is coextensive
with that of a right.84 At the same time, it will no doubt be argued that had the signatories to
Rio intended to recognize a human right to environment, they would have been plain about
it. At the very least, however, the very widespread and repeated acceptance of Rio Principle
1 described above indicates that the human entitlement to “a healthy and productive life in
harmony with nature” has become a principle of customary international law. Given the very
close relationship between rights and entitlements, this principle of environmental entitlement
strongly suggests a trend toward recognition of the human right to environment.
Another significant event in the international development of the right to environment was the appointment in 1990 of Ms. Fatma Ksentini as Special Rapporteur on Human
Rights and the Environment.85 In her Final Report to the Sub-Commission on Prevention of
Discrimination and Protection of Minorities,86 Ms. Ksentini recognized the reciprocal link
between the protection of human rights and the protection of the environment, that serious
environmental harm can violate existing human rights, and that the recognition and implementation of procedural environmental rights is crucial to both human rights and environmental
protection. 87 However, she went beyond this, finding that the right to environment itself had
already been recognized at the national, regional, and international levels.88 She wrote that recognizing and operationalizing the right to a healthy environment “should make it possible to
go beyond reductionist concepts of ‘mankind first’ or ‘ecology first’ and achieve a coalescence
of the common objectives of development and environmental protection.”89 Appended to the
Special Rapporteur’s 1994 report was a Draft Declaration of Principles on Human Rights and the
Environment.90 Principle 2 of that declaration states that “All persons have the right to a secure,
healthy and ecologically sound environment” while Principle 5 provides that: “All persons have
83
Ibid. at 308-309 [internal citations omitted].
84
See e.g. Jack Donnelly, Universal Human Rights in Theory & Practice (Ithaca: Cornell University Press,
2003 at 9 (“To have a right to x, is to be specially entitled to x”).
85
For a discussion of the UN processes surrounding Ms. Ksentini’s appointment and mandate, see Adriana
Fabra & Neil A.F. Popovic, “Law-making in the United Nations” (1994) 3 R.E.C.I.E.L. 197.
86
Review of Further Developments in Fields with Which the Sub-Commission Has Been Concerned, Human
Rights and the Environment: Final Report Prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, UN
ESCOR, 46th Sess., UN Doc. E/CN.4/Sub.2/1994/9 [Ksentini Final Report].
87
See Ksentini Final Report, ibid.
88
Ibid. at 58.
89
Ibid. at 3.
90
See Ksentini Final Report, supra note 86 at Annex I [Draft Declaration of Principles on Human Rights and
the Environment].
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the right to freedom from pollution, environmental degradation and activities that adversely
affect the environment, threaten life, health, livelihood, well-being or sustainable development
within, across or outside national boundaries.”91
Most recently, under the auspices of UNESCO and the United Nations High Commissioner
for Human Rights, an International Seminar of Experts on the Right to the Environment
was convened, resulting in the February 12, 1999, issuance of the Bizkaia Declaration on the
Right to the Environment.92 Article 1 of the Bizkaia Declaration recognizes that “[e]veryone
has the right, individually or in association with others, to enjoy a healthy, ecologically balanced environment…[which] may be exercised before public bodies and private entities…” As
significant as the content of the Bizkaia Declaration itself is the Preamble, which collects the
evidence of an emerging right to environment, citing: Principle 1 of the Stockholm Declaration,
the Rio Declaration’s recognition of environmental entitlement, regional recognition of the
right to environment, UN General Assembly Resolution 45/94, incorporation of the right to
environment in national constitutions, and the Institute of International Law’s 1997 declaration that “all human beings have the right to live in a healthy environment”.93
At the regional level, two important instruments recognize the right to environment.
Article 24 of the African Charter on Human and Peoples Rights states that “[a]ll peoples shall
have the right to a general satisfactory environment favorable to their development.”94 There
are more than fifty states party to the Charter, which entered into force on October 21, 1986.95
Turning to the Americas, the Additional Protocol to the American Convention on Human Rights
in the area of Economic Social and Cultural Rights (the Protocol of San Salvador) recognizes the
right to a healthy environment in Article 11. Article 2 requires States to promote the protection, preservation, and improvement of the environment.96 The Protocol of San Salvador
91
The Draft Declaration was the product of a meeting of experts in international human rights and environmental law convened at the request of environmental NGOs in Geneva in May of 1994. The Declaration
recognizes a multitude of particularizations of the right to environment, which although interesting from
a drafting perspective, will not be discussed in detail herein as the Declaration has never been adopted by
any international body, and essentially “died in the water” in the mid-1990s. See Karrie Wolfe, “Greening
the International Human Rights Sphere? Environmental Rights and the Draft Declaration of Principles
on Human Rights and the Environment” (2003) 9 Appeal 45 at 48.
92
Declaration of Bizkaia on the Right to the Environment, UN Educational, Scientific and Cultural
Organization, 30th Sess., Doc. 30C/INF.11, (1999) [Bizkaia Declaration].
93
Ibid. at 1-2. See also United Nations Declaration on the Rights of Indigenous Peoples, Human Rights Council
Res. 2006/2, UN Working group of the Commission on Human Rights to elaborate a draft declaration
in accordance with paragraph 5 of the General Assembly resolution 49/214 of 23 December 1994,
(2006) at art. 29 (establishing unique environmental rights of Indigenous peoples) [provisional], online:
Office of the UN High Commissioner for Human Rights <http://www.ohchr.org/english/issues/indigenous/docs/declaration.doc>. See also, Convention on the Rights of the Child at arts. 2(c), 2(e) (establishing
environmental rights of children).
94
African Charter, supra note 63.
95
See List of Countries Which Have Signed, Ratified/Acceded To The Africa Union Convention On Human
and Peoples’ Rights, African Commission on Human and Peoples’ Rights (20 November 2006), online:
<http://www.achpr.org/english/ratifications/ratification_charter_en.pdf>.
96
American Convention, supra note 63 at art. 11 (“The States Parties shall promote the protection, preservation, and improvement of the environment”). This obligation of States to adopt the measures necessary
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entered into force on November 16, 1999; thirteen states in total have now ratified or acceded
to the Protocol.97
In addition to international and regional instruments (both soft and hard law) explicitly recognizing the human right to environment, Rodriguez-Rivera argues persuasively that
the existence of a burgeoning multitude of international environmental law instruments (covering subjects ranging from biodiversity conservation to air pollution) constitutes state practice
evidencing customary international law. In particular, he argues that this widespread state
practice does indeed arise from a perceived legal obligation, even if this obligation is not explicitly acknowledged:
…[T]he proliferation of international environmental law instruments during the last
three decades must be explained by something more than a mere assertion that states’
participation in this process has been motivated by economic or political self-interest. Most international environmental law instruments do not offer states obvious
economic or political gains. On the contrary, most of these instruments impose economic and political liabilities, which are the inevitable trade-offs associated with
global environmental protection. States are not in the practice of entering into international legal instruments that limit their sovereignty in the absence of recognized
legal or moral duties to do so. Therefore, the exponential growth of international
environmental law instruments, in and of itself, evinces the existence of the [] right
to environment.98
State practice and opinio juris with respect to the right to environment may also be seen
at the national level. The vast majority of domestic constitutions promulgated since 1970
recognize some form of the right to environment, and/or correlative state duties to protect the
environment.99 In its 2005 report to the 61st Session of the United Nation Commission on
Human Rights,100 the American environmental NGO Earthjustice Legal Defense Fund summarized the data:
Of the approximately 193 countries of the world, there are now 117 whose national
constitutions mention the protection of the environment or natural resources.101
Of these, 56 constitutions explicitly recognize the right to a clean and healthy envi-
to provide for the rights listed in the Protocol is somewhat limited by the proviso in Article 1, which
provides that states’ available resources and degree of development are to be taken into account.
97
See Organization of American States, Office of International Law, online: <http://www.oas.
org/juridico/english/sigs/a-52.html>.
98
Rodriguez-Rivera, supra note 23 at 27.
99
Shelton, “Human Rights, Environmental Rights”, supra note 20 at 128.
100
See Marcello Mollo, et al., “Environmental Rights Report: Human Rights and the Environment”,
(Materials for the 61st Session of the United Nations Commission on Human Rights, Geneva, March
14-April 22, 2005), online: Earthjustice Legal Defense Fund <http://www.earthjustice.org/library/references/2005_ENVIRONMENTAL_RIGHTS_REPORTrev.pdf> [Mollo]. See also Rosaleen O’Gara, et
al., “Environmental Rights Report 2007: Human Rights and the Environment”, (Oakland: Earthjustice
Legal Defense Fund, 2007), online: Earthjustice Legal Defense Fund <http://www.earthjustice.org/
library/references/2007-environmental-rights-report.pdf> [O’Gara].
101
Ibid., Appendix 1.
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ronment, and 97 constitutions make it the duty of the national government to
prevent harm to the environment103…
102
National constitutional provisions may be evidence of general principles of law common to
major legal systems.104 In the realm of human rights specifically, provisions of national constitutions enacted pursuant to a perceived international legal obligation may also constitute state
practice giving rise to customary international law.105 The prevalence of environmental rights
in domestic constitutions is strong evidence of the emergence of the right to environment as
a principle of customary international law.106 In addition to domestic constitutional provisions, the widespread promulgation of domestic environmental protection legislation may also
constitute evidence of customary international law (where such laws are enacted in response
to a perceived international legal obligation), or a general principle of law (where opinio juris
is lacking).107
In conclusion, the right to environment has become binding international (or at
least supranational) law in Latin America and Africa through inclusion in written conventions. Further, the right to environment has been recognized in a number of highly significant
soft law instruments which guide international environmental law and policy (e.g. the Rio
Declaration). Finally, the “abundance of state action in the form of national [and international]
environmental laws”, including constitutional provisions recognizing the right to environment, provide strong evidence of the emergence of the right to environment as a principle of
customary international law.108
4.3.2 What level of protection is afforded?
The phrase “right to environment” has been used to this point in an unmodified form
for the purpose of allowing a preliminary inquiry into whether international human rights
law recognizes a right to any particular level of environmental quality. As the above survey of
existing provisions makes clear, the emerging right to environment has been modified by a
variety of adjectives: clean, healthy, ecologically balanced, sound, healthful, adequate, viable,
102
Angola, Argentina, Azerbaijan, Belarus, Belgium, Benin, Brazil, Bulgaria, Burkina Faso, Cameroon,
Cape Verde, Chad, Chechnya, Chile, Colombia, Congo, Costa Rica, Croatia, Cuba, Czech Republic,
Democratic Republic of Congo, Ecuador, El Salvador, Ethiopia, Finland, France, Georgia, Honduras,
Hungary, Kyrgyzstan, Latvia, Macedonia, Mali, Moldova, Mongolia, Mozambique, Nicaragua, Niger,
Norway, Paraguay, Philippines, Portugal, Russia, Sao Tome and Principe, Seychelles, Slovakia, Slovenia,
South Africa, South Korea, Spain, Tajikistan, Togo, Turkey, Ukraine, Yugoslavia. In addition to these, the
constitutions of Comoros and Guatemala recognize a right to health that is not explicitly tied to the state
of the environment. Ibid. at 37, n. 172
103
Ibid. at 37.
104
See Statute of the ICJ, supra note 24, art 27(c).
105
See Lee, supra note 43 at 313-316, citing Restatement (Third) of Foreign Relations § 701, cmt. a (1987)
at reporter’s note 1.
106
See Lee, supra note 43 at 339.
107
See Ibid. at 316-318.
108
Ibid. at 339.
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decent, sustainable, etc.109 Given that the environmental human rights agenda has developed
as a response to environmental harm, it is helpful in analyzing this question to recall that such
harm generally falls into one of two interconnected categories: i) contamination (including for
example, radiation, the contamination of drinking water sources with hazardous chemicals,
and air pollution) and ii) the destruction of natural habitats (encompassing the loss of biodiversity, wilderness, aesthetic values, and eco-cultural spaces). As a result, this author supports
the adoption of the modifier “healthy and ecologically balanced” in discussions of the right
to environment.110 The term “healthy” responds most directly to environmental contamination causing direct human health effects, while “ecologically balanced” responds to the second
category of environmental harm.
As noted at the outset, there is a live debate regarding the utility and desirability of
an international human right to environment, because of the concern that “to speak of a
human right to a healthy environment detracts from [an] ecocentric approach to environmental protection and, instead, endorses the rather narrow…anthropocentric approach.”111 The
phrase “healthy and ecologically balanced” responds to this concern as the health component
addresses human-centered needs directly, while the phrase “ecologically balanced” is an ecocentric concept consistent with the notion of “ecosystem integrity”, which has been suggested
as the basis for a new human relationship with nature.112
The formulation “healthy environment” has been widely used, and should in any event
be understood as encompassing both human-centred and eco-centric aspects - as in an environment that is both “healthy” for humans and healthy in its own right (e.g. a healthy lake, a
healthy forest, a healthy ecosystem).
5. RECEPTION AND DEVELOPMENT OF THE RIGHT TO ENVIRONMENT IN
EUROPEAN LAW
Despite the absence of any environmental provisions in the Treaty of Rome, environmental protection has been a central issue in the European Community (and later the European
Union) since the early 1970s. The 1972 Paris Conference of the Heads of State (held in association with the Stockholm Conference) symbolically adopted environmental protection into
EC policy, 113 and since then, the EU has accorded preeminent importance to environmental protection, EU environmental law and policy has grown exponentially, and Europe has
109
See Michael Burger, “Bi-Polar and Polycentric Approaches to Human Rights and the Environment”
(2003) 28 Colum. J. Envtl. L. 371 at 376.
110
See Downs, supra note 41. This phrase is used in several national constitutions, see Mollo, supra note 100
at 86 ff.
111
Atapattu, supra note 22 at 71-72 (internal citation omitted).
112
See generally Laura Westra, Living in Integrity (Lanham, MD: Rowman & Littlefield, 1998).
113
The Declaration states, in part: “Economic expansion is not an end in itself…It should result in an
improvement in the quality of life as well as in standards of living. As befits the genius of Europe, particular attention will be given to…protecting the environment so that progress may really be put at the
service of mankind.” See E.C. Commission, 6th General Report (1972) at 8. See also Dinah Shelton,
“Environmental Rights in the European Community” (1993) 16 Hastings Int’l & Comp. L. Rev. 557
[Shelton, “Environmental Rights in the European Community”].
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become an acknowledged world leader in sustainable development.114 At the same time, other
pan-European organizations, including the European Court of Human Rights and the United
Nations Economic Commission for Europe, have taken an active role in promoting environmental protection and sustainable development. All three of these organizations, as well as
individual European nations, have accorded significant recognition to environmental human
rights.
5.1Recognition of environmental deprivations of existing human rights
The European Court of Human Rights has repeatedly recognized that environmental
harm may result in the deprivation of human rights protected under the European Convention.
In the recent case of Oneryildiz v. Turkey,115 the Court had occasion to consider the impact of
an environmental disaster on a number of Convention rights. Relying on Convention Articles
2 (right to life), 8 (right to private and family life) and 13 (right to effective remedy for violation of Convention rights) and on Article 1 of Protocol No. 1 (right to peaceful enjoyment
of possessions), the applicants alleged that Turkey was responsible for the deaths of their close
relatives and the destruction of their property resulting from a methane explosion at a nearby
municipal waste dump.116 They further asserted that the administrative proceedings conducted
in their case violated the requirements of fairness and promptness set forth in Article 6(1)
(right to a fair hearing) of the Convention. The Court found violations of Articles 2 and 13 of
the Convention, and of Article 1 of Protocol No. 1. (In view of these findings it was not necessary to consider the alleged violations of Articles 6 and 8.)
The decision is particularly significant in its analysis of the right to life. In considering
the alleged violation of the right to life, the Grand Chamber reiterated that Article 2 imposes
“a positive obligation on States to take appropriate steps to safeguard the lives of those within
their jurisdiction.”117 In particular:
The positive obligation to take all appropriate steps to safeguard life for the purposes
of Article 2…entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against
threats to the right to life…
This obligation indisputably applies in the particular context of dangerous activities,
where, in addition, special emphasis must be placed on regulations geared to the
special features of the activity in question, particularly with regard to the level of the
potential risk to human lives. They must govern the licensing, setting up, operation,
security and supervision of the activity and must make it compulsory for all those
114
See Don C. Smith “The European Union’s Commitment to Sustainable Development: Is the Commitment
Symbolic or Substantive in the Context of Transport Policy” (2002) 13 Colo. J. Int’l Envtl. L. & Pol’y
241 at 244 (“[T]he EU has established a world leadership position with respect to sustainable development”). See also Hans Somsen, “Editor’s Preface” in Hans Somsen et al., eds. Yearbook of European
Environmental Law: Volume 2 (Oxford: Oxford University Press, 2002) vii. See also The Greening of the
European Union, supra note 12; Burchell & Lightfoot, supra note 13.
115
Supra, note 50.
116
Ibid. at para. 2.
117
Ibid. at para. 71.
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concerned to take practical measures to ensure the effective protection of citizens
whose lives might be endangered by the inherent risks.118
Furthermore, the Court held that where the loss of life is the result of reckless or intentional conduct on the part of State authorities, “the fact that those responsible for endangering
life have not been charged with a criminal offence or prosecuted may amount to a violation
of Article 2, irrespective of any other types of remedy which individuals may exercise on their
own initiative.”119 On the evidence before it, the Court found that the public authorities in
question were fully aware of the serious risk of methane explosion (with resultant loss of life
and property damage) and failed to take adequate preventative measures.120 As a result, the
substantive component of the Article 2 right to life was violated.121 Further, the failure to bring
criminal proceedings against those responsible for the deaths in question represented a violation of the procedural component of Article 2.122
In a number of earlier cases the Court had found that “Article 8 applies to severe environmental pollution which may affect individuals’ well-being and prevent them from enjoying
their homes in such a way as to affect their private and family life adversely…”123 This holding
was reiterated in the recent, ground-breaking case of Taskin and Others v. Turkey.124 In Taskin,
a gold mine was allowed to continue using a cyanide leaching process despite numerous scientific reports indicating that the mine’s use of cyanide “represented a threat to the environment
and the right to life of the neighbouring population, and that the safety measures which the
company had undertaken to implement did not suffice to eliminate the risks...”125 The applicants also alleged that several tons of explosives had been used in the gold mine’s operations,
resulting in considerable noise pollution.126 The Court found violations of both Article 8 and
Article 6 in connection with the issuance of the mine’s operating permit and the associated
decision-making process.127 The Court also commented on the free-standing right to a healthy
environment; this portion of the Court’s judgment will be addressed in Part 5.3, below.
5.2Procedural Environmental Rights: Europe Leads the Way
Since the 1970s, the European Union has recognized the importance of procedural environmental rights through a series of Directives requiring increasing levels of transparency and
118
Ibid. at paras. 89-90.
119
Ibid. at para. 93.
120
Ibid. at paras. 100-107.
121
Ibid. at para. 110.
122
Ibid. at paras. 116-118.
123
López Ostra v. Spain, (1994) 303C E.C.H.R. (Series A) 51 [López Ostra] cited in Taskin and Others
v. Turkey, no. 46117/99 X E.C.H.R. 621 at para. 113 [Taskin]. See also Powell and Rayner v. United
Kingdom (1990), 172 E.C.H.R. (ser. A). See also Arrondelle v. United Kingdom, No. 7889/77 (13 May
1982), 5 E.H.R.R. 118, 119 (friendly settlement).
124
See Taskin, ibid.
125
Ibid. at para. 112.
126
Ibid. at para. 105.
127
Mollo, supra note 100 at 32. The Article 6 violation was based on a highly irregular permitting process
involving, inter alia¸ the Turkish Prime Minister’s personal intervention in the judicial process surrounding the mine’s disputed permits. See Taskin, supra note 123 at paras. 127 ff.
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public participation in environmental matters.128 In 2001, procedural environmental rights
became binding international law in much of Europe, through the Convention on Access to
Information, Public Participation in Decision-Making, and Access to Justice in Environmental
Matters (the “Aarhus Convention”).129 The Aarhus Convention was an initiative of the United
Nations Economic Commission for Europe (UN/ECE), and the Convention has been signed
by thirty-nine European states and the EU, and ratified by 40 states. In addition to the EU
itself, all EU member countries except Ireland have signed the convention, although only 19
have ratified it.130 The EU ratified the Aarhus Convention in February of 2005.131 Violations of
the Convention are justiciable before the Aarhus Convention Compliance Committee, which
is the first environmental treaty commission established on a human rights model.132 As of
October 23, 2003, members of the public are permitted to communicate grievances directly to
the Committee. Public submissions were considered for the first time by the Committee in its
fourth meeting in May of 2004.133
As its full name implies, the Aarhus Convention is concerned with procedural environmental rights, as defined above. In particular, the Convention codifies the right to promptly receive
environmental information held by public bodies134 (and the latter’s duty to actively disseminate environmental information135), the right to meaningfully participate in environmental
decision-making (which includes notification, information, and an opportunity to comment
on matters of environmental significance),136 and the right to challenge environmental decisions on procedural or substantive grounds before a court or quasi-judicial body.137
The “Aarhus rights” have enjoyed a significant degree of implementation throughout
Europe. Stephen Stec notes that many former Soviet-block countries had already embraced
the notion of “environmental democracy” prior to Aarhus as an aspect of transition to democracy more generally.138 Indeed, Stec argues that as a result of these transition-driven advances
in Eastern European countries, “the Convention has had a comparatively bigger impact on
the legislation of Western Europe than that of Eastern Europe.”139 The EU itself has already
made substantial progress in amending its environmental legislation to accord with the Aarhus
128
See Shelton, “Environmental Rights in the European Community”, supra note 113 at 569-578.
129
See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice
in Environmental Matters, 25 June 1998, online: United Nations Economic Commission for Europe
<http://www.unece.org/env/pp/documents/cep43e.pdf> [Aarhus Convention].
130
United Nations in Belarus, Aarhus Convention ratified by the European community, online: United Nations
in Belarus <http://un.by/en/news/world/2005/28-02-05-04.html>.
131
Ibid.
132
Stephen Stec, “‘Aarhus Environmental Rights’ in Eastern Europe” in T.F.M. Etty et al., eds. Yearbook of
European Environmental Law, Vol. 5 (Oxford: Oxford University Press, 2005) 1 at 9 [Stec].
133
Ibid. at 19.
134
Aarhus Convention, supra note 129 at art. 4.
135
Ibid. at art. 5.
136
See ibid. at arts. 6, 7, 8.
137
Ibid. at art. 9.
138
Stec, supra note 132 at 2-9.
139
Ibid. at 8.
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Convention.140 Article 6 of Directive 2003/4/EEC on public access to environmental information141 gives effect to Article 9(1) of the Aarhus Convention, requiring the establishment
of a review process in cases of refusal to provide environmental information.142 Article 3(7) of
Directive 2003/35/EC on providing for public participation in respect of the drawing up of
certain plans and programmes relating to the environment143, brings EU law into conformity
with Article 9(2) of the Aarhus Convention concerning public participating in environmental
decisions.144 The Proposed Directive on Access to Justice in Environmental Matters responds to
Article 9(3) of the Aarhus Convention, regarding citizen enforcement of environmental laws.145
Finally, the Commission adopted a proposal for a regulation applying the Aarhus Convention
to EU institutions,146 and the Ministers of Environment agreed to this proposal in December,
2004.147
The European Court of Human Rights has also acknowledged the importance of procedural environmental rights. In Vides Aizsardzibas Klubs v. Latvia,148 for example, the Court
found a violation of freedom of expression under Article 10 of the European Convention when
a Latvian court upheld a defamation suit by a mayor based on public allegations of impropriety
made by an environmental NGO. In its decision, the court acknowledged that the NGO acted
140
Jona Razzaque, “Access to Justice in Environmental Matters at EU Member State Level – An Update
on the UK” in T.F.M. Etty et al., eds. Yearbook of European Environmental Law, Vol. 5 (Oxford: Oxford
University Press, 2005) 67 at 71 [Razzaque] (In addition to the EU itself, all EU members, with the
exception of Ireland, have ratified the Convention.).
141
EC, Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to
environmental information and repealing Council Directive 90/313/EEC, [2003] O.J. L 41/26, online: EUR-lex
<http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_041/l_04120030214en00260032.pdf>.
142
Razzaque, supra note 140 at 72.
143
EC, Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for
public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC
and 96/61/EC, [2003] O.J. L 156/17, online: Europa <http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/
l_156/l_15620030625en00170024.pdf>.
144
Razzaque, supra note 140 at 72.
145
Ibid. at 73-80. For a discussion of the primary EU measures directed at achieving compliance with
the Aarhus Convention see also European Commission: Environment, The Aarhus Convention, online:
Europa <http://europa.eu.int/comm/environment/aarhus>.
146
See The application of the Arhus Convention to the Community institutions, online: Europa: The Activities
of the European Union, <http://europa.eu.int/scadplus/leg/en/lvb/l28140.htm>.
147
Ibid. Note, however, that the regulation as it stood on second reading in October of 2005 has been criticized as falling short of compliance with the Aarhus Convention. See generally Eija-Riita Korhola, EU
Aarhus Second Reading: Call for Strong Response from European Union, online: European Environmetal
Bureau <http://www.eeb.org/activities/transparency/regulation-eeb-briefing-071005.pdf>.
148
No. 57829/00 (27 May 2004), online: European Court of Human Rights <http://cmiskp.echr.coe.int/
tkp197/view.asp?action=html&documentId=704217&portal=hbkm&source=externalbydocnumber&t
able=F69A27FD8FB86142BF01C1166DEA398649> [Vides Aizsardzibas Klubs]. See Stec, supra note
132 at 12-13. Registrar, European Court of Human Rights, Chamber Judgement in the case of Vides
Aizsardzibas Klubs (27 May 2004), online: European Court of Human Rights <http://www.echr.coe.
int/Eng/Press/2004/May/ChamberJudgmentVidesAizsardzibasKlubsvLatvia2754.htm>.
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as an environmental “watch dog” (“chien de garde”) and that this function was an essential one
in a democratic society.149
Thus, Europe as a region has led the way in codifying procedural environmental rights
through the Aarhus Convention, the EU and European nations have recognized and operationalized these rights, and the European Court of Human Rights has also acknowledged them.
5.3The free-standing right to environment
There has been clear and substantial recognition of the right to environment by European
regional organizations, courts, and individual European nations.
5.3.1 Recognition of the Right to Environment by the EU
Since the late 1990s, the institutions of the European Union have accorded significant recognition to the right to environment. In November, 1999 the Parliamentary Assembly of the
Council of Europe stated that “in the light of changing living conditions and growing recognition of the importance of environmental issues, it considers that the [European] Convention
[on Human Rights] could include the right to a healthy and viable environment as a basic
human right”150 and recommended investigating the feasibility of amending the Convention
to include such a right.151 Following up on this recommendation, on 27 June 2003, the
Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on
Environment and Human Rights, which addressed environmental deprivations of recognized
rights and procedural environmental rights, as well as the free-standing right to environment:
The Assembly recommends that the Governments of member States:
i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European
Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection;
ii. recognise a human right to a healthy, viable and decent environment which includes
the objective obligation for states to protect the environment, in national laws, preferably at
constitutional level;
iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus
Convention…152
Most significantly, on December 7, 2000, the European Parliament, Council and
Commission “solemnly proclaimed” a Charter of Fundamental Rights of the European Union
149
Vides Aizsardzibas Klubs, ibid. at para. 42 [translated by author].
150
Council of Europe, Standing Committee acting on behalf of P.A., 4 November, 1999, Texts Adopted,
Recommendation 1431, online: Parliamentary Assembly <http://assembly.coe.int//Main.asp?link=http://
assembly.coe.int/Documents/AdoptedText/TA99/EREC1431.HTM>.
151
See Shelton, “Human Rights, Environmental Rights”, supra note 20 at 132, citing Jean-Paul Jacque, “La
protection de l’environnement au niveau européen ou regional,” in P. Kromarek, ed., Environnement et
droits de l’homme (1987) at 70-71.
152
Supra, note 58.
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which included, in section 37 a codification of the duty to achieve a high level of environmental protection.153 Section 37 of this original Charter was reproduced in its entirety in section
97 of the Charter of Fundamental Rights of the Union, Part II of the proposed European Union
Constitution.154 Article 97 accords constitutional recognition to environmental interests, in the
following language:
A high level of environmental protection and the improvement of the quality of
the environment must be integrated into the policies of the Union and ensured in
accordance with the principle of sustainable development.
The phrasing of this provision appears to skip directly to the “duty” component of the “rightduty” equation, but its inclusion within the Charter of Fundamental Rights arguably indicates
that the obligation to achieve a high level of protection is indeed connected to a correlated
right. Interestingly, the ambiguity as to the rights aspect of this provision would presumably
allow courts to adopt either an anthropocentric or an eco-centric approach, since the provision
does not specify the source of the duty. What does appear clear from the provision, however,
is that it endorses a notion of obligation that is consistent with the substantive, free-standing
right to environment, as opposed to mere procedural rights, or the right to be free of environmental conditions that violate other recognized rights. Although the European constitutional
process has faltered,155 Article 97 is nonetheless, a revealing indicator of pan-European perspectives on environmental human rights.
5.3.2 Recognition of the Right to Environment at the European Court of
Justice
In Case C-176/03 the European Commission sought annulment of a Council Framework
Decision requiring member states to criminalize certain serious environmental offences.156 The
Commission had itself put forward a proposed Directive on this issue, which, though rejected
153
European Commission Department of Justice and Home Affairs, The Charter in the European context:
A point of reference for the courts, online: European Commission <http://europa.eu.int/comm/justice_
home/unit/charte/en/european-context-reference.html>.
154
The Convention on the Future of Europe forwarded the draft Constitution, incorporating the Charter
on fundamental rights as its second part, to the Thessaloniki European Council on 20 June 2003. On
29 October 2004, Heads of State or government and Ministers of Foreign Affairs of the 25 Member
States of the European Union signed the Treaty establishing a Constitution for Europe. See the European
Commission Department of Justice and Home Affairs, The Draft European Constitution, online: European
Commission <http://europa.eu.int/comm/justice_home/unit/charte/en/draft_constitution.htm>.
155
The Constitution does not become binding until ratification by all member states. It was rejected by
voters in both France and the Netherlands in 2005. Discussions continue regarding a constitution for
Europe, with some countries committed to reviving the Constitution, and others proposing alternative
approaches. See generally Towards a European Constitution, online: Europa <http://europa.eu/constitution/referendum_en.htm>. See also Council of the European Union, Declaration on the Occasion of the
Fiftieth Anniversary of the Signature of the Treaties of Rome, online: Europa <http://www.consilium.europa.
eu/ueDocs/cms_Data/docs/pressData/en/misc/93282.pdf > (stating that members of the EU “are united
in our aim of placing the European Union on a renewed common basis before the European Parliament
elections in 2009”).
156
For a list of the targeted offences, see Commission of the European Communities v. Council of the European
Union, Case C-176/03 (13 September 2005) at para. 5, online: EUR-lex <http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=CELEX:62003J0176:EN:HTML> [Commission v. Council - Judgment].
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by Council, had been substantively reproduced in the impugned Framework Decision.157
The issue was whether the power to require criminal sanctions for environmental offences
lay with the Commission, the Council, or both. The Court held that both the Council and
the Commission had the power to require criminalization of environmental offences, but
the Council was under a duty to refrain from doing so in deference to the primacy of the
Commission’s powers in the environmental field.158 In the course of its decision, the Court
had occasion to reiterate that “protection of the environment constitutes one of the essential
objectives of the Community.”159 Although the Court did not specifically allude to the right
to environment in its Judgment, Advocate General Ruiz-Jarabo Colomer devoted substantial
consideration to this concept.160
In a section of the Opinion titled “The right to an acceptable environment and public
responsibility for its preservation,” the Advocate General stated:
In the geophysical medium which our natural surroundings represent, quality of
life asserts itself as a citizenship right emanating from various factors, some of them
physical (the rational use of resources and sustainable development) and some more
intellectual (progress and cultural development). It is a matter of attaining dignity
of life in qualitative terms, once the threshold sufficient for subsistence has been
passed.
There thus emerges a right to enjoy an acceptable environment, not so much on the
part of the individual as such, but as a member of a group, in which the individual
shares common social interests. A number of constitutions of Member States of the
Community at the time the contested Framework Decision was approved recognize
that right. Accordingly, Article 20a of the Basic Law of the Federal Republic of
Germany provides that ‘the State, assuming responsibility for future generations, shall
also protect the natural conditions of life in the framework of the constitutional
order.’ In Spain…Article 45 of the Constitution declares the right of all ‘to enjoy an
environment appropriate for personal development’. Article 66(1) of the Portuguese
Constitution reads similarly. In Sweden, Article 18(3) of [the statute] amending the
Instrument of Government, reiterates the right of access to nature.161
The Advocate General went on to consider correlative state duties to protect the environment,162 as well as the inclusion of environmental protection within the European Union’s
Charter of Fundamental Rights of 7 December 2000 (Article 37) and the proposed European
157
See Opinion of Advocate-General Ruiz-Jarabo, Commission of the European Communities v. Council of the
European Union, Case C-176/03 (26 May 2005) at para. 22, online: Europa < http://curia.europa.eu/
jurisp/cgi-bin/form.pl?lang=EN&Submit=Rechercher$docrequire=alldocs&numaff=C-176/03&datefs=
&datefe=&nomusuel=&domaine=&mots=&resmax=100> [Commission v. Council - Opinion].
158
Commission v. Council - Judgment, supra note 156 at paras. 46-53. In particular, the Court held that the
“framework decision […] infringes Article 47 EU as it encroaches on the powers which Article 175 EC
confers on the Community.” Ibid at para. 53.
159
Commission v. Council - Judgment, supra note 156 at para. 41.
160
The Opinions of Advocates General are not binding, but, when followed by the Court, may offer
evidence of the reasoning behind the Court’s decision, and have some persuasive value. See generally
Stephen Weatherill and Paul Beaumont, EU Law, 3rd ed. (London: Penguin, 1999) at 178-181.
161
Commission v. Council - Opinion, supra note 157 at paras. 66-67.
162
Ibid. at para. 68.
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Constitution.163 Finally, he noted that the right to environment is also “linked” with other
human rights, as recognized by the European Court of Human Rights in cases such as Lopez
Ostra, supra.164
5.3.3 Recognition of the Right to Environment by the European Court of
Human Rights
In Taskin and Others v. Turkey, discussed in Part 5.1 above, the European Court of Human
Rights addressed environmental deprivations of existing rights, but also recognized the per
se right to a healthy environment. It did so on two levels: First, the judgment includes a
number of references to the applicants’ right to a healthy environment under the Turkish
Constitution,165 and the court appears to rely on this constitutional right on a number of key
issues. For example, in considering whether the alleged violation of Article 8 could be supported under the “margin of appreciation” generally granted to states, the Court notes that a
Turkish domestic court had annulled the gold mine’s operating permit “based…on the applicants’ effective enjoyment of the right to life and the right to a healthy environment… In view
of that conclusion, no other examination of the material aspect of the case with regard to the
margin of appreciation… is necessary.”166
In determining whether a civil right was implicated for the purposes of Article 6,167 the
Court found that “[t]he right relied on before the [Turkish] courts…was the right to obtain
adequate protection of…physical integrity against the risks entailed by …the gold mine” and
“[t]he Court considers that such a right is recognised in Turkish law, as is clear, in particular,
from the right to live in a healthy and balanced environment…”168 Thus, the Taskin judgment
indicates that a domestic guarantee of the right to environment may have substantial legal
significance at the supranational level.
Even more significant than its consideration of the Turkish right to environment is the
Court’s recognition of the right to environment in international law. In its analysis of “Relevant
Law” (Part II of the Judgment), the Court devotes a specific subsection to “The relevant international texts on the right to a healthy environment”.169 It then considers the procedural environmental rights enshrined in the Rio Declaration170 and the Aarhus Convention,171 describing
in some detail the major components of these rights (access to information, participation,
and access to justice). Finally, the Court excerpts the relevant portion of the Parliamentary
Assembly of the Council of Europe’s Recommendation 1614 (2003), discussed above, recommending that member states i) ensure the protection of existing Convention rights by taking
163
Ibid. at para. 69.
164
Ibid. at 70.
165
See Taskin, supra note 123 at paras. 26, 90, 117, 121, 129, 132, 133.
166
Ibid. at 117.
167
The Article 6 right to a fair and timely hearing is limited to “the determination of..civil rights and obligations”. See ibid. at paras. 127-130.
168
Ibid. at paras 131-132.
169
Ibid. at para. 98 ff.
170
Ibid. at para 98.
171
Ibid. at para. 99.
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particular account of the need for environmental protection ii) “recognise a human right to a
healthy, viable and decent environment which includes the objective obligation for states to
protect the environment, in national laws, preferably at constitutional level” and iii) safeguard
procedural environmental rights.
Although the Court stopped short of commenting on the current status of the right to
environment, it seems highly significant that the Court refers to the “right to environment”
without any qualification (such as emergent, purported, etc.), particularly when consideration
of supranational law was unnecessary on this point because of the domestic constitutional
provision. The Court appears to have gone out of its way to draw attention to the existence of
a right to environment in international legal texts. Also interesting is the fact that the Court
includes procedural environmental rights, the right to environment, and the preservation of
existing rights through environmental protection all within the rubric of the “right to a healthy
environment”. Without overstating the case, the Court may be approaching the right to environment as one unitary right, encompassing both substantive and procedural components.
This “unitary approach” to the right to environment will be discussed in further detail in Part
6, below.
5.3.4 National Constitutions
In addition to Turkey, twenty-two other European nations explicitly recognize some form
of the right to environment in their domestic constitutions.172 The Belgian Constitution, for
example, recognizes the “right to the protection of a sound environment.”173 The Hungarian
Constitution provides that the “Republic of Hungary recognizes and implements everyone’s
right to a healthy environment.”174 The Constitution of Spain provides that “everyone has the
right to enjoy an environment suitable for the development of the person”,175 while Portugal’s
Constitution states that “all have a right to a healthy and ecologically balanced environment.”176 Not surprisingly, Norway’s constitution provides one of the broadest guarantees of
environmental rights, recognizing “the right to an environment that is conducive to health
and to natural surroundings whose productivity and diversity are preserved.”177 Most recently,
France joined the ranks of European nations possessing constitutional guarantees of the right
to environment in February of 2005. It adopted a constitutional amendment denominated the
“Environment Charter” (“Charte de l’environnement”) which declares that the French people
have a right to “live in an environment which is balanced and respects their health.”178
172
Mollo, supra note 100 at n. 171 (“Belgium, Bulgaria, Chechnya, Croatia, Czech Republic, Finland,
France, Georgia, Hungary, Latvia, Macedonia, Moldova, Norway, Portugal, Russia, Sao Tome and
Principe, Seychelles, Slovakia, Slovenia, Spain, Tajikistan, Ukraine”).
173
The Belgian Constitution, Article 23(4), online: The Federal Parliament of Belgium < http://www.fed-parl.
be/gwuk0002.htm#E11E2>; Mollo supra note 100 at 88.
174
Mollo, supra note 100 at 96.
175
Ibid. at 105.
176
Ibid. at 102.
177
Ibid. at 100.
178
See Charte de l’environnement, online: Government of France <http://www.ecologie.gouv.fr/IMG/pdf/
affiche_charte_environnement.pdf> (“Chacun a le droit de vivre dans un environnement équilibré et
respectueux de la santé.”). See also Mollo, ibid. at 39. See also Loi n°2006-1772 du 30 décembre 2006 sur
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In addition to those countries whose constitutions protect a right to environment, the constitutions of Albania, Andorra, Greece, Germany, Lithuania, Malta, the Netherlands, Poland,
Romania, Sao Tome and Principe, and Switzerland, establish state responsibility for the protection of the natural environment.179 Moreover, the European Union and all of its member
states have promulgated an immense body of environmental protection legislation which may
constitute state action motivated by an implicit recognition of the right to environment and a
corresponding state duty of environmental protection.180
In sum, European law has gone far beyond the recognition of environmental deprivations
of recognized human rights. In addition to codifying and implementing procedural environmental rights, European law has begun to recognize an independent and substantive human
right to environment. Organs of the European Union have repeatedly and explicitly acknowledged that an independent right to environment exists, and a plethora of European nations
have codified this right in their domestic constitutions. The European Court of Human Rights
has similarly recognized this right under international law and has also shown its willingness to
implement and enforce domestic constitutional guarantees of the right to environment.
The next step in the evolution of the right to environment in Europe would be the inclusion of such a right in the European Convention on Human Rights and/or in a European
Constitution. However, even in the absence of binding convention law on point, the evidence
taken as a whole indicates that the right to environment has emerged or is on the brink of
emerging as a rule of customary international law in Europe.
6. A UNITARY RE-FORMULATION OF THE RIGHT TO ENVIRONMENT
6.1Re-conceptualizing environmental human rights
As noted in Part 4, there is a tendency in the literature to conceptualize the three approaches
to environmental human rights discussed above (environmental deprivations of recognized
rights, procedural environmental rights, and the right to environment) as alternative formulations. However, as a practical matter, the selection of one or two of these approaches as the
definitive formulation of environmental human rights is no longer a viable option. Of necessity, petitioners will continue to ask international human rights tribunals and domestic courts
to recognize environmental deprivations of existing rights (such as the right to life) whose
legitimacy is beyond question.181 Procedural environmental rights, in turn, have become firmly
established in both soft and hard law instruments, and are clearly here to stay. With respect
l’eau et les milieux aquatiques, J.O. 31 December 2006, online: Government of France <http://www.ecologie.gouv.fr/IMG/pdf/loi_eau_milieux_aquatiques_301206.pdf>. Note that France has also accorded
legislative recognition to the human right to water; article 1 of the recently promulgated loi sur l’eau et
les milieux aquatiques provides that “chaque personne physique, pour son alimentation et son hygiène, a
droit d’accéder à l’eau potable à des conditions économiquement supportables.”
179
Mollo, supra note 100 at 94.
180
See Rodriguez-Rivera, supra note 23 and accompanying text. See also Burchell & Lightfoot, supra note
13.
181
See Atapattu, supra note 22 at 69-70: “Due to the lack of enforcement machinery for environmental
issues, the human rights machinery [will continue to be] used to seek redress for environmental problems…” [internal citations omitted].
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to the substantive right to environment, the evidence described above strongly indicates the
actual or imminent emergence of a substantive right to environment as a principle of customary international law.
In this author’s view, what is required is a conceptual framework that explains the interrelationship between the three categories, recognizing that “[a]ll human rights are universal,
inter-dependent and indivisible.”182 The unitary reformulation of the right to environment
recognizes that the right to environment encompasses both the substantive right to environmental quality and the procedural environmental rights discussed above, and overlaps with other
recognized human rights.183
From an advocacy perspective, an approach that recognizes the right to environment as
independent but overlapping with existing rights allows petitioners to rely on the most clearly
established rights while still applying continued pressure for the recognition of a right to environment. Consider, for example, the situation of residents of a rural area subjected to intensive,
government-permitted mining activities resulting in ecological devastation, water contamination, and resulting loss of human lives. In this hypothetical, the petitioners could rely on the
violations of the right to life, including the well-established duty of the state to protect and
promote life, but could also argue that the right to environment had been infringed.184 What
value would the right to environment add in this scenario? Is the right to environment merely
the right to life (property, culture, etc.) by another name? These questions point to the need
to articulate the specialized content of that area of the right to environment that goes beyond
existing rights, which, for purposes of this discussion will be referred to as the “pure” right to
environment.
6.2Content of the “pure” right to environment
Since the right to environment is itself a relatively new addition to international environmental law and policy, it is not surprising that the unique content of the right is decidedly
uncertain. Judicial decisions addressing environmental deprivations of existing rights are generally unhelpful in this regard, and soft law instruments articulating a right to environment
have taken a variety of approaches.185 This ambiguity surrounding the “pure” right to environment is troublesome. International and domestic tribunals faced with claims based on the right
to environment will need to understand the precise contours and content of that right, and,
in particular, the aspects of the right that create entitlements beyond those contained in other
existing rights. Similarly, in order to be effective as an aspirational principle or policy goal, the
right to environment must be more clearly delineated.
182
Vienna Declaration and Programme of Action, UN GAOR, UN Doc. A/CONF.157/23 (1993).
183
Rodriguez-Rivera describes the unitary, or in his terms “expansive”, right to environment as including “qualitative environmental standards (substantive and intergenerational formulation of the right to
environment), intrinsic value of the environment (expansive formulation of the right to environment that
incorporates this fundamental element of the right of environment), and procedural guarantees (expansive formulation of the right to environment that incorporates the concept of environmental rights).” Supra
note 23 at 16.
184
This is analogous to a situation in which the representative of a prisoner who was tortured to death asserts
overlapping violations of the right to life and the right to be free from cruel or degrading treatment.
185
See Parts 4.3 and 5.3, above.
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In my view, it is most helpful to take a purposive approach in developing the content of the
pure right to environment. If the goal of the right to environment is to protect human dignity
and well-being from environmental harm, then it makes sense to expand our understanding of
that right to include the interests of future generations and the protection of aesthetic values (as
suggested by Professor Shelton in her pivotal early article on environmental human rights).186
Similarly, since it is impossible to protect human well-being from many poorly understood
environmental threats unless a precautionary approach is adopted, the right to environment
should also incorporate the Precautionary Principle of international environmental law.
6.2.1 Intergenerational equity
Human rights discourse and jurisprudence typically focus exclusively on the rights of existing humans. However, given the profound vulnerability of future generations to harm resulting from our current environmental decision-making, this present-focus may be inappropriate
in the field of environmental human rights. Professor Shelton argues that the recognition of a
free-standing right to environment “implies significant, constant duties toward persons not yet
born”187 for the following reasons:
A depleted environment harms not only present generations, but future generations
of humanity as well. First, an extinct species and whatever benefits it would have
brought to the environment are lost forever. Second, economic, social, and cultural
rights cannot be enjoyed in a world where resources are inadequate due to the waste
of irresponsible prior generations. Third, the very survival of future generations may
be jeopardized by sufficiently serious environmental problems.188
Indeed, if human rights exist to protect the vulnerable from the powerful, it is difficult to
imagine a demographic more in need of environmental human rights protection than future
generations. I have argued elsewhere that a strictly present-focused right to environment would
fail to achieve environmental protection sufficient to safeguard the interest of future humans,
since some activities that cause little or no immediate environmental harm may be devastating to the future (e.g. groundwater mining).189 Thus, in order for the right to environment to
protect the interests of both present and future generations, it is necessary to interpret that
right as including an intergenerational component.
Professor Edith Brown Weiss, the leading proponent of intergenerational equity, has articulated three sub-parts that help to elaborate the concept:
First, each generation should be required to conserve the diversity of the natural
and cultural resource base, so that it does not unduly restrict the options available
to future generations in solving their problems and satisfying their own values, and
should also be entitled to diversity comparable to that enjoyed by previous generations. This principle is called “conservation of options.” Second, each generation
should be required to maintain the quality of the planet so that it is passed on in
no worse condition than that in which it was received, and should also be entitled
to planetary quality comparable to that enjoyed by previous generations. This is
186
See Shelton, “Human Rights, Environmental Rights”, supra note 20.
187
Ibid. at 134.
188
Ibid. at 133.
189
Collins, “Revisiting the Doctrine of Intergenerational Equity”, supra note 1.
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the principle of “conservation of quality.” Third, each generation should provide its
members with equitable rights of access to the legacy of past generations and should
conserve this access for future generations. This is the principle of “conservation of
access.”190
A number of domestic constitutions and judicial opinions have recognized the principle
of intergenerational equity.191 Moreover, at least one important international formulation of
the right to environment already includes an intergenerational component. Special Rapporteur
Ksentini has articulated the right to environment as “the right to an environment adequate to
meet equitably the needs of present generations and that does not impair the rights of future
generations to meet equitably their needs.”192 Recognizing an intergenerational equity component of the right to environment would substantially (and appropriately) expand the range of
interests that can be protected within the rubric of environmental human rights.
6.2.2 Aesthetic protection
Shelton explains that the freestanding right to environment could add protection for the
aesthetic value of natural spaces, which is “a substantive area not protected under current
human rights law or existing [procedural] environmental rights.”193 The right to aesthetic
protection would give legal effect to the moral duty “not to turn a beautiful landscape into
a moonscape.”194 While recognized human rights such as the right to life may preserve the
basic biological inputs necessary for survival (e.g. clean air and water), aesthetic protection is
aimed at preserving that which makes life worth living. By including aesthetic protection, the
right to environment would protect the intangible, quality-of-life values inherent in natural
environments.195
6.2.3 Precautionary Principle
As in other areas of environmental decision-making, courts and policy makers evaluating
claims based on the right to environment will frequently face the challenge of scientific uncertainty. As an example, community members may object to the emission of a poorly understood
air contaminant from a government-permitted facility, arguing that its emission violates the
right to environment. How would a court or regulator assess such a claim? The Precautionary
190
E.B. Weiss, “Our Rights and Obligations to Future Generations for the Environment”
(1990) 84 A.J.I.L. 198 at 201-202.
191
See e.g. Mollo, supra note 100 at 94 (German Constitution); see also The Philippines: Supreme Court
Decision in Minors Oposa v. Secretary of the Department of Environment and Natural Resources (Denr),
(1994) 33 I.L.M. 173 at 185 (WL); See generally Collins, “Revisiting the Doctrine of Intergenerational
Equity”, supra note 1.
192
See Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Review of Further Developments in Fields with Which the Sub-Commission Has Been Concerned,
Human Rights and the Environment: Final Report, U.N. ESCOR, 46th Sess., Agenda Item 4, UN Doc.
E/CN.4/Sub.2/1994/9 (1994).
193
Shelton, “Human Rights, Environmental Rights”, supra note 20 at 133.
194
Bosselmann, supra note 18 at 129.
195
Note that there is significant overlap with Indigenous spiritual and cultural rights in traditional lands and
waters.
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Principle is a principle of international environmental law that directs environmental decisionmakers to err on the side of caution where scientific uncertainty exists.196
As articulated in the Bergen Declaration,197 the Precautionary Principle holds that:
Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack
of full scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation.198
Put another way, “[w]hen there is substantial scientific uncertainty about the risks and benefits
of a proposed activity, policy decisions should be made in a way that errs on the side of caution
with respect to the environment and the health of the public.”199
As part of the human right to environment, the precautionary principle would include
both interpretive and substantive components. On the interpretive level, it would dictate how
claims of environmental violations should be adjudicated, and provide a specific standard by
which state efforts to protect environmental human rights should be measured. Specifically, it
requires states to take pro-active measures to ensure that its citizens’ environmental rights are
protected, even in the presence of scientific uncertainty. To use a concrete example, the precautionary principle may compel a state to require the manufacturers of synthetic chemicals to
prove their safety before exposing members of the public to them.200 This example also points
to the substantive aspect of the precautionary principle as a component of the human right
to environment: people have a right not to be exposed to poorly understood and potentially
harmful substances.201
Further development of the unique content of the right to environment by commentators
and jurists will assist international actors in understanding the right, and perhaps more importantly, the correlative state duties. The three sub-components addressed above are suggested as
a starting point in this dialogue. An analysis of the extent to which these three sub-components
196
See generally Paul Harremoës et al., eds., The Precautionary Principle in the 20th Century: Late Lessons from
Early Warnings (London: Earthscan Publications, 2002).
197
Bergen Ministerial Declaration on Sustainable Development in the ECE Region, UN Doc. A/CONF. 151/
PC/10 (1990), reprinted in (1990) 1 Y.B. Int’l Env. L. 429, 4312 [Bergen Declaration].
198
Ibid. Some definitions of the principle import an economic element; see e.g. Rio Declaration, supra note
66, Principle 15:
In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.
199
David Kriebel et al., “The Precautionary Principle in Environmental Science” (2001) 109 Environmental
Health Perspectives 871 at 875.
200
See generally Lynda M. Collins, “Strange Bedfellows? The Precautionary Principle and Toxic Tort: A Tort
Paradigm for the Twenty-First Century” (2005) 35 Environmental Law Reporter 10361.
201
For an excellent discussion of this issue, see Joe Thornton, Pandora’s Poison: Chlorine, Health, and a New
Environmental Strategy (Cambridge, Massachusetts: MIT Press, 2000) at 353: “People, not chemicals,
have the right to be presumed innocent until proven guilty. People also have the right not to be experimented on without informed consent; no one has ever had the opportunity to grant or deny their consent
before being exposed to the [toxic] burden that now contaminates us all.”
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have already been recognized as aspects of the right to environment is beyond the scope of this
Article, but should be fertile ground for future research.
7.CONCLUSION
I have argued that environmental human rights have become firmly entrenched in the
international legal order and in European law specifically. Environmental deprivations of existing rights have been repeatedly recognized by international and regional tribunals, as well as
in numerous soft law instruments both internationally and in Europe. Moving to the right
to environment itself, the procedural aspects of the right have been codified in the Espoo and
Aarhus conventions and have also been widely recognized in important soft law instruments
such as the Rio Declaration.
The substantive right to environment has also been enshrined in two binding regional
conventions – the African Charter and the Protocol of San Salvador – and in a multitude of
soft law instruments. Further, there is copious state practice in the environmental area (both
in domestic legislation and in international environmental law) that seems to reflect opinion
juris regarding state obligations to protect the right to environment. Given that the majority of
states have affirmed at least three times that “all individuals are entitled to live in an environment adequate for their health and well-being,” there is a strong argument that this widespread
state practice in the environmental area arises from the perceived legal obligation to provide
individuals with a healthy environment. In addition, a majority of states have recognized the
right to environment and/or state duties to protect the environment in their domestic constitutions. In sum, the evidence that the right to environment has now emerged as a principle of
customary international law is very strong.
In Europe specifically, the right to environment has been recognized at both the European
Court of Justice and the European Court of Human Rights, European “soft law” instruments
have repeatedly acknowledged the right to environment, and European Union Institutions
have been quite pro-active in seeking codification of the right in regional legal instruments.
Most notably, the European Constitution would have included a high level of environmental
protection under the rubric of fundamental rights. The likely demise of the Constitution in its
current form may provide an opportunity to revise this provision to include a clear and explicit
reference to the right to a healthy environment.202 For the sake of clarity, this revision should
be actively pursued. The European Union should also begin to include an explicit evaluation of
respect for the right to environment in its consideration of candidate countries.
Finally, I have suggested that the right to environment should be conceptualized as overlapping with, but going beyond, existing human rights and further that this approach, in turn,
requires the development of some unique content for the “pure” right to environment. Taking
the lead from Professor Shelton, I propose that intergenerational equity, aesthetic protection,
and the Precautionary Principle represent areas of the right to environment extending beyond
the interests protected by pre-existing human rights.
202
See Charles R. MacGuire, “The Constitution of the European Union: Content, Prospects, and
Comparison to the US Constitution” (2005) 12 Tulsa J. Comp. & Int’l L. 307 at 309 (on the likely fate
of the European Constitution).
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In the long run, universal acceptance of the right to environment may provide helpful
guidance for the formulation of environmental law and policy worldwide, creating increased
momentum in the drive towards sustainable development and environmental protection. “In
the interim…people [threatened by environmental harm] are entitled to confidence that for
them there will be a long run.”203 A robust and justiciable right to environment would also
respond to this pressing human need by providing access to redress through the international
human rights machinery. In short, the right to environment is an important and desirable
addition to the tool-kit of legal advocates, policy-makers and jurists, and has become a reality
in international and European law.
203
David Cavers, “Administrative Decision Making in Nuclear Facilities Licensing” 110 U. Pa. L. Rev. 330
at 341, cited in Marshall S. Shapo, “Tort Law and Environmental Risk” (1997) 14 Pace Envtl. L. Rev.
531 at 543.