Manual on Human Rights in the Environment

MANUAL ON HUMAN RIGHTS AND THE ENVIRONMENT COUNCIL OF E UROPE P UBLISHING French edition: Manuel sur les droits de l’homme et l’environnement – Principes tirés de la jurisprudence de la Cour européenne des droits de l’homme ISBN 978-92-871-7318-8 The opinions expressed in this work are the responsibility of the author(s) and do not necessarily reflect the official policy of the Council of Europe . All rights reserved. No part of this publication may be translated, reproduced or transmitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical, including photocopying, recording or any informa- tionstorage or retrieval system, without prior permission in writing from the Public Information and Publications Division, Directorate of Communica- tion (F-67075 Strasbourg Cedex or [email protected]). Illustrations: Alfonso de Salas Council of Europe Publishing F-67075 Strasbourg Cedex ISBN 978-92-871-7319-5 © Council of Europe, 2006, 2012 First edition, 2006 Second edition, 2012 Printed at the Council of Europe Contents ABBREVIATIONS . .5 PRELIMINARY REMARKS . .7 INTRODUCTION. .11 PART I: E XECUTIVE SUMMARY . .17 Section A – Principles derived from the European Convention on Human Rights . .18 Section B – Principles derived from the European Social Charter and the revised European Social Charter . .26 PART II: E NVIRONMENTAL PROTECTION PRINCIPLES . .29 Section A – Principles derived from the European Convention on Human Rights . .30 Chapter I: Right to life and the environment. .33 Chapter II: Respect for private and family life as well as well as the home and the environment . .43 Chapter III: Protection of property and the environment . .61 Chapter IV: Information and communication on environmental matters. .75 Chapter V: Decision-making processes in environmental matters and public participation in them. .87 Chapter VI: Access to justice and other remedies in environmental matters. .93 Chapter VII: Principles from the Court’s case-law: territorial scope of the Convention’s application . 111 Section B – Principles derived from the European Social Charter and the revised European Social Charter . 117 Chapter I: Right to protection of health and the environment . 121 Human rights and the environment APPENDICES TO THE MANUAL . 129 Appendix I: Glossary . 131 Appendix II: Judgments and decisions of the European Court of Human Rights relevant to the environment . 143 Appendix III: Reference to other instruments relevant to the environment in ECHR case-law . 149 Appendix IV: Good practices . 159 Appendix V: Useful websites . 181 Appendix VI: Further reading . 185 Appendix VII: Keyword index . 189 4 ABBREVIATIONS CDDH Steering Committee for Human Rights (Comité directeur pour les droits de l’Homme) CIS Commonwealth of Independent States CITIES Convention on International Trade in Endangered Species of Wild Fauna and Flora DH-DEV Committee of Experts for the Development of Human Rights ECJ European Court of Justice ECS Environmental Cross-cutting Strategy ECSR European Committee for Social Rights EEA European Environment Agency EEL European Environmental Law EIA Environmental Impact Assessment ETS European Treaty Series EU European Union FAO Food and Agricultural Organization GC Grand Chamber HUDOC Human Rights Documentation (Online Database) ICJ International Court of Justice IEEP Institute for European Environmental Policy IPPC International Plant Protection Convention ITLOS International Tribunal for the Law of the Sea IUCN International Union for Conservation of Nature NGO Non-Governmental Organisation PACE Parliamentary Assembly of the Council of Europe UNCED United Nations Conference on Environment and Development UNECE United Nations Economic Commission for Europe UNEP United Nations Environment Programme UNESCO United Nations Educational, Scientific and Cultural Organiza- tion UNFCCC United Nations Framework Convention on Climate Change WTO World Trade Organization 5 PRELIMINARY REMARKS WHAT IS THE AIM OF THIS MANUAL? The main aim of this manual is to increase the understanding of the rela- tionship between the protection of human rights under the European Con- vention on Human Rights (“the Convention”) and the environment and thereby to contribute to strengthening environmental protection at the national level. To achieve this aim, the manual seeks to provide information about the case-law of the European Court of Human Rights (“the Court”) in this field. In addition, it will highlight the impact of the European Social Charter and relevant interpretations of the European Social Charter (“the Charter”) by the European Committee of Social Rights (“the Committee”). WHO IS THE TARGET AUDIENCE OF THIS MANUAL? The manual is intended to be of practical use for public authorities (be they national, regional or local), decision-makers, legal professionals and the general public. IS THE ENVIRONMENT PROTECTED UNDER INTERNATIONAL LAW? The environment is protected by international law despite the absence of a general framework convention. Multifarious international treaties govern specific environmental issues, like climate change or biodiversity. Because of these treaties and customary international law various legal obligations to protect the environment are placed upon states, e.g. duties to inform, co- operate or limit emissions. IS THE ENVIRONMENT PROTECTED UNDER THE E UROPEAN C ONVENTION ON H UMAN R IGHTS AND THE E UROPEAN S OCIAL C HARTER? Neither the Convention nor the Charter are designed to provide a general protection of the environment as such and do not expressly guarantee a right to a sound, quiet and healthy environment. However, the Convention and the Charter indirectly offer a certain degree of protection with regard to environmental matters, as demonstrated by the evolving case-law of the Court and decisions of the Committee on Social Rights in this area. The Court has increasingly examined complaints in which individuals have argued that a breach of one of their Convention rights has resulted from adverse environmental factors. Environmental factors may affect individual Convention rights in three different ways: 7 Human rights and the environment • First, the human rights protected by the Convention may be directly affected by adverse environmental factors. For instance, toxic smells from a factory or rubbish tip might have a negative impact on the health of individuals. Public authorities may be obliged to take measures to ensure that human rights are not seriously affected by adverse environmental factors. • Second, adverse environmental factors may give rise to certain procedural rights for the individual concerned. The Court has established that public authorities must observe certain require- ments as regards information and communication, as well as participation in decision-making processes and access to justice in environmental cases. • Third, the protection of the environment may also be a legitimate aim justifying interference with certain individual human rights. For example, the Court has established that the right to peaceful enjoyment of one’s possessions may be restricted if this is consid- ered necessary for the protection of the environment. WHICH RIGHTS OF THE C ONVENTION AND THE S OCIAL C HARTER CAN BE AFFECTED BY ENVIRONMENTAL FACTORS? The Court has already identified in its case-law issues related to the environment which could affect the right to life (Article 2), the right to respect for private and family life as well as the home (Article 8), the right to a fair trial and to have access to a court (Article 6), the right to receive and impart information and ideas (Article 10), the right to an effective remedy (Article 13) and the right to the peaceful enjoyment of one’s possessions (Article 1 of Protocol No. 1). The issue of passive smoking has been raised in connection with the right to prohibition of inhuman or degrading treatment (Article 3 of the Conven- tion) 1 but at present there is not sufficient case-law to be able to draw up any clear principles on environmental protection at the European level. 1. Florea v. Romania , judgment of 14 September 2010. In two earlier previous cases on passive smoking the applicants had not alleged a violation of Article 3 in view of inhuman or degrading treatment, but had referred to Article 2 (right to life) and Article 8 (right to respect for family life). See Aparicio Benito v. Spain (No. 2), decision of 13 November 2006 and Stoine Hristov v. Bulgaria judgment of 16 January 2009. 8 Preliminary remarks Likewise, the Committee has interpreted the right to protection of health (Article 11) under the European Social Charter as including the right to a healthy environment. 9 INTRODUCTION The environment and environmental protection have only recently become a concern of the international community. After World War Two, the reconstruction of the economy and lasting peace were the first priorities; this included the guarantee of civil and political as well as social and economic human rights. However, in the subsequent half century the environment has become a prominent concern, which has also had an impact on international law. Although the main human rights instruments (the 1948 Universal Decla- ration of Human Rights, the 1950 European Convention on Human Rights, the 1961 European Social Charter, the 1966 International Covenants), all drafted well before full awareness of environmental issues arose, do not refer to the environment, today it is commonly accepted that human rights and the environment are interrelated. 2 As recently

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