Aspects regarding the relationship between human rights and the environment

Author:Oana Maria HANCIU, PhD
Aspects regarding the relathionship between human righs... 273
Oana Maria HANCIU, PhD*
The European Court of Human Rights has recognized in its jurisprudence the relationship
between human rights and the environment and that, indirectly, environmental degradation affects
human rights by altering the values protected by the Convention. Environmental degradation has far
outstripped national borders, becoming a cross-border environmental issue with great challenges for
the international community. Environmental degradation affects the community as a whole and,
consequently, its rights to a clean environment. The ECHR indirectly provides protection for
environmental issues by creating real and effective environmental jurisprudence.
Keywords: ECHR, human rights, environment, international community, environmental
jurisprudence, environmental challenges
In recent years, the issue of environmental protection has become of international
interest. At international level and also at European level, the environment is of
general interest. This development of international environmental issues has led to an
increase in environmental cases in national and international courts.
The first attempts to give individuals a human right to a clean environment2
and to implement it appeared in the courts in the 1970s after the Council of Europe
elaborated the Additional Protocol No. 1/1952 to the European Convention on
* Lawyer, Vâlcea Bar, Râmnicu Vâlcea, România.
1 This paper is written during the susteinability stage of the project entitled „Horizon 2020 –
Doctoral and Postdoctoral Studies: Promoting the National Interest through Excellence,
Competitiveness and Responsibility in the Field of Romanian Fundamental and Applied Scientific
Research”, contract number POSDRU/159/1.5/S/140106. This project is co-financed by European
Social Fund through Sectoral Operational Programme for Human Resources Development 2007-2013.
Investing in people!
The paper is part of the doctoral thesis ,,International Responsibility of States for Transformational
Environmental Damage”.
2 Oana-Maria Hanciu, The right to a clean environment. International recognition of a human
right to a clean environment by EctHR jurisprudence – international conference „Challenges of the
Knowledge Society” – CKS, Bucharest, Romania, 2015.
Law Review vol. III, Special issue 2017, pp. 273-279
Defense Human Rights and Fundamental Freedoms, which concerned the
individual right to a clean environment and an unaffected environment. Efforts
have not been successful because this development has not been politically
accepted. In 1985, following various academic and policy debates, the European
Union adopted a directive providing for an environmental impact assessment for
public or private projects likely to have a significant impact on the environment3.
Later, the directive was replaced by a new directive4 which set public access to
environmental information as mandatory.
On this background, it has been suggested by doctrine that we can already talk
about an international human right to a clean environment5.
Recently, the three regional human rights courts6 have been involved in
environmental protection as a result of environmental problems affecting more
and more people.
The extension of ECHR environmental case law is due to the fact that the
exercise of certain rights under the Convention can be prevented by environmental
damage and exposure to environmental hazards.
Due to the degree of flexibility in the interpretation of the admissibility
requirements provided by the Article 34 and Article 35 of the Convention, the case-
law of the Court indirectly supports the international recognition of human rights
to a clean environment.
The essential admissibility requirements refer to the status of victim and the
exhaustion of domestic remedies, which occurs within six months of the date on
which the final judgment was passed. Above all, cases brought before the Court
must relate to human rights violations.
The Convention has been interpreted by the Court in a very dynamic and
evolving manner7, so that the link between human rights and the protection of the
environment determines indirect qualification in many cases.
In accordance with Article 34, requests to the Court must be submitted by a
person, a non-governmental organization or a group of persons. The essential
condition is that the applicant must be the victim of a violation by one of the High
Contracting Parties of the rights recognized in the Convention or its Protocols.
Article 35 (1) of the Convention sets out the admissibility criteria, most of which
are procedural, such as the six months8, and the exhaustion of all internal remedies.
3 Directive 85/335 on the assessment of the effects of public or private projects on the environment.
4 Directive 2003/4 on public access to environmental information/
5 Malcom Shaw, International law, Fifth Edition, Cambridge University Press, Cambridge, 2003, p. 756.
6 The Inter-American Court of Human Rights, the European Court of Human Rights, the African
Court on Human and Peoples' Rights.
7 Harris, O Boyle& Warbrick, Law of the European Convention on Human Rights, Third Edition,
Oxford University Press, 2014, p. 8.
8 According to Protocol 15 of the Convention, when it is ratified, the six-month period will be
reduced to four.
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Article 35 (3) offers several admissibility criteria, such as manifestly unfounded
claims9 and no significant disadvantage10, criteria which require the court to assess
the merits of the case at this preliminary stage11.
As regards the admissibility rules, the Court has stated in many decisions that
these rules must be applied with a certain degree of flexibility and without excessive
As the Court stated in the Georgia (Russia) v. Russia (II) judgment, this latter
criterion applies only to individual requests, not to inter-state cases.
The former European Commission of Human Rights has pointed out that the
applicant can not complain as a representative of the people in general because the
Convention does not allow such an actio popularis13. However, there are exceptions
in this area14, and in some judgments, the Court has stated that an NGO might act
in some situations as a representative for real victims.
International recognition of human rights to a clean environment in the
ECHR case-law
The European Court of Human Rights has recognized in its jurisprudence the
relationship between the protection of human rights and the environment and
indirectly the degradation of the environment affects human rights. This relationship
has become a preoccupation of the international community, which has realized that
environmental degradation affects the community as a whole and, consequently, its
rights to a clean environment.
The ECHR is not intended to cover and guarantee the right to a clean
environment. However, the Convention and its Protocols indirectly provide
protection for environmental issues, and in this respect the numerous cases brought
before the ECHR create real and effective environmental jurisprudence.
The doctrine has established that the right of the individual to a clean
environment has no conventional guarantee other than by attracting another right15.
The Court stated in Loizidou v. Turkey, at paragraph 71: „The Convention is a
living instrument which must be interpreted in the light of the current conditions
in which it is well established in the case-law of the Court”.
9 In the preliminary examination of the purpose of an application it is decided whether or not the
applicant has succeeded in supporting the allegation.
10 The Court has stated that violation of a rights must reach a minimum level of severity to be
admited by an international court.
11 Harris, O Boyle& Warbrick, Law of the European Convention on Human Rights, Third Edition,
Oxford University Press, 2014, p. 43.
12 Ilhan v. Turcia 2000, CEDO, paragraful 51.
13 X Association v. Sweden 1982, CEDO.
14 Asselbourg şi 78 alii şi Greenpeace Luxemburg c. Luxemburg 1999, CEDO; Câmpeanu c.
România 2014, CEDO.
15 Frederic Sucre, La protection du droit a l`environnement par la Cour europeenne des droit de
l`homme, Les Nations Unies et la protection de l`environnement, Paris, 1999, p. 140.
Even if the violation of the right to a clean environment is not protected by the
Convention, because it can not be invoked directly in the Convention, it may be a
violation of other rights that are guaranteed by it16.
In recent years, the Court has examined an impressive number of complaints
in which individuals have stated that a violation of one of their Convention rights
has led to the emergence of negative environmental factors17.
There are a number of human rights that are relevant in the field of
environmental protection, and ECHR jurisprudence has guaranteed environmental
protection in environmental cases, which could affect the right to life, the right to
respect for private and family life, and at home, to an effective remedy, the right to
property and the right to respect for someone's property.
The right to life provided by Article 2 of the ECHR provides a positive
obligation for States to take all necessary measures to protect human life.
The positive obligation of Member States can be applied in the context of
hazardous activities, such as industrial activities that are by their very nature
dangerous, such as the management of waste collection facilities18.
In the case of Oneryıldız v. Turkey, the Court found a violation of Article 2 of
the Convention. The facts that led to such a decision consisted of a municipal waste
landfill where a methane gas explosion took place in April 1993, and thirty-nine
people who had illegally built their homes around it were killed. Nine members of
the applicant's family died in the accident. The complainant complained that no
special measures were taken to prevent the explosion, despite a report of expertise
that drew the authorities' attention to the need to act preventively, and as such, the
explosion would have been unlikely.
The Court found that there had been a violation of Article 2 of the Convention
in its substantive aspect due to the lack of adequate measures to prevent the
accidental death of nine of the applicant's close relatives. As regards the procedural
aspect, the Court has held that there has been a violation of Article 2 due to the lack
of adequate protection by law in order to protect the right to life.
On the other hand, in L.C.B. c. The United Kingdom's father was exposed to
radiation while working as a catering assistant at the Royal Air Force on Christmas
Island during four nuclear tests in 1950. The applicant was born in 1966 and in 1970
was diagnosed with leukemia. His medical file suggests a possible cause – „Father
Radiation”. The applicant stated that the state did not warn and counseled parents
about the impact of nuclear tests on their future children and also did not monitor
their health status. The Court has held that there is no violation of Article 2 on the
ground that the applicant has not established a causal link between her father's
exposure to radiation and her illness, leukemia.
16 Mircea Dutu, Dreptul international al mediului, Ed. Economica, Bucharest, 2010, p. 159.
17 Manual on Human Rights and the Environment, Council of Europe Publishing, Strasbourg,
2012, p. 8.
18 Oneryıldız v. Turcia[CEDO], paragraph 71.
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Although environmental degradation does not imply a violation of Article 8 of
the Convention, indirectly, environmental factors can directly and gravely affect
private and family life.
Article 8 of the Convention protects the right to „respect” various interests and
implies an extended right to environmental issues. The State has a positive duty to
adopt rights protection measures in this article.
In the case of Kyrtatos v. Greece, the applicants denounce an illegal urban
planning act, which destroyed a protected swamp under the Greek Constitution.
The Court found that there had been no violation of Article 8 on the ground that,
on the assumption that the environment was severely affected by the urban
development of the area, the applicants did not provide convincing arguments
showing that the damage to birds and other protected species living in the swamp
was liable to directly affect their rights under Article 8 § 1 of the Convention. It would
have been otherwise if, for example, the alleged damage to the environment were
to destroy the forest in the immediate vicinity of the applicants 'houses, a situation
which could have directly affected the applicants' well-being. When considering
the second aspect of the complaint, the Court found that the discomfort that arose
from the applicants' neighborhood as a result of the urban development of the area
(noises, night lights, etc.) did not reach a sufficient degree of seriousness for be
taken into account for the purposes of Article 8.
In Ttar v. Romania, claimants, father and son, complain that the technological
process used by a company in the gold mining activity is life-threatening because a
significant part of the company's activity took place near their homes. In January
2000 an environmental accident occurred at this company. A UN report revealed
that a dam was broken, releasing a significant amount of sodium cyanide and
contaminated water into the environment. The complainants also argued that the
authorities did not take any action, although one of the applicants, has lodged
numerous complaints that their lives were threatened (especially the health of their
asthmatic son). In this case, the Court found that there had been a violation of
Article 8 of the Convention on the ground that the Romanian authorities had failed
in their duty to assess to a satisfactory extent the risks that the mining company
might have involved and to take the necessary steps to protect the rights of those
involved, to respect their private lives and their homes and, in general, the right to
enjoy a healthy and protected environment. The Court emphasized that pollution
could interfere with a person's private and family life, affecting his well-being and
that the State was required to ensure the protection of its citizens by regulating the
authorization, establishment, operation, safety and monitoring of industrial
activities, which were dangerous to the environment and human health.
Article 13 of the Convention speaks of the relationship of cooperation between
the Convention and the national legal system. Article 13 requires states to protect
human rights and guarantees people an effective remedy for human rights violations.
In Kolyadenko and Others v. Russia, the applicants lived near the Pionerskaya
River and the water reservoir. They were affected by a large flood in the city of
Vladivostok, as the authorities spilled water without any prior warning and failed
to keep it on the river canal. They also complained that their homes and properties
were seriously damaged. The Court found that there had been a violation of
Article 2 of the Convention, its substantive and procedural aspects, since Russia
had failed to respect its positive duty to protect the applicants' life and there was
no judicial response to that event on the responsibility of the authorities. The Court
held that there had been a violation of Article 8 of the Convention and of Article 1
of Protocol No. 1 (Protection of Property) of the Convention, noting that the
responsible authorities failed to do their utmost to protect the applicant's rights.
With respect to Article 13 of the Convention, the Court found that it had not been
violated on the ground that the outcome of the procedure provided for by the
Russian law was unfavorable to the applicants and they did not demonstrate that,
under Article 13, the remedies available were insufficient.
Article 1 of Protocol No. 1 to the Convention guarantees the right to respect for
property of persons. The Court found that the provisions of Article 1 of Protocol
No. 1 applies to environmental issues based on the premise that the protection of a
person's property must be practical and effective. The general interest in
environmental protection may justify certain restrictions by public authorities on
the individual right to property19.
It is the case of N.A. and Others v. Turkey, in which the Court held that there
had been a violation of Article 1 of Protocol No. 1 to the Convention on the ground
that the applicants, even if they had acquired the land at issue in good faith,
received no compensation for the transfer of their property to the Treasury or the
demolition of the hotel.
In view of the above, we can say that environmental protection is in close
relationship with the protection of human rights and this has been recognized by
human rights jurisprudence.
The case law of the ECHR has recognized an individual right to a clean
environment deriving from the circumstances in which Articles 2, 8, 13 of the
Convention and Article 1 of Protocol No. 1 have been applied. 1 to the Convention.
The intensification of environmental issues has given the ECHR grounds to
extend its jurisprudence in this respect, provided that the violation of a rule of law
is only retained if the claimant is sufficiently affected and there is a direct link
between the alleged victim and the violation of the law. The plaintiff must also
have a legitimate interest in that the damage to the environment should have a
direct impact on him.
19 Pine Valley Developments Ltd şi alii c. Irlanda, hotrârea din 29 noiembrie 1991, paragraph 57.
Aspects regarding the relathionship between human righs... 279
The protection of the environment can not be separated from the concept of
protection of human rights. It has been shown that environmental damage has a
significant impact on mankind, especially in relation to the right to life, the right to
health, the right to property.
The challenges of the future in the protection of the environment and the fact
that it is increasingly evident that environmental issues directly affect human
rights will lead to an extension of environmental jurisprudence and a clearer
international recognition of human rights to a clean environment not only by the
ECHR but also by other international courts.
In view of this, it is necessary for states and international organizations to be
more receptive to the implementation of the rights to a clean environment, given
the possibility of a new Protocol to the ECHR, which directly regulates human
rights in a clean environment.
As the Costa Rica Supreme Court said, any doubt about the interpretation or
application of a law should be resolved in favor of nature protection – in dubio pro