The fundamental right to a healthy and ecologically balanced environment: romanian particularities of recognition and guarantee

• Author: Gheorghe-Iulian Ionila
• Position: Lecturer, Department of Law, Romanian-American University of Bucharest
• Pages: 1-22

1

THE FUNDAMENTAL RIGHT TO A HEALTHY AND ECOLOGICALLY

BALANCED ENVIRONMENT: ROMANIAN PARTICULARITIES OF RECOGNITION

AND GUARANTEE

GHEORGHE-IULIAN IONIłĂ

∗)

Abstract

In the study hereby, the author emphasizes the Romanian specifics of the recognition and

guarantee of the right to a healthy environment. In Romania, before 1990s, there was no discussion

of a right to a healthy environment. Romania’s Constitution of 1991 did not specifically provide a

fundamental right to a healthy environment, but stipulated duties of the state regarding

environmental protection and recovery. In 1995, another framework regulation on environment

protection was adopted (Law no. 137) which expressly stipulated (in article 5) that “the State

recognizes every person’s right to a healthy environment […]”. However, by corroborating the

above-mentioned texts, author draws the conclusion that, in the Romanian legal system, there was

only a subjective, and not a fundamental right to a healthy environment. Finally, for the adhesion to

the European Union, the Romanian law giver stipulates at article 35 of the current Constitution

(revised in 2003), as a fundamental right, “the right to a healthy environment”.

Keywords: environmental law, fundamental right, healthy environment, recognition, guarantee,

Romanian particularities.

Introduction

As stipulated in the doctrine

1)

“the law may be a bad solution to saving the environment, but it

is the only one”.

Although law in general and environmental law in particular “places Man at its centre”, it “[…]

aims at preserving nature, sustaining ecological balances, safeguarding genetic heritages, protecting

natural resources and fighting against pollution”

2)

and ensures environment protection.

For this very reason, “Human rights in the context of environment and sustainable development

recognize that for human communities to survive, they must have an adequate and secure standard

of living; they must be protected from harmful substances and unsafe products; they must learn to

conserve and equitably share natural resources”

3)

.

Under the circumstances, it is desirable and necessary that law become not only an instrument

of protection, but also a guarantee that fundamental human rights are observed.

∗)

Lecturer, Department of Law, Romanian-American University of Bucharest; Attorney, „IoniŃă Gheorghe-Iulian”

Law Office, Bucharest Bar Association; e-mail: ionita.gheor ghe.iulian@profesor.rau.ro

1)

M. Serres, 2008. Le droit peut sauver la nature [The Law C an Save the Nature]. Pouvoirs 127: 5-12.

2)

S. Borges Coelho, 2001. Environmental protection and t he Right to Health. A vailable from internet:

otection%20and%20the%20right%20to%20health%20by%20Sonia

%20Borges%20Coelho_0.pdf>.

3)

A. Karim A hmed, 2003, Environmental Protection, P ublic Health and Human Right - An Integrated Assesment.

Available from internet:

session=user_pref:42F947591175503936jkol161962>.

2

We may speak of generations of human rights

4)

, which are nothing else but stages of their

historical and successive development.

The appearance of rights in the third generation, which are associated with notions such as

“solidarity” and “joint responsibility”, among which the right to a healthy environment, triggered

the need of interstate collaboration.

States have to understand that only together (not individually), through their joint efforts (not

isolated) can they achieve this desire of man to have and enjoy his right to a healthy and

ecologically balanced environment and to give this opportunity to future generations as well.

1. Notion

At international/regional/national level, there is no consensus as regards the name and meaning

of this fundamental right

5)

.

Thus, there are differences both as regards the meaning of the notion of environment, and the

marginal name of the fundamental right.

1.1. The environment as a protected asset

The analysis of international/regional documents, the domestic legislation, the doctrine, the

field literature and legal practice demonstrates that almost anything can be included in the concept

of environment

6)

.

A. The term “environment” in dictionaries

Dictionary definitions present a double meaning of the term

7)

, namely “the set of

conditions/elements […] and/or the individual’s life framework”:

- “surrounding nature made of all the external factors, where all beings and things exist”

8)

;

- “all the natural and man made elements which surround a human individual, an animal, a plant

or species/all the objective and subjective elements which make an individual’s life framework”

9)

;

- “all the elements which create the environment of living beings/all the elements of the man

made landscape”

10 )

.

B. The term “environment” in international documents and instruments

The meaning of the term “environment” in international documents and instruments is not

unitary, being too vast and (for this reason) ambiguous:

- “the physical surroundings of man, including a-biotic (non-living) elements such as rocks,

water and the atmosphere and biotic (living) elements embracing natural and semi-natural

biocenoses including plants and animals in the wild states”

11)

;

4)

I.G. Sion, (19 90). Ecologie şi drept internaŃional [ Ecology and International Law]. Bucureşti: Editura ŞtiinŃifică

şi Enciclopedică. p. 188-190; I. Muraru, 1998. Drept c onstituŃional şi instituŃii politice [Constitutional Law and Political

Institution]. ediŃia a VIII-a., Bucureşti: Editura Actami, p. 199- 200.

5)

G.-I. IoniŃă (2004). ProtecŃia şi dreptul mediului [ Protection and Environmental Law]. Bucureşti: Editura

Universul Juridic, p. 44.

6)

G.-I. IoniŃ ă, (2010) . Dreptul prote cŃiei mediului [ Environment al Protection Law]. Bucureşt i: Universul

Juridi c, p. 29.

7)

M. DuŃu, 1998. Dreptul mediului. Tratat [Environmental Law. Treaty]. Bucureşti: Editura Economică, p. 49.

8)

DicŃionarul explicativ al limbii române [Explanatory Dictionary of Romanian Language]. 1998. B ucureşti:

Universul Enciclopedic, p. 617.

9)

Le Petit Larousse Ilustré [Little Larousse Illustrated]. 1990. Paris: Cedex, p. 377.

10)

Dictionnaire Hachette Encyclopedique [Hachette Enciclope dic Dictionary]. 2001. Paris: Hachette Livre, p. 547.

11)

Government of t he Kingdom of Belgium, Government of the Grand Duchy of Luxembourg, G overnment of the

Kingdom of the Netherlands. 1982. Benelux Convention on Nature Conservation and Landscape Protection (Article 1).

Available from internet: .

3

- “[…] natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the

interaction between the same factors; property which forms part of the cultural heritage; and the

characteristic aspects of the landscape”

12)

.

C. The term “environment” in the Romanian national legislation

In the Romanian legislation, the environment was/is defined as:

- “all the natural and man made factors which, in close interaction, influence the environmental

balance, determine living conditions for man and society development”

13)

;

- “all the natural elements and conditions of the Earth: air, ground, water and underground,

aspects particular to the landscape, all the atmospheric strata, all organic and inorganic matters as

well as living beings, interacting natural systems which contain all the above-mentioned elements,

including material and spiritual values, the quality of life and the conditions that may influence

man’s welfare and health”

14)

;

- “all the natural elements and conditions of the Earth: air, ground, water and underground,

aspects particular to the landscape, all the atmospheric strata, all organic and inorganic matters as

well as living beings, interacting natural systems which contain all the above-mentioned elements,

including some material and spiritual values, the quality of life and the conditions that may

influence man’s welfare and health”

15)

.

We can note (after analysing the three definitions formulated by the Romanian lawgiver) that

the definition formulated in Law no. 137/1995

16)

makes an express extension to “conditions and

elements” as compared to the definition formulated in Law no. 9/1973

17)

which refers to “natural

factors”, and “man made factors” in the former law are replaced with “material and spiritual values,

the quality of life and conditions that may influence man’s welfare and health” (all of which are

man made to a certain extent). As regards the definition in Government Emergency Ordinance no.

195/2005

18)

, it takes over the definition formulated in Law no. 137/1995, the only difference being

the treatment of spiritual and material values, since it refers to only “some” of them.

It is obvious that, since this concept (the environment) has numerous meanings (which are not

unitary), it is absolutely necessary to formulate a unanimously accepted definition.

It is worth noticing that legal and doctrine consensus is visible with respect to environmental

factors (natural and man made), which sketch the dimension of the concept of environment, thus

setting the object of protection, preservation and development, since, as stipulated in the doctrine

19)

,

12)

Council of Europe. 1993. Lugano Convention on Civil Liability for Damage Resulting from Activities

Dangerous to the Environment (Article 2.10). Available from internet:

int/treaty/en/treaties/html/150.htm>.

13)

Marea Adunare NaŃională a României. 1973. Legea nr. 9 din 20 iunie 1973 privind protecŃia mediului

înconjurător [R omanian Law no. 9 of 20 Ju ne 1973 on Environmental Protection] (Article 3). publicată în „Buletin ul

Oficial” nr. 91 din 23 iunie 1973. Available from internet:

pck.htp_act?ida=15651>..

14)

Parlamentul României. 1995. Legea pr otecŃiei mediului nr. 137 din 29 decembrie 1995 [Romanian Law on

Environmental Protection no. 137 of 29 December 1995] (Annex I). r epublicată în „ Monitorul Oficial al Romîniei”,

partea I, nr. 10 din 17 februarie 2000. Available from internet:

pck.htp_act?ida=6749>.

15)

Guvernul României. 2005. OrdonanŃa de urgenŃă a Guvernului nr. 195 din 2 2 decembrie 2005 privind protecŃia

mediului [Romanian Emer gency Ordinance no. 195 of 22 December 2005 on Environmental Protection] (Article 1

paragraph 2). publicată în „M onitorul Oficial al Romîniei”, partea I, nr. 1196 din 30 decembrie 2005. Available fr om

internet: .

16)

See supra note 14.

17)

See supra note 13.

18)

See supra note 15.

19)

Marinescu, D. 1996. Dreptul mediului înconjurător [Environmental Law], ediŃia a III-a. Bucureşti: Casa de

editură şi presă “Şansa” SRL, p. 10.

4

“the current concept of environment has a dynamic nature, which seeks to know and monitor the

operation of protected systems in all their complexity”.

1.2. The right to the environment - as a fundamental right

International/regional instruments and national legislations use various elements to differentiate

this fundamental right, such as “healthy”, “clean”, “ecologically balanced”, “appropriate”,

“preserved”, “safe”, “decent”, “of high quality”, “adequate”.

These are only content elements which are to be found in all international/regional/national

regulations.

In fact, how can there be a healthy, clean, ecologically balanced, appropriate, preserved, safe,

decent, of high quality and adequate environment if it is not protected?

As indicated in the field literature

20)

, “protection” is the essential content and terminological

element of this fundamental right.

However, in the current Constitution

21)

, the Romanian lawgiver uses the term “healthy and

ecologically balanced environment”, considering that it reflects the social, economic and political

reality of Romania; therefore, we will abide by the “letter and spirit of the fundamental law” and we

will use the term it imposes.

However, we have to mention the pertinent observations regarding the notion of “healthy

environment” made in the Joint reply

22)

adopted by the Committee of Ministers on 16 June 2010 at

the 1088th meeting of the Ministers’ Deputies to the Parliamentary Assembly Recommendation

1883 (2009) – “The challenges posed by climate change” – and to the Parliamentary Assembly

Recommendation 1885 (2009) – “Drafting an additional protocol to the European Convention on

Human Rights concerning the right to a healthy environment” –.

In the Appendix

23)

, it was specified that “the notion of a healthy environment could be

clarified” since it requires observations which, in our perspective, are grounded and lead to what we

have mentioned above, namely “protected” environment. Thus, consideration is given to the

following:

„i. it seems to be clearly recognised that the environment in question must not be polluted or

harmed, and that this benefits both humans and animal and plant species, and thus habitats in

general. But what is the recognised, authorised or tolerated pollution level or threshold, and the

scale that should be used to measure the phenomenon? The climate change issue, for example,

shows us that although individuals are not individually and immediately affected, the major

ecological balances and eventually "organic life" could be at risk;

ii. does the term "healthy" imply that the environment should simply be "hygienic" or

something more, namely rich in biological diversity, with due regard for the natural heritage?

Should our approach to the environment be essentially anthropocentric or more holistic and

"ecocentric". Human beings, anthropoid in Greek, are a part of their general habitat, and this needs

to be taken into account in its entirety, including all forms of life irrespective of their utility to man.

20)

G. Iancu, 1998. Drepturile fundamentale şi protecŃia mediului [Fundamental Rights a nd Environment

Protection]. Bucureşti: R.A. Monitorul Oficial., p. 165-170 .

21)

Romanian Legislative Council. 200 3. Romanian Constitution (revised 2003). published in the Official Gazette

of Romania no. 767 of 31 november 2003. Available from inter net: .

22)

Council of Europe, Committee of Ministers, Ministers’ Deputies. 2010. CM/AS (201 0)Rec1883-1885, “The

challenges posed by climate change” - Parliamentar y Assembly Recommendation 1883 (2 009) and “Drafting an

additional protocol to the Eu ropean Convention on Human Rights concerning the right to a healthy environment” -

Parliamentary Assembly Rec ommendation 1885 (2009), Joint repl y adopted b y the Committee of Ministers on 16 June

2010 at the 108 8th meeting of the Minist ers’ Deputies. Available from i nternet:

ViewDoc.jsp?Ref=CM/AS(2010)Rec1883-

1885&Language=lanEnglish&Ver=final&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&Bac

kColorLogged=FDC864>.

23

Ibidem.

5

So without a comprehensive view of human beings and an all-embracing understanding of nature,

the concept of "health" cannot be grasped in all its aspects;

iii. finally, the World Health Organisation's definition of health as "not only the absence of

infirmity and disease but also a state of physical, mental and social well-being" means that a healthy

environment must also be one that is sufficiently rich in cultural and landscape diversity to provide

human beings with a state of individual and social well-being in which they can achieve self-

fulfilment. Together, therefore the notions of life and quality of life point us towards the concept of

sustainable development”

Finally, specified that:

„If there is a human right to a healthy environment does this mean that human beings can only

invoke rights if they themselves are affected or that they can also complain about decisions that are

harmful to nature as a whole? Should they not also feel responsible for animal and plant species

and, more generally, for the major balancing forces that govern changes to our planet, even if they

are not individually and immediately concerned? The human right to the environment is more than

a human right in the strict sense. It must also be a right of species that protects human being and the

environment in which they live. It therefore also constitutes a right to heritage, whether this be

natural, cultural or landscape. Namely, human beings have the responsibility towards all living

beings”.

This provides enough food for thought …

2. Recognition

In what concerns the need to recognize the fundamental right to a healthy environment, there is

no consensus

24)

.

Nevertheless, with all the problems raised by express recognition (as in the case of first and

second generation human rights), the concerns and efforts made at international/regional level

taken over in domestic legislations, sketch the recognition of this fundamental right, which cannot

be a superficial preoccupation, scientifically ungrounded, given the deepening of the environmental

crisis, which imposes joint actions.

2.1. Stipulation at international and regional level

A. Stipulation at international level

The first text which sketches the fundamental right to a healthy environment, linking

fundamental rights and environment protection, is the Declaration of the United Nations Conference

on the Human Environment

25)

, whose main principle is that “Man has the fundamental right to

freedom, equality and adequate conditions of life, in an environment of a quality that permits a life

of dignity and well-being, and he bears a solemn responsibility to protect and improve the

environment for present and future generations […]”.

Given this urge, regional regulations proved to be highly receptive; moreover, the mainly

declarative nature of international texts was completed, at least partially, with the obligations

assumed by means of regional documents.

Rio Declaration on Environment and Development

26)

also proclaim as the main principle

„Human beings […] are entitled to a healthy and productive life in harmony with nature”.

24)

G.-I. IoniŃă, Dreptul protecŃiei mediului, op. cit., p. 54-5 5.

25

United Nation. 1972. St ockholm Declaration of the United Nations Conference on the Human Environment.

Available from internet: .

26)

United Nation. 1992. A/CONF.151/26 (Vol. I). Report of the U nited Nation Conference on Environment and

Development (Rio de Janeiro, 3- 14 June 1992), Rio Declaration on Environment and D evelopment. Available from

internet: .

6

Unfortunately, the United Nations Millennium Declaration

27)

, although (point 6) referring to

fundamental values as essential to international relations in the twenty-first century including

“Respect for nature” (in this meaning ”[…] Prudence must be shown in the management of all

living species and natural resources, in accordance with the precepts of sustainable development.

Only in this way can the immeasurable riches provided to us by nature be preserved and passed on

to our descendants. The current unsustainable patterns of production and consumption must be

changed in the interest of our future welfare and that of our descendants”), does not expressly

dedicate itself to this right.

The World Summit on Sustainable Development

28)

, as specified in the field literature

29)

, was

not marked by significant developments, but rather by a dead end in environment-related ideas.

Only the Plan of Implementation of the World Summit on Sustainable Development

30)

mentions

(point 169) “Acknowledge the consideration being given to the possible relationship between

environment and human rights, including the right to development, with full and transparent

participation of Member States of the United Nations and observer States”. In fact, the relationship

between environment and human rights is already a reality, even if internationally, there are still

some reserves in accepting it.

The news brought about by United Nations Conference on Sustainable Development

31)

, who

will take place in Brazil on 4-6 June 2012, are worth kept under scrutiny.

B. Stipulation at regional level

The first regional instrument that expressly mentions this right is African Charter on Human

and People’s Right

32)

, which stipulates (in article 24) “all peoples should be entitled to a satisfactory

general environment favourable to their development”.

United Nation Economic Comision for Europe Convention on Access to Information, Public

Participation in Decision-making and Access to Justice in Environmental Matters

33)

relates these

procedural rights to the fundamental right to a healthy environment, in the Preamble “Recognizing

also that every person has the right to live in an environment adequate to his or her health and well-

being, and the duty, both individually and in association with others, to protect and improve the

environment for the benefit of present and future generations …” and imposing states (in article 1)

”In order to contribute to the protection of the right of every person of present and future

generations to live in an environment adequate to his or her health and well-being, each Party shall

guarantee the rights of access to information, public participation in decision-making, and access to

justice in environmental matters in accordance with the provisions of this Convention”.

27)

United Nation. 2000. A/RES/55/2. New York United Nation Millenium Declaration. Available from internet:

.

28)

United Nation. 2002. A/CONF.199/2 0. Report of the World Summit on S ustainable Development

(Johannesburg, 26 August - 4 September 2002). Available from internet:

.

29)

M. Prieur, 2004. Droit de l’homme à l’environnement et développement durable. Available f rom internet:

.

30)

UN, A/CONF.199/20, op. cit., p. 72.

31)

United Nation (2012). RIO+20, United Nations Conference on Sustainable De velopment. Available from

internet: .

32)

Organizati on of African Unity. 1981, Nairobi African Charter on H uman and People’s Right, Available from

internet:

pdf>.

33)

United Nation Economic Comision for Europe. 1998. A arhus Convention on Access to Information, Public

Participation in Decision- making and Access to Ju stice in Environmental Matters. Available from interne t:

.

7

Council of Europe Convention for the Protection of Human Right and Fundamental Freedoms

34

does not expressly mention the fundamental right to a healthy environment because, upon its

implementation, the anthropogenic activities on the environment were not the focus of public

attention, since the environmental crisis had not begun yet.

European Court of Human Right resorted to the “protection by rebound” strategy

35)

, extending

the protection of rights guaranteed by European Convention onto the rights which are not stipulated

therein.

Thus, the Court case-law has already identified issues related to the environment which could

affect some of the rights presented by it, such as the right to life (article 2), the right to a fair trial

and to have access to a court (article 6), the right to respect for private and family life as well as the

home (article 8), the right to receive and impart information and ideas (article 10), the right to an

effective remedy (art. 13), the right to the peaceful possession of one`s belongings (article 1 of

Protocol no. 1).

However, since it is not expressly stipulated in the European Convention, the breach of this

right may only be invoked before the European Court indirectly, through the breach of some of the

rights stipulated by the European Convention.

Consideration has to be given to the fact that, as indicated in the field literature

36)

, the social

consequences of the decisions made by European Court in the field, together with the development

and establishment of this right in the legal systems of the member states, will create an increasingly

high pressure for the development and strengthening at European level of man’s fundamental right

to live “in an environment with a higher protection level” which guarantees a decent quality of life,

“in balance with the fragile ecosystems of our damaged planet”.

In fact, in the Council of Europe, the Parliamentary Assembly formulated several proposals to

the Committee of Ministers as regards the stipulation, as a fundamental right within the European

Convention, of the right to a healthy environment. Thus, it was proposed:

- The Parliamentary Assembly Recommendation 1431 “Future action to be taken by the

Council of Europe in the field of environment protection”

37)

to “drafting an amendment or an

additional protocol to the European Convention on Human Rights concerning the right of

individuals to a healthy and viable environment” (par 11.b.);

- The Parliamentary Assembly Recommendation 1614 “Environment and human rights”

38)

to

“draw up an additional protocol to the European Convention on Human Rights concerning the

recognition of individual procedural rights intended to enhance environmental protection, as set out

in the Aarhus Convention” (par .10.i.);

34)

Council of Europe. 1950. CETS no. 005, Roma Convention for the Protection of Human Right and Fundamental

Freedoms, as amended by Protocols no. 11 and 14. Available from internet:

.

35)

See P. Truşcă, A. Truşcă Tra ndafir, 2009. Dreptul f undamental al omului la un mediu sănătos în jurisprudenŃa

CEDO [The Right to a Halthy Environment in the ECHR jurisprudence], Revista Transilvană de ŞtiinŃe Administrative

1 (23)/2009: 97-120. Available from in ternet:

>; S. de Abreu Ferreira, 2007. Fundamenta l Enviro nmental Rights in EU Law. Available from internet:

.

36)

J. Verdú Baeza, 2009. Toward a right t o the environment in Europe: Noise and jurisprudence of the European

Court of Human Rights. Bulletin of Transilvania University of Braşov, vol. 2 (51)-2009, Series VII: 219-226. Available

from internet:

II/BULETIN%20VII%20PDF/219%20jesus%20verdu%20%

20BUT%202009.pdf>.

37)

Council of Europe , Parliamentary Assembly. 1999, Recommendation 1431 “Future action to be taken by the

Council of Europe in the field of environment protection”. Available from internet:

.

38)

Council of Europe, Parliamentary Assembl y. 2003. Recommendation 1614 “Environment a nd human rights”.

Available from internet: .

8

- The Parliamentary Assembly Recommendation 1862 “Environmentally induced migration and

displacement: a 21st-century challenge”

39)

to “consider adding a new protocol to the European

Convention on Human Rights (ETS No. 5), concerning the right to a healthy and safe environment;

such a protocol would introduce the precautionary principle into the Convention and would reflect

the way the concept of “human rights” has evolved since the Convention was drafted” (par. 6.3.);

- The Parliamentary Assembly Recommendation 1883 “Challenges posed by climate change”

40)

to “[…] reiterate its request to the Committee of Ministers to instruct the relevant expert committee

to draft a new protocol to the European Convention on Human Rights enshrining the right to a

healthy and viable environment as a human right” (par. 5.);

- The Parliamentary Assembly Recommendation 1885 “Drafting an additional protocol to the

European Convention on Human Rights concerning the right to a healthy environment”

41)

to “draw

up an additional protocol to the European Convention on Human Rights, recognising the right to a

healthy and viable environment” (par. 10.1.).

The Joint reply adopted by the Committee of Ministers on 16 June 2010 at the 1088th meeting

of the Ministers’ Deputies to the Parliamentary Assembly Recommendation 1883 (2009) – “The

challenges posed by climate change” – and to the Parliamentary Assembly Recommendation 1885

(2009) – “Drafting an additional protocol to the European Convention on Human Rights concerning

the right to a healthy environment”

42)

, indicated above, claims “The Committee of Ministers would

recall its replies to Recommendations 1614 (2003) on “Environment and human rights” and 1862

(2009) on “Environmentally induced migration and displacement: a 21st century challenge” in

which it noted, inter alia, that although the European Convention on Human Rights does not

expressly recognise a right to the protection of the environment, the convention system already

indirectly contributes to the protection of the environment through existing convention rights and

their interpretation in the evolving case law of the European Court of Human Rights. On both

occasions, the Committee of Ministers did not consider it advisable to draw up an additional

protocol to the convention in the environmental domain. At present, the position of the Committee

of Ministers on this issue remains unchanged”.

It also specifies

43)

“The Committee of Ministers would however recall that Parliamentary

Assembly Recommendation 1614 (2003) led to the preparation by the Steering Committee for

Human Rights (CDDH) of a Manual on Human Rights and the Environment – Principles emerging

from the case law of the European Court of Human Rights in 2006. The aim of the manual was to

increase the understanding of the relationship between the protection of human rights under the

European Convention on Human Rights and the environment and thereby to contribute to

strengthening environmental protection at the national level. In response to the proposal made by

the Assembly (paragraph 6), the Committee of Ministers has taken note of the agreement within the

CDDH, within the framework of the DH-DEV, to update and extend the manual, in the light of

notably the case law of the Court and of the European Committee of Social Rights, of relevant

standards set out by other international organisations, and of good practices adopted at national

level in order to give effect to the principles emerging from the Court’s case law”.

39)

Council of Europe, Parliamentary As sembly. 2009. Recommendation 1862 “Environmentally induced migration

and dis placement: a 21st-century challenge”. Available from internet:

Documents/AdoptedText/ta09/EREC1862.htm>.

40)

Council of Europe, Parliamentary Assembly. 2009. Recommendation 1883 “Challenges posed b y climate

change”. A vailable from internet: < http://assembly.coe.int/Main.asp? link=/Documents/AdoptedText /

ta09/EREC1883.htm>.

41)

Council of E urope, Parliamentary Assembly. 2009c. Rec ommendation 1885 “Drafting an additional protocol to

the European Convention on Human Rights concerning the right to a healthy environment”. Available from internet:

.

42)

EC, Committee of Ministers, Ministers’ Deputies, C M/AS(2010)Rec1883-1885 final 18 June 2010, op. cit.

43)

Ibidem.

9

It is interesting that this manual

44)

, due to its structure, is a valuable support in solving issues

related to the protection of the right to a healthy environment.

2.2. Stipulation at national level

The Declaration of the United Nations Conference on the Human Environment (1072) has had a

significant impact, since almost all the legislations implemented afterwards contain provisions

referring to environment protection in general.

Subsequently, considering the regional developments, Rio Declaration on Environment and

Development (1992) clarifies and strengthens the idea of the right to a healthy environment.

According to a study

45)

, “More than 100 constitutions throughout the world guarantee a right to

a clean and healthy environment and impose a duty on the state to prevent environmental harm, or

mention the protection of the environment or natural resources. Over half of these constitutions

explicitly recognize the right to a clean and healthy environment, including nearly all constitutions

adopted since 1992. Ninety-two constitutions impose a duty on the government to prevent harm to

the environment”.

A. Stipulation in the national legislations of other countries

The stipulation of the right to a healthy environment in national legislations was made either at

constitutional level, as a fundamental right, or at legislative level, as a subjective right.

Constitutional stipulation as a fundamental right was made explicitly or implicitly; as an

example, we mention a few constitutional provisions of certain states.

The Constitution of the Portuguese

46)

stipulates (in article 66 “Environment and quality of

life”): “1. Everyone has the right to a healthy and ecologically balanced human living environment

and the duty to defend it. 2. In order to ensure the right to the environment within an overall

framework of sustainable development, the state, acting via appropriate bodies and with the

involvement and participation of citizens, is charged with: a) Preventing and controlling pollution

and its effects and the harmful forms of erosion; b) Conducting and promoting town and country

planning with a view to a correct location of activities, balanced social and economic development

and the enhancement of the landscape; c) Creating and developing natural and recreational reserves

and parks and classifying and protecting landscapes and places, in such a way as to guarantee the

conservation of nature and the preservation of cultural values and assets that are of historic or

artistic interest; d) Promoting the rational use of natural resources, while safeguarding their ability

to renew themselves and ecological stability, with respect for the principle of inter-generational

solidarity; e) In cooperation with local authorities, promoting the environmental quality of rural

settlements and urban life, particularly on the architectural level and as regards the protection of

historic zones; f) Promoting the integration of environmental objectives into the various policies

with a sectoral scope; g) Promoting environmental education and respect for environmental values

and assets; h) Ensuring that the fiscal policy renders development compatible with the protection of

the environment and the quality of life”.

The Spanish Constitution

47)

stipulates (in article 45): “(1) Everyone has the right to enjoy an

environment suitable for the development of the person, as well as the duty to preserve it. (2) The

44)

Council of Europe. 200 6. Manual on human rights and the environment: principles emerging from the case-law

of the European Court of Human Rights. Strasbourg: Counc il of Europe Publishing.

45)

D. Shelton, 20 02. Human Rights, Health & E nvironmental Protection: Linkages In Law & Practice. A

Background Paper for the World Health Organization, Health and Human R ights. Working Paper Series No 1.

Available from internet: .

46)

Portuguese Constit uent Assembly. 1976. Constitution of the Portugueze Republic (re vised 2005). Available

from internet: .

47)

Spanish Cortes Generales. 1978. Spanish C onstitution (revised 1992), Available from internet:

.

10

public authorities shall watch over a rational use of all natural resources with a view to protecting

and improving the quality of life and preserving and restoring the environment, by relying on an

indispensable collective solidarity. (3) For those who break the provisions contained in the

foregoing paragraph, criminal or, where applicable, administrative sanctions shall be imposed,

under the terms established by the law, and they shall be obliged to repair the damage caused”.

The Turkish Constitution

48)

stipulates that “Everyone has the right to live in a healthy, balanced

environment. (2) It is the duty of the state and citizens to improve the natural environment, and to

prevent environmental pollution. (3) To ensure that everyone leads their lives in conditions of

physical and mental health and to secure cooperation in terms of human and material resources

through economy and increased productivity, the state shall regulate central planning and

functioning of the health services. (4) The state shall fulfil this task by utilizing and supervising the

health and social assistance institutions, in both the public and private sectors. (5) In order to

establish widespread health services general health insurance may be introduced by law”.

The Constitution of the Republic of Bulgaria

49)

stipulates (in article 55): “Citizens shall have

the right to a healthy and favourable environment corresponding to the established standards and

norms. They shall protect the environment”.

The Constitution of the Republic of Hungary

50)

stipulates (in paragraph 18): “The Republic of

Hungary shall recognize and implement everyone’s right to a healthy environment”.

The Constitution of the Russian Federation

51)

stipulates (in article 42): “Everyone shall have the

right to favourable environment, reliable information about its state and for a restitution of damage

inflicted on his health and property by ecological transgressions”.

The Constitution of the Republic of Moldova

52)

stipulates (in article 37 “The Right to Live in a

Healthy Environment”): “(1) Every human being has the right to live in an environment that is

ecologically safe for life and health, to obtain healthy food products and harmless household

appliances. (2) The State guarantees every citizen the right of free access to truthful information

regarding the state of the natural environment, the living and working conditions, and the quality of

food products and household appliances. (3) Non-disclosure or falsification of information

regarding factors detrimental to human health constitutes offences punishable by law. (4) Private

individuals and legal entities shall be held responsible before the law for any damages that they may

cause to personal health and property due to an ecological offence”.

The Swedish Constitution

53)

stipulates (in article 2): “Public power shall be exercised with

respect for the equal worth of all and the liberty and dignity of the individual. The personal,

economic and cultural welfare of the individual shall be fundamental aims of public activity. In

particular, the public institutions shall secure the right to employment, housing and education, and

shall promote social care and social security, as well as favourable conditions for good health”.

Legislative stipulation, as a subjective right, refers to the situations when it is imposed solely

under an ordinary law.

48)

Turkish Grand Na tional Assembly. 1982. Turkey Cons titution (revised 2007). Available from internet:

.

49)

Bulgarian Grand National Assembly. 1991. Republic of Bulgaria Constitution (r evised 2007). Available from

internet: < http://www.online.bg/law/const/const2.htm>.

50)

Hungarian National Assembly. 1949. The Constitution of the Republic of Hungary (revise d 2011). Available

from internet: .

51)

Russian State Duma 1993. The Constitution of the Russian Federation. Available from internet:

.

52)

Moldovan Parliament. 1994.

The Constitution of Republic of Moldova. Available fr om internet:

.

53)

Swedish Risksdag. 1977. Instrument of Government (amended in 2010). A vailable from i nternet:

.

11

As an example, The Danish Environmental Protection Act

54)

stipulates (in article 1): “(1) The

purpose of this Act is to contribute to safeguarding nature and environment, thus enabling a

sustainable social development in respect for human conditions of life and for the conservation of

flora and fauna. (2) The objectives of this Act are in particular: 1) to prevent and combat pollution

of air, water, soil and subsoil, and nuisances caused by vibration and noise, 2) to provide for

regulations based on hygienic considerations which are significant to Man and the environment, 3)

to reduce the use and wastage of raw materials and other resources, 4) to promote the use of cleaner

technology, and 5) to promote recycling and reduce problems in connection with waste disposal”.

B. Stipulation in the Romanian legislation

In 1973, the Romanian legislation also adopted the Environment Protection Law (Law no. 9)

55)

,

as an all-encompassing framework regulation (which placed Romania among the first countries in

the world with such a regulation) which set, on the one hand, the general legal regime of

environment protection (including the creation of an appropriate institutional framework) and, on

the other hand, established a number of rules applying to the main natural or man made factors.

Not even in the 1990s, did Romania’s Constitution

56

)

specifically provide a fundamental right to

a healthy environment, but stipulated duties of the state “[…] regarding environmental protection

and recovery, as well as preservation of the ecological balance” (article 134 paragraph 2 letters e)

and “[…] creation of all necessary conditions so as to increase the quality of life” (article 134

paragraph 2 letter f).

However, considering the existence of these fundamental duties of the State (article 134

paragraph 2 letters e, f) and the seriousness of the environmental crisis, we may claim that an

implicit recognition of this right was necessary (as was the case of Greece, Sweden etc).

This implicit recognition is favored by the former framework regulation on environment

protection (law no. 137/1995)

57 )

which expressly mentioned (in article 5) that “the State recognizes

the right to a healthy environment to all persons, guaranteeing to this end: a) access to environment-

related information, with the observance of confidentiality terms stipulated in the applying

legislation; b) the right to associate in organizations for environment protection; c) the right of

consultancy as regards decision making for the development of policies, legislation and

environmental norms, the issuance of environment agreements and permits including for territory

organization and urban planning; d) the right to address, directly or through associations,

administrative or legal authorities for prevention purposes or in case of a direct or indirect damage;

e) the right to compensation for the incurred damage” and stipulated (in article 6 paragraph 1) the

obligations and responsibilities on environment protection of the “authorities of the public central

and local administration, as well as all natural persons and legal entities”.

However, since the Constitution (1991)

58 )

does not expressly recognize a fundamental right to a

healthy and ecologically balanced environment and by corroborating the provisions of article 134

paragraph 2 letters e)-f) of the Constitution (1991)

59 )

with the provisions of article 5 of the former

framework regulation on environment protection

60)

, this only leads to the conclusion that our legal

system recognizes a subjective right to a healthy environment which originated in the Constitution.

54)

Danish Parliament. 1997. Danish Environmental Protection Act no. 625 of July 15 (amended 1998). Available

from internet: .

55)

supra note 13.

56)

Romanian Constituent Assemb ly. 1991. Constitution of Romania. published in the Official Gazette of Romania,

no. 233 of 21 November 1991. Available from internet: .

57)

See supra note 14.

58)

See supra note 56.

59)

Ibidem.

60)

See supra note 14.

12

It is desirable and necessary to impose the express stipulation in the Constitution, but first of all,

economic conditions have to be created for its recognition.

As specified in the field literature

61)

, “the constitutional recognition and guarantee of the right

to a healthy environment in our country extends the obligations of public authorities to the

protection of the environment, allows for a better harmonization between the various levels of

recognition and guarantee of the fundamental right to the environment […]”.

Unfortunately, the Romanian lawgiver, under the pressure of harmonizing domestic regulations

with Community ones for the adhesion to the European Union, hurried and set in article 35 of the

current Constitution (2003)

62 )

, as a fundamental right, “the right to a healthy environment” with the

following content “(1) The State shall acknowledge right of every person to a healthy, well

preserved and balanced environment. (2) The State shall provide the legislative framework for the

exercise of such right. (3) Natural and legal entities shall be bound to protect and improve the

environment”

the This “rush” generated at least two quite delicate problems

63)

.

One of them refers to the ambiguous formulation of the text in the Constitution (2003).

The wording of paragraph (1) of article 35 “The State shall acknowledge the right of every

person to a healthy, well preserved and balanced environment” leaves room for interpretation. It

may be interpreted that the holders of this right are all the natural persons on Romania’s territory

(Romanian citizens, foreign citizens, or stateless persons), since it fails to stipulate whether it refers

only to Romanian citizens or not. One may deem that this right is not circumstantiated by the

principle of the territory where the law is to be enforced (since its holder can be any person residing

on Romania’s territory, temporarily or permanently). We may also draw the conclusion that it is a

special dimension, which expresses the universality of the right to a healthy environment as a

fundamental right. However, the limits and features of a “healthy and ecologically balanced

environment” (the notion preferred and used by the lawgiver) are difficult to set. It was also the

lawgiver, by regulating the maximum acceptable levels of pollution in the receiving environments

(the norms of environment quality) and by setting the amount and concentrations of pollutants that

may be released by a given source (emission norms), that sketches the dimension of “healthy” and

“ecologically balanced”, since it is believed that as long as these norms are observed (???) the

environment is “healthy” and “ecologically balanced”.

The wording of paragraph (2) of article 35 “The State shall provide the legislative framework

for the exercise of such right” is faulty. Thus, the provision by the state of the legal framework for

exerting this right appears to be an obligation. Ensuring a legal framework does not only involve the

law enforcement process, but also the harmonization of national regulations with international ones

and the establishment of the processual framework in case of breaching this right (both by the State

and by natural persons and legal entities).

The wording of paragraph (3) of article 35 “Natural and legal entities shall be bound to protect

and improve the environment” raises certain issues. Thus, the duty of natural persons and legal

entities is a joint obligation to protect and improve the environment. Practically, all persons are

holders both of the right to a healthy environment and of obligations to protect and improve the

environment.

Another delicate issue refers to the fact that current internal regulations are not able to provide

satisfactory solutions to the situation in which the State should be liable for failures to fulfill the

obligations stipulated in this article.

61)

Mocanu, L. a nd Mastacan, O. 2009. ConstituŃionalizarea dreptului la un mediu sănătos în România

[Constitutionalisation the Rig ht to a Healthy Environment i n Romania]. Studii de drept românesc no. 3 (iulie-

septembrie 2009): 219-225. Available from internet: < http://www.rsdr.ro/Art-2-3-2009.pdf>.

62)

See supra note 21.

63)

G.-I. IoniŃă, Dreptul protecŃiei mediului, op. cit., p. 59.

13

Thus, since it is impossible for national courts to settle potential disputes, which have already

appeared and most certainly will proliferate, being just a matter of time until persons living in

“grey” areas will realize they are entitled to a healthy and ecologically balanced environment, the

procedures stipulated in international/regional instruments for the protection of a recognized and

unobserved fundamental right would have to be used.

Nevertheless, as claimed by the field literature

64)

, we do not deny the fact that guaranteeing the

right to a protected environment, as a fundamental right, is “a step forward and a positive endeavor”

which may result in making its beneficiaries aware of the need to protect the environment in

general.

3. Relationship with the other fundamental rights

Stating and stipulating third generation rights (among which the right to a healthy environment)

raise the issue of the correlation with the other fundamental rights in the first two generations,

which are already known and expressly guaranteed. Although there is a classification of

fundamental rights, its aim is not to divide rights, but, on the contrary, to explain the inner structure

of the unitary system of human rights, freedoms and duties. The classification should not be

interpreted as a hierarchy, because all rights have the same significance and, although some of them

depend on others or also fulfill also the function of guarantee for others, they make a unitary

whole

65)

.

At first sight, there seems to be a conflict between “generations of rights”, and which is also

what has triggered the reserves regarding recognition and guarantee.

It was (erroneously) estimated that the rights in the first generations are “affected” (more or

less) by the rights in the last generation, and consideration was (concretely) given to the “negative

impact” of the right to a healthy environment on other fundamental rights and freedoms.

Thus, as regards the ownership right, it might be “affected” by the creation of duties regarding

the environment protection, which are stipulated in Romania’s Constitution as well (article 44

paragraph 7) “The right of property compels to the observance of duties relating to environmental

protection [...]”.

The right to work might also be “affected” by forcing polluting legal entities either to cease

their activity, or to remodernize their production process.

Last, but not least, free movement might “suffer” due to the limitation or interdiction of access

to protected areas.

Above, we mentioned that “there seems” to be a conflict, because, in reality, as also indicated in

the field literature

66)

, “the occurrence of the current environmental crisis set up the conditions for a

new approach to fundamental rights, from the perspective and in the context of environment

protection [...] The cause that led to the need of this new approach stems from the conservationism

of law as a system, but also from the perspective of its components, which makes that, many times,

the legal system is left behind by social, economic, political transformations, and by those made by

nature as well. This situation has determined at present certain incongruence between the content of

regulated fundamental rights (de lege lata) and the environmental reality, an incongruence that was

not that visible when the fundamental rights were first established [...] the content of certain

fundamental rights has to be completed or correctly interpreted. Without these operations, the

extension of the citizens’ obligation to abide by them is not set (sketched) or compliant with the

current reality even if it meets the incomplete content. The indicated incongruence cannot lead to

the breach of fundamental rights, and its immediate effect is only the deepening of the

64)

M. Diaconu, 2 006, Dreptul la mediu sănătos în constituŃiile unor Ńări ale Uniunii Europene [The Right to a

Healthy Environment in the Constitutions of some European Union Countries]. Revista de ŞtiinŃe Juridice, nr. 4.

Available from internet: .

65)

I. Muraru, Drept constituŃional…, op. cit., p. 206-20 7.

66)

G. Iancu, Drepturile fundamentale…, op. cit., p. 117, 118, 126, 128-162.

14

environmental crisis and, obviously, it leads to a feedback effect for man, since, in the future,

damage to the environment will be detrimental to the human being”.

Under the circumstances, there is no contradiction or conflict between the fundamental rights of

the first two generations and the fundamental right to a healthy environment, because fundamental

rights can only be explained if considered in their interdependence with the other phenomena and

particularly with the economic, social and political realities of each country.

4. Content

As regards the content of the right to a healthy environment, the doctrine

67)

claims the existence

of two dimensions: an individual one, which involves “[...] the right of every individual to: a)

pollution prevention, b) the cessation of activities resulting in harmful pollution (over the limits set

in the said states), c) repairs of the damage incurred following such pollution, and a collective one,

which “[...] involves the obligation (of peoples) of the said states to cooperate in order to prevent

and fight pollution, to protect the (natural) environment at regional and international level, just as

they have the obligation to take the necessary measures domestically [...]”.

It was also mentioned

68)

that “the right to a healthy environment involves more than an

environment adequate for human health” (even through most of its formulations refer to this) and

that “a healthy environment is to be seen [...] also as an environment that is itself “healthy”, in the

sense of being ecologically sound and balanced”.

Indeed, this fundamental right involves both a human dimension (individual), which concerns

the protection of the human being by ensuring its integrity and material and spiritual development

in a (healthy and ecologically balanced) environment which does not endanger its life, health and

development, as well as a natural (collective) dimension, which envisages environment protection

(by the human being) by ensuring a natural environment which favors the quality of life in general

(not only of the human being).

As can be noticed, this right has a complex content which may be individualized by relating it

to the object of the protection and the guarantees of the observance thereof.

Because above we made the necessary observations related to the object of the protection, in

what follows we will present a few aspects concerning the guarantees of the observance of this

fundamental right.

4.1. Rights – guarantees of the right to a healthy environment

In Romania, the rights-guarantees of the right to a healthy environment and the duties for

environment protection are stipulated (most of them) in the current framework regulation on

environment protection

69)

.

Thus, according to article 5 of this regulation, “the State recognizes every person’s right to a

healthy environment, guaranteeing to this end: a) the access to environment-related information,

with observance of the confidentiality terms stipulated in the applying legislation; b) the right to

associate in organizations for environment protection; c) the right to be consulted in the process of

decision making on the development of the environment policy and legislation, the issuance of

regulating documents in the field, the draw up of plans and programs; d) the right to address,

directly or through organizations for environment protection, the administrative and/or legal

authorities, as applicable, on environmental issues, regardless of whether damage was caused or

not; e) the right to compensations for the incurred damage”.

67)

I. G. Sion, Ecologie…, op. cit., p. 190.

68)

M. Dejeant Ponce M. Pallemaerts, 2002. Human rights and t he environment. Strasbourg: Council of Europe

Publishing, p. 1 9-21. Available from internet: heritage/landscape/

Publications/Droitsdelhomme_en.pdf>.

69)

See supra note 15.

15

As indicated above, article 5 of the current framework regulation on environment protection

70)

stipulates five rights-guarantees of the right to a healthy and ecologically balanced environment

which basically are embodiments of other fundamental rights.

A. Access to environment-related information

The access to environment-related information stipulated in the current framework regulation

on environment protection

71)

, at article 5 letter a), specifies the “access to environment-related

information, with observance of the confidentiality terms stipulated in the applying legislation”; this

is an embodiment of the fundamental right to information stipulated in the current Constitution

(article 31 paragraph 1), under which “a person’s right to have access to any public interest

information may not be limited”.

This current framework regulation also stipulates, as an enforcement of this right (the access to

environment-related information):

- “The central authority for environment protection has the following attributes and duties [...]

e) it creates its own information system and sets the terms and conditions which regulate free access

to environment-related information; [...] o) it makes available to the public data on the environment

condition, the programs and the policy for environment protection [...]” (article 75);

- “The activity holder has the obligation to inform the competent territorial authorities in charge

with environment protection on the results of its self-monitoring of the emissions of regulated

pollutants, as well as in what concerns accidents or dangers of accidents” (article 13 paragraph 4);

- “The competent authority [...] ensures the information [...] of the public on specific activities

[...] The information of the public under procedures which regulate plans, programs, projects and

activities is done according to the specific applying legislation” (article 20 paragraphs 1 and 2).

B. The right to associate in organizations for environment protection

The right to associate in organizations for environment protection is stipulated in the current

framework regulation on environment protection

72)

at article 5 letter b); it is an embodiment of the

fundamental association right guaranteed by the current Constitution (article 40 paragraph 1), under

which “citizens may associate freely in political parties, trade unions, employers’ organizations and

other association forms”.

A series of associations, organizations and parties were set up m nationally, which manifested,

more or less, an interest in the field of environment protection.

From among such associations which carry out their activity in the field, we can mention:

- the Romanian Ecologist Party, which, in January 1978, was set up as a form of political

resistance against complete ignorance of the political, moral and material liability of Communist

governments to the damage caused to human life, soil, flora and fauna, by the chemical, physical,

biologic, political and moral pollution of Romania’ territory and the entire Romanian society

73)

; it

was (duly) set up as a political party on 16.01.1990.

- the Green Party, which was set up in November 2005. It is a political party whose goal is to

set up the framework necessary to unite all the environmental trends in the country (movements,

parties, alliances, companies and associations) in order to provide the society with an environmental

governing alternative for development and progress, fighting for parliamentary democracy and an

environmental administration of the country

74)

.

70)

Ibidem.

71)

Ibidem.

72)

Ibidem.

73)

P. Metanie, 2007. Manifestul Parti dului Ecologist Român [Romanian Ecologist Party Manifesto]. Available

from internet: .

74)

Statutul Partidului Verde [Green Party Statute]. 2009. A vailable from internet: erde.ro/

index.php?option=com_content&task=view&id=20&Itemi d=26>.

16

C. The right to be consulted in the process of decision making on environmental issues

The right to be consulted in the process of decision making on environmental issues is

stipulated in the current framework regulation on environment protection

75)

at article 5 letter c) as

“the right to be consulted in the process of decision making on the development of the environment

policy and legislation, the issuance of regulating documents in the field, the draw up of plans and

programs”; it is an embodiment of the “strategic elements” stipulated at article 3 letter h), “public’s

participation in decision making” and “means to implement” it as stipulated at article 4 letter p),

“the education and awareness of the public, as well as its participation in the decision making and

implementation process”.

This current framework regulation

76)

stipulates the following as a means to apply the right to be

consulted in the decision making process on environmental issues:

- “The central authority for environment protection has the following attributes and duties [...]

e) it creates its own information system and sets the terms and conditions that allow [...] the public’s

participation in decision on the environment” (article 75);

- “The competent authority [...] ensures [...] the public’s participation in decisions on specific

activities [...] The public’s consultancy is compulsory in the case of procedures to issue regulating

acts, under the applying legislation. The procedure for the public’s participation in decision making

is set through specific normative acts” (article 20 paragraphs 1 and 3).

D. The right to address administrative and legal authorities on environmental issues

The right to address administrative and legal authorities on environmental issues is stipulated in

the current framework regulation on environment protection

77)

at article 5 letter d) as “the right to

address, directly or through organizations for environment protection, the administrative and/or

legal authorities, as applicable, on environmental issues, regardless of whether damage was caused

or not”; it is an embodiment of the fundamental right to petition and the principle of free access to

justice as stipulated in the Constitution.

Thus, according to article 51 paragraphs 1-2 of the current Constitution, “citizens have the right

to address public authorities through petitions [...] Legally set up organizations have the right to

address petitions [...]”, and according to article 21 paragraph 1 of the Constitution, any person may

address the justice to defend its legitimate rights, freedoms and interests”.

E. The right to compensations for the incurred damage

The right to compensations for the incurred damage is stipulated in the current framework

regulation on environment protection

78)

at article 5 letter e) as the right to address, directly or

through organizations for environment protection, the administrative and/or legal authorities, as

applicable, on environmental issues, regardless of whether damage was caused or not; it is an

embodiment of the principle of “the polluter pays” stipulated in this regulation, at article 3 letter e)

and is applied in article 95 paragraph 1 of the same regulation, according to which “The liability for

the damage caused to the environment is objective [...] In case of several authors, the liability is

joint [...]”.

4.2. Duties of the State, of natural persons and legal entities for environment protection

The duties of the State, of natural persons and legal entities consider environment protection as

a major public interest objective and aim to achieve the two dimensions – human (individual) and

natural (collective) - of the right to a healthy and ecologically balanced environment.

75)

See supra note 15.

76)

Ibidem.

77)

Ibidem.

78)

Ibidem.

17

Thus, the current Constitution (article 135 paragraph 2) stipulates the duty of the State to ensure

“[...] d) the exploitation of natural resources in compliance with the national interest; e) the

reconstruction and protection of the environment, as well as the preservation of environmental

balance; f) the creation of the conditions necessary to increase the quality o life”.

Article 6 paragraph 1 of the current framework regulation on environment protection

79)

also

stipulates that “environment protection is the obligation and responsibility of the authorities of the

public central and local administrations, as well as of all natural persons and legal entities”, and

chapter XIV of the same regulation, “Attributes and duties”, outlines the attributes and duties of the

authorities for environment protection (article 75-79), or other central and local authorities (article

80-93), as well as the obligations of legal entities and natural persons (article 94) “[...] to which end:

a) they request and obtain the regulation acts, according to the provisions of this emergency order

and the subsequent legislation; b) abide by the terms of the obtained regulating acts; c) do not

operate installations whose emissions exceed the limits set under the regulating acts; d) the legal

entities carrying out activities with a significant impact on the environment organize their own

specialized structures for environment protection; e) assist authorized persons with activities of

check up, inspection and control, making available to them the evidence of their own measurements

and all the other relevant documents and facilitate the control of the activities whose owners they

are, as well as sampling; f) provide the access of authorized persons to check, inspect and control

the technological installations with an impact on the environment, the equipment and installations

of environment cleaning, as well as the spaces or the areas where they are located; g) implement, in

full and in due time, the measures imposed under the reports drafted by the persons authorized to

carry out activities of check, inspection and control; h) comply with the written decision to cease

activity; i) incur the cost implied by the repair of damage and remove the consequences caused by

it, restoring the conditions prior to the damage, according to the principle “the polluter pays”; j)

provide their own systems of supervision of technological installations and processes and for the

self-monitoring of polluting emissions; k) provide the results and report to the competent authority

for environment protection the results of the self-monitoring of polluting emissions, according to

the provisions of the regulating acts; l) inform the competent authorities, in case of accidental

releases of pollutants in the environment or of major accident; m) store waste of any type only in

the areas authorized in this respect; n) do not burn stubble, reed, bushes or herbal vegetation without

the consent of the competent authority for environment protection and without informing first the

public community services for emergency situations; o) apply the preservation measures set by the

public central authority for environment protection on the land and water areas envisaged as

conversation sites under the form of natural habitats which they manage and for their environmental

reconstruction; p) do not use dangerous baits during fishing and hunting activities, except for the

specially authorized cases; q) ensure the best living conditions, in compliance with the legal

provisions, for wild animals kept legally in captivity, under various forms; r) ensure the

implementation of measures to sanitize plots of land owned under any title, which are not

productively or functionally occupied, especially those located alongside road, rail and sea

communication channels; s) present their identity upon the express request of the inspection and

control staff stipulated in this emergency order”.

5. CEDO decisions which sanction Romania for the breach of certain Convention articles

referring to failure to observe the right to a healthy environment

As we specified above, the current domestic regulations are not able to provide satisfactory

solutions to the situation in which the State should be liable in case of failure to fulfill the

constitutional obligation to guarantee this fundamental right.

79)

Ibidem.

18

Thus, given the impossibility of national courts to solve disputes in the field, there are (and

there will be) situations in which Romania was (and will be) sanctioned by CEDO for the breach of

articles in the European Convention referring to the provision of a healthy environment.

Below we present such causes as examples.

A. The case Tătar v. Romania

In the case Tătar v. Romania (application 67021/01), the Court held unanimously that there had

been a violation of Article 8 of the European Convention on Human Rights (the right to respect for

private and family life and one’s home) on account of Romanian authorities’ failure to protect the

right of the applicants, who lived in the vicinity of a gold mine, to enjoy a healthy and protected

environment

80)

.

B. The case Băcilă v. Romania

In the case Băcilă v. Romania (application 19234/04), the Court held unanimously that there

had been a violation of Article 8 of the European Convention on Human Rights (right to respect for

private and family life and one’s home) on account of Romanian authorities’ failure to protect

victims of industrial pollution

81)

.

C. The case Brânduşe v. Romania

In the case Brânduşe v. Romania (application 6586/03) the Court held unanimously that there

had been

82)

:

- a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman

or degrading treatment) on account of Mr Brânduşe’s conditions of detention; and,

- a violation of Article 8 of the Convention (right to respect for private and family life and one’s

home) on account of the Romanian authorities’ failure to take the necessary measures to deal with

the problem of offensive smells coming from the tip.

Conclusions

As we mentioned above, it is desirable and necessary to expressly stipulate the right to a

healthy and ecologically balanced environment in the Constitution, but first there is need to create

the economic conditions to guarantee it.

Unfortunately, as in other situations, the Romanian lawgiver, under the pressure of harmonizing

national regulations with community ones (for the adhesion to the European Union) and considering

that a large part of the EU member states already have this right (in terms which are more or less

similar), hurried to stipulate this fundamental right in article 35 of the current Constitution.

No consideration was given to the potential consequences, which are quite delicate and which

have been generated by such recognition and express stipulation in the Constitution.

Therefore, in our opinion, the current domestic regulations cannot provide satisfactory solutions

to the situation in which the State should be liable in case of failure to fulfill the obligations

stipulated in this article.

80)

European Court of Human Right. 2009. Press release issued by the Registrar on 27.01.2009, Chamber

judgment, T ătar v. Rom ania (application 67021/01). Available fr om internet: echr.coe.int/

tkp197/view.asp?item=3&portal=hbkm&action=html&highli ght=67021/01&sessionid=76409276&skin=hudoc-pr-en>.

81)

European Court of Human Right. 2010. Press release issued by the Registrar on 30.03.2010, Chamber judgment,

Băcilă v. Romania (application 19234/04). Available from internet: < http://cmiskp.echr.coe.int/tkp197/view.asp?

item=4&portal=hbkm&action=html&highlight=19234/04&sessi onid=76409548&skin=hudoc-pr-en>.

82)

European Court of Human Right. 2009. Press release issued by the Registrar on 07.04.2009, Chamber judgment,

Brânduşe v. Romania (application 6586/03). A vailable from internet: echr. coe.int/tkp197/view.asp?

item=1&portal=hbkm&action=html&highlight=6586/03&ses sionid=76409823&skin=hudoc-pr-en>.

19

But, since it is impossible for the national courts to solve potential disputes, the procedures

stipulated in international instruments to protect a recognized but unobserved fundamental right will

apply.

However, the recognition and constitutional provision of this right increase the obligations of

public institutions, but also of the other natural persons and legal entities, to protect the environment

and, at the same time, make available new means to repair environmental damage and to sanction

negative impacts on the environment.

References

Abreu Ferreira, de S. (2007). Fundamental Environmental Rights in EU Law. http://www.inter-

disciplinary.net/ptb/ejgc/ejgc6/Ferreira%20paper.pdf.

Borges Coelho, S. (2001). Environmental protection and the Right to Health. http://www.

iadllaw.org/files/Environmental%20protection%20and%20the%20right%20to%20health%20by%2

0Sonia%20Borges%20Coelho_0.pdf.

Bulgarian Grand National Assembly (1991). Republic of Bulgaria Constitution (revised 2007).

http://www.online.bg/law/const/const2.htm.

Council of Europe (1950). CETS no. 005, Roma Convention for the Protection of Human Right

and Fundamental Freedoms, as amended by Protocols no. 11 and 14. http://conventions.coe.

int/treaty/en/Treaties/Word/005.doc.

Council of Europe (1993). Lugano Convention on Civil Liability for Damage Resulting from

Activities Dangerous to the Environment. http://conventions.coe.int/treaty/en/treaties/html/150.htm.

Council of Europe (2006). Manual on human rights and the environment: principles emerging

from the case-law of the European Court of Human Rights. Strasbourg: Council of Europe

Publishing.

Council of Europe, Committee of Ministers, Ministers’ Deputies (2010). CM/AS

(2010)Rec1883-1885, “The challenges posed by climate change” - Parliamentary Assembly

Recommendation 1883 (2009) and “Drafting an additional protocol to the European Convention on

Human Rights concerning the right to a healthy environment” - Parliamentary Assembly

Recommendation 1885 (2009), Joint reply adopted by the Committee of Ministers on 16 June 2010

at the 1088th meeting of the Ministers’ Deputies. https://wcd.coe.int/wcd/ ViewDoc.jsp?Ref=CM/

AS(2010)Rec1883-

1885&Language=lanEnglish&Ver=final&Site=CM&BackColorInternet=DBDCF2&BackColorIntr

anet=FDC864&BackColorLogged=FDC864.

Council of Europe, Parliamentary Assembly (1999). Recommendation 1431 “Future action to

be taken by the Council of Europe in the field of environment protection”.

http://assembly.coe.int//Main.asp?link=http://assembly.coe.int/Documents/AdoptedText/ta99/erec1

431.htm#1.

Council of Europe, Parliamentary Assembly (2003). Recommendation 1614 “Environment and

human rights”.

http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1614.htm.

Council of Europe, Parliamentary Assembly (2009). Recommendation 1862 “Environmentally

induced migration and displacement: a 21st-century challenge”. http://assembly.coe.int/

Main.asp?link=/Documents/AdoptedText/ta09/EREC1862.htm.

Council of Europe, Parliamentary Assembly (2009). Recommendation 1883 “Challenges posed

by climate change”. http://assembly.coe.int/Main.asp?link=/Documents/ AdoptedText/

ta09/EREC1883.htm.

Council of Europe, Parliamentary Assembly (2009). Recommendation 1885 “Drafting an

additional protocol to the European Convention on Human Rights concerning the right to a healthy

environment”.

http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta09/EREC1885.htm.

20

Danish Parliament (1997). Danish Environmental Protection Act no. 625 of July 15 (amended

1998). http://www.lexadin.nl/wlg/legis/nofr/eur/arch/den/epa.doc.

DicŃionarul explicativ al limbii române [Explanatory Dictionary of Romanian Language]

(1998). Bucureşti: Universul Enciclopedic.

Dictionnaire Hachette Encyclopedique [Hachette Enciclopedic Dictionary] (2001). Paris:

Hachette Livre.

DuŃu, M. (1998). Dreptul mediului. Tratat [Environmental Law. Treaty], Bucureşti: Editura

Economică.

European Court of Human Right (2009). Press release issued by the Registrar on 27.01.2009,

Chamber judgment, Tătar v. Romania (application 67021/01). http://cmiskp.echr.coe.

int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=67021/01&sessionid=7640927

6&skin=hudoc-pr-en.

European Court of Human Right (2009). Press release issued by the Registrar on 07.04.2009,

Chamber judgment, Brânduşe v. Romania (application 6586/03). http://cmiskp.echr.coe.int/

tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=6586/03&sessionid=76409823&s

kin=hudoc-pr-en.

European Court of Human Right (2010). Press release issued by the Registrar on 30.03.2010,

Chamber judgment, Băcilă v. Romania (application 19234/04). http://cmiskp.echr.coe.int/

tkp197/view.asp?item=4&portal=hbkm&action=html&highlight=19234/04&sessionid=76409548&

skin=hudoc-pr-en.

Government of the Kingdom of Belgium, Government of the Grand Duchy of Luxembourg,

Government of the Kingdom of the Netherlands (1982). Benelux Convention on Nature

Conservation and Landscape Protection. http://www.ecolex.org/server2.php/libcat/docs/

TRE/Multilateral/En/TRE000757.txt.

Guvernul României (2005). OrdonanŃa de UrgenŃă nr. 195 din 22 decembrie 2005 privind

protecŃia mediului [Romanian Emergency Ordinance no. 195 of 22 December 2005 on

Environmental Protection]. publicată în „Monitorul Oficial al Romîniei”, partea I, nr. 1196 din 30

decembrie 2005. http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=61631.

Hungarian National Assembly (1949). The Constitution of the Republic of Hungary (revised

2011). http://www.mkab.hu/index.php?id=constitution.

Iancu, G. (1998). Drepturile fundamentale şi protecŃia mediului [Fundamental Rights and

Environment Protection]. Bucureşti: R.A. Monitorul Oficial.

IoniŃă, G.-I. (2004). ProtecŃia şi dreptul mediului [Protection and Environmental Law].

Universul Juridic, Bucureşti.

IoniŃă, G.-I. (2010). Dreptul protecŃiei mediului [Environmental Protection Law]. Bucureşti:

Universul Juridic.

Karim Ahmed, A. (2003), Environmental Protection, Public Health and Human Right - An

Integrated Assesment.

http://www.centerforabetterlife.com/eng/reports_studies/pdf/EnvProtection_PubHealth.pdf?-

session=user_pref:42F947591175503936jkol161962.

Le Petit Larousse Ilustré [Little Larousse Illustrated] (1990). Paris: Cedex.

Marea Adunare NaŃională a României (1973). Legea nr. 9 din 20 iunie 1973 privind protecŃia

mediului înconjurător [Romanian Law no. 9 of 20 June 1973 on Environmental Protection].

publicată în „Buletinul Oficial” nr. 91 din 23 iunie 1973. http://www.cdep.ro/pls/legis/legis_

pck.htp_act?ida=15651.

Marinescu, D. (1996). Dreptul mediului înconjurător [Environmental Law], ediŃia a III-a.

Bucureşti: Casa de editură şi presă “Şansa” SRL.

Metanie, P. (2007). Manifestul Partidului Ecologist Român [Romanian Ecologist Party

Manifesto]. http://peroman.wordpress.com/manifestul-partidului-ecologist-roman/.

21

Mocanu, L., Mastacan, O. (2009). ConstituŃionalizarea dreptului la un mediu sănătos în

România [Constitutionalisation the Right to a Healthy Environment in Romania]. Studii de drept

românesc no. 3 (iulie-septembrie 2009): 219-225. http://www.rsdr.ro/Art-2-3-2009.pdf.

Moldovan Parliament (1994).

The Constitution of Republic of Moldova. http://www.

parlament.md/CadrulLegal/Constitution/tabid/151/Default.aspx.

Muraru, I. (1998). Drept constituŃional şi instituŃii politice [Constitutional Law and Political

Institution]. ediŃia a VIII-a, Bucureşti: Editura Actami,

Organization of African Unity (1981), Nairobi African Charter on Human and People’s Right,

http://treaties.un.org/untc//Pages//doc/Publication/UNTS/Volume%201520/volume-1520-I-26363-

English.pdf.

Parlamentul României (1995). Legea protecŃiei mediului nr. 137 din 29 decembrie 1995

[Romanian Law on Environmental Protection no. 137 of 29 December 1995]. republicată în

„Monitorul Oficial al Romîniei”, partea I, nr. 10 din 17 februarie 2000. http://www.cdep.ro/

pls/legis/legis_pck.htp_act?ida=6749.

Portuguese Constituent Assembly (1976). Constitution of the Portugueze Republic (revised

2005). http://www.parlamento.pt/Legislacao/Documents/Constitution7thRev2010EN.pdf.

Prieur, M. (2004). Droit de l’homme à l’environnement et développement durable.

http://www.francophonie-durable.org/documents/colloque-ouaga-a5-prieur.pdf.

Romanian Constituent Assembly (1991). Constitution of Romania. published in the Official

Gazette of Romania, no. 233 of 21 November 1991. http://www.cdep.ro/pdfs/constitutie_en.pdf.

Romanian Legislative Council (2003). Romanian Constitution (revised 2003). published in the

Official Gazette of Romania no. 767 of 31 november 2003. http://www.cdep.ro/pls/dic/

site.page?id=371.

Russian State Duma (1993). The Constitution of the Russian Federation. http://www.

constitution.ru/ en/10003000-01.htm.

Serres, M. (2008). Le droit peut sauver la nature. Pouvoirs 127: 5-12.

Shelton, D. (2002). Human Rights, Health & Environmental Protection: Linkages In Law &

Practice. A Background Paper for the World Health Organization, Health and Human Rights.

Working Paper Series No 1. http://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdf.

Sion, I. G. (1990). Ecologie şi drept internaŃional [Ecology and International Law]. Bucureşti:

Editura ŞtiinŃifică şi Enciclopedică.

Spanish Cortes Generales (1978). Spanish Constitution (revised 1992), http://www.senado.es/

constitu_i/indices/consti_ing.pdf.

Statutul Partidului Verde [Green Party Statute] (2009). http://www.partidulverde.ro/index.

php?option=com_content&task=view&id=20&Itemid=26.

Swedish Risksdag (1977). Instrument of Government (amended in 2010).

http://www.riksdagen.se/templates/R_PageExtended____6309.aspx.

Truşcă, P., Truşcă Trandafir, A. (20090. Dreptul fundamental al omului la un mediu sănătos în

jurisprudenŃa CEDO [The Right to a Halthy Environment in the ECHR jurisprudence], Revista

Transilvană de ŞtiinŃe Administrative 1 (23)/2009: 97-120. http://www.rtsa.ro/files/RTSA%

201(23)%202009%20-%207Trusca.pdf.

Turkish Grand National Assembly (1982). Turkey Constitution (revised 2007).

http://www.servat.unibe.ch/icl/tu00000_.html.

United Nation (1972). Stockholm Declaration of the United Nations Conference on the Human

Environment.

http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503.

United Nation (1992). A/CONF.151/26 (Vol. I). Report of the United Nation Conference on

Environment and Development (Rio de Janeiro, 3-14 June 1992), Rio Declaration on Environment

and Development. http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.

22

United Nation (2000). A/RES/55/2. New York United Nation Millenium Declaration.

http://www.un.org/millennium/declaration/ares552e.pdf.

United Nation (2002). A/CONF.199/20. Report of the World Summit on Sustainable

Development (Johannesburg, 26 August - 4 September 2002). http://www.unctad.

org/en/docs/aconf199d20&c1_en.pdf.

United Nation (2012). RIO+20, United Nations Conference on Sustainable Development.

http://www.uncsd2012.org/rio20/index.php?menu=14.

United Nation Economic Comision for Europe (1998). Aarhus Convention on Access to

Information, Public Participation in Decision-making and Access to Justice in Environmental

Matters. http://live.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.

Verdú Baeza, J. (2009). Toward a right to the environment in Europe: Noise and jurisprudence

of the European Court of Human Rights. Bulletin of Transilvania University of Braşov, vol. 2 (51)-

2009, Series VII: 219-226. http://but.unitbv.ro/BU2009/BULETIN2009/ Series%20VII/

BULETIN%20VII%20PDF/219%20jesus%20verdu%20%20BUT%202009.pdf.