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
SUMMARY

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”.

 
CONTENT
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:
<http://www.iadllaw.org/files/Environmental%20protection%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: <http://www.centerforabetter life.com/ eng/reports_studies/pdf/ EnvProtection_PubHealth.pdf?-
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: <http://www.ecolex.org/server2.ph p/libcat/docs/TRE/Multilateral/En/TRE000757.txt>.
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: <http://conventions.coe.
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: <http://www.cdep.ro/pls/legis/legis_
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: <http://www.cdep.ro/pls/legis/legis_
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: <http://www.cdep.ro/pls/legis/legis_pck.htp_act? ida=61631>.
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 presăŞansa” 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: <http://www.cdep.ro/pls/dic/site.page?id=371>.
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: <https://wcd.coe.int/wcd/
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: <http://www.unep.org/Documents .Multilingual/Default.asp?documentid=97&articleid=1503>.
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: <http://www.un.org/documents/ga/conf151/aconf1512 6-1annex1.htm>.
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:
<http://www.un.org/millennium/declaration/ares552e.pdf>.
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:
<http://www.unctad.org/en/docs/aconf199d20&c1_en.pdf>.
29)
M. Prieur, 2004. Droit de l’homme à l’environnement et développement durable. Available f rom internet:
<http://www.francophonie-durable.org/documents/colloque- ouaga-a5-prieur.pdf>.
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: <http://www.uncsd2012.org/rio20/index.php?me nu=14>.
32)
Organizati on of African Unity. 1981, Nairobi African Charter on H uman and People’s Right, Available from
internet: <http://tre aties.un.org/untc//Pages//doc/Publication/UNTS/Volume%201520/volume-1520-I-26363-English.
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:
<http://live.unece.org/fileadmin/DAM/env/pp/documents/ce p43e.pdf>.
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:
<http://conventions.coe.int/treaty/en/Treaties/Word/005.doc >.
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: <http://www.rtsa.ro/files/RTSA%201(23)%202009%20-%207Trusca.p df
>; S. de Abreu Ferreira, 2007. Fundamenta l Enviro nmental Rights in EU Law. Available from internet:
<http://www.inter-disciplinary.net/ptb/ejgc/ejgc6/Ferreira%20pa per.pdf>.
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:
<http://but.unitbv.ro/BU2009/BULETIN2009/Series%20VII/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:
<http://assembly.coe.int//Main.asp?link=http://assembly.coe .int/Documents/AdoptedText/ta99/erec1431.htm#1>.
38)
Council of Europe, Parliamentary Assembl y. 2003. Recommendation 1614 “Environment a nd human rights”.
Available from internet: <http://assembly.coe.int/Main.as p?link=/Documents/AdoptedText/ta03/EREC1614.htm>.
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: <http://assembl y.coe.int/ Main.asp?link=/
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:
<http://assembly.coe.int/Main.asp?link=/Documents/Adopte dText/ta09/EREC1885.htm>.
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: <http://www.who.int/hhr/Series_ 1%20%20Sheltonpaper_rev1.pdf>.
46)
Portuguese Constit uent Assembly. 1976. Constitution of the Portugueze Republic (re vised 2005). Available
from internet: <http://www.parlamento.pt/Legislacao/Doc uments/Constitution7thRev2010EN.pdf>.
47)
Spanish Cortes Generales. 1978. Spanish C onstitution (revised 1992), Available from internet:
<http://www.senado.es/constitu_i/indices/consti_ing.pdf>.
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:
<http://www.servat.unibe.ch/icl/tu00000_.html>.
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: <http://www.mkab.hu/index.php?id=consti tution>.
51)
Russian State Duma 1993. The Constitution of the Russian Federation. Available from internet:
<http://www.constitution.ru/en/10003000-01.htm>.
52)
Moldovan Parliament. 1994.
The Constitution of Republic of Moldova. Available fr om internet:
<http://www.parlament.md/CadrulLegal/Constitution/tabid/ 151/Default.aspx>.
53)
Swedish Risksdag. 1977. Instrument of Government (amended in 2010). A vailable from i nternet:
<http://www.riksdagen.se/templates/R_PageExtended__ __6309.aspx>.
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: <http://www.lexadin.nl/wlg/legis/nofr/eur/arch/ den/epa.doc>.
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: <h ttp://www.cdep.ro/pdfs/constitutie_en.pdf>.
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: <http://drept.ucv.ro/RSJ/Articole/ 2006/RSJ4/B02DiaconuMatei.pdf>.
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: <http://www.coe.int/t/dg4/cultureheritage/ 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: <http://peroman.wordpress.com/manifestul-pa rtidului-ecologist-roman/>.
74)
Statutul Partidului Verde [Green Party Statute]. 2009. A vailable from internet: <http://www.partidul verde.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: <http://cmiskp.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: <http://cmiskp.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.
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