Towards a right to the environment in europe: noise and jurisprudence of the european court of human rights

• Author: Jesús Verdú Baeza
• Position: Associate Professor Of Public International Law And International Relations At The University Of Cadiz
• Pages: 219-226

Page 219

1. Introduction

If in recent decades, during the rapid creation of international environmental law, a general principle has been gradually devised that establishes a general duty of the Member States to protect the environment, quoted in certain regional legal instruments [1] and clearly declared in article 192 of the United Nations Convention on the Law of the Sea [2], what is certain is that we are still very far from being able to conclusively confirm the existence of appropriate measures that protect man's right to the conservation of the environment in order that we may enjoy a high quality of life.

In international instruments of certain importance, such as the Stockholm Declaration of 1972 [3], we are able to find references stating that "man has the fundamental right to adequate conditions of life in an environment of quality", but they are no more than programmatic statements, commonly heard when talking about protecting the environment, but not providing subjective rights to those people that are potentially affected by specific interferences to the environment in which they live to such an extent that they invoke that right before administrative and legal bodies that may be able to provide help.

It is also true that the so-called latest Declarations of Rights, as well as including traditional fundamental rights, also include new rights that open up interesting points of view and developments. In this sense, with regards to Europe we must give special mention to the Charter of the Fundamental Rights of the European Union [4] or Charter of Nice [5], which is generally positive as regards the political and dogmatic contribution to the creation and development of fundamental rights, but uncertain as to itsPage 220legal efficiency, and whose future is closely tied to the Lisbon Treaty. Article 37 of this instrument includes the protection of the environment [6], but doubts concerning the Charter coming into force and its true impact on EU law make it necessary to stay cautious.

This study aims to discuss the importance of jurisprudence in European courts in the design of a specific category of fundamental right to the environment, through the wide interpretation of existing texts, which has taken shape around the problem of noise. Despite certain developments in the European Court of Justice [7], it is in the European Court of Human Rights where a development really worth mentioning has been reached. With respect to noise pollution, a specific category of fundamental right has been being created that, although technically linked to the right to inviolability of the home, could emerge as the basis for a specific right: the right to the environment.

2. Noise, the European Convention on Human Rights and the European Court of Human Rights

Traditionally, the protection of citizens against noise pollution has not been a subject of great priority for the administrations, when to our understanding it is an element of great importance for people's quality of life and health. In its fight against noise pollution, the European Union has established a common approach aimed at preventing or reducing the damaging effects of being exposed to environmental noise. The key regulation is the Directive 2002/49/CE of the European Parliament and of the Council of 25 June 2002, relating to the assessment and management of environmental noise [8]. However, administrative proceedings aimed at preventing the effects of noise pollution have not traditionally been very efficient or top priority in the majority of European States.

In this respect, we would like to highlight the very interesting jurisprudential line of the European Court of Human Rights, which considers noise interference in a private home to be a violation of a fundamental right. Consequently, in the ruling of the case known as Moreno Gómez v. Spain [9], the Court considered there to have been a violation of article 8 of the European Convention on Human Rights [10], as a result of the respondent State not having provided the appropriate support to the appellant in order to protect her home against the noise emissions that prevented her from enjoying her right to peace [11].

This interesting interpretation of the European Convention on Human Rights, relating to the protection of respect for private life and the home that is the indirect protection of rights that are not specifically recognised in the Convention, expanding the protection of the right to the environment [12], is not new. It began with a judgments, also against Spain, in the case López Ostra v. Spain [13]. All things considered, the Court establishes that the violations of the right to respect for the home are not only those of a material or physical nature, such as the entry of an unauthorised person into the home, but they are also attacks that are neither material nor physical, such as noises, emissions, smells and other interferences. If the attacks are serious they can deprive someone of their right to respect for the home, because they are prevented from enjoying being there.

The Court had already had the opportunity to make a declaration with respect to the specific subject that we are dealing with: noise pollution and the problems affecting those living in the proximity of an airport, in a case against the United Kingdom [14]. The case isPage 221Powell and Rayner v. United Kingdom, which was a ground breaking...