In Europe, there exists human rights regional protection, through states joining the Council of Europe, thus signing up to the European Convention on Human Rights and Fundamental Freedoms 1950 (the Convention). Currently, 47 countries are members of this Council and, therefore, obliged to comply with the Articles set out in the Convention and its additional Protocols. There is no right to a clean environment expressly spelt out in these legal documents.
Any disputes over the Convention’s interpretation can ultimately be brought before its dispute-resolution mechanism, the European Court of Human Rights (the Court). Cases have been brought by individual applicants to the Court, claiming they have a right to a clean environment and that it has been violated. How have they done this?
The Convention explicitly guarantees a right to life, to be free from torture, inhuman and degrading treatment. The right to respect for one’s private life and home is enshrined in Article 8, the right to property in the Convention’s First Protocol. All of these have come into play in arguments brought before the Court. Following a range of disputes, including ones over aircraft noise pollution and chemical factory emissions, the Court has concluded that there is no environmental human right and that any individual applicant may only seek assistance through Article 8 if they are directly and seriously affected by any noise or pollution (Hatton v the UK). Further, the Court has granted a wide discretion to member states, known as the interpretive principle of margin of appreciation, in striking a fair balance between the applicant’s enjoyment of his or her respect for private and home life, and the interests of the community.
Instead of allowing human rights to become paramount and to trump other interests, as American Ronald Dworkin or German Jürgen Habermas, both eminent legal and political philosophers, would require, the Court has used a balancing exercise, critically analysed by Professor Steven Greer, in the context of a debate between Habermas and his countryman Robert Alexy. Greer argues that the case law from the Court is ‘unprincipled and confused’, largely because it has failed to give priority to rights, too often finding refuge in the margin of appreciation and balancing as substitutes.
In the UK, we now have the Human Rights Act 1998 (the HRA), which makes the Convention directly applicable to any parties bringing cases to court in the UK. In a variety of cases in English courts, the question of a right to a clean environment has, again, raised its head. On reviewing these cases – flooding to residential property, noise from military aircraft, planning-control reviews – it seems the courts here are not making their decisions on the basis of balancing or on rights trumping. Instead, their decisions rest on statutory regulation and the English common law system, with the HRA taking a subsidiary or peripheral role. The evidence, in the context of any substantive right to a clean environment, seems to veer away from finding its existence in law, and towards interpretation to produce the cleanest fit with UK parliamentary wishes and, procedurally, to ensure compliance with schemes and regulatory bodies’ rules.
A human right to a clean environment is expressly contained as a legal provision in African and Inter-American human rights regional protection. For example, the African Charter on Human Rights and Peoples’ Rights Article 24 states that everyone shall have a right to a general satisfactory environment favourable to their development. Further, landmark declarations have provided for the existence of such a right: we see in the 1972 Stockholm Declaration a pledge giving the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing. In addition, humankind is stated to have a duty to protect and improve the environment for present and future generations. The 1992 Rio Declaration declared the existence of a human entitlement to a healthy life in harmony with nature. High ideals! But these documents are soft law; they contain very few principles which are binding, enforceable law.
Just because there is stated to be no legal right to a clean environment at European Court of Human Rights and in English courts, this does not mean it cannot be argued to exist on the basis of moral or natural-law arguments, waiting to be uncovered, realised and brought to fruition through legal standing. So, there may well be a human right to a clean environment morally, but it is not explicitly granted in legal form in the Convention or in the English courts. These are big issues and more will follow on these in later articles and blogs.
For fuller discussion and full references, see M Fitzmaurice and J Marshall ‘The Human Right to a Clean Environment – Phantom or Reality? The European Court of Human Rights and English courts’ perspective on balancing rights in environmental cases’ (2007), Nordic Journal of International Law 76:103–151