HUMAN RIGHTS AND ENVIRONMENTAL

A BRIEF OVERVIEW

Human Rights are part of EU law• Nold 4/73 [1974] ECR 491, §13 • When protecting fundamental rights, "the Court

…. cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States."

• The Court can also draw on international human rights treaties to which Member States have collaborated or are signatories.

European Convention on Human Rights

• According to Article 6(2) of the EU Treaty,11 ‘[t]he Union shall respect fundamental rights as guaranteed by the [ECHR]’.

• EU is a party to the ECHR

Lisbon 12/1/2009

• The Charter of Fundamental Rights of the European Union applies to member states when they are implementing EU law

• The Fundamental Rights' Charter has the same legal value as the European Union Treaties.

• Opt outs for UK , Poland and Czech Republic

Some relevant articles in Charter• Article 37• Environmental protection• A high level of environmental protection and the improvement of the quality of the environment

must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Article 2

• Right to life• 1. Everyone has the right to life.• 2. No one shall be condemned to the death penalty, or executed.• Article 3• Right to the integrity of the person• 1. Everyone has the right to respect for his or her physical and mental integrity.• 2. In the fields of medicine and biology, the following must be respected in particular:• - the free and informed consent of the person concerned, according to the procedures laid down

by law,• - the prohibition of eugenic practices, in particular those aiming at the selection of persons,• - the prohibition on making the human body and its parts as such a source of financial gain,• - the prohibition of the reproductive cloning of human beings.• Article 7• Respect for private and family life• Everyone has the right to respect for his or her private and family life, home and communications.

Background to the ECtHR• The ECtHR is an international treaty

guaranteeing fundamental human rights and freedoms.

• 47 States are party to it

• It is part of EU law since Lisbon

• It contains a number of provisions guaranteeing various human rights.

Some States

• Have actually incorporated the Charter into their domestic laws as well so that their domestic laws must respect the rights in it. For example, Ireland and UK

Three courts• In the EU, three courts can deal with human

rights • The European Court of Human Rights in

Strasbourg• The ECJ and the General Court in Luxembourg• But their competencies are different although

they may overlap.• Also standing to sue is different in the different

courts. Individuals rarely sue in ECJ. They can sue in Ect HR if they have exhausted local remedies

Effect of decisions

• Decisions made by the European Court of Human Rights are not legally binding on national courts, although they will be taken into account by these courts. Decisions of the Court of Justice are legally binding on all national courts

Developments in the Planning/Environmental Context

• The following Convention rights are the most relevant in the context of environmental and land use law:

– Substantive guarantees:

• Article 1 of the First Protocol – property rights• Article 2 – right to life• Article 8 – right to respect for private and family life

– Procedural guarantees:

• Article 6 – fair procedures• Article 14 – prohibition on discrimination

• So far Article 8 and Article 6 seem to be of the greatest significance in this context.

Article 1, First Protocol provides:

• “Every natural and legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

• The preceding provisions shall not however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

European Ct of Human Rights

• Art.1, First Protocol applies both to the use of land and the ownership of land.

• State enjoys a wide margin of discretion to interfere

• and measures interfering with them in the interests of social justice will be considered as being in the public interest. 

• Sporrong and Lonnroth v Sweden• Disproportionate interference violates Art1

Immobiliare Saffi v Italy,

• Failure to enforce a landlord’s rights to recover his apartment over 11 years.

• Held - the lengthy delay imposed an excessive burden on the applicant. The court also held that enforcement of a judgment is part of the “trial” and cannot be unduly delayed, otherwise there could be a violation of Art.6(1) (fair procedures). 13 years to get possession!

Revocation of an environmental authorisation

• In Re Mineral Resources (Environmental Agency v Stout)  the English High Court was prepared to regard a waste management licence as property. The suspension or revocation of such licences could therefore be regarded as affecting property rights and the question might arise whether or not this was a proportionate regulatory action and whether compensation should be payable for interfering with such a property right in appropriate cases.

Ethical objections and CPO

• In Chassagnou v France  a French law requiring landowners with ethical objections to hunting to allow hunts over their lands was condemned as disproportionate.

• Papachelas v Greece the court held that compensation payable when land is compulsorily acquired for roads must bear a reasonable relationship to its market value.

Article 2 (the right to life)

• Article 2 provides:• “Everyone’s right to life shall be protected by

law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

• 1985 Sixth Protocol abolishes death penalty

Right to life

• A public authority which has information indicating dangers to the life or health of the population in a locality, might find itself liable for breach of Art.2 if it does not act on such information and inform persons who may suffer damage to their health

• Eg: Water Supplies Act duty to inform public

Guerra duty to provide information

• In Guerra, a failure by a local authority to inform the local population of potential risks from a chemical plant was held to be a breach of Art.8 (right to respect for private and family life) but a minority in Guerra further held that Art.2 had also been violated. Walsh J. considered that Art.2 guaranteed a right to bodily integrity which had been infringed because the local population had suffered some cancer-related deaths connected with emissions from the factory. Jambreck J. observed that if a government withholds information about circumstances which, foreseeably and on substantial grounds, presented a real risk of danger to health and physical integrity, this could be a violation of Art.2. Note that the duty in Guerra arose even where the complainants were unable to prove that actual damage had been caused to them. The toxic history of the chemical plant combined with the Government’s tardy provision of what the Court considered to be information of grave importance was sufficient to show that the Government was in breach of its duty to the applicants. Minority opinion said right to bodily integrity also infringed (Art 2.)

Onerylidiz v Turkey

• Right to life infringed by appalling landfill.

• Relatives of victims of Art.2 breaches have a right to adequate and timely compensation

Illegal buildings

• Antonetto v Italy  the ECtHR held that the plaintiff’s right to the peaceful enjoyment of her possessions had been infringed when Italian authorities persistently refused to enforce a court order to demolish an illegally-built building which obstructed her right to light and her view and devalued her property. The court found that her rights under Arts 6 and 1 of Protocol 1 had been infringed. Her property rights were violated because the lack of effective enforcement meant her property had suffered a loss of amenity and a decrease in value.

Article 8 – doctrine of environmental human rights

• Article 8(1) – ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

• Article 8(2) – ‘There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and as is necessary in the interests of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

• Case law under Article 8 indicates that the State is under a double barrelled duty to provide:

– Environmental Protection– Environmental Information

Powell and Raynor v UK (ECtHR 1990)

• Applicants argued that noise pollution from Heathrow airport violated their rights to protection for family and private life under Art.8.

• Held although Art.8(1) had been breached, the interference was not disproportionate and could be justified under A.8(2) as it was essential for the UK’s economy to have a world class airport close to London’s centre.

• In striking a balance between A.8(1) and A.8(2) states allowed a wide margin of appreciation.

• The fact that the UK authorities had taken all reasonable measures to minimise the disturbance and had complied with international standards was a factor that weighed strongly in their favour .

• Applicants lost but the UK had to really defend how it had planned Heathrow

Lopes Ostra v Spain (ECtHR, 1995)

• Leading case – first where applicants won.• Applicants home was located a mere 12m from a waste

treatment facility.• Family forced to move from home as a result of smells

and nuisance.• ECtHR held that Art.8 was applicable.• Accepted that States have a wide margin of appreciation

within which they can operate but nonetheless found that the balance between the competing interests of the individual and the community had not been properly struck.

• Here national law had not been complied with but the Court held that even if it had A.8 would still have been breached.

So what does all of this mean?• Hart summarises the position as follows – ‘a duty might

therefore apply to an environmental authority, including a planning authority, which identifies some significant hazard whilst exercising its responsibilities and does not do enough either to minimise environmental damage or to make those likely to be affected aware of the dangers.’

• This double-barrelled duty supplements previous existing remedies under statute, common law and the constitution.

• New avenue of challenge in some EU domestic courts .• Particularly relevant with regards to the location of waste

treatment facilities, incinerators, contaminated land/water,radio, TV and mobile phone masts.

Article 6

• ‘In the determination of his civil rights…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

Step 1: ‘Civil rights’• Within the planning and environmental context, whose rights may be

classified as ‘civil rights’?

• Developer – are his civil rights at stake?Benthem v The Netherlands – Yes

• Third party objectors – are their civil rights at stake?Zander v Sweden – Yes

However, the connection between the third party and the development must not be too tenuous – see Tauira & Others v France

Step 2: ‘a fair hearing before an independent and impartial tribunal’

• Given that the environmental authorisation systems generally involves the determination of a civil right, the procedures and structures in place must comply with the requirements of fairness, impartiality and independence laid down in Article 6.

• The English planning system has come under much scrutiny in this regard.

:

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

A unique level of oversight...or interference?

Art 13 Effective remedies

Effective remedy claims

E.g. effective remedy for length-of-proceedings claims

• Abramiuc v. Romania, 37411/02 [2009] ECHR 116: absence of effective remedies for length-of-proceedings claims;

• Martins Castro and Alves Correia de Castro v. Portugal No. 33729/06 [2008] ECHR 109: ineffectiveness of length-of-proceedings remedy owing to lack of compensation for non-pecuniary damage.

Budayeva v. Russia

• Dam < mudslides• Assistance, but no inquiry or

enforcement...

The authorities failedto discharge the positive obligation to establish a legislative and administrative framework to deter threats to the right to life required as required by the substantive aspect of art 2 (right to life)

European Social Charter

• Marangopoulos Foundation for Human Rights (MFHR) v Greece a Greek environmental NGO complained to the Committee that a Greek lignite mining company of which the State was the majority shareholder had violated, inter alia, the right to protection of health in Article 11 of the Charter

Right to healthy environment

the right to health included the right to a healthy environment

Article11 had been violated by Greece which had not enforced national or international environmental protection legislation effectively, had not monitored the pollution from the mine and had not ensured that its environmental inspectorate was properly equipped to carry out its task.