The Aarhus Convention represents a “giant step for-ward”13in the quest to strengthen citizens’ environmental rights. The objective of the Aarhus Convention is found in its first article. Article 1 states:
“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.”
While referring to the right to a healthy environment, the Aarhus Convention deals primarily with the mostly pro-cedural rights of access to information, access to decision-making and access to justice. Article 1 instructs parties in how to take steps to guarantee the basic right of present and future generations to live in an environment adequate to health and well-being. In so doing, it establishes the linkage between practical, easily understandable rights, such as those relating to information and decision-making, and the more complex collection of rights included in the right to a healthy environment.14
Article 1 also concretises the role of the state in helping to reach this goal. Under the framework of the Aarhus Convention, it is up to the party to provide the necessary administrative, legal and practical structures to guarantee the rights of access to information, public participation in decision-making and access to justice in environmental matters. This represents a new approach to the role of the state. Instead of solving all of society’s problems itself, the state acts as a sort of referee in a process involving larger social forces, leading to a more organic and complete result. According to this view, once transparent and fair processes have been worked out, the main role of the state is to provide the necessary guarantees to maintain the framework. The Aarhus Convention provides a set of min-imum standards to parties to guide them in how to protect the right to a healthy environment.
The main mechanism for guaranteeing the rights con-tained in the Convention is the access to justice pillar. By backing up the procedural and substantive rights concern-ing access to environmental information and public partic-ipation in environmental decision-making with legal, insti-tutional and other guarantees, parties will provide the structure for discharging their responsibility to help people
to overcome the significant current challenges to achieve sustainable development.
Both the right to a healthy environment and the proce-dural rights in the Aarhus Convention are constantly evolv-ing. It is important, therefore, to place the Convention in the context of the changing shape of the right to a healthy environment, as well as the developing international law on sustainable development.
Several reference points are found in the Convention’s preamble, including the Stockholm Declaration, the Rio Declaration, the World Charter for Nature, and others.15 While the right to a healthy environment was recognised earlier in other regions of the globe, the Aarhus Convention appears to be the first hard-law text to recog-nise the rights of future generations. The International Court of Justice has used similar language in recognising that the very health of generations yet unborn is represent-ed by the environment.16The Aarhus Convention takes this jurisprudential recognition a step further and moulds it into an international legal instrument. The three pillars that make up the fundamental structure of the Convention are essential to the achievement both of the right to a healthy environment, and also, no less important, of the possibility for individuals to fulfil their responsibilities towards others, including future generations.
Nowhere are these connections made more apparent than in actual cases. Perhaps the most well-known of such cases is the case of Nikitin (Russia Case 2), the Russian navy reservist acquitted of espionage charges after almost five years of proceedings. His alleged crime was providing information to the public about potential dangers to pres-ent and future generations resulting from activities of and accidents by the Russian nuclear submarine fleet. His acquittal was a vindication of civil and environmental rights, as well as the proper functioning of the Russian courts according to the rule of law. The case of Guerra v.
Italy is an example where the lack of environmental infor-mation alone was connected to the very right of a family to choose how to live.
Basic human rights related to the environment and basic civic responsibilities are interwoven, but both the rights and the responsibilities may remain unfulfilled as long as persons lack the capacity to act in civil society. The role of the access to justice pillar is a critical one. It involves the establishment of proper institutions, the guarantee by the state of clear and transparent frameworks for action, and the judicious exercise of state power to ensure the proper functioning of the well-established mechanisms for empowerment towards sustainable development that are the subject of the Convention.
C H A P T E R 1 : R I G H T S A N D D U T I E S T O W A R D S A H E A LT H Y E N V I R O N M E N T
The European Court of Human Rights serves as a supranational judicial body for the protection of human rights provided by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The Convention empowers the court to receive applications from any person, NGO or group of individuals claiming to be the victim of a violation by a state-party of the rights set forth in the Convention.
Although this represents a unique opportunity for individuals to seek protection of their rights, the jurisdic-tion of the court extends only to matters concerning the interpretation and application of the Convention and its protocols. Thus, access to the court is quite limited, espe-cially with regard to environmental matters, as the text of the Convention does not contain an explicit reference to the environment.
Nevertheless, the case law of the European Court of Human Rights shows that it can grant standing and recog-nise a breach of human rights resulting from severe environmental pollution. The court has clearly admitted the existence of a link between the environment and human rights, although this was not proclaimed by the Convention itself.
Thus, while the access to justice provisions of the Aarhus Convention directly govern environmental matters, they are not covered by the European Convention on Human Rights. Either “procedural” rights provisions (such as article 6 of the European Convention on Human Rights — right to a fair trial) must be used, which give access to the court regardless of the substan-tial matter of the suit, or specific rights must be interpreted so that environmental concerns are taken into account (such as article 8 — right to respect for private and family life, article 10 — freedom of expression, and article 2 — right to life).
The European Court of Human Rights has developed the position that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their
private and family life adversely without, however, seri-ously endangering their health”.17
The first environmental case resolved in favour of peti-tioners was Zander v. Sweden (1993). The applicants’ land was adjacent to a waste-tip. Analyses made in 1979 revealed that the waste had polluted the applicants’
drinking water as a result of which a ban was placed on the use of the water, and municipal drinking water was temporarily supplied instead. Subsequently, the permis-sible concentration of the relevant pollutant in the drinking water was raised and the applicants’ supply of municipal drinking water was stopped. A company’s application to the licensing authority for a permit to dump waste on the tip was granted and requests by the applicants that such a permit must be conditional upon the company taking precautionary measures to avoid further pollution were rejected, apart from an obligation to provide the applicants with safe drinking water should the concentration levels of pollutants in their own water exceed permitted limits. The applicants’ only right of appeal against the licensing authority’s decision was the government, which dismissed the appeal. The applicants complained that they had been denied a hearing before a tribunal in the determination of their civil rights, in violation of article 6(1) of the Convention. The Court held unanimously that there was a breach of article 6(1)18 and awarded non-pecuniary damages of SKR 30,000 to each applicant, as well as SKR 145,860 toward their court expenses.
Article 6(1) is an important remedy that may be used if the access to justice provisions of the Aarhus Convention are not guaranteed by national law. However, a few issues must be highlighted with regard to such claims. In consid-ering complaints based on the violation of article 6(1), the Court must ascertain whether there was a dispute over a right recognized under domestic law. The dispute can also be genuine and serious: it must relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Finally, the result of the proceedings must be directly decisive for the right in question.19
Chapter 2 Environmental human rights protection in the European Court of Human Rights
Andriy Andrusevych
Lopez Ostra v. Spain (1994) is probably the most well-known and cited case of the European Court of Human Rights where environmental pollution was recognised to result in the violation of a human right. A waste treatment plant was built close to the applicant’s home in a town with a heavy concentration of leather industries. The plant began to operate without a license, releasing fumes and odours that caused health problems among local residents.
The applicant alleged breaches of articles 8 and 3 of the Convention, and claimed compensation for damage and reimbursement of costs and expenses under article 50. The court held that there was a breach of article 8 (right to respect for private and family life) and awarded damages, as well as expenses and costs.
Two aspects of this case are relevant from the access to justice point of view:
• the exhaustion of national remedies (which is the requirement to file a complaint with the European Court of Human Rights under article 35(1) of the Convention); and
• the submission of statements and medical reports (forming grounds for the complaint) not to the nation-al Spanish courts, but instead directly to the European Court of Human Rights.
The first aspect concerns one of the most common obstacles to access to justice: duration of the administrative and judicial proceedings. The court held that “it was not necessary for the applicant to institute ordinary criminal and administrative proceedings since the special applica-tion for protecapplica-tion of fundamental rights lodged with the Audiencia Territorial was an effective, rapid means of obtaining redress in the case of her complaints relating to her right to respect for her home and for her physical integrity, especially since that application could have had the outcome she desired, namely closure of the waste treatment plant.”
The second important aspect is that, if the administra-tive or judicial review process lasts long, new facts and evidence can appear while the complaint is being consid-ered by national courts or by the European Court of Human Rights. In Lopez Ostra v. Spain, the court consid-ered government objections in this regard unfounded and
said that “where a situation under consideration is a persisting one, the Court may take into account facts occur-ring after the application has been lodged and even after the decision on admissibility has been adopted.”
Following Lopez Ostra, other environmental cases soon appeared, such as Guerra v. Italy (see appendix B), where the court held that the petitioner’s right under article 8 of the Convention had been infringed even though there was no showing of potential physical harm. Rather, the authorities had failed to provide necessary environmental information to the applicants so that they could be prop-erly informed about environmental risks from a chemical factory. This case is also interesting because the court left open the consideration of a claim under article 2 of the Convention (right to life). The court stated that, “although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily nega-tive undertaking, there may be posinega-tive obligations inherent in effective respect for private or family life.”
A 2001 decision by the court, Hatton and others v.
United Kingdom (application no. 36022/97), goes further than Lopez Ostra and Guerra to apply article 8 to the quality of the inquiry that a government must undertake in decision-making that affects “private and family life”.20 Applicants living near London Heathrow airport claimed that a 1993 scheme instituted by the airport significantly increased the noise levels to which they were subjected during the night, causing ill health in violation of their rights. The case turned on the UK government’s argument that, in instituting the 1993 scheme, a balance had been struck between private interests and economic interests, according to article 8(2) of the Convention.
The court focused on the government’s limited research into the nature of sleep disturbance before the scheme was put in place, as well as on the poor quality of government research into the economic benefits of night flights. The court found that the government had failed to generate adequate information and to undertake the research neces-sary to justify its contentions. Given this, the government was found to have “failed to strike a fair balance” between the applicants’ rights and a state economic interest in the implementation of the 1993 scheme.
In 1993, Canada, Mexico and the US signed the North American Agreement on Environmental Cooperation (NAAEC) — also called the NAFTA Side Agreement. The agreement established a unique procedure for citizen complaints to a supranational body about non-enforcement by a party of its environmental law. While not without its critics, it is probably the only quasi-judicial forum on inter-national level designed especially for consideration of environmental complaints, and it represents an important achievement of contemporary international environmental law in the sphere of access to justice.
As provided by article 1 of the NAAEC, the objectives of are to:
• foster the protection and improvement of the environ-ment in the territories of the parties for the well-being of present and future generations;
• promote sustainable development based on coopera-tion and mutually supportive environmental and eco-nomic policies;
• increase cooperation between the parties in improving the conservation, protection and enhancement of the environment, including wild flora and fauna;
• support the environmental goals of NAFTA;
• avoid creating trade distortions or new trade barriers;
• strengthen cooperation on the development and improvement of environmental laws, regulations, pro-cedures, policies and practices;
• enhance compliance with and enforcement of environ-mental laws and regulations;
• promote transparency and public participation in the development of environmental laws, regulations and policies;
• promote economically efficient and effective environ-mental measures; and
• promote pollution prevention policies and practices.
The agreement provides for a special institutional mechanism designed to facilitate and oversee its imple-mentation by the parties — the Commission for Environmental Cooperation (CEC). The procedure of citizen submissions on enforcement matters is covered by articles 14 and 15 of the agreement. Together with the Citizen Submission Guidelines, these articles provide the legal basis for the submission and consideration of citizens’
complaints.
In general, the procedure is as follows. Any NGO or person can lodge a submission to the secretariat, asserting that a party is failing to enforce its environmental law effec-tively. If such a submission meets certain admission requirements, the secretariat determines whether the submission merits requesting a response from the party concerned (the country against which the submission was filed). After the response from the party, the secretariat can inform the council that developing a factual record is warranted. If the council so instructs, the secretariat prepares such a factual record, which can then be made publicly available by another decision of the council.
One criticism against this procedure is that “environ-mental law” is narrowly defined. Another criticism is that a party may not be held to have failed to enforce its envi-ronmental law where the action or inaction in question by agencies or officials of that party:
(a) reflects a reasonable exercise of their discretion in respect of investigative, prosecutorial, regulatory or compliance matters; or
(b) results from bona fide decisions to allocate resources to enforcement in respect of other environmental matters determined to have higher priorities.