Right to the Environment in the Context of EC Approximation and Codification of Estonian Environmental Law
| Author | Hannes Veinla |
| Position | Head of the Department of Environmental Law |
| Pages | 108-114 |
Page 108
The Estonian environmental law is presently under great reform. We are largely at a crossroad. Although several important gaps in the Estonian environmental law have been filled and contradictions in the legislation eliminated in the last years, our environmental law is still developing chaotically and is rather fragmented. There are several reasons for this. This area of law has so far developed in a situation where there are no common grounds (principles) for legislative drafting and legal acts have been passed unsystematically. The lack of organisation in legislative drafting is especially apparent in the harmonisation of our law with that of the European Community. The latter presumes the establishment of a large number of legal acts in a relatively short time. If processes have no sound basis and framework in these conditions, such a mass production of law may go out of control. It might be believed that keeping the right course is guaranteed with the EC environmental acquis system - agreements, regulations, directives, principles, policies, court practice and other elements of it. Anyone familiar with the EC environmental law, however, knows that this is not the case1. The EC environmental acquis suffers the same shortcomings as the Estonian environmental law. Furthermore - fragmentation and contradiction can be found in the environmental law and legislation of most other countries2. To get out of this unfortunate situation, efforts to create an environmental code have been taken in several countries since the end of the 1980s. This trend has evoked conflicting opinions, but the fact is that the world's first environmental code (Miljöbalk) was established in Sweden on 1 January 1999 and Germany will soon follow (Umweltgesetzbuch). The trend to establish environmental codes proves that environmental law has come to rank equally with other areas of law. In Estonia, a team was formed in 1998 to prepare the general part of the environmental code draft act. The author of this article has the honour to be the head of the team. The objective of the general part of the environmental code act is to lay down the theoretical bases of environmental law in legal norms, so as to guarantee a systematic development of our environmental law and prevent contradictions in both legislative drafting and in implementation of the law. The following article is largely inspired by certain problems which the team has faced in discussing the draft act.
The chief motive of the environmental legislative drafting in Estonia today is the transposition of the EC environmental acquis. Considering the fact that the EC environmental law does not by far cover all the regulationsPage 109necessary for environmental protection, it is necessary and possible in the context of EC environmental law transposition to meet two objectives simultaneously:
(1) to arrange the content and structure of the Estonian environmental law so that internationally recognised basic principles of environmental policy and law be taken into account on the one hand, and the social and economic realities of our society and the peculiarity of our environmental conditions and problems be given due regard on the other hand;
(2) to transpose the entire EC environmental acquis in our legal order and guarantee its implementation.
So, the EC law does not as a rule replace the national law but acts through it. Therefore the national legislation has to be reviewed to adequately adopt the EC law - any discrepancies, repetitions and gaps have to be corrected. An important means for achieving this is the environmental code.
Yet the direct legal effect of EC law, including directives, should not be forgotten. In the sphere of environmental protection, this aspect has a very important meaning, especially from the viewpoint of less developed and poorer countries. Although the role of the direct legal effect of EC law cannot be overestimated and several scientific discussions have been dedicated to it3, these problems will not be discussed in depth in this article.
The above two simultaneous processes - transposition of EC law and preparation of the environmental code - have a number of common traits, but they also differ in many aspects. One of the common traits is the main objective - to guarantee the right to a clean, habitable, quality environment and preserved natural resources.
It is hardly news that the right to a clean environment is listed among the fundamental rights in the constitutions of several countries. The relation between environmental protection and human rights has attracted more and more attention. Although this human right is not expressly provided in the Convention for the Protection of Human Rights, the practice of the European Court on Human Rights has recognised the right to a clean environment as a fundamental human right, as the deterioration of environmental conditions can lead to violation of the human rights expressly set out in the Convention, such as the right to privacy and inviolability of property4.
It can be said that the main objective human rights protection is to guarantee the immanent bases for the existence of an individual, including personal life and dignity. Let us recall the First Principle of the 1972 Stockholm UN Environmental Conference Declaration:
"Man has a fundamental right to freedom, equality and adequate living conditions in an environment the quality of which guarantees welfare; man also has the superior obligation to protect and improve environmental conditions for the benefit of present and future generations".
The Stockholm Declaration also stresses that: "Man is simultaneously a part and the former of the environment, and both components of the environmentthe natural and the artificial - are important for the welfare of man and for exercising fundamental human rights, including the right to life".
Human rights are inseparable and mutually dependent on each other - the full realisation of political rights is impossible if economic, social and cultural rights are not guaranteed. The requirement to guarantee the right to life and health cannot be separated from the requirement to achieve sustainable development.
The protection of human rights presumes that individuals, various collective legal subjects and the state bear certain obligations, or, otherwise said, that all sectors of the society participate. The bearer of human rights however is the individual, not the collective. Damage to the environment has usually large-scale consequences and cases where the damage (violation) only concerns a particular individual are rare. So, despite the fact that the relation between environmental condition and human rights is more and more recognised, the dispute - whether the right to a clean environment exists - has not by far come to an end. It has even been asked whether the right to a clean environment is good or bad for environmental protection - it is feared that the inclusion of environmental protection in the human rights context may further reinforce the anthropocentric conception of the world, which directly or indirectly has caused most of today's environmental problems5. Another problem that makes it more difficult to relate the environmental issues and human rights is the ambiguity of the terms. Defining the content of the terms "environment", "environmental pollution", "sustainable development" and other such main concepts of environmental law continues to cause problems in international law and in national legal orders. How to define clean environment - this would apparently require the establishment of appropriate quality norms and standards for all environment components not by country but globally, because as we know, neither environment nor human rights recognise state borders.
Related to environmental protection is the question of the rights of not only today's people, but the future generations. The concept of sustainable development is first of all related to the requirement that our generation must not use its time aggressively, but behave prudently and consider the rights and interests of future generations. Such rights have been called "group rights" and "generational rights"6.It is apparently impossible to associate these rights with human rights, as the latter are related to the individual, not the collective, as mentioned above. An interesting theory about the relations between generations has been formulated by Christopher Stone in his book "Earth and Other Ethics: The Case for Moral Pluralism"7. The cornerstonePage 110for C. Stone's theory is distinguishing between two categories - "persons" and "nonpersons". The first category includes "normal adult humans", the other includes "unconventional entities" - from unborn babies, dead persons and animals to such collective subjects as tribes and peoples. Nonpersons include "future persons", including future generations. According to C. Stone, the interests of the latter should be taken into account from both moral and legal grounds. At first glance, the latter arises many suspicions, but when we recall the precautionary principle of environmental law and its implementation mechanisms, such as the procedure for assessment of environmental impact, it is not entirely impossible.
Due to the above reasons, the right to a clean environment can be first of all associated with procedural rights8 such as the right to environmental information, the right to participate in decisions concerning the environment...
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