The Role of Basic Rights in Environmental Protection. Basic Right to Environment de lege ferenda in the Estonian Constitution

• Author: Airi Andersson, Tim Kolk
• Pages: 140-150

Airi Andersson, Tim Kolk

The Role of Basic Rights in Environmental Protection. Basic Right to Environment de lege ferenda in the Estonian Constitution

1. Introduction

The existing human rights catalogue was drafted in a time when environmental concerns were not yet an issue and hence fail to adequately address all environmental needs. However in a degrading environment no other human right can be secured. Recent decades have witnessed a debate on whether there is a need for an additional human right to a clean environment. As a consequence, environmental rights have been inserted in several international agreements and constitutions of various states.

The first aim of this article is to analyse the nature of the right to the environment and to come to an understanding of whether it is able to guarantee a higher level of environmental protection. The second aim is to analyse how efficiently the sections of the Estonian Constitution can be invoked for the protection of the environment and whether there is a need for amendments.

The development and current status of the right to the environment is analysed on the basis of international documents and the decisions of international tribunals. We face a question of whether there is any need for an additional formulation of environmental right if the existing catalogue of human rights is sufficient to address environmental concerns. Does the success in invoking existing human rights in environmental cases support this position?

The authors of this article are of the view that the environment is an independent value and needs as strict protection as other commonly agreed values such as the right to property or the right to life and health. Enlisting the right to the environment as a basic right in the Constitution would help to protect this value from the detrimental activities of private entities and also states.

The Estonian Constitution addresses environmental concerns explicitly in § 5 and § 53. In the lack of court practice the possible uses of these provisions remain unclear. However a proper interpretation of § 5 and § 53 would allow coherence with the legal system and at the same time maximum environmental protection.

The final question remains - do we have the appropriate legal basis to meet the needs of society in light of emerging environmental degradation or should and could we enact an additional guarantee, the basic right of an individual to a clean environment? The last chapter of this article proposes amendments to the wordings of § 5 and § 53 of the Estonian Constitution, taking into account the concepts of sustainable development and environmental space.

2. Environmental protection through human rights de lege lata

Except for the two regional human rights instruments¹ there is no express statement of the right to the environment on an international level². The closest link to the right to a healthy environment is in the Convention on the Rights of the Child³ linking environmental pollution with health risks. However environmental rights can and have been derived from civil and political as well as social and economic rights⁴ - e.g., the right to life, to property, respect for one's private life, right to health, self-determination, right to safe and healthy working conditions⁵.

The European Court of Human Rights (hereinafter: the Court) held in the case LCB v. United Kingdom⁶ that article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms obliges states to take appropriate steps to safeguard the lives of those within its jurisdiction. The wide interpretation of the right to life would allow extending it to the right to the environment⁷. Also article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms is often invoked in environmental cases, usually to stop some action of a state that causes interference⁸.

Nevertheless the abovementioned provisions have become futile as soon as there is no actual harm, but only a need for preventive action or where there is no direct link between the state of the environment and the enjoyment of the right in question. In the situation of scientific uncertainty, the Court found no causal link between a person's exposure to radiation during nuclear testing and his daughter's leukaemia⁹. In Tauira and others¹0 the Commission rejected the applicants claim based on the risk of exposure to radiation by stating that mere risks cannot be invoked since "many human activities generate risks". The decision was upheld in L, M & R v. Switzerland¹¹ by the statement that direct harm must be suffered or the possibility of its occurrence to the applicant should be imminent¹².

The potential of article 6 Convention for the Protection of Human Rights and Fundamental Freedoms can be derived from Zander v. Sweden¹³ where the Swedish government expressed fears that the application of this provision may result in "an obligation for states to introduce a multitude of comprehensive court remedies covering a wide range of environmental matters and to deal with complaints about exposure to potential not just actual risk of damage". However the Court maintained the view that there needs to be actual harm and article 6 will not apply to risks of harm¹⁴.

Environmental grounds have been invoked with more success where the harm is obvious or where other concerns such as availability of information or balancing of different interests are at stake. In Lopez Ostra¹⁵ the Court acknowledged 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 seriously endangering their health¹⁶. The case is also important because the Court did not require the applicant to exhaust administrative remedies to challenge operation of the plant under the environmental laws, but only to exhaust remedies applicable to enforcement of basic rights. In Guerra v. Italy¹⁷ the question was raised about the obligation of the Italian state to provide relevant information on the emissions emanating from a high-risk chemical factory. The Court found that article 8 entails a positive obligation to collect and disseminate information because the lack of information would bar applicants from being able to assess the risks they might encounter. In Fredin v. Sweden¹⁸ the Court acknowledged the possibility to challenge measures taken in the public interest where they would "manifestly run counter to the interests of environmental protection". In cases of property rights the Court has stressed the importance of striking a fair balance¹⁹.

To conclude, even though existing human rights allow pursuit of environmental aims to a certain extent, the requirements for direct causation, level of harm to the claimant and the inability to represent future generations limit their efficiency greatly. In an anthropocentric framework environmental protection remains instrumental and thus unable to achieve its preventive and precautionary aims. As long as groups having direct interest in the state of the environment are prevented from effective remedies, it remains up to individuals to contest environmentally harmful activities. However with a view of the limited resources they possess, this option remains rather weak. Also the few successful cases are unlikely to have any impact within national frameworks and thus are unable to guide states towards allowing higher protection of the environment. Therefore it is submitted that specific environmental rights are necessary in order to fully realise protective aims and through them also sustainable development.

3. The scope of the basic right to clean environment

A fair number of states in Europe and the rest of the world have introduced environmental provisions to their constitutions since the 1970s²⁰. However, such a right is mostly not directly enforceable and serves only as a state aim. The following chapter analyses the components that make up a clear and enforceable basic right to the environment.

3.1. The right to environment as a moral/political argument, as a state goal or as a principle?

It is indisputable that due to growing degradation of natural conditions and the unforeseeable problems that might accompany this, we need to address environmental concerns in law; the moral grounds of environmental protection are obvious and so also is the political will to regulate it. Indeed the mere moral justification does not automatically mean that there is already a corresponding right²¹. But the argument for stating a clean environment as a basic right is not standing on moral arguments only²².

We may argue that instead of a binding rule, the right to a clean environment should be a policy principle with an assignment to guide the decision-makers²³. However it would be difficult for an individual to seek environmental protection from the state where there is only an overall non-binding principle²⁴.

Most of the provisions in European...