Docent of Environmental Law, University of Tartu
Precautionary Environmental Protection and Human Rights
The precautionary principle and the fundamental right to a clean environment can be considered the two 'rising stars' of contemporary environmental law.
Implementation of a precautionary principle was induced by the need to define the foundation for formation of environmental policy in a situation of predominant scientific uncertainty regarding the possible negative impact of human activities on the environment. Though scientific methods have undergone rapid development in the last few years, human ability to interpret complicated processes related to the environment has not increased remarkably. The reliability of the methods in use is clearly insufficient for giving political decision-makers trustworthy information enabling them to foresee the consequences.
Elements of the relationship between environmental protection and human rights have become the core of lively debate in recent years.
Recognition of the connection between environmental protection and human rights derives from the principle according to which human rights are inseparable from each other and directly dependent upon each other2. On account of this, full realisation of civil and political rights is impossible when economic, social, and cultural rights are not guaranteed. Therefore, continuous success in guaranteeing human rights depends upon the degree of success of national and international policy in economic and social spheres. It is impossible to distinguish the requirement to guarantee the right to life, respect to private and family life, health protection, and other human rights from the requirement to guarantee a normal living environment to everyone. The present article aims to shed some light on the interrelations between the precautionary principle and classical human rights, with examination also aimed at addressing a key question: Is it enough to proceed from an existing list of human rights, or is it necessary instead to recognise new, specific environment-related fundamental rights?
The European Convention on Human Rights 3 provides us with several human rights - the right to respect for private and family life, the right to peaceful enjoyment of possessions (article 1 of the First Protocol), and the right to life 4 - which can be connected with the quality of our environment. In addition to these main articles, connections between protection of the environment and human rights can be found also in article 10 of the convention, which asserts the right to access and to spread information5. Several economic, social, and cultural rights are related to the environment also; these rights are subject to discussion in the sections of the paper that follow.
Starting with the Lopez Ostra case 6 , the right to respect for private and family life has been the principal factor that plaintiffs, as well as the European Court of Human Rights (ECHR), have connected with the pollution of the environment. In the Lopez Ostra case, the ECHR admitted that "severe environment 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"7. In this case, the complaint was made against the omission of a state (more precisely, of the local municipality), which tolerated continuation of activities of an enterprise in grave violation of waste management rules, thus hindering the private life of Lopez Ostra and her family near the enterprise. The Lopez Ostra case created a precedent, which served as a basis for cases to follow.
The second case worthy of mention in this category is that of Guerra8. In this case as well, a complaint was made against an omission of the state, which did not inform (as addressed in article 10) the plaintiffs about the dangers threatening their private and family life9. The ECHR did not apply article 10, finding instead that violation of article 8 had taken place10. Thus, it appears that, according to the ECHR, every person has a right to a certain 'private space', intruding into which in different ways (including via pollution of it) is potentially a violation of human rights.
No uniform opinion on the content of the right to life exists. Classical opinion equates the right solely with the right to 'physical life', whereas other qualitative aspects of life usually are connected with economic, social, and cultural rights. According to another school of thought, the right to life includes also minimal elements of quality of life11. Differences of interpretation are conspicuous also as regards the ECHR and the UN Commission on Human Rights (UNCHR). The UNCHR has interpreted the right to life in a quite broad way, declaring that the "state cannot perform its obligation to protect life without taking measures to decrease mortality of infants, to antedate industrial accidents, and to protect environment"12. The ECHR approaches the right to life from a significantly narrower perspective, treating it as the above-mentioned right to 'physical life'. As it is unlikely for any European country at the present time to permit any such activities as directly threaten the physical existence of humans, it is understandable why the ECHR has not seen a connection between polluting environment and the right to life. However, at the same time some judges have expressed an opinion according to which pollution of the environment is connected with the right to life at least to the same extent as to the right of peaceful enjoyment of private and family life13.
Arrondelle v. the United Kingdom 14 was one of the first cases indicating connection between environment and ownership. The plaintiff asserted that the high noise level of an airport had reduced the value of his immovable at a fundamental level. Though the case did not reach a resolution later, it is essential to note that the ECHR declared the case admissible, basing this decision on article 8 of the European Convention on Human Rights, as well as on article 1 of the First Protocol. Yet the standpoints of the ECHR and of the Commission, regarding the content of the right in question and readiness to apply it in cases related to the environment, are not consistent at all. Thus, in the case Rayner v. the United Kingdom , the Commission indirectly pointed out that this article (i.e., article 1 of the First Protocol) is meant mainly to protect against arbitrary confiscation of possession and does not guarantee in principle free enjoyment of property in pleasant environment15. A standpoint of this nature does not favour applying this provision in an environmental context and allows applying the provision only in cases where the environmental impact is of an extent with a substantial influence on the market value of the immovable concerned. The ECHR yet has favoured broader interpretation and has found that article 1 of the First Protocol is applicable also in cases dealing with substantial influencing of "the content of the right to possession"16.
On the basis of the practice of the ECHR up to now, one can draw the conclusion that human rights and quality of environment, in the context of civil and political rights, are connected mainly in relation to the right to enjoy private and family life17. Such a choice on the part of the court is, in addition to the reasons mentioned above, probably caused by the opportunities to prove the evidence of damage and therefore the existence of a victim. Therefore, the practice of the ECHR has to be researched from the standpoint of the precautionary principle.
Human rights monitoring bodies have often faced a situation where decisions have to be made under conditions of too little information and uncertainty of what information is available - in spite of the fact that the ECHR does not lay the burden of proof strictly on the plaintiff and that states have to co-operate with the ECHR and to present additional data (e.g., the results of environmental inspection or monitoring), with the ECHR itself entitled to gather additional data, according to article 38, section 1 (a) of the European Convention on Human Rights). Where environmental matters are concerned, a situation where a violation of environmental quality requirements is not sufficiently obvious appears quite often; thus, additional research and proof are required. The fact that environmental quality standards in Europe are quite high and established with a certain caution and that violation of them need not necessarily involve damage has to be taken into account too. Summarising the above, one finds it obvious that, as a rule, in environment-related cases we are dealing with not direct damages but supposed damages. Therefore, the main question is this: Does the risk of damage alone constitute sufficient grounds for recognising the person as a 'victim' that he has the protection of the ECHR also? The court has usually required the presence of damage and proving it according to the standard 'beyond reasonable doubt'. M. Kamminga has found that this is caused by the fact that the ECHR, unlike other regional human rights protection systems, has not often encountered outrageous...