The Subjective Right to Environment in the General Part of the Environmental Code Act

Author:Kaarel Relve
Pages:32-42
SUMMARY

Section 23 of Estonia’s General Part of the Environmental Code Act sets out a subjective right to environment. The purpose behind the paper is to examine the basis for the right and analyse its scope and contents in order to determine whether it satisfies the criteria outlined by the Supreme Court for an independent material enforceable subjective right to environment. The right has no explicit... (see full summary)

 
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32 JURIDICA INTERNATIONAL 24/2016
Kaarel Relve
LLM, Lecturer of Environmental Law
University of Tartu
The Subjective Right to
Environment in the General Part
of the Environmental Code Act
Human existence and quality of life depend on the environment. It is evident that everyone has an interest
in using the environment and protecting him- or herself from risks or harm to the environment. However, it
is not clear how this interest has to be guaranteed by rights. One possibility is the recognition of an indepen-
dent material enforceable subjective right to environment. In June 2010, the Supreme Court held that such
a right cannot be derived from the Constitution of the Republic of Estonia and can emerge only if criteria
for the quality of the environment and everyone’s obligation to tolerate environmental impacts can be xed
in the law. The General Part of the Environmental Code Act (GPECA)*1 entered into force on 1 August 2014,
and its §23 sets out a subjective right to environment. The purpose behind this paper is to examine the basis
for that right and analyse its scope and contents to determine whether it satis es the criteria outlined by
the Supreme Court.
1. The basis for the subjective
environmental right in the GPECA
1.1. The framework of international and EU law
The Universal Declaration of Human Rights (1948) does not feature a subjective environmental right and
does not emphasise the importance of a supportive environment for enjoyment of the rights enshrined in
the declaration. The environmental aspects of human rights are also not re ected in other classical human
rights instruments. At the time of their codi cation, knowledge of environmental problems was limited and
other issues were at the centre of concern. For instance, the European Convention on Human Rights (1950)
was adopted as a response to the atrocities committed by Nazi Germany and the rise of communism.*2
Awareness of environmental issues rapidly increased in the decades following the Second World War.
This led to the adoption of the Stockholm Declaration (1972), whose rst principle stipulates: ‘Man has the
fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that
Қ Keskkonnaseadustiku üldosa seadus. – RT I, қҡ.қ.қҙҚҚ,Қ (in Estonian). English text available at https://www.riigiteataja.
ee/en/eli/ҞҚҠҙҟқҙҚҞҙҙҚ/consolide (most recently accessed on ҜҚ.Ҝ.қҙҚҟ).
қ S. Kravchenko, J.E. Bonine. Interpretation of human rights for the protection of the environment in the European Court of
Human Rights. – Paci c McGeorge Global Business & Development Law Journal қҙҚқ (қҞ) / Қ, p. қҝҡ.
http://dx.doi.org/10.12697/JI.2016.24.04

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