The day after: Protecting the human rights affected by environmental challenges after the EU accession to the European Convention on Human Rights

Introduction

The opinion of the Court of Justice of the European Union (hereinafter CJEU) in 2014, fuelled the debate over whether the European Union (hereinafter EU) should accede the European Convention on Human Rights (hereinafter ECHR). ¹ It suggested that the accession will undermine the autonomy of EU Law and the CJEU. But, the need for the reform of the human rights mechanism in Europe has been highlighted on several occasions over the past few decades. The accession of the EU to the ECHR will establish a balance between the different areas of law for all EU member states. ² One such affected area will be the protection of human rights amidst environmental challenges. The increasing case law on environmental rights by the European Court of Human Rights (hereinafter ECtHR) and the CJEU, shows that there is still room for policy development in the area of ‘environmental rights’. The accession of the EU to the ECHR could be the answer to the protection of rights affected by environmental challenges, benefiting from the authority of the CJEU over EU environmental law and the extensive case law of the ECtHR on environment related applications. This will maintain a balance between the environmental policies of the EU and the commitment for a uniform human rights protection mechanism provided by the Council of Europe.

The article discusses the relationship between the two courts, as well as the development of human rights in the European communities. It examines the case law on ‘environmental rights’ of the CJEU and the ECtHR questioning their respective capacity to decide such cases. It will be argued that application of EU environmental law and the external ‘specialist’ supervisory role of the ECtHR, would offer a more comprehensive form of protection of human rights affected by environmental challenges.

Reliance and hierarchy between the two courts

The creation of what would later become the European Union (hereinafter EU), was primarily an economic endeavour, with little interest in the protection of human rights. ³ In this respect, the EU does not have a complete human rights policy. ⁴ The EU progressively promoted itself as an ‘ethical power’ with a renewed interest in ensuring the protection of human rights amongst member states. ⁵ However, the ability of the CJEU to decide over human rights claims has been repeatedly questioned. ⁶ The developing human rights jurisprudence of the CJEU, as well as the challenges Solange I posed for the CJEU by the German Constitutional Court, generated the necessity for the EU’s accession to the ECHR. ⁷ Despite the more favourable decision in Solange II, the first decision was considered a strike against the CJEU, since it is an implicit declaration of an inefficacy in protecting the human rights of citizens of member states. ⁸ It was then thought that the accession of the EU to the ECHR would have brought to an end the uncertainty of member states about whether the CJEU efficiently protected human rights.

In 1974, the CJEU in Nöld v Commission accepted that the EU should follow the provisions of the ECHR as guidelines for human rights protection. ⁹ In the same spirit, in Rutili v French Minister of the Interior, the CJEU referred to the provisions of the ECHR in regards to the control of aliens. ¹⁰ The CJEU in both these cases gave an indication of reliance on the provisions of the ECHR making it clear that this was the first reference point for the protection of human rights in member states. The CJEU later clarified that

It is settled case-law that where, as in the main proceedings, a national situation falls within the scope of Community law and a reference for a preliminary ruling is made to the Court, it must provide the national courts with all the criteria of interpretation needed to determine whether that situation is compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the ECHR. ¹¹

A chronology of accession

The idea of the EU acceding the Convention goes back to the early stages of designing European integration. ¹⁵ There was an obvious willingness on the part of the European Commission to proceed with such a development. This arguably silenced the criticisms over the alleged focus of the CJEU towards economic interests rather than human rights. ¹⁶ The European Commission maintained this positive approach that this would enhance human rights protection in Europe and preserve the common cultural heritage of (Western) European countries, ultimately serving democracy. ¹⁷ In 1990, the European Commission observed that the gap between the mechanisms of human rights protection between the EU member states and the EU itself could be eliminated by a possible accession of the EU to the ECHR. ¹⁸

Prior to the Lisbon Treaty, ¹⁹ the CJEU repeatedly mentioned the provisions of the ECHR. This was intended to eliminate the gaps that could be created through the different case law of the two courts and ensure uniformity of human rights protection. ‘The Court of Justice of the European Union has used the European Court of Human Rights jurisprudence as an interpretative tool with respect to the lawfulness of acts and omissions of EU institutions and organs.’ ²⁰ The mention of the ECHR provisions by the CJEU does not imply that it is bound by the ECtHR case law. It simply means that the mention of the case law and the ECHR’s provisions alongside other international instruments, serves as a point of reference for human rights protection. The Treaty of Lisbon proclaimed the Charter of Fundamental Rights legally binding and through Article 6(1) and Article 6(2) provided that ‘[t]he Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession will not affect the Union’s competences as defined in the Treaties’. ²¹ Article 6 illustrates a desire to ensure a uniform protection of human rights across Europe.

There is evidence of the CJEU’s resistance to the notion of the accession since the early stages of the discussion. In 1996, it held that, taking into account the circumstances at the time, the EU did not have the competence to accede to the ECHR. By examining the possibility of accession under Article 235 (now Article 308) of the EC Treaty, the CJEU concluded that the Article did not confer for such widening of the Union’s functions, therefore, it could not be interpreted as providing for an accession to the ECHR. ²²

Currently, the common member states of the Union and the Council of Europe, implementing EU law in their domestic systems, are also bound by the provisions of the ECHR. In the event of a fulfilment of the accession, human rights protection across Europe would be strengthened. According to Howells:

Firstly, accession would ensure that, in addition to the Charter’s internal protection, an external judicial review by the Strasbourg Court of human rights protection is assured. Secondly, with the Convention becoming legally binding upon the Union, any potential divergences between fundamental rights and rights protected by the Convention can be prevented. Thirdly, EU citizens would finally be able to bring cases against the organs of the EU directly to the Strasbourg Court. ²³

The Draft Agreement on the Accession of the European Union to the Convention on the Protection of Human Rights and Fundamental Freedoms of 2011, stated that the accession of the EU to the Convention would serve the enhancement of human rights protection in Europe. ²⁶ Article 1(2)(c) provides that:

Accession to the Convention and the Protocols thereto shall impose on the European Union obligations with regards only to acts, measures or omissions of its institutions, bodies, office or agencies, or of persons acting on their behalf. Nothing in the Convention or the Protocol thereto shall require the European Union to perform an act or adopt a measure for which it has no competence under European Union law.

‘Environmental rights’ before the Court of Justice of the European Union

Prior to the enactment of the EU Charter of Fundamental Rights, the CJEU created a list of rights that reflected the commitment of the EU to human rights protection. The ECtHR through its jurisprudence and its interpretation of the ECHR’s articles, offered guidelines to the CJEU on deciding human rights cases. This relationship is also present after the enactment of the EU Charter. Initially, the EU Charter of Fundamental Rights was only used as a point of reference. When the Lisbon Treaty was enacted in 2009, it was given the same legally binding status as the Treaties. ³⁹ It imposes obligations on the institutions of the European Union for human rights protection, and not on its member states. ⁴⁰ The Charter is considered a modern instrument for human rights protection addressing issues of bioethics as well as sustainable development. This comes as no surprise considering the time of its creation, and the general knowledge and technological advancement witnessed since the creation of the ECHR. Comparing the Charter to the ECHR and taking into account the time gap separating their creation, the Charter may seem like the most appropriate instrument for addressing ‘environmental rights’ issues, since the demand for the protection of environmental rights has emerged more recently.

Currently a combination of the EU Charter of Fundamental Rights and EU Environmental law is used to protect combined interests at an EU level. Although the efficacy of the CJEU in deciding human rights matters has been challenged in the past, ⁴¹ the CJEU has decided cases raising environmental and human rights concerns. These cases are mostly based on the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (Aarhus Convention), which explicitly provides for the protection of procedural rights concerning environmental protection. ⁴² ‘Procedural environmental rights’ as provided by the Aarhus Convention implemented by directives and the CJEU through the procedure of the preliminary rulings, were expected to be protected when enforcing EU environmental law. ⁴³

Although the overall approach of the CJEU towards human rights affected by environmental challenges has changed, it cannot be assumed that there is no need for a development in the area. In the case of Seaport (NI) Ltd, the Advocate General stated in his advisory opinion that Article 37 of the EU Charter, as well as Article 174 of the EC Treaty, provide for everyone’s right to live in an ‘environment suitable for ensuring their health and well-being’, ⁴⁴ associating environmental protection with human rights by way of interpreting the Articles. ⁴⁵ The Advocate General connected the Article to the Aarhus Convention, emphasising the importance of safeguarding procedural rights to protect substantive rights to the environment. The Advocate General’s opinion in Commission v Italy was in the same spirit. ⁴⁶ Mr Advocate General Ruiz-Jarabo Colomer pointed out that Article 37 of the EU Charter sets out responsibilities that the EU and its member states must fulfil to achieve an environment of quality. In a case involving procedural rights, the Advocate General emphasised the importance of assessing the environmental effects of all projects, and the disclosure of all the relevant information about the procedure of assessment. ⁴⁷

In relation to procedural rights, the Greenpeace case raises a vital issue for the protection of rights linked to the protection of the environment; the protection of the right to receive information on projects affecting the environment. This right is also covered by the Convention on Access to Information, Public Participation in decision-making and Access to Justice in Environmental Matters. ⁴⁸ The Aarhus Convention has been a point of reference in resolving the issue of locus standi before the CJEU since its jurisprudence indicates that NGOs could not bring cases before it. The reluctance to apply the Aarhus Convention suggests that the CJEU is even less likely to act decisively to protect substantive environmental rights, especially in the absence of any explicit protection in EU law. It has been also argued that ‘the ECJ is likely to find itself increasingly called upon to achieve a balance between two of the Union’s objectives: economic development and environmental protection’. ⁴⁹ The capacity of the CJEU to protect human rights has been repeatedly called into question. The accession will allow the ECHR to ‘supervise’ the EU when it comes to human rights issues. As Thorbjørn Jargland stated, the accession ‘will contribute to the creation of a single space, putting in place the missing link in the European system of fundamental rights protection’. ⁵⁰ Therefore, the ECtHR should be the responsible court for protecting ‘environmental rights’, since it focuses on people’s rights rather than economic interests. The Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, shows a shift from an intention to accede to the ECHR to the creation of the relevant framework for the EU to accede to the ECHR.

‘Environmental rights’ in the European Court of human rights

Contrary to the EU Charter of Fundamental Rights, the ECHR does not include a consideration of environmental factors. Thus, the existing wording of the ECHR was interpreted to decide on these applications. These were interpreted to reflect mostly rights relevant to health risks and the access to environmental information. ⁵¹ The ECtHR was by no means progressive. Since 1969 when Dr S v the Federal Republic of Germany was heard in the European Commission of Human Rights, the ECtHR has taken very slow steps in recognising that firstly, the quality of the environment can affect one’s private and family life, ⁵² and that there is a need for people to be informed over the quality of their environment. ⁵³ There was more willingness to address these claims under Article 8 – Right to Private and Family Life rather than Article 2 – Right to Life, even in cases of severe health impairment. The wording of Article 8 allowed for maintaining a fair balance between individual rights and the community’s interests as a whole. This balance was of great relevance when it came to weighing environmental protection and protection of human rights against economic growth. Article 8 also accommodates positive obligations towards protecting the rights against environmentally hazardous circumstances. ⁵⁴ The ECtHR drawing inspiration from the Aarhus Convention, identified within the ECHR’s provisions a positive obligation to provide information on environmental matters to protect substantive rights as seen in the cases of Öneryildiz. ⁵⁵

In addition, the ECtHR’s favouring of a wide margin of appreciation to states in cases under Article 8, is of great significance. The ECtHR has mentioned that national courts are generally in a better position to assess whether a said action was necessary for the wellbeing of a state, whether or not this leads to a better protected environment. ⁵⁶ This has allowed member states to choose whether environmental pollution was allowed to protect economic interests, or to allow interference with individual rights to protect the environment. ⁵⁷ The difficulties over protecting human rights to the environment with the current form of the ECHR are evident from the ECtHR’s jurisprudence. The case of Otgon v Republic of Moldova shows the variation of interpretations – lack of uniformity – of Article 8 on issues of risks to health caused by environmental pollution. ⁵⁸ The applicant claimed that the compensation offered to her family for the physical and mental damage suffered following the consumption of contaminated water, was not enough. The ECtHR decided that the compensation offered for a found violation of Article 8 was disproportionate to the harm suffered, leading to a violation of her right to private and family life, ‘since her physical integrity has been affected by an unhealthy environment’. ⁵⁹ The dissenting opinion criticises the connection of health risks to Article 8, a long-lasting issue with the ECtHR’s approach to environmental concerns. According to Judge Lemmens ‘any damage to a person’s health [does not] attract the applicability of Article 8. For that provision to be applicable, there should be repercussions on the affected person’s private life’. ⁶⁰

This is in direct contrast with the ECtHR’s approach to previous cases of risks to health and its possible link to Article 8 rather than Article 2. Recall the concurring opinion of Judge Jambrek in Guerra v Italy, where it was highlighted that it was time for the ECtHR to evolve and interpret Article 2, rather than the applied Article 8, to include different situations of risk against life, other than those it originally intended to tackle. ⁶¹ In 1998, Judge Jambrek asked for a wider interpretation of Article 2, to include health impairment and risk to life caused by environmental pollution. In 2016, Judge Lemmens asked for a more ‘restrained approach to the scope of application of Article 8’. ⁶² The uncertainty over which Article is better suited for protecting health amidst environmental challenges, is evidence of the need for an explicit protection of rights when these are affected by environmental degradation.

The differential application of different ECHR articles is similarly observed on the issue of risks to possessions by environmental challenges as well. The applicants in Öneryildiz successfully claimed a violation of their rights under Articles 8 and 1 of Protocol 1 for the loss of their movable property during a methane explosion, for which they did not receive compensation. In this case, the applicants lived in a slum quarter in a refuse-tip illegally. Although the ECtHR accepted that the house was built illegally, the structure, fittings and fixtures represented significant economic interest and came under the protection of Article 1 of Protocol 1. ⁶³ The government submitted that compensation for lost property which was illegally erected on public land, would amount to a reward for acting unlawfully. Nevertheless, the ECtHR revisited the meaning of ‘possessions’ within the wording of Article 1 of Protocol 1, to include ‘a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right’. ⁶⁴ The ECtHR concluded that failure to act to protect the applicants’ possessions from a methane explosion, was a violation of the applicants’ rights under Article 1 of Protocol 1. The destruction of property through an environmental disaster would come under the spectrum of Article 1 of Protocol 1, while Article 8 was not separately examined. This decision is puzzling, given that the property was erected illegally, and the applicant was fully aware of its status.

This is more evident when comparing Öneryildiz to Depalle v France. In the latter case, a retired couple bought a property on the beach which included a house and a dyke built illegally 100 years before. ⁶⁵ The State served a notice requiring the demolition of the house and restoring the area to its original state without compensation. The argument was that the house obstructed the right of access to public maritime property and was contrary to national laws related to the protection of coastal areas. ⁶⁶ The applicants claimed a violation of Article 1 of Protocol 1 relying on the definition of ‘possessions’ given in Öneryildiz: ⁶⁷

The concept of ‘possessions’…is not limited to the ownership of physical goods and is independent from the formal classification in domestic law…The concept of ‘possessions’ is not limited to ‘existing possessions’ but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and legitimate expectation of obtaining effective enjoyment of a property right. ⁶⁸

Given the extreme circumstances in the case of Öneryildiz, it is likely that this affected the ECtHR in deciding in favour of the applicant, contrary to the later decision in Depalle. ⁷² Although the ECtHR has compared facts in Article 8 environmental claims to ascertain whether environmental degradation was enough to interfere with the enjoyment of Article 8 rights, Article 1 of Protocol 1 did not require such an exercise. It seems unjustified that these two cases had different outcomes. This strengthens the assumption that there is a lack of uniformity in decision making, which impedes the adoption of a more even approach towards environmental challenges and human rights by the ECtHR.

Another criticism over the ECtHR’s jurisprudence is the fact that substantive rights were seen to be dependent on the protection of procedural rights. This ‘proceduralisation’ of the rights affected by environmental factors was seen as an effort directed at people’s empowerment in relation to environmental decision making, ultimately ensuring the protection of substantive rights to the environment (that is, right to life and right to private and family life). ⁷³ This is identified as a flaw, since environmental protection requires the protection of procedural as well as substantive rights. ⁷⁴ Instead, the ECtHR interpreted the procedural aspects to be a prerequisite to protecting substantive rights. The protection of procedural rights should have been independent from a substantive rights-based claim. ⁷⁵ For example, while the protection of the right to receive information on environmental matters is considered pivotal to the protection of rights under Article 8 and Article 2, it should be protected, whether or not a natural disaster eventually occurs which could lead to further interferences with these Articles.

In general, the case law of the ECtHR related to ‘environmental rights’ is unclear. The increase in environmental cases decided by the ECtHR, did not lead to a more progressive approach when compared to the CJEU. The area might be clarified in case of an accession, given how the implementation of EU environmental law and the Aarhus Convention with the external control of the ECtHR might lead to better protected ‘environmental rights’. In case the EU accedes the ECHR, individuals would be able to bring complaints before the ECtHR against EU institutions for failure to comply with Aarhus Convention corresponding directives and EU environmental law, raising claims based on the provisions of the ECHR. This means that the proposed protocol and the Aarhus Convention in relation to procedural rights would allow further clarity.

The day after the accession for ‘environmental rights’

Whether falling under the jurisdiction of the ECHR or the EU Charter, issues of supremacy must be examined: which court should be responsible for protecting human rights in Europe and human rights interferences by environmentally challenging circumstances. The ECtHR has been a very efficient institution for human rights protection relying on the ECHR. The CJEU has traditionally dealt with environmental protection through EU law. The accession of the EU to the ECHR will allow individuals to bring applications before the ECtHR against EU Institutions. Eckes is positive over the good effects that this accession would have on the protection of human rights in Europe, contrary to other bleak suggestions over the potential complexity of the situation if this accession gets completed. ⁷⁶

Currently any implementation of EU Law by ECHR contracting states, including EU environmental law has to comply with the provisions of the ECHR. At the moment, it is difficult to distinguish which domestic legislation derives directly from EU environmental law. But ratification of the ECHR requires that this implementation is compliant with human rights provisions. The potential accession of the EU to the ECHR will mean that implementation of EU Environmental Law will be compliant to the ECHR’s provisions on human rights and bound by the decisions of the ECtHR.

When a matter does not relate to EU Law, then it is the member states’ responsibility to ensure that they comply with their own obligations under human rights law. ⁷⁷ The report on the application of the EU Charter of Fundamental Rights, clarifies that commitments of member states under the ECHR are independent of their commitment under EU Law. ⁷⁸ An application that raises human rights concerns over EU Law, will not be addressed towards the EU Institutions but towards the implementing member state instead.

The EU accession to the ECHR will have three benefits. The accession will allow the ECHR’s principles to be legally binding for the EU Institutions. This will mean that there would be uniformity of human rights protection amongst the two courts. Secondly, although the Charter of Fundamental Rights protects human rights, the accession will allow for external supervision in the form of a judicial supervision over the EU and its institutions. Finally, and most importantly, the system of individual applications before the ECtHR will allow individuals to bring applications against the EU and its Institutions.

Conclusion

The ECtHR has decided cases bringing environmental concerns to the forefront of human rights protection, relying on the provisions of the ECHR and seeking inspiration from international instruments such as the Aarhus Convention. These cases were a manifestation of the interdependent relationship between environment protection and the enjoyment of fundamental human rights. These range from complaints over alleged human rights violations due to environmental degradation to alleged human rights interferences through the enforcement of environmental protection policies. ⁷⁹ On the other hand the CJEU has also decided cases raising environmental and human rights concerns. These cases are mostly based on the Aarhus Convention but there is evidence of an inability to balance these human rights considerations in light of the original economic role of the EU.

Despite the delay in the developments relating to the potential accession of the EU to the ECHR by the CJEU opinion of the Draft Agreement for the Accession of the EU to the ECHR, the combined application of the Aarhus Convention with the ECHR, will serve the better protection of ‘environmental rights’. There will be a uniform protection of procedural and substantive ‘environmental rights’ across Europe and more clarity over how a complainant can bring a claim for ‘environmental rights’ violations against the European Union Institutions and EU member states. The general consensus amongst scholars is that the accession will benefit the uniform protection of human rights across Europe ‘contributing to the creation of a single legal space, putting in place the missing link in the European system of fundamental rights protection’. ⁸⁰ Taking advantage of the CJEU expertise in applying EU Environmental Law and the Aarhus Convention implementing directives, together with the now extensive experience of the ECtHR in deciding over environment related applications, the accession will ultimately allow a more transparent area around the protection of rights when affected by environmental challenges in Europe.