LEARNING FROM THE EUROPEAN COURT OF HUMAN RIGHTS
4.3. The General Principles and their Role in Environment Cases One of the first cases relevant and noteworthy in this area was the López Ostra
case:10According to the facts of this case, the applicant lived in the vicinity of a heavily polluting chemical waste plant. The plant did not fully live up to the conditions imposed by permit and the local government had failed to take adequate measures. The Court opened by saying that:
51. Naturally, 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 health.
At all events, the Court considers that in the present case, even supposing that the municipality did fulfil the functions assigned to it by domestic law (see para- graphs 27 and 28 above), it need only establish whether the national authorities took the measures necessary for protecting the applicant’s right to respect for her home and for her private and family life under Article 8 (Art. 8) (see, among other author- ities and mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, para. 23). Subsequently the Court investigated whether the State had failed to meet its positive obligations:
56. It has to be noted that the municipality not only failed to take steps to that end after 9 September 1988 but also resisted judicial decisions to that effect. In the ordi- nary administrative proceedings instituted by Mrs López Ostra’s sisters-in-law it appealed against the Murcia High Court’s decision of 18 September 1991 ordering temporary closure of the plant, and that measure was suspended as a result (see paragraph 16 above).
Other State authorities also contributed to prolonging the situation. On 19 November 1991 Crown Counsel appealed against the Lorca investigating judge’s decision of 15 November temporarily to close the plant in the prosecution for an environmental health offence (see paragraph 17 above), with the result that the order was not enforced until 27 October 1993 (see paragraph 22 above).
57. The Government drew attention to the fact that the town had borne the expense of renting a flat in the centre of Lorca, in which the applicant and her family lived from 1 February 1992 to February 1993 (see paragraph 21 above).
The Court notes, however, that the family had to bear the nuisance caused by the plant for over three years before moving house with all the attendant inconve- niences. They moved only when it became apparent that the situation could continue indefinitely and when Mrs López Ostra’s daughter’s paediatrician recom- mended that they do so (see paragraphs 16, 17 and 19 above). Under these circum- stances, the municipality’s offer could not afford complete redress for the nuisance and inconveniences to which they had been subjected.
58. Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being – that of having a waste-treatment plant – and the applicant’s effective enjoyment of her right to respect for her home and her private and family life. There has accordingly been a violation of Article 8 (art. 8).
10 ECtHR, 9 December 1998, López Ostrav. Spain, A 303-C.
That is, the nuisance for the applicant and her family and the dangers to their health, combined with the failure of the state to adopt reasonable steps to protect these individual interests, led the Court to conclude that a violation had occurred. For the first time, an environmental issue was resolved under Article 8, giving rise to a violation of that same article.
A subsequent case in which the environmental issue was addressed by the Court was the Guerra case:11the complainants lived in the vicinity of a factory which they suspected of being involved in potentially dangerous activities.
The problem was, however, that the government did not respond to questions for information and clarification with respect to the potentially hazardous impact.
The Court approached this issue from the perspective of Article 8 and reasoned that information of this kind is relevant in order for people to be able to take reasoned decisions with respect to their private life.
The Court said:
1. The Court considers that Italy cannot be said to have ‘interfered’ with the appli- cants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protect- ing the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effec- tive respect for private or family life (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, § 32).
In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right to respect for their private and family life as guaranteed by Article 8 (see the López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55).
That is also the issue of positive obligations.
Subsequently the Court took from the López Ostra case its principled state- ment about the applicability of Article 8.
2. The Court reiterates 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 (see, mutatis mutandis, the López Ostra judg- ment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory. The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention.
11 ECtHR, 19 February 1998, Guerrav. Italy, Reports 1998-I.
There has consequently been a violation of that provision. Now it was not so much the direct environmental infringement of a private life, but a closely related procedural aspect that was at stake: the right to be informed.
This latter right is not used exclusively in the area of environmental issues but has been resorted to by the Court in other Article 8 cases as well: it is iden- tical to the right to be informed about the identity of one’s father, because it concerns information essential to making reasoned decisions about one’s life.
Another example in which the Court relied upon this right to be informed was in a case in which a former British soldier sought information about the level of radiation to which he had been exposed whilst in military service in the vicinity of nuclear tests.12
In a more recent judgment the Court had to decide about the noise gener- ated by landing and departing planes at Heathrow Airport: the petitioners claimed that Article 8 had been violated by the extreme noise, especially during the night, and by the ensuing decreasing value of their homes (the Hatton case). In fact there were two judgments: one by a chamber of the Court, which found that Article 8 had been violated13and the second, in appeal by the Grand Chamber, and overruling the Chamber, concluding that no violation had occurred.14In an older case the Court had previously already decided with respect to the same airport that Article 8 was applicable in relation to noise and decreasing value of property, but it had also decided that the airport noise was not incompatible with the applicable treaties in that respect and that the UK had not exceeded its large margin of appreciation taking into account the economic interests that were at stake.15
Now to return to the Hatton case: a happy ending for the United Kingdom, because of the overruling by the Grand Chamber of the Chamber judgment that a violation had occurred. But still significant, because the Court actually did impose important requirements upon the UK government about how to operate in major environmental questions.
Why had the Chamber achieved a negative judgment? The reason for it was twofold: the level of noise during the night had increased, the government had failed to carry out research detailing the importance of night flights for the economy of the UK as well as assessing the effects of night flights on local residents’ health and well-being. That is, the Chamber in fact introduced two major requirements in the context of environmental situations: first of all it looked into the seriousness of the infringement for which it is also important
12 ECtHR, 9 June 1998, McGinley and Eganv. the United Kingdom, 1998-III.
13 ECtHR, 2 October 2001, Hatton and others v. the United Kingdom (Hatton 1).
14 ECtHR, 8 July 2003, Hatton and others v. the United Kingdom (Hatton 2).
15 ECtHR, 21 February 1990, Powell and Raynerv. the United Kingdom; series A, vol. 172.
to note that, as the Chamber had noted, a deterioration had taken place in the level of noise. This is the substantive aspect.
The second requirement relates to procedure: if a serious infringement occurs and a deterioration has taken place, it is incumbent upon the govern- ment to carefully research all interests that are at stake. Because of the absence of such careful procedural effort the Chamber found a violation of Article 8!
However, the UK government appealed this decision and the Grand Chamber overruled. The Grand Chamber found that the applicants’ private life was adversely affected and so was the scope for their enjoyment of the ameni- ties of their respective homes. Since the noise was created by planes belong- ing to private companies and not by the state itself, the question is whether the state’s responsibility in this environmental case arose from a failure to regu- late private industry in a manner securing proper respect for the rights enshrined in Article 8. The question therefore is whether a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole.
Subsequently the Court distinguished between the López Ostra and Guerra cases on the one hand and the Hatton case on the other. The main distinction was that in the former two cases there had also been a failure by the domestic author- ities to comply with domestic law. In López Ostra the waste treatment plant operated without a licence; and in Guerra the state was under an obligation under domestic law to provide the applicants with the requested information.
In the opinion of the Court this element of domestic irregularity is missing in the Hatton case: the number of night flights was fully in accordance with domestic law! In justification of the night flights the Court notes the arguments of the government: the economic interests of the operators of airlines and other enterprises as well as the economic interests of the country.
The Court then asks the question whether it should apply a strict scrutiny test or whether it should allow the state a larger margin of appreciation. Strict scrutiny had been applied before in the case of intrusions into private life (for example, the Dudgeon case with respect to criminal measures); however the Court finds that the normal rule should be applied, meaning that a state must give due consideration to particular interests, with the choice between the different ways and means of meeting this obligation left up to the state. The Court’s supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.
Overall, the Court judges that the UK government had not overstepped their margin of appreciation, either substantially or procedurally. Although the Court showed leniency to the state in its overall assessment, the Hatton judg- ment clarified many issues and approaches by the Court, which will be useful for future issues and environmental matters.
Despite the prior examples of case law under Article 8 pertinent to envi- ronmental issues, it must be pointed out that the Court has also ruled that the European Convention of Human Rights does not include a specific right to environmental protection as such. Whenever a complaint is filed under Article 8 relating to an infringement of environmental protection, the Court requires a sufficient objective individual interest, tracing back to Article 8 issues. In every case the Court will investigate whether and to what extent the circum- stances complained about affect or threaten the personal situation (home, health, etc.) of the applicant and for which the government can be held respon- sible.16