2204204 (1)

Integrating Environmental Values into the European Convention on Human Rights
Author(s): Richard Desgagne

Source: The American Journal of International Law, Vol. 89, No. 2 (Apr., 1995), pp. 263-294
Published by: American Society of International Law; Cambridge University Press
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INTEGRATING ENVIRONMENTAL VALUES INTO THE
EUROPEAN CONVENTION ON HUMAN RIGHTS
By Richard Desgagne*
I. INTRODUCTION
Over the last two decades, the protection of the environment has become a
so widely recognized that environmental concerns have pervaded most fields of interna-
tional law, including the international law of human rights. In 1976 the European Com-
mission of Human Rights dismissed an application on the ground that "no right to
nature conservation [was] as such included among the rights and freedoms guaranteed
by the Convention and in particular by Arts 2, 3, or 5."l In 1993, however, the Com-
mission found that the erection and operation of a waste and water treatment station
near the domicile of the applicant was such a nuisance as to amount to a violation of her
right to a private life.2 This development in the case law of the European Commission
reflects a growing awareness of the links between protection of human rights and pro-
tection of the environment.
The Stockholm Declaration on the Human Environment of 19723 first pronounced
on the interrelationship between the enjoyment of human rights and the quality of the
environment. Since then, the conceptions of this issue have taken many forms. One has
been to add a "right to environment" to the human rights catalog. The Stockholm
Declaration fell short of proclaiming such a right; it emphasized that the full enjoyment
of human rights required the protection and improvement of the quality of the envi-
ronment.4 Subsequent international human rights instruments have also referred to
the environmental quality aspect of the enjoyment of human rights. For instance, the
Convention on the Rights of the Child provides that states are to take appropriate meas-
ures "[t]o combat disease and malnutrition, . . . taking into consideration the dangers
and risks of environmental pollution."5 The African Charter on Human and Peoples'
Rights states that "[a]ll peoples have the right to a general satisfactory environment
favorable to their development."6 Among the conventional instrtiments, only the Pro-
tocol of San Salvador to the American Convention on Human Rights grants an indi-
vidual human "right to live in a healthy environment."7
* LL.B. (University of Montreal), B.Adm. (University of Quebec, Montreal), LL.M. (McGill University),
D.E.S. (Graduate Institute of International Studies, Geneva). The author is a doctoral student at the Graduate
Institute of International Studies in Geneva.
'X. and Y. v. Federal Republic of Germany, App. No. 7407/76, 5 Eur. Comm'n H.R. Dec. & Rep. 161,
161 (1976). The applicant objected, for environmental reasons, to military uses of marshland.
2 Lopez Ostra v. Spain, App. No. 16798/90 (report of Aug. 31, 1993, unpublished).
' Declaration on the Human Environment (June 16,1972), in REPORT OFTHE UNITED NATIONS CONFER-
ENCEON THE HUMAN ENVIRONMENT, UN Doc. A/CONF.48/14/Rev.1, sec. I (1972), reprinted in 11 ILM
1416 (1972) [hereinafter Stockholm Declaration].
4Id., Principle 1 reads: "Man has the fundamental right to freedom, equality and adequate conditions of
life, in an environment of quality that permits a life of dignity and well-being and he bears a solemn responsi-
bility to protect and improve the environment for present and future generations."
' Convention on the Rights of the Child, Nov. 20, 1989, GA Res. 44/25, Art. 24, para. 2(c), UN GAOR,
44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), reprinted in 28 ILM 1448 (1989). See also Con-
vention Concerning Indigenous and Tribal Peoples in Independent Countries,June 27, 1989, ILO Conven-
tion No. 169, Art. 4, reprinted in 28 ILM 1382 (1989).
6 African Charter on Human and Peoples' Rights, June 27, 1981, Art. 24, OAU Doc. CAB/LEG/67/3/
Rev.5 (1981), reprinited in 21 ILM 58 (1982).
'Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights ("Protocol of San Salvador"), Nov. 14, 1988, Art. 11, OAS TS No. 69, reprinted in 28 ILM
156 (1989). The Protocol has received only two ratifications.
263
264 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 89:263
The status of the "right to environment" in international law has stirred much doc-
trinal debate. Some authors have argued for an emerging right to environment; others
have underlined the vagueness of the concept of "environment," even when modified
by terms like "decent," "healthy" or "safe"; still others have questioned the concept of
a "right to environment" altogether.8 Although the vagueness of the terms "right to a
healthy environment" and "right to a safe environment" is not an insurmountable ob-
stacle to their interpretation and application to concrete situations, the texts that pro-
claim a "right to environment" are either nonbinding instruments or do not provide
for implementation mechanisms. The recent Rio Declaration on Environment and De-
velopment may reflect the persistence of the doctrinal controversy by proclaiming
merely that "[human beings] are entitled to a healthy and productive life in harmony
with nature. "9 Notwithstanding that it may not be easily established, the proclamation
of a right to environment in many instruments does demonstrate a "general acceptance
of the links between human rights and environmental protection"'0 and that both are
social values that should be promoted."
A second approach to the interrelationship between human rights and environmental
protection is based on the recognition that they have both common and different in-
terests, and that in some respects they have conflicting objectives, while in others they
may be mutually beneficial.'2 From a human rights perspective, the contribution that
conservation and improvement of environmental quality can make to enhancing the
quality of human life was enunciated already in the Stockholm Declaration. From an
environmental perspective, the protection of human rights may contribute to protec-
tion of the environment since, as long as environmental damage can be translated into
a violation of a protected human right, a claim to the protection of the environment
may be asserted as a corollary to that right.'3 The fulfillment of certain political right
and procedural guarantees usually found in human rights instruments could also pre-
vent measures likely to cause environmental harm. For example, the United Nations
World Charter for Nature provided that "[a]ll persons, in accordance with their na-
Additionally, nearly 50 national constitutions include provisions related to environmental protection, for-
mulated as a right to environment or as a duty of the state. For the most part, these provisions are intended to
emphasize the importance of environmental preservation as a social value. There is often no implementation
mechanism. However, a decision of the Philippine Supreme Court derived a right to a balanced and healthful
ecology and a cause of action from section 16, Article II of the 1987 Constitution of the Philippines, which
provides: "The State shall protect and advance the right of the people to a balanced ecology in accord with
the rhythm and harmony of nature." Oposa v. Secretary of the Dep't of Env't & Natural Resources (July 30,
1993), reprinited iM 33 ILM 173 (1994).
For the texts of constitutional and legislative provisions on environmental rights and duties, see EDITH
BROWN WEISS, IN FAIRNESSTo FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY AND
INTERGENERATIONAL EQUITY 297-327 (1989); ENVIRONNEMENT ET DROITS DE L'HOMME 152 (Pascale Kro-
mareked., 1987).
8 Seegenzerallv Gudmundur Alfredsson & Alexander Ovsiouk, Humani Rights anzd the Enzviroii nment, 60 NOR
J. INT'L L. 19 (1991); Gunther Handl, Human Rights and Protection of the Environment: A Mildly "Revi-
sionist View" (1992) (on file with author); Alexandre Kiss, An IntroductorV Note onz a Right to Envirolnmenit, in
ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW 199 (Edith Brown Weiss ed., 1992); Dinah Shelton,
Humnani Rights, Eniviroiiinenztal Rights, anzd the Rights to Enzvirolnmenit, 28 STAN. J. INT'L L. 103 (1991); Melissa
Thorme, Establishing Eniviroii nment as a Humnani Right, 19 DENV. J. INT'L L. & POL'Y 310 (199 1).
9 Rio Declaration on Environment and Development (June 14, 1992), UN Doc. A/CONF.151/5/Rev.1,
Principle 1 (1992), reprinited in 31 ILM 874, 876 (1992) [hereinafter Rio Declaration]. See Dinah Shelton,
What Happenzed in Rio to Huinani Rights?, 3 Y.B. INT'L ENVTL. L. 75, 89-90 (1992).
10 Shelton, supra note 9, at 81.
" Alexandre Kiss, Le Droit a la coniservationi de l'enzvironitzeinemet, 2 REVUE UNIVERSELLE DES DROITS DE
L'HOMME [RUDH] 445,446 (1990).
12 Shelton, supra note 8, at 106-11.
'3 Michelle Leighton Schwartz, Internzationial Legal Protection for Victimns of Enzviron)nenztal Abuse, 18 YALEJ.
INT'L L. 355, 359-68 (1993).
1995] ENVIRONMENTAL VALUES AND HUMAN RIGHTS IN EUROPE 265
tional legislation, shall have the opportunity to participate, individually or with others,
in the formulation of decisions of direct concern to their environment, and shall have
access to means of redress when their environment has suffered damage or degrada-
tion."'4 Conservation and improvement of the environment could thus be promoted
through the application of certain procedural rights, such as the right to participate in
decision making, the right to information enabling effective participation, and the right
of access to a tribunal for the enforcement of one's rights and for injuries suffered. 15
This article analyzes the case law relating to environmental protection under the
European Convention for the Protection of Human Rights and Fundamental Free-
doms,'6 from both human rights and environmental perspectives. That is, it examines
how the Commission and the Court have envisioned the link between the enjoyment of
human rights and the quality of the environment, and how the rights protected by the
Convention have been or could be asserted before its institutions to promote conserva-
tion of the environment. In general, the Convention institutions have recognized to a
certain extent that the quality of the environment underlies the enjoyment of human
rights, especially the right to a healthy life, but they have not established a minimum
standard of environmental quality that should ensure the full enjoyment of human
rights. On the other hand, the Court and the Commission have clearly stated that envi-
ronmental protection is a legitimate public interest under the Convention, so that limi-
tations on human rights for the purpose of environmental protection may be imposed.
From an environmental perspective, the assertion of substantive human rights appears
to offer a limited opportunity to promote the protection or improvement of the envi-
ronment in general. On the other hand, procedural rights, such as the right to a tribunal
and the right to information, can offer such an opportunity.
The discussion is divided into two main parts, dealing first with the human rights
perspective, and second with the environmental perspective. We begin by analyzing the
claims to environmental protection that have been submitted to the institutions of the
Convention on the basis of the substantive guaranteed rights.
II. ENVIRONMENTAL PROTECTION: THE HUMAN RIGHTS PERSPECTIVE
A RIGHT TO ENVIRONMENT AS A COROLLARY SUBSTANTIVE RIGHT
Neither the European Convention nor the European Social Charter'7 provides for a
right to environment. The Commission has also ruled that such a right cannot be di-
rectly inferred from the Convention. Environmental issues have thus been raised inci-
dentally, through the assertion of protected rights.'8 The quality of the environment
14 World Charter for Nature, GA Res. 37/7, Annex, para. 24, UN GAOR, 37th Sess., Supp. No. 51, at 17,
UN Doc. A/37/51 (1982). See also Rio Declaration, supra note 9, Principle 10, quoted in text at note 173 infra.
15 Kiss, supra note 11, at 448; Shelton, supra note 8, at 117.
16 European Convention for the Protection of Human Rights and Fundamental Freedoms, openedfor signa-
ture Nov. 4, 1950, Eur. TS No. 5, 213 UNTS 221 [hereinafter European Convention].
17 European Social Charter, Oct. 18, 1961, Eur. TS No. 35, 529 UNTS 89 [hereinafter Social Charter].
Proposals for the insertion of a right to environment in the Social Charter have been made without success
since the early 1970s. In 1990 the Parliamentary Assembly of the Council of Europe recommended the
drafting of a European charter and convention on environmental protection and sustainable development
that would provide for a right to environment. This recommendation has not been accepted by the Commit-
tee of Ministers. Recommendation on the Formulation of a Draft European Charter and a European Con-
vention on Environmental Protection and Sustainable Development, Eur. Parl. Ass., 42d Sess., Recommen-
dation 1130 (1990), reprinted in 1 Y.B. INT'L ENVTL. L. 484 (1990).
18 The European system of human rights protection operates in the framework of the Council of Europe.
Under Article 25 of the Convention, individuals, nongovernmental organizations and groups of individuals
may submit petitions to the European Commission of Human Rights. Only the Commission and the contract-
ing states subject to the Court's compulsoryjurisdiction have access to the European Court of Human Rights.
may bear on many human rights,'9 but it most directly affects the rights
integrity of persons and their immediate surroundings. Environmental issues that have
been brought to the attention of the Convention institutions have thus been formulated
principally as violations of the right to life, the right to respect for one's private life or
the right to the peaceful enjoyment of one's possessions.
The Right to Life
The fulfillment of human fundamental needs is dependent on many elements of the

environment: air to breathe, water to drink, food to eat and shelter for protection. The
quality of the environment is therefore directly related to the full enjoyment of the
right to life.20 As the Constitutional Court of India found:
[The] right to life is a fundamental right under article 21 of the Constitution and it
includes the right of enjoyment of pollution-free water and air for full enjoyment
of life. If anything endangers or impairs that quality of life in derogation of laws, a
citizen has the right to have recourse to article 32 of the Constitution for removing
the pollution of water or air which may be detrimental to the quality of life.2'
The Inter-American Commission on Human Rights similarly established a link be-

tween environmental quality and the right to life when it examined a petition submitted
on behalf of the Yanomani Indians in Brazil. The petitioners alleged that the Brazilian
Government had breached the American Declaration of the Rights and Duties of Man22
by constructing a highway through the territory where the Indians lived, authorizing
the exploitation of the territory's resources, permitting massive penetration of the ter-
ritory by outsiders carrying various contagious diseases, and not providing the essential
medical care to the persons affected. The Commission found that the Brazilian Govern-
ment had violated, inter alia, the Indians' rights to life, liberty and personal security,
without, however, specifically linking the different facts to the corresponding in-
fringed right.23
On receiving a petition, the Commission first examines its admissibility in regard to conditions set by Article
26 (exhaustion of local remedies) and Article 27 (reasons for nonadmissibility are anonymous petitions, peti-
tions submitted to another international procedure, no apparent violation of a protected right and abuse of
right of petition). If the application is accepted, the Commission places itself at the disposal of the parties
concerned with a view to securing a friendly settlement. If the matter is not resolved, the Commission draws
up a report on the facts and states its opinion. The report is transmitted to the Committee of Ministers. If the
question is not referred to the Court by the Commission or a contracting state, the Committee decides
whether the Convention has been violated.
When Protocol No. 1 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms,
Restructuring the Control Machinery Established Thereby, May 11, 1994, reprinted in 33 ILM 943 (1994),
enters into force, the Commission and the Court will be replaced by a single permanent court.
19 See generally Mohamed Ali Mekouar, Le Droit a l'environnement dans ses rapports avec les autres droits de
ilhomme, in ENVIRONNEMENT ET DROITS DE L'HOMME, supra note 7, at 91, 91-101.
20 See generally W. Paul Gormley, The Legal Obligation of the International Community to Guarantee a Pure and
Decent Environment: The Expansion of Human Rights, 3 GEO. INT'L& ENVTL. L. REV. 85 (1990).
21 Kumar v. State of Bihar, cited in Sub-Comm'n on Prevention of Discrimination and Protection of Mi-
norities, Human Rights and the Environment: Second Progress Report Prepared by Mrs Fatma Zhora Ksen-
tini, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1993/7, at 18 [hereinafter Second Progress Report].
22 Pan American Union, Final Act of Ninth Conference, Res. XXX, at 38 (1948), reprinted in 43 AJIL
133(Supp.1963).
23 Case 7615 (Brazil), INTER-AM. C.H.R., 1984-1985 ANNUAL REPORT 24, OEA/Ser.L/V/II.66, doc.
10, rev.l (1985), reprinted in 1985 INTER-AM. Y.B. ON H.R. 264, 279. The Commission declared:
[B]y reason of the failure of the Government of Brazil to take timely and effective measures in behalf of
the Yanomani Indians, a situation has been produced that has resulted in the violation, injury to them,
of the following rights recognized in the American Declaration of the Rights and Duties of Man: the
right to life, liberty, personal security (Article I); the right of residence and movement (Article VIII); and
the right to the preservation of health and to well-being (Article XI).
Different views have been voiced on the scope of the right to life in international law.
The divergences relate to the meaning of "life" and to the extent of the state's duty to
protect the right to life. A classic approach is to consider the right to life as a "right to
physical life."24 Qualitative aspects of life are seen as falling in the domain of social and
economic rights. A more liberal view looks upon the right as a "right to subsistence":
"The duty of the State to assure satisfaction of the survival requirements of every per-
son within itsjurisdiction must be considered as an unavoidable component of the right
to life . . *"25
Provisions on the right to life in different international instruments have also been
given various constructions. For instance, some members of the United Nations Human
Rights Committee attribute a broad scope to Article 6 of the International Covenant
on Civil and Political Rights.26 They contend that the state cannot fulfill its duty to
protect the right to life without adopting measures designed to reduce the infant mor-
tality rate, prevent industrial accidents and protect the environment.27 The right to life
under Article 2 of the European Convention28 has been more narrowly interpreted.
The sparse case law on Article 229 and the comments of writers have usually construed
the right to life as a "right to physical life,"30 rather than to "subsistence" or "a liv-
ing."3' According to one author,
it is not life, but the right to life, which is protected. This is a legal concept which
implies that no one may be deprived of his life save on conditions prescribed by
law, those conditions being defined in the rest of Article 2 so as to set limits to the
taking of life by public authority, and to permit the State to declare killing in self-
defence to be on certain conditions lawful. 2
The duty to protect the right to life, since it must be "protected by law," rests a priori
on the state.33 In the first place, it entails a negative obligation of respect; life cannot
24 R. S. Pathak, The Humnan Rights System as a Conceptual Frameworkfor Environmental Lazwl, in ENVIRONMEN-
TAL CHANGE AND INTERNATIONAL LAW, supra note 8, at 205, 218.
25 B. G. Ramcharan, The Concept anid Dimenesions of the Right to Life, in THE RIGHT TO LIFE IN INTERNA-
TIONAL LAW 1, 6 (B. G. Ramcharan ed., 1985). See also Rein Miillerson, Right to Survival as Right to Life of
Humanity, 19 DENV.J. INT'L L. & POLLY 47 (1991).
26 Dec. 19, 1966, 999 UNTS 171, reprinted in 6 ILM 368 (1967) [hereinafter Political Covenant].
27 UN Doc. CCPR/C/SR.222, para. 59 (1980), mentioned in Thomas Desch, The Concept and Dimensions of
the Right to Life (as Definzed in Internatioizal Standards anzd in Interniation2al and Comnparative Jurisprudenlce), 36
OSTERREICHISCHE ZEITSCHRIFT FUR OFFENTLICHES RECHT UND V6LKERRECHT 77, 101 (1985).
28 Article 2 of the European Convention reads:
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentional
save in the execution of a sentence of a court following its conviction of a crime for which this pena
provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results
from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;

(b) in order to prevent a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
29 See generally Patricia Lefeuvre, La Protection du droit a la vie danis la Conzvenitionl europeenne des droits de
1lhomme, in LE DROIT A LA VIE QUARANTE ANS APRES LA DECLARATION UNIVERSELLE DES DROITS DE
L'HOMME 51, 55 (Daniel Premont & Fransoise Montant eds., 1992).
50 Thus, the Belgian Court of Cassation decided that "le droit a la vie au sens de l'article 2 de la Convention
de sauvegarde des droits de l'homme n'est que le droit a la vie physique au sens usuel du terme et non le droit
a une vie que l'individu concerne peut subjectivement qualifier de 'decente'." Judgment of Feb. 5, 1985,
Cass., Pasicrisie Belge, pt. I at 670, 680 (1985), cited in JACQUES VELU & RUSEN ERGEC, LA CONVENTION
EUROPEENNE DES DROITS DE L'HOMME 174 (1990).
"' Franciszek Przetacznik, The Right to Life as a Basic Human Right, 9 HuM. RTS. J. 585, 591 (1976).
32J. E. S. FAWCETT, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 30-31
(1969).
" Anna Michalska, La Protection internationale du droit a la vie (Problemes choisis), 17 POLISH Y.B. INT'L L
85,91 (1988).
be taken intentionally by the state or its agents in other circumstances than the ones
specified.34 Positive obligations may derive from the general terms of the first sentence
of Article 2.35 The duty of respect encompasses the obligation to prevent situations that
might imperil human life and, eventually, the obligation to prosecute persons responsi-
ble for a loss of life. Prevention, however, is an obligation of wider scope than that
afforded by the mere "right to be safeguarded against (arbitrary) killing"36-although
the level of protection to be provided by the state is not unlimited.37
The protection ensured by Article 2 does not concern "threats" but "deprivations"
of life;38 nevertheless, the Commission has not precluded the protection of physical
integrity if a threat is certain enough that life might be endangered.39 In the Soering case,
the Court also recognized that a potential violation may amount to an actual violation of
a protected right when the injury is "foreseeable ... and of a serious and irreparable
nature."40 Protection against potential interference might not be applicable to every
right under the Convention,4' but the "serious and irreparable nature" of any violation
of the right to life suggests that protection from potential violations of this right can be
derived from Article 2. In Association X. v. United Kingdom,42 an association of parents
whose children had suffered severe injury or died as a result of vaccinations alleged that
34 Id. at 92; VELU & ERGEC, supra note 30, at 179-80. In contrast to Article 6 of the Political Covenant,
supra note 26, and Article 4 of the American Convention on Human Rights, openzed for signzature Nov. 22,
1969, 1144 UNTS 123, reprinzted ini 9 ILM 99 (1970) [hereinafter American Convention], which prohibits
arbitrary deprivation of life in general, Article 2 exhaustively enumerates the conditions under which
life may be taken.
35 FAWCETT, supra note 32, at 3 1; Leighton Schwartz, supra note 1 3, at 362; Michalska, supra note 33, at
92; VELU & ERGEC, supra note 30, at 180. The Inter-American Court of Human Rights stated that the
obligation to protect and ensure the guaranteed rights implies the duty
to organize the governmental apparatus and, in general, all the structures through which public power is
exercised, so that they are capable ofjuridically ensuring the free and full enjoyment of human rights....
States must prevent, investigate and punish any violation of the rights recognized by the Convention and,
moreover, if possible attempt to restore the right violated and provide compensation as warranted for
damages resulting from the violation.
Velasquez Rodriguez Case, 4 Inter-Am. Ct. H.R. (ser. C), para. 166 (1988).
56 Yoram Dinstein, The Right to Life, Physical Liberty anzd Liberty, i71 THE INTERNATIONAL BILL OF HUMAN
RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 114,115 (Louis Henkin ed., 1981).
37 Lefeuvre, supra note 29, at 54. In X. v. Ireland, App. No. 6839/74, 7 Eur. Comm'n H.R. Dec. & Rep.
78 (1977), the applicant alleged that the authorities' refusal to give free medical services to her daughter
constituted a breach of her daughter's right to life. The Commission, while leaving the question of the positive
duties that might flow from Article 2 unanswered, noted that "[t]he applicant's daughter appear[ed] ... to
have received assistance from the local health authorities and her life ha[d] not been endangered." Id. at 79.
In X. v. Ireland, App. No. 6040/73, 17 Y.B. EUR. CONV. ON H.R. 388 (1973), the Commission found that
Article 2 could not be interpreted as imposing a duty on the state to provide a personal bodyguard, at least
for an indefinite period of time. In Mrs W. v. United Kingdom, App. No. 9348/81, 32 Eur. Comm'n H.R.
Dec. & Rep. 190, para. 12 (1983), the applicant alleged a violation of Article 2 after her husband was killed
by the Provisional IRA. The Commission stated that Article 2 "may ... indeed give rise to positive obligations
on the part of the State. That, however, does not mean that a positive obligation to exclude any possible
violence could be deduced from this article."
58 VELU & ERGEC, supra note 30, at 182.
9 In X. v. Austria, App. No. 8278/78,18 Eur. Comm'n H.R. Dec. & Rep. 154,156 (1980), the Commis-
sion wrote that Article 2 "does, however, primarily provide protection against deprivation of life only. Even
assuming that physical integrity may be seen as protected by this Article an insignificant intervention such as
a blood test does not amount to an interference prohibited by it."
40 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), para. 90 (1989). The Court wrote:
It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential
violations of the Convention. However, where an applicant claims that a decision to extradite him would,
if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting
country, a departure from this principle is necessary, in view of the serious and irreparable nature of the
alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article.
41 In the Beldjoudi Case, 234-A Eur. Ct. H.R. (ser. A), paras. 66-67 (1992), the Court considered that a
future, but certain, interference came under the scope of Article 8 (enforcement of a deportation order).
42 App. No.7154/75,14 Eur. Comm'n H.R. Dec. & Rep. 31, 32 (1979).
the British authorities had unjustifiably jeopardized the children's lives by not furnish-
ing information on the risks of vaccination. In its decision on admissibility, the Com-
mission declared that the state was obliged not only to refrain from taking life inten-
tionally, but also to take adequate steps to safeguard it. After assessing the precautions
taken by the Government, however, the Commission found that, in the circumstances,
the state could not be held liable since the injuries had not been intended43 and ade-
quate measures had been taken. It concluded that the complaint under Article 2 was ill-
founded.
Article 2 should be applicable when environmental hazards are created by activities
of the state or entities under its jurisdiction.44 In view of the fact that the obligation to
respect the right to life encompasses avoidance of serious risks to human life, the source
of such risks should not be relevant.45 The state may have an obligation of abstention
or of prevention, depending on the circumstances. The state's behavior regarding the
level of risk that life would be lost must be assessed.46 The measures of precaution or
protection to be taken should then be determined in accordance with the magnitude of
the risk involved.
Still, a threat to life must attain a certain level of certainty to come within the ambit
of Article 2. In another case before the Commission, an applicant alleged that nuclear
tests, the installation of launching pads for nuclear weapons, the storage of nuclear
materials and the dumping at sea of nuclear wastes by the Federal Republic of Germany
were endangering human lives. The Commission declared the complaint ill-founded on
the ground that its examination of the submissions did not reveal any apparent viola-
tions of a guaranteed right, namely of Article 2. Yet this case goes back to the early
1 960s. A different view might be taken by the Commission thirty years later, at least at
the admissibility stage.
In fact, most cases relating to the right to life were rejected at the stage of admissibil-
ity. It is certainly possible that the Commission's interpretation of the right to life will
evolve in the future.48 In another forum, the UN Human Rights Committee, a resident
of Port Hope (Ontario) alleged that the storage there of a large quantity of nuclear
wastes constituted a violation of Article 6 of the Political Covenant. The dump had
been closed down, but more than two hundred thousand tons of wastes remained. The
petition was finally rejected because local remedies had not been exhausted, but the
Committee, before reaching that question, observed that the communication "raised
serious issues regarding the duty of State parties to protect the right to life as provided
by Art. 6(1)."49 The European Commission, for its part, has extended the admissibility
of claims concerning environmental pollution under Article 3 of the Convention.
43 In X. v. Belgium, App. No. 2758/66, 12 Y.B. EUR. CONV. ON H.R. 174, 193 (1969), the Commission
had interpreted the word "intentionally" strictly, but it later stated that the taking of life as a result of negli-
gence might also pose an issue under Article 2. Stewart v. United Kingdom, App. No. 10044/82, 39 Eur.
Comm'n H.R. Dec. & Rep. 162, para. 15 (1984).
4 Leighton Schwartz, supra note 13, at 362; Ramcharan, supra note 25, at 13; Stefan Weber, Enivironmental
Information anzd the European Convention on Human Rights, 12 HUM. RTS. LJ. 177, 181 (1991); Second Progress
Re ort, supra note 21, at 22.
4 Weber, supra note 44, at 181. 46 Michalska, supra note 33, at 98.
47 Dr S. v. Federal Republic of Germany, App. No. 715/60 (Aug. 5, 1960, unpublished); see Maguelonne
Dejeant-Pons, L'Insertion du droit de 1'homme a l'environnement dans les systemes re'gionlaux de protection des droits
del'homme, 2 RUDH 461,464 (1991).
48 Maguelonne Dejeant-Pons, Le Droit de 1'homme a' 1'environnzement, droitfondamental au nziveau europee
le cadre du Conseil de l'Europe, et la Convention europeenne de sauvegarde des droits de l'homme et des liberte
mentales, 4 REVUE JURIDIQUE DE L ENVIRONNEMENT (forthcoming 1994) (manuscript at 6, on file with au-
thor).
49 Port Hope Envtl. Group v. Canada, Communication No. 67/1980, 2 SELECTED DECISIONS OF THE Hu-
MAN RIGHTS COMMITTEE UNDER THE OPTIONAL PROTOCOL 20, UN Doc. CCPR/C/OP/2, UN Sales No.
E.89.XIV.1 (1990).
The Right to Physical Integrity and Health
The prohibition of degrading treatment. Article 3 of the European Convention provides

that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or
punishment."50 The terms "torture," "inhuman treatment" and "degrading treat-
ment" have been given differentiated meanings so that the applicability of Article 3
is modulated according to different thresholds.5' However, even to reach the lowest
threshold, "degrading treatment," the acts must attain "a minimum level of severity. "52
This threshold has been set high, so that "Article 3 excludes not only trivial complaints
but also those where the actions impugned may be undesirable and/or illegal but which
do not cause sufficiently serious suffering or humiliation to fall within the scope of Ar-
ticle 3.",53 Although the severity of the treatment is assessed in concreto by taking into
account such circumstances as its duration, its physical or mental effects, and the sex,
age and state of health of the victim,54 an examination of the case law supports the
contention that "a considerable amount of pain or exhaustion, physical and/or mental
will have to be suffered"55 for Article 3 to be found applicable. "In practice, it has led
the Commission to find that very disturbing treatment did not violate Article 3.a56
In Lopez Ostra v. Spain,57 the Commission seems to have broadened the applicability
of Article 3, at least at the admissibility stage. The applicant alleged that being com-
pelled to live near a water purification and waste treatment station erected by tanneries
about twelve meters from her residence amounted to a violation of Article 3. The
fumes, smells and contamination emanating from the station had caused so many health
problems and annoyances in the neighborhood that the municipality had evacuated the
inhabitants and rehoused them for a few months. The station, which had started to
function without the proper permit, was ordered to cease some of its operations, but
some were maintained. Before the Commission, the Spanish Government argued that
the annoyances had ceased since the partial suspension of the station's activities. But the
applicant complained of persistent health problems and the degradation of her sur-
roundings and quality of life. In addition to Article 3, she invoked Article 8, which
protects the right to one's private life. The Commission decided that complex questions
of law had been raised that required an examination on the merits, and it declared the
application admissible under Articles 3 and 8. In its report on the merits, however, the
50 On Article 3, see generally Louise Doswald-Beck, What does the Prohibitionz of "Torture or Inhumnan or
Degrading Treatmenit or Punlishmnenit" mnean? The Interpretatio?z of the Europeani Comnmnissionz anid Court of Human
Rights, 25 NETH. INT'L L. REV. 24 (1978); P.J. Duffy, Article 3 of the Europeani Conzven?tionz on7 Humnani Rights, 32
INT'L & COMP. L.Q. 316 (1983); Frederic. Sudre, La Notionz de "peinies et traiteinenzts inzhumnainis ou degradants"
dans la jurisprudence de la Comnmnissionz et la Cour europeenine des droits de 1'hommne, 88 REVUE GENERALE DE DROIT
INTERNATIONAL PUBLIC 825 (1984).
51 Sudre, supra note 50, at 839. In the Greek Case, 12 Y.B. EUR. CONV. ON H.R. 1, 186 (1969), the
Commission gave the following definitions of "torture" and "inhuman or degrading treatment":
It is plain that there may be treatment to which all these descriptions apply, for all torture must be
inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman
treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which,
in the particular situation, is unjustifiable.
The word "torture" is often used to describe inhuman treatment, which has a purpose, such as the
obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated
form of inhuman treatment. Treatment or punishment of an individual may be said to be degrading if it
grossly humiliates him before others or drives him to act against his will or conscience.
52 Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A), para. 30 (1978).
" Duffy, supra note 50, at 320.
54 Tyrer, supra note 52, para. 30; Sudre, supra note 50, at 844.
55 Doswald-Beck, supra note 50, at 33. 56 Duffy, supra note 50, at 345.
57 Supra note 2.
Commission did not find that the annoyances were such as to amount to a breach of
Article 3, but it decided that there had been a violation of Article 8.58
The right to health. Article 11 of the Social Charter contains an undertaking "to re-
move as far as possible the causes of ill-health."59 Inasmuch as environmental degrada-
tion can affect human health, it falls within the domain covered by the Social Charter.60
Under Article 11, the mandate of the Committee of Experts6' has thus been extended
to include special attention to air and water pollution, dangerous radioactive materials,
noise pollution and food contamination. But despite the Committee's acknowledgment
that the right to health entails an obligation to prevent environmental degradation that
could bear upon human health, the obligation is very general and the threshold of
protection to be met remains undefined.62 Furthermore, the opinions of the Committee
of Experts are not binding. As for the European Convention, the right not to have one's
health impaired is given some protection under Article 8.
The Right to Respectfor One's Private Life
The first paragraph of Article 8 provides for the right to respect for one's private life
and home, while permissible limitations to this right are stated in the second para-
graph.63 Two main approaches have been used in cases involving this provision.64 The
principal one applies to situations where the respect for private life would be ensured
by a negative obligation, as the main object of Article 8 is "essentially that of protecting
the individual against arbitrary interference by the public authorities in his private or
family life."65 This approach proceeds in three steps: determination of the applicability
58 See text at note 80 infra. The case is now before the Court.
5 Article 11 is found in part II of the Social Charter, which contains the undertakings that are binding if
accepted by states. Part I declares the aims of the contracting parties. From the 19 articles of part II, a state
must select 15 by which it considers itself bound. Of these, it must select at least five from the following:
Articles 1 (right to work), 5 (right to organize), 6 (right to bargain collectively), 12 (right to social security),
13 (right to social and medical assistance), 16 (right of the family to social, legal and economic protec-
tion), and 19 (right of migrant workers and their families to protection and assistance). European Social
Charter, supra note 17, Art. 20.
60 Dejeant-Pons, supra note 47, at 463; Jean-Paul Jacque, La Protection du droit a 1'environn leinent au niveau
europeen ou regional, in ENVIRONNEMENT ET DROITS DE L'HOMME, supra note 7, at 65, 68.
61 The Social Charter does not provide for an individual complaint procedure. Its application is supervised
through the submission by states of reports to the Secretary General of the Council of Europe. The reports
are then examined by the Committee of Experts and the Committee's report is transmitted to the Committee
of Ministers, which, by a two-thirds majority, may make recommendations to the contracting parties. Euro-
pean Social Charter, supra note 17, Arts. 21, 22, 24, 28. The reporting procedure was amended by the
Torino Protocol Amending the European Charter, Oct. 21, 1991, Eur. TS No. 142 (not yet in force).
62 Handl, supra note 8, at 12. The Committee of Experts has stated that, to meet their obligations under
Article 11 of the Social Charter, supra note 17, states must provide information on the existence of a health
system, including, inter alia, "general measures aimed in particular at the prevention of pollution from radio-
active substances, noise abatement, food control, environmental hygiene and the control of alcoholism and
drugs." Thus, the Committee has noted the intention of some national authorities to reduce sulfur dioxide
and nitrogen oxide emissions. COUNCIL OF EUROPE, CASE LAW ON THE EUROPEAN SOCIAL CHARTER 104
(1982). See Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Human Rights and
the Environment: Progress Report by Mrs Fatma Zhora Ksentini, Special Rapporteur, 44th Sess., UN Doc.
E/CN.4/Sub.2/1992/7, at 22.
6' Article 8 reads:
1. Everyone has the right to respect for his private life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health and morals, or for the protection of the rights and freedoms of others.
64 Alpha M. Connelly, Problems of Interpretation of Article 8 of the European Convention on Human Rights, 35
INT'L & COMP. L.Q. 567, 570-75 (1986).
65 Certain Aspects of the Laws on the Use of Languages in Education in Belgium, 6 Eur. Ct. H.R. (ser. A)
at 32-33, para. 7 (1968).
of Article 8, establishment of interference by a public authority, and consideration of

the exceptions under the second paragraph.66 The control exercised by the Convention
institutions focuses on the legality of the measures,67 the legitimacy of the aim pursued,
and the proportionality of the interference to the aim. The test of proportionality is
drawn from the requirement that the measure be "necessary in a democratic society."
According to the Court, such a measure is neither "indispensable" nor "admissible,"
"useful," "reasonable" or "desirable," but it implies a "pressing social need" and "re-
gard must be had to the fair balance that has to be struck between the competing inter-
ests of the individual and of the community as a whole."68 States enjoy a certain margin
of appreciation in determining the legitimacy of the aim pursued, as well as the required
balance between the interests of the individual and the community, since, in the Court's
view, states can more readily assess the necessity of the restrictions than the Court
itself.69
As stated in the Marckx case,70 positive duties essential to ensuring the effective pro-
tection of the right to private life may flow from the article. These duties extend to the
adoption of measures aimed at preventing individuals from committing acts contrary to
Article 8.7' The second approach under Article 8 is then, first, to establish the applica-
bility of Article 8 and, second, to determine whether the state has a positive obligation
in the particular circumstances.72 This determination is also grounded in a fair balance
between the interest of the individual and the general interest.73 Paragraph 2 of Article
8 does not apply in such cases since no interference is alleged, but to the Court this
balance inheres in the foundation of the whole Convention.74
The scope of private life. Although the Commission and the Court have constantly de-
clined to define the notion of "private life" precisely,75 the general scope of the right to
respect for one's private life has been stated to be "such that it secures to the individual
a sphere within which he can freely pursue the development and fulfilment of his per-
sonality. In principle whenever the State enacts rules for the behaviour of the individual
within this sphere, it interferes with the respect for private life."76
66 Connelly, supra note 64, at 570. As the second paragraph of Article 8 involves exceptions to the protected
rights, it must be interpreted strictly. ANDREW DRZEMCZEWSKI, LE DROIT AU RESPECT DE LA VIE PRIVEE ET
FAMILIALE, DU DOMICILE ET DE LA CORRESPONDANCE TEL QUE LE GARANTIT L-ARTICLE 8 DE LA CONVEN-
TION EUROPEENNE DES DROITS DE L'HOMME 17 (1985); Dimitrios Evrigenis, Recenzt Case-law of the European
Court of Human Rights on Articles 8 and 10 of the European Convention on Humnani Rights, 3 HUM. RTS. L.J. 121,
131 (1982).
67 See Silver v. United Kingdom, 61 Eur. Ct. H.R. (ser. A), paras. 58-59 (1983). Also Mireille Delmas-
Marty, The Richness of Underlying Legal Reasoning, in THE EUROPEAN CONVENTION FOR THE PROTECTION OF
HUMAN RIGHTS: INTERNATIONAL PROTECTION VERSUS NATIONAL PROTECTION 319, 324 (Mireille Del-
mas-Marty ed., 1992).
68 Powell and Rayner v. United Kingdom, 172 Eur. Ct. H.R. (ser. A), para. 41 (1990).
69 In Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A), para. 48 (1976), the Court observed:
By reason of their direct and continuous contact with the vital forces of their countries, State authorities
[were] in principle in a better position than the international judge to give an opinion on the exact content
of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them.
70 Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A), para. 31 (1979). See also Airey v. Ireland, 32 Eur. Ct. H.R.
(ser. A), para. 33 (1979).
71 In X. and Y. v. Netherlands, 91 Eur. Ct. H.R. (ser. A), para. 23 (1985), the Court stated that the duties
under Article 8 "may involve the adoption of measures to secure respect for private life even in the sphere
of the relations of individuals between themselves." The obligation was to provide penal protection for a
mentally handicapped person who was a victim of sexual violence.
72 Connelly, supra note 64, at 572.
7' Rees v. United Kingdom, 106 Eur. Ct. H.R. (ser. A) (1986).
74 Id., paras. 37, 60.
75 DRZEMCZEWSKI, supra note 66, at 8; Connelly, supra note 64, at 568.
76 Deklerck v. Belgium, App. No. 8307/78, 21 Eur. Comm'n H.R. Dec. & Rep. 116,124 (1981).
Private life encompasses, in the first place, a person's intimate life and physical well-
being.77 High levels of noise from airports have thus been considered as intervention in
the sphere of private life. In Arrondelle v. United Kingdom,78 the applicant's house was
situated between the runway of an airport and a highway. The applicant complained
that the intensity, duration and frequency of the aircraft and traffic noise had badly
affected her health. Her application was declared admissible, but as the parties reached
a friendly settlement, the Commission did not issue a decision on the merits.79 In Lopez
Ostra v. Spain,80 mentioned above, after ascertaining the relationship between the ema-
nations from the waste treatment station and their effects on the health of the appli-
cant's family on the basis of medical reports, the Commission found that the fumes were
enough of a nuisance to constitute interference with the protections of Article 8.
Apart from health and physical well-being, a certain quality of life is also assured
through the protection afforded to the home. In Powell and Rayner, also concerning
aircraft noise pollution, the Court ruled that there had been interference in the appli-
cants' private sphere since "[i]n each case, albeit to greatly differing degrees, the quality
of the applicant's private life and the scope for enjoying the amenities of his home ha[d]
been adversely affected by the noise generated by aircraft using Heathrow airport. "81
In an earlier decision, the Commission had also considered that the quality of life was
protected under Article 8. In S. v. France,82 the applicant owned a house on the bank of
the Loire River. On the opposite bank, less than three hundred meters away, a nuclear
power station was constructed. She alleged that the erection of the station had
transformed the rural surroundings of her home into an industrial environment with
several negative consequences: complete alteration of the natural site, noise pollution,
industrial light during the night, microclimatic modification and devaluation of the
property. The applicant had obtained only partial satisfaction before the French ad-
ministrative tribunals. The French Conseil d'Etat had found that she had not suffered
any special or abnormal injury attributable to the view of the station, its permanent
light or the cloudiness over the cooling towers, but that Electricite de France was liable
for the noise nuisance. On the applicability of Article 8, the Commission observed that
noise of a considerable magnitude could not only affect the physical well-being of indi-
viduals, but also prevent them from enjoying the amenities of their homes.83 The dis-
turbances caused by the noise were considered as interference even though adverse
effects on the applicant's health had not been alleged.
The extent to which respect for the private sphere can encompass "quality of life"
aspects outside the home is not clear. Elements of the larger environment have not been
readily conceded to belong to the private sphere, even though they might enable a
person to "freely pursue the development and fulfilment of his personality." In X. v.
Iceland, the applicant complained that, under existing regulations, he was not permitted
77 Louise Doswald-Beck, The Meaning of the Right to Respect for Private Life under the European Conzvention on
Human Rights, 4 HuM. RTS. L.J. 283, 289 (1983). See X. and Y. v. Netherlands, supra note 71, para. 22.
78 Arrondelle v. United Kingdom, App. No. 7889/77, 23 Y.B. EUR. CONV. ON H.R. 166 (1980).
79 Arrondelle v. United Kingdom, Report of the Commission of 13 May 1982, 25 Y.B. EUR. CONV. ON
H.R. 235 (1982). Friendly settlements usually consist of monetary compensation on an ex gratia basis. See
generally Torkel Opsahl, Reglement amiable des litiges dans le respect des droits definis dans la Conzvention europeenne
des droits de Ihomnme, in 6 INTERNATIONAL COLLOQUY ABOUT THE EUROPEAN CONVENTION ON HUMAN
RIGHTS, PROC. 972 (1988) [hereinafter 6 PROC.]. In Baggs v. United Kingdom, App. No. 9310/81, 44 Eur.
Comm'n H.R. Dec. & Rep. 13 (1985), the applicant also complained about noise and vibration caused by air
traffic. The Commission found that the annoyances were worse than in the Arrondelle case. The application
was declared admissible and a friendly settlement was also reached.
80 Supra note 2. 81 Powell and Rayner, supra note 68, para. 40.
82 App. No. 13728/88 (May 17, 1990), reprinted in 3 RUDH 236 (1991).
83 Id. at 237.
to keep a dog. The application was dismissed on the ground that "the protection
afforded by Article 8 of the Convention extends to relationships of the individual with
his entire immediate surroundings, insofar as they do not involve human relationships
and notwithstanding the desire ... to keep such relationship within the private
sphere."84
This distinction between human and nonhuman surroundings in delimiting the
sphere of protection of Article 8 seems arbitrary. Relations with the nonhuman world
may also contribute to one's "development and fulfilment" and be an important aspect
of private life. More recently, the Commission itself admitted that, for example, a life
style integrated with the larger environment could be considered as part of "private
life." The case concerned an application against Norway in which two Norwegian Lapps
submitted that the erection of a hydroelectric plant and the submersion of part of the
valley in which they lived constituted a violation of Article 8. The Commission stated
that,
under Article 8, a minority group is, in principle, entitled to claim the right to
respect for the particular life style it may lead as being "private life", "family life"
or "home".
... [T]he consequences, arising for the applicants from the construction of the
hydroelectric plant, constitute[d] an interference with their private life, as mem-
bers of a minority, who move their herds and deer around over a considerable
distance .... In addition, it must be acknowledged that the environment of the
said plant will be affected. This could interfere with the applicants' possibilities of
enjoying the right to respect for their private life.85
The Commission has also adverted to interference with the life of others in delimiting
the sphere of one's private life.86 This interpretation is based on the premise that there
are clear dividing lines around the private lives of all individuals. The mere contact of
one's life with the life of others does not necessarily imply conflictual rights or interests,
as appears from the fact that interpersonal relationships are protected under Article 8,
even outside "family life."87 Interactions with the human and nonhuman surroundings
are part of everyone's life. They may be peaceful or conflictual. If conflictual, a fair
balance between the individual's interest and the rights or interests of others should be
established under the second paragraph of Article 8.
The nature of the interference. The Commission draws a distinction between interven-
tion falling short of interference, and interference that must be justified under the sec-
84 X. V. Iceland, App. No. 6825/74, 5 Eur. Comm'n H.R. Dec. & Rep. 86, 87 (1976).
85 G. and E. v. Norway, App. Nos. 9278/81 and 9415/81, 35 Eur. Comm'n H.R. Dec. & Rep. 30, 35-36
(1984).
86 Connelly, supra note 64, at 579; DRZEMCZEWSKI, supra note 66, at 8-9; FRED'ERIC SUDRE, DROIT IN-
TERNATIONAL ET EUROPEEN DES DROITS DE L'HOMME 152 (1989). In Briiggemann and Scheuten v. Federal
Republic of Germany, App. No. 6959/75, 10 Eur. Comm'n H.R. Dec. & Rep. 100, para. 56 (1978), the
Commission also stated: "In fact, as the earlierjurisprudence of the Commission has already shown, the claim
to respect for private life is automatically reduced to the extent that the individual himself brings his private
life into contact with public life or into close connection with other protected interests."
87 In X. v. Iceland, supra note 84, at 87, the Commission wrote:
For numerous anglo-saxon and French authors the right to respect for "private life" is the right to
privacy, the right to live, as far as one wishes, protected from publicity [references omitted].
In the opinion of the Commission, however, the right to respect for private life does not end there. It
comprises also, to a certain degree, the right to establish and to develop relationships with other human
beings, especially in the emotional field for the development and fulfilment of one's own personality.
ond paragraph.88 An intervention that affects the integrity or physical well-being of

a person is usually considered as interference. The Commission thus found that "[a]
compulsory medical intervention, even if it is of minor importance, must be considered
as an interference with this right."89 The Commission has rightly taken the view that
measures that have an indirect effect on the quality of the environment and impair
health amount to interference in the sphere of private life. However, for measures
affecting the "quality of life," it has tended to require a certain level of inconvenience.
In Vearncombe, Herbst, Clemens and Speilhagen v. United Kingdom and Federal Republic of
Germany,90 owners and co-owners of houses in the British sector of West Berlin objected
to noise emanating from a shooting range used by the British Military Government in
the immediate vicinity of their homes. The Commission, though it recalled its previous
dicta on noise pollution, found that
the present case [was] clearly distinguishable from the aforementioned airport
noise cases as it [could not] be found that the present applicants [were], or have to
expect to be, exposed to an intolerable and exceptional noise nuisance of such a
level and frequency as to amount to a possible interference with their right to pro-
tection of private life (Article 8 para. 1 of the Convention) or their right to the
peaceful enjoyment of possessions (Article 1 of Protocol No. 1 ).91
Similarly, in Powell and Rayner the Commission had distinguished between the situa-
tions of the applicants. Noting that Powell's house was located in an area of low noise, it
considered that interference was not established; but as Rayner's house and farm were
situated in a high-noise zone, it found clear interference. Justifiably, the Court did not
follow the Commission on that point and set aside this distinction.92 It ruled that there
was interference with private life in both cases. The magnitude of the annoyance is not
to be a criterion for establishing interference. It is to be considered only when assessing
the balance between the interference and the aim pursued. However, the Court found
that in both cases the interference was justified under paragraph 2.
The Commission has also taken the exceptional character of the annoyance into ac-
count. In Powell and Rayner, it distinguished the situations of the applicants partly be-
cause, in the case of Rayner, only 1,500 persons were suffering from the same or a
higher level of noise, while in the case of Powell, there were 500,000.93 It used the same
approach in S. v. France, where it found that the damages obtained for the injury caused
by the noise constituted "reasonable compensation" for the annoyance considered as a
whole.94 The other disturbances did not call for additional damages. As mentioned
above, the French Conseil d'Etat had excluded them on the ground that they had not
resulted in a specific injury to the applicant. The rationale of this distinction seems to
be that, since the negative effects are shared by a large number of people, the individual
88 Connelly, supra note 64, at 580-82.

89 X. v. Austria, supra note 39, at 156, para. 3. A compulsory blood test and a soldier's obligation to have a
haircut have also been considered interference with private life. X. v. Netherlands, App. No. 8239/78, 16
Eur. Comm'n H.R. Dec. & Rep. 184 (1979); Sutter v. Switzerland, App. No. 8209/78, id. at 166.
90 App. No. 12816/87,59 Eur. Comm'n H.R. Dec. & Rep. 186 (1989).
9 Id. at 196. The relevant circumstances noted by the Commission were that the applicants lived at diff
ent distances from the shooting range and no exact figures as to the actual noise levels at these different places
had been submitted; that the expert opinion did not clearly state at which distance noise measurements had
been taken and did not reflect an existing situation but estimated a future development; that no firing was
permitted on weekends or on public holidays, in the evening or at night; and that there were contradictory
submissions by the parties.
92 Powell and Raynier, supra note 68, paras. 38-40.
9' Rayner v. United Kingdom, App. No. 9310/81, 47 Eur. Comm'n H.R. Dec. & Rep. 5 (1986).
9 S. v. France, supra note 82, at 238.
complainant does not bear an excessive burden. Only when the justifiability of the in-
terference with regard to its necessity in a democratic society is examined should such
considerations be taken into account. The fact that many people suffer from the nui-
sances should not preclude a finding of interference. The only question should be
whether the applicant's private life is affected.
The proportionality of the interference. In practice, the legitimacy of the aim pursued by
the interfering measures is rarely questioned by the Commission or the Court.95 The
notion of "interests of the economic well-being of the country" is large enough to in-
clude many activities that can have adverse effects on the environment. Thus, the Com-
mission has considered "the existence of large international airports, even in densely
populated urban areas, . . . the increasing use of jet aircraft,"96 the establishment of a
nuclear power station97 and the construction of a hydroelectric plant98 as measures in
the interests of the economic well-being of the country.
To determine whether a fair balance was struck between the interest of the individual
and the general interest, especially when the measures are complex and technical, the
Court and the Commission are inclined to examine the way the decisions were taken
and then decide if it allowed the interests of the affected individuals to be taken into
account. In Pozvell and Rayner, the Court was of the view that neither it nor the Com-
mission should substitute its assessment for that of the Government regarding the opti-
mal policy in such a difficult social and technical field as air traffic regulation.99 Such
matters involve a large margin of appreciation for states. The Court emphasized that
some measures had been introduced to control aircraft noise after consultation with the
people and interest groups concerned; that international standards, developments in
technology and the varying levels of disturbance had duly been taken into account; and
that successive governments had considered that the effects of aircraft noise were better
dealt with by regulatory measures than by court settlements on the basis of a general
criterion of reasonableness. The margin of appreciation of the British Government had
not been exceeded.'00
The margin of appreciation granted to states in balancing the interests of the coun-
try's well-being and the interests of the individual is thus relatively broad. Although
Article 8 has traditionally been associated with economic and social rights,'0' the state's
obligation to take positive measures to maintain or improve environmental quality and
meet a standard compatible with respect for the right to private life is unlikely to be
derived from Article 8. On this article, the Court has stated that,
especially as far as those positive obligations are concerned, the notion of "respect"
is not clear-cut: having regard to the diversity of the practices followed and the
situations obtaining in the Contracting States, the notion's requirements will vary
considerably from case to case. Accordingly, this is an area in which the Contract-
ing Parties enjoy a wide margin of appreciation in determining the steps to be
taken to ensure compliance with the Convention with due regard to the needs and
resources of the community and of the individuals.'02
Delmas-Marty, su(pra note 67, at 325.

96Powell anzd Raynzer, supra note 68, para. 42.
97 S. v. France, supra note 82. 98 G. and E. v. Norway, supra note 85, at 36.
99 Powell anid Raynier, snnpra note 68, para. 44. In G. and E. v. Norway, supra note 85, at 36
after carefully considering the need for the national authorities to construct a hydroelectric plant, found that
"the interference could reasonably be considered as justified under Article 8, para. 2, as being in accordance
with law, and necessary in a democratic society in the interests of the economic well-being of the country."
10 Powell anid Raynzer, suipra note 68, paras. 44-45.
'o' VELU & ERGEC, supra note 30, at 535.
102 Abdulaziz, Cabales and Balkandali v. United Kingdom, 94 Eur. Ct. H.R. (ser. A), para. 67 (1985). See
also Rees, supra note 73, para. 37.
The development of international environmental law may someday create a common

European standard of protection, but the Commission and the Court are not likely to
interfere with national policies that involve important economic choices.
The Right to the Peaceful Enjoyment of Possessions
The adoption of the First Protocol to the Convention ensured the protection of the
right to property.'03 Although Article 1 of the Protocol refers to the "enjoyment of
possessions," the Court stated that, "[b]y recognizing that everyone has the right to the
peaceful enjoyment of his possessions, Article 1 is in substance guaranteeing the right
of property."' 04 The Court has drawn three distinct rules from this provision:
The first rule, which is of a general nature, enounces the principle of peaceful
enjoyment of property; it is set out in the first sentence of the first paragraph. The
second rule covers deprivation of possessions and subjects it to certain conditions;
it appears in the second sentence of the same paragraph. The third rule recognises
that the States are entitled, amongst other things, to control the use of property in
accordance with the general interest, by enforcing such laws as they deem necessary
for the purpose; it is contained in the second paragraph.'05
Scope of the protection of peaceful enjoyment of possessions. The Commission has considered
that virtually every kind of negative effect caused by environmental nuisances could
indirectly amount to interference with the rights guaranteed by Article 1. It has assim-
ilated such interference to a partial de facto confiscation of property.'06 For example,
in S. v. France'07 the Commission observed that very considerable noise nuisances could
greatly affect the value of a property, even making its sale impossible, and could there-
fore constitute a partial expropriation.'08 This confiscatory classification of environ-
mental nuisances, however, means that the negative effects caused by the deterioration
of the environment are not likely to be considered as interference unless the property
declines in value. Such loss then becomes the exclusive criterion for bringing Article 1
into play and puts the "protection of the enjoyment of one's possessions" exclusively in
an economic perspective.'09 In Rayner v. United Kingdom, the Commission thus stated
that "[t]his provision is mainly concerned with the arbitrary confiscation of property
and does not, in principle, guarantee a right to the peaceful enjoyment of possessions in
105 First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar.
20, 1952, Eur. TS No. 9, 213 UNTS 262. Article 1 reads:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest and subject to the conditions provided for by law
and by general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such
laws as it deems necessary to control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.
104 Marckx, supra note 70, para. 63. In the case law, ownership is defined in the extensive sense of general
international law, that is, as "an acquired/vested right." The Commission has considered as "possessions"
within the meaning of Article 1 not only rights in rein, but also intangible rights, corporation shares, com-
mercial good will, etc. Wolfgang Peukert, Protection of Ownership unzder Article I of First Protocol to the European
Convention on7 Humnan Rights, 3 HUM. RTS. L.J. 37,43 (1981); VELU & ERGEC, supra note 30, at 676-77.
105 Sporrong and L6nnroth v. Sweden, 52 Eur. Ct. H.R. (ser. A), para. 61 (1982).
106 In Sporrong and Lonnroth, id., paras. 60-63, the Court recognized that a confiscation de facto, where
the effects of the measures taken are similar to a formal expropriation, could come under the scope of Article
1. However, there have been no such cases before the Court.
107 Supra note 82 (operation of a nuclear power station). Also Vearnco7nbe, Herbst, Cle?nens and Speilhagen,
supra note 90 (noise nuisance from a military shooting range).
108 S. v. France, supra note 82, at 237. 09 Weber, supra note 44, at 181.
a pleasant environment.'""10 This is an excessively stri

the "peaceful enjoyment of possessions."
In contrast, the Court has stated that the protection of the enjoyment of property is
not limited to the prohibition of the deprivation of property or of regulatory meas-
ures. 1 " ' Another type of interference with the right to property concerns measures tha
"affect the substance of ownership."'"12 Such measures, according to the Court, are
neither takings of property rights nor regulations on the use of property. In the case
of Sporrong and Lonnroth, 1"3 the applicants' properties were subjected to expropriation
permits for twenty-three and ten years, respectively, although they were never expro-
priated. In the opinion of the Court, the permits were not deprivations of property
since there was no expropriation; nor were they measures regulating its use. The Court
linked the interference with the first sentence of Article 1, finding that it "affected the
very substance of ownership" because the applicants' rights had become "defensible
and precarious. ' l 4
Similarly, a prolonged period before land was transferred in a regrouping of lands
was classified by the Court as interference with the right protected by the first sentence
of Article 1.115 The Commission, however, has refused to extend the application of the
first sentence of Article 1 to circumstances other than the prolongation of a temporary
situation, although many situations can affect the enjoyment of one's possessions with-
out changing the value of the property. The Commission's restrictive interpretation of
the scope of Article 1, by separating the peaceful enjoyment of one's property from its
environment, does not take into account the nonmonetary value that might attach to
these surroundings.
The margin of appreciation. Interference with the enjoyment of property rights must
be justified under the second sentence of the first paragraph or under the second para-
graph of Article 1 of the First Protocol. Various conditions must be met for restrictions
to be justified. According to the first paragraph, besides the condition of legality,"16
deprivations of property must be made in the public interest. 117 To meet this require-
ment, the aim pursued must be legitimate and a reasonable relationship of proportion-
110 Raynzer, supra note 93, at 14; see also S. v. France, supra note 82, at 237.
1 l l In most cases, the interference is directly attributable to a public authority. An act by a private person
could also be considered as interference, but it is essential that the interference not stem exclusively from the
private person. In Bramelid and Malmstr6m v. Sweden, App. Nos. 8588/79 & 8589/89, 29 Eur. Comm'n
H.R. Dec. & Rep. 64, 82 (1982), the Commission decided that the legal provisions governing private law
relationships between individuals do not interfere with the right to the enjoyment of one's possessions, as
long as they do not arbitrarily deprive one individual of such enjoyment to the benefit of another. LAURENT
SERMET, LA CONVENTION EUROPEENNE DES DROITS DE L'HOMME ET LE DROIT DE PROPRIETE 23 (1991).
112 This last category of interference has been criticized. It is argued that interference should only be
analyzed as a deprivation of property or as a measure of control because it is difficult to draw a distinction
between a measure controlling the use of property and a measure that "affects the substance." See SERMET,
supra note 11 1, at 30-31. The creation of this last category seems to derive from the Court's wish to impose
less stringent requirements than for a deprivation of property, but more stringent ones than for a measure to
regulate its use. See Michel Fromont, La Garantie du droit de propriete selonz la Cour europe'ennie des droits de
Ihoinine, inl VERFASSUNGSRECHT UND V6LKERRECHT. GEDACHTNISSCHRIFT FUR WILHELM KARL GECK 213,
221 (Wilfried Fiedler & Georg Ress eds., 1989).
"' Supra note 105. " Id., para. 60.
115 Poiss v. Austria, 1 7 Eur. Ct. H.R. (ser. A), para. 64 (1987).
"6 SeeJames v. United Kingdom, 98 Eur. Ct. H.R. (ser. A), para. 67 (1986).
117 Under the second paragraph, a measure to control the use of property must be in the "general interest."
For some authors, the notion of "public interest" is linked to benefits for a relatively small part of the popu-
lation, while the notion of "general interest" is linked to benefits for the large part of the population. The
Commission and the Court do not, however, clearly distinguish between the two concepts. Peukert, supra
note 104, at 61; SERMET, supra note 11 1, at 33-34.
ality must obtain between that aim and the means employed." 8 Here again, the eco-
nomic well-being of the country is most often invoked when interference that degrades
the environment is charged."9 As with the right to private life, states enjoy a certain
margin of appreciation in evaluating the legitimacy of the aim and the proportionality
of the interference to the aim.
Measures in the public or general interest must be reasonable, which allows a broader
margin of appreciation than under Article 8, where a "pressing social need" is re-
quired. 120 Under Article 1 of the First Protocol, "[t]he Court, finding it natural that t
margin of appreciation available to the legislature in implementing social and economic
policies should be a wide one, will respect the legislature's judgment as to what is 'in the
public interest' unless that judgment be manifestly without reasonable foundation."' 2'
In fact, many writers believe that the margin of appreciation is so broad that "it ruins
the requirement of proportionality."' 22 Nonetheless, this discretion should not impair
the power of the Court to control the reasonableness of the measures taken. For that
purpose, it could examine the facts underlying the measures or the way the authorities
took the circumstances into account.'23
In the opinion of the Commission, proportionality must be measured in accordance
with the category of interference since, "when viewed in the light of the general rule
contained in the first sentence of Article 1, a deprivation of property is inherently more
serious tha[n] the control of its use, where full ownership is retained."'124 Even though
the payment of compensation is not expressly required by Article 1, the Court has con-
sidered that deprivation of property without payment of an amount reasonably related
to its value normally constitutes disproportionate interference.'25 This requirement de-
rives from the necessity of striking a "fair balance between the interests at stake."'126
However, the size of the indemnity remains subject to the margin of appreciation of the
state. It does not have to be in full, but simply an "amount reasonably related to [the
property's] value.'27 In S. v. France, the Commission found that, for the annoyances
other than noise, the applicant had not shown that eventually selling her property for
purposes other than its use as a residence was so remote a possibility as not to be covered
by the compensation obtained.'28 No monetary compensation is required when the
measures are designed to regulate the use of property.'29 Where there is interference
with the "substance of ownership," the breakdown of the balance between the private
118 Fromont, supra note 112, at 216. In Sporrong and Lonnroth, supra note 105, para. 69, the Court intro-
duced a criterion of proportionality, which, it said, was built into the whole structure of Article 1:
[T]he Court must determine whether a fair balance was struck between the demands of the general
interest of the community and the requirements of the protection of the individual's fundamental rights.
The search for this balance is inherent in the whole of the Convention and is also reflected in the structure
of Article 1. (citation omitted)
119 In S. v. France, supra note 82, the erection of the nuclear power station and, in Powell and Rayner, supra
note 68, the operation of an international airport in an urban zone were found to be legitimate aims in the
general interest. For some of the legitimate aims that have been invoked through the case law, see Peukert,
supra note 104, at 71-74.
120 Delmas-Marty, supra note 67, at 335. 121 James, supra note 116, para. 46.
122 Fromont, supra note 112, at 223; Peukert, supra note 104, at 70-71.
23 Jaines, supra note 116, para. 47.
124 Gillow v. United Kingdom, 109 Eur. Ct. H.R. (ser. A) at 42, para. 148 (1986) (Commission opinion).
125 James, supra note 116, para. 54. 126 Id.
127 Id.; Lithgow v. United Kingdom, 102 Eur. Ct. H.R. (ser. A), para. 121 (1986).
128 S. v. France, supra note 82, at 238.
129 Braunerheilm v. Sweden, App. No. 11764/85 (Mar. 9, 1989, unpublished); see Dejeant-Pons, supra
note 48, at 18.
interest and that of the collectivity is related to the prolongation of a temporary situa-
tion; consequently, the state is given the option either of allowing the temporary situa-
tion to be modified or of offering monetary compensation.'30
ENVIRONMENTAL REGULATIONS AS LIMITING PROTECTED RIGHTS
To ensure that the environment is effectively protected, governmental policies and

new rules governing collective and individual behavior in relation to the environment
have been widely adopted."'3 They may provide for claims to an environment of quality,
but they also impose constraints on individual behavior, and thus impair the enjoyment
of human rights. 132
The restricted enjoyment of human rights as a result of environmental regulations is
most likely to prompt claims related to the right to property. However, issues might also
be raised under other protected rights, for instance, the right to respect for one's pri-
vate life. In Herrick v. United Kingdom,133 the applicant had transformed a former
bunker, situated "among rising ground in one of the areas of outstanding natural
beauty" of the island ofJersey, into a summer residence. The applicant was served with
a notice requiring her to cease inhabiting the bunker, since its use was contrary to ex-
isting regulations. The court of appeal, upholding a decision of the lower court before
which the applicant had instituted proceedings to have the notice declared void, con-
firmed that the applicant had acquired a limited right of use of the bunker prior to the
entry into force of the regulations. The applicant alleged before the Commission that
the restrictions on her right of use amounted to a violation of her right to respect for
her private life. 134 But the Commission found that, even if there had been interference,
it was justified for the protection of the rights of others: "The existence and operation
of planning controls which delimit areas where domestic development may be extended
is a legitimate control measure to protect the amenity value of rural areas and thereby
protect the rights of others." 135
In the majority of cases, however, environmental regulations were alleged to have
put unreasonable limitations on the use of property. For instance, in H. J. v. Sweden, 136
an administrative decision had joined part of the applicant's agricultural property to a
joint hunting area. The applicant was fined for having hunted and killed an elk on his
own property in contravention of the bylaws of the hunters' association, i.e., those hold-
ing hunting rights. The Commission considered the inclusion of the applicant's prop-
erty in the joint hunting area as a regulation of the use of property that interfered with
the peaceful enjoyment of possessions. Nevertheless, it decided that the creation of the
joint hunting area was a measure of general interest, not disproportionate to its aim:
the promotion of game preservation and the common interests of licensed hunters.
130 Fromont, supra note 112, at 226.

131 Michele de Salvia, Tutela dell'ambiente e la Conive?zzione europea dei diritti dell'uo,no: Verso una ecologia del
diritto?, 3 RiVISTA INTERNAZIONALE DEI DIRITTI DELL UoMo 432 (1989).
132 The Stockholm Declaration, supra note 3, in Principle 1 makes clear that environmental protection
imposes duties: "[man] bears a solemn responsibility to protect and improve the environment for present and
future generations." See Kiss, supra note 11, at 445.
134 The use was described by the court of appeal as an occasional shelter, not amounting to a residence.
The bunker could be used in the summer as a place of rest or recreation during the day and, occasionally, as
a place to sleep, but for no more than two consecutive nights.
135 Herrick v. United Kingdom, supra note 133, at 280.
136 App. No. 14459/88 (Feb. 19, 1992, unpublished).
The Legitimacy of Measures that Protect the Environment
The Commission has clearly recognized that environmental protection is a legitimate

aim of general interest that may justify interference with the enjoyment of possessions.
For instance, in N. v. Austria, 137 the applicant challenged the authorities' refusal to mod-
ify the zoning of a plot of agricultural land so as to permit its use for industrial purposes.
The Commission noted that
the planning restriction ... was based on the Provincial Regional Planning Act
which provides for the preservation of the landscape and settlement structure and
for the maintenance and development of suitable conditions for agriculture
and forestry. These are aims which are clearly in the general interest, and accord-
ingly the applicable legislation can be justified under Article 1 para. 2 of the Pro-
tocol. 138
Several aspects of environmental protection have been found to be consonant with the
general interest: town and country planning,'39 the protection of natural sites,'40 the
management of forests,'4' the preservation and management of game,'42 the alleviation
of water pollution and sanitary problems,'43 and the prohibition of a nuclear power
station. 144
The Court has also recognized environmental protection as a legitimate aim in the
general interest. In the Fredin case,'45 the applicants had obtained a permit to exploit a
gravel pit. As an amendment to the law on nature conservation subsequently authorized
the revocation of such permits, they complained that the revocation violated Article 1
of the First Protocol. The Court, though it examined the legitimacy of the aim pursued
by the measure, concluded that "[t]he applicants did not contest the legitimacy of the
aim of the 1964 Act, that is the protection of nature. The Court recognises for its part
that in today's society the protection of the environment is an increasingly important
consideration." 146
On the state's margin of appreciation in assessing the proportionality of the restric-
tions to the aim of environmental protection, the Court was unequivocal:
In determining whether this requirement is met, the Court recognises that the
State enjoys a wide margin of appreciation with regard both to choosing the means
of enforcement and to ascertaining whether the consequences of enforcement are
justified in the general interest for the purpose of achieving the object of the law in
question.'47
'58 Id. at 71.
139 See cases cited in Dejeant-Pons, supra note 48, at 6.
'40Herrick v. United Kingdom, supra note 133; Simili v. Belgium, App. No. 11965/86 (Dec. 12,
1988, unpublished) (Commission decision); see Dejeant-Pons, supra note 48, at 31.
14' Denev v. Sweden, App. No. 12570/86, 59 Eur. Comm'n H.R. Dec. & Rep. 127 (1989).
142 H.J. v. Sweden, supra note 136.
43 Lundqist v. Sweden, App. No. 10911/84, 48 Eur. Comm'n H.R. Dec. & Rep. 191 (1986).
'44Judgment of Dec. 16, 1983, Verfassungsgerichtshof (Austria), reprinted in EUROPAISCHE GRUND-
RECHTE ZEITSCHRIFT 324 (1984), mentioned in VELU & ERGEC, supra note 30, at 684.
4'4 Fredin v. Sweden, 192 Eur. Ct. H.R. (ser. A) (1991).
146 Id., para. 48. See also Pine Valley Developments Ltd v. Ireland, 222 Eur. Ct. H.R. (ser. A), para. 57
(1992).
147 Fred in, supra note 145, para. 51. The Court concluded that revocation of the permit was not dispropor-
tionate to the object of the law since the applicants must have known, when they made their investment and
began to work the pit, that their permit could be revoked; that the authorities never gave them assurances
that they would be authorized to work the pit beyond the time limit; and that they had a period of four years
in which to close down.
In fact, as regards Article 1 as a whole, in only a few cases has the Commission or the
Court found that the required balance was not met.'48 In every cited case related to
control of the use of property, the measures were all deemed to meet the requirement
of proportionality. A violation of Article 1 was only found where the interference
"affected the substance of ownership," since the state did not offer a choice between
monetary compensation and modification of the temporary situation.'49
The Court and the Commission have clearly acknowledged that environmental pro-
tection is a legitimate general interest that canjustify interference with protected rights.
But it also appears that, when interference with the right to property results from envi-
ronmental protection measures, the general interest, as formulated by states, overrides
private interests. Respect for the right of property does not hinder the adoption of such
measures.'50 States thus have broad discretion in formulating and implementing their
environmental policies.
This extensive discretion applies whether or not the measures or activities in question
are favorable to the environment. The high consideration given by the Court to envi-
ronmental protection objectives has not yet been translated into an individual human
right to enhanced environmental quality. In Herrick v. United Kingdom, the "protection
of the rights of others" was found to be a permissible ground to limit the right to one's
private life; thus, the "rights of others" was not narrowly construed as the rights pro-
tected by the Convention.'5' The Commission subsumed under the "rights of others"
a right to conservation of the environment, but as it is incorporated in municipal law.
Although national environmental rules and regulations can be based on other consid-
erations than a strict anthropocentric view of environmental protection, they obviously
also reflect a concern for the quality of human life. The Commission's recognition that,
for instance, environmental degradation may raise an issue under Article 3 is a partial
acknowledgment that there is indeed a strong link between the quality of the environ-
ment and the enjoyment of individual human rights. However, the Commission and the
Court have not yet reevaluated the weight of this individual interest in relation to other
public interests that the state may deem to be important. In no case brought before
it has the Court yet found a violation of a protected right because of environmental
degradation, and only in Lopez Ostra v. Spain has the Commission found a violation of
one of the substantive protected rights.
III. HUMAN RIGHTS: THE ENVIRONMENTAL PERSPECTIVE
The case law examined so far points to the fact that the scope of environmental pro-
tection that can be achieved through human rights litigation is narrow because environ-
mental harm is not in itself a cause for complaint, but must be linked to a protected
right.'52 Human rights and environmental protection admittedly have common objec-
tives, but not all environmental issues can be formulated in terms of human rights vio-
lations.
SUBSTANTIVE HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION
The nature of human rights litigation limits the opportunity to use it as a vehicle
for enhancing the quality of the environment. The collective aspect of the need for
148 SERMET, supra note 111, at 38.

149 Sporronzg anzd Lonnroth, supra note 105; Poiss, supra note 1 5; Erkner and Hofauer v. Austria, 1 7 Eur.
Ct. H.R. (ser. A) (1987).
150 Dejeant-Pons, supra note 47, at 463.
'15 Doswald-Beck, supra note 77, at 308. The state may intervene as well in the sphere of private life if
public health is endangered. Jacque, supra note 60, at 67.
152 Shelton, supra note 8, at 1 6.
environmental protection makes it difficult to assert a claim under the Convention re-
garding interference with enjoyment of the environment. Protection of the environ-
ment through litigation under the Convention is limited by the individualist bias of
this system of protection,'53 a bias that results both from an individualist approach to
interpreting the protected rights and from the requirements regarding standing to sub-
mit an application to the Commission.
An Individualist Approach
It is established that a right not to have one's health affected by environmental dam-
age can be derived from Article 8. Although the notion of "private sphere" may cover
a larger domain than a person's health or physical integrity, elements of the larger
environment that are enjoyed or used collectively-even when they could contribute
to the "development and fulfilment of one's personality" -are not easily protected
under the Convention. As indicated above, the larger surroundings do not come under
the protection of the right to the peaceful enjoyment of one's possessions, even if they
obviously bear on the enjoyment of one's property; the acceptable threshold of envi-
ronmental quality to ensure respect for these rights remains undefined and only serious
interference may amount to a violation; and an obligation to enhance the quality of the
environment has yet to be established.
The defense of collective interests through the assertion of individual rights may also
be questioned. In M. v. Austria, 154 common pasture and forestry lands that belonged to
the municipality were reserved exclusively for the use of an agricultural community
composed of 680 long-established inhabitants of the municipality, including the appli-
cant. In a series of proceedings before national agricultural authorities, it was deter-
mined that the land was a common encumbered with a public law easement in favor of
the agricultural community as a whole and not a private law servitude for the benefit of
the individual members of the community. Before the Commission, the applicant
claimed that various measures taken by the municipality (e.g., the authorization of drill-
ing for a power plant, construction work, the sale of certain parts of the common, and
the installation of an industrial zone) amounted to interference with his rights under
Article 1 of the First Protocol. The Commission, while noting that the applicant had an
uncontested right to the shared use of the common, observed further that the formal
property right belonged to the city, and concluded that
[i]n particular [the] right to the shared use of the common is not an individual right
separate and independent from the agricultural community's own rights as long as
it has not been regulated .... This right to shared use of the common is therefore
clearly distinguishable from a private law servitude. 155
In these circumstances, the Commission found that the right in question could not be
considered as "a property right within the meaning of Article 1 of the First Proto-
col., 156 Since that right concerned the shared use of a common, the vindication of the
community's interest by only one of its members might not have been desirable. The
Commission noted that the individual members were not given any rights in the super-
vision of the agricultural community's interests. This case shows the inherent limits of
153 Handl, supra note 8.

154 App. No. 9465/81, 39 Eur. Comm'n H.R. Dec. & Rep. 85 (1984).
'55 Id. at 87.
"56 Id. In G. and E. v. Norway, supra note 85, the applicants also invoked Article 1 of the First Proto-
col. The Commission considered that the traditional use of territories for grazing, hunting and fishing was
not a property right within the meaning of Article 1.
asserting a collective interest through a procedure that is primarily designed to protect

individual rights, even if Article 1 had been found applicable.
Additional limitations stem from the solutions that can be imposed by the Commis-
sion and the Court. If financial compensation may solve the problem at the individual
level (for example, by enabling the owner to leave the house situated in the worsened
environment), no protection of the environment per se is ensured, and obviously prior
compensation excludes any claim under Article 1 of the First Protocol.'57 Even at the
individual level, compensation may not be appropriate where the applicant will not
realize an improvement in his enjoyment of private life or possessions. 158 A requirement
that the negative effects be exceptional would further limit the aim of environmental
protection in general.
The Victim Requirement
The rules of legal standing to submit an application before the Commission also limit
the environmental questions that can be brought to its attention. Under Article 25 of
the European Convention, complaints may be submitted to the Commission by any
person, nongovernmental organization or group of individuals.'59 However, the appli-
cant must be a "victim of a violation of [his or her] rights"; in contrast, under Article 24
a contracting state may refer "any alleged breach of the provisions of the Convention"
to the Commission. The quality of "victim" required for applications submitted by non-
governmental organizations means that the organization must allege to be personally
affected by the contested measure. It cannot submit an application directed at a measure
affecting its members.'60 A group of individuals can, however, claim to be jointly
affected by a measure or activity.
The term "victim" refers to the "person directly affected by the contentious act or
omission.''161 In the Court's view, Article 25 "does not institute for individuals a kind
of actio popularis for the interpretation of the Convention; it does not permit individuals
to complain against a law in abstracto simply because they feel that it contravenes the
Convention."'162 While the rights of the applicant must have been infringed in concrete
terms,163 the Court has stated on numerous occasions that the existence of damage or
injury is not relevant. That applicants who suffer injury are victims is undeniable; but
there may be a violation of the Convention without it.'64 (It may even be enough for the
effects of a measure directed to a third party to be felt by the applicant. 165) The notion
of "victim" has also been expanded by resorting to the concept of "potential" or "even-
59 Opsahl, supra note 79, at 972. 158 Dejeant-Pons, supra note 48, at 16.
5 Interstate applications have been rare; only a dozen have been submitted to the Commission. The great
majority of the cases brought before the European Convention institutions have been individual applica-
tions. See generally Opsahl, supra note 79, at 966.
160 VELU & ERGEC, supra note 30, at 797-98. See Nineteen Chilean Nationals & the S. Association v. Swe-
den, App. Nos. 9959/82 & 10357/83, 37 Eur. Comm'n H.R. Dec. & Rep. 87 (1984); Asociacion de Avia-
dores de la Repiublica, Mata v. Spain, App. No. 10733/84, 41 Eur. Comm'n H.R. Dec. & Rep. 211 (1985);
Association X. and 165 Liquidators and Court Appointed Administrators v. France, App. No. 9939/82, 34
Eur. Comm'n H.R. Dec. & Rep. 213 (1983).
161 Klass v. Federal Republic of Germany, 28 Eur. Ct. H.R. (ser. A), para. 34 (1978); Marckx, supra
para. 27. See Kersten Rogge, The 'Victin' Requirement in Article 25 of the European Convention on Human
in PROTECTING HUMAN RIGHTS: THE EUROPEAN DIMENSION. STUDIES IN HONOR OF G. WIARDA 539, 540
(Franz Matscher & Herbert Petzold eds., 1988).
162 Klass supra note 161, para. 33. 163 SUDRE, supra note 86, at 206.
164 Henri Delvaux, La Notionz de victime au sens de l'article 25 de la Convention europe'enne des droits de 1'homme,
in ACTES DU CINQUIiME COLLOQUE SUR LA CONVENTION EUROPEENNE DES DROITS DE L'HOMME 35, 64
(1982); VELU & ERGEC, supra note 30, at 800. See, e.g., Marckx, supra note 70, para. 27.
165 In Open Door and Dublin Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A), para. 44 (1992), two
women were considered to be "victims" of ajudicial injunction prohibiting family-counseling agencies from
providing information on abortion facilities abroad.
tual" victim, enabling a person likely to fall under the legislation or the measures con-
cerned to submit an application.'66
To some writers, the notion of "victim" has been so liberally interpreted that it ap-
proaches an actio popularis;'67 nonetheless, a direct link between the environmental
harm and the infringement of the applicant's protected right must be established. The
notion of "potential victim," however, could broaden legal standing when the petition
is presented by a group of individuals such as an association for nature conservation. 168
Finally, it is now generally recognized that the protection of the environment requires
a preventive approach.'69 Such an approach is surely not incompatible with the protec-
tion of human rights, but the control exercised by the Commission and the Court fo-
cuses on prior violations. Although the ultimate goal of a system to protect human rights
is also to prevent violations, both the victim requirement and the limited applicability
of the guaranteed rights to potential interference make it difficult to ensure the pre-
vention of environmental damage through the assertion of protected human rights.
PROCEDURAL RIGHTS AS "ENVIRONMENTAL RIGHTS"
It has been argued that "the right to environment ... can be interpreted, not as the
right to an ideal environment ... but as the right to have the present environment
conserved ... and improved in some cases."'70 The implementation of a right to envi-
ronment could be ensured through procedural "environmental -rights," defined as "the
reformulation and expansion of existing human rights and duties in the context of en-
vironmental protection."'' These procedural rights should be based on the goal of
conserving the environment and the concept of the environment as a common resource
whose quality affects each person. These rights should include a right to information
about activities that may cause environmental harm for persons likely to be affected,
a right to participate in the decision-making process when actions are likely to cause
environmental harm, and a right of recourse before administrative or judicial agen-
cies.'72 The availability of environmental information and public participation in deci-
sion-making processes in environmental matters have been discussed in international
forums for a number of years. An emerging practice in this regard was formally recog-
nized in the Rio Declaration:
At the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including informa-
tion on hazardous materials and activities in their communities, and the opportu-
nity to participate in decision-making processes. States shall facilitate and encour-
age public awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including redress and
remedy, shall be provided.'73
166 Delvaux, supra note 164, at 62-63; Rogge, supra note 161, at 540-41. It has mostly been applied where
the personal status of the applicant was determined by legislation or where the applicant faced risks of criminal
prosecution. Access has also been enlarged by resorting to the notion of "indirect" victim, where a viola-
tion of a person's rights injures a third party who has a specific and personal link to the direct victim.
167 Delvaux, supra note 164, at 73. 168 Dejeant-Pons, supra note 47, at 470.
169 The preventive approach in international environmental law is illustrated, inter alia, by the precaution
ary principle. The principle aims at ensuring that activities posing a threat to the environment will be pre-
vented, even if there is no conclusive scientific proof linking them to environmental damage. See generally
James Cameron &Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Laou and Policyfor the
Protection of the Global Environmnent, 14 B.C. INT'L & COMP. L. REV. 1 (1991).
170 Kiss, supra note 11, at 201. 171 Shelton, supra note 8, at 1 17.
172 Id.
17' Rio Declaration, supra note 9, Principle 10, 31 ILM at 878.
A right to information may consist of various features. One could be a duty of the
state to provide the information without the need for a formal request. Such a policy
has in fact been put forward with regard to hazardous installations.'74 The Council of
the European Union, for example, adopted a directive requiring states to ensure that
persons liable to be affected are informed in an appropriate manner of the safety meas-
ures and the correct way to behave in the event of a major accident.'75 The preamble
of a decision-recommendation of the Council of the Organisation for Economic Co-
operation and Development recognizes explicitly that "the potentially affected public
has a right to be informed about the hazards to human health or the environment,
including property, which arise from accidents occurring at hazardous installations. "176
The duty to provide information and an opportunity for public participation has also
been recognized in impact assessment procedures.'77 For instance, the Convention on
Environmental Impact Assessment in a Transboundary Context'78 of the United
Nations Economic Commission for Europe requires states to notify the public and to
provide an opportunity for public participation in impact assessment procedures re-
garding proposed activities likely to cause transboundary environmental harm.'79
Another feature of the right to information is a right of access to information held by
public authorities. A directive of the Council of the European Union'80 is designed to
ensure that environmental information is made available to all natural and legal persons
without their having to justify a specific interest. The grounds to deny access are lim-
ited,'8' but if it is denied, administrative orjudicial review must be obtainable.
17' See generally Henri Smets, The Right to Informnation on the Risks Created by Hazardous Installations at the
National and International Levels, in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM 449
(Francesco Francioni & Tullio Scovazzi eds., 1991). At the global level, the United Nations Environment
Programme (UNEP) has promoted information for the public with the APELL program, whose objective,
inter alia, is to provide information on the hazards involved in industrial operations and the measures taken
to reduce them. See UNEP, APELL: AWARENESS AND PREPAREDNESS FOR EMERGENCIES AT THE LOCAL
LEVEL: A PROCESS FOR RESPONDING TO TECHNOLOGICAL ACCIDENTS, UN Sales No. 88.III.D.3 (1988).
175 Council Directive 82/501 of 24 June 1982 on the Major-Accident Hazards of Certain Industrial Activ-
ities, Art. 9, 1982 O.J. (L 230) 1, amended by 1987 OJ. (L 85) 36, 1988 O.J. (L 336) 14, 1990 O.J. (L 353) 59,
1991 O.J. (L 377) 48. See also Council of Europe Convention on Civil Liability for Damages Resulting from
Activities Dangerous to the Environment, June 21, 1993, Arts. 13-16, reprinited in 97 REVUE GENERALE DE
DROIT INTERNATIONAL PUBLIC 1118 (1993) (French).
176 Decision-Recommendation of the OECD Council Concerning Provision of Information to the Public
and Public Participation in Decision-Making Processes Related to the Prevention of, and Response to, Acci-
dents Involving Hazardous Substances, OECD Doc. C(88)85 (Final) (1988), reprinzted in 28 ILM 278 (1989).
The instrument provides that member countries should ensure that the potentially affected public is provided
with general information on the nature, extent and potential off-site effects on human health or the environ-
ment of possible major accidents at hazardous installations. See Smets, supra note 174, at 452-56.
177 Council Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on
the Environment, 1985 O.J. (L 175) 40. The directive calls for states to make public all requests for authori-
zation of a public or private project that will significantly affect the environment.
178 Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, UN
Doc. E/ECE/1250 (1991), reprinted in 30 ILM 800 (1991) [hereinafter ECE Convention]. For policies con-
cerning public participation and disclosure of information on projects likely to affect the environment fi-
nanced by the World Bank and other international lending institutions, see Giinther Handl, Cont rollingImple-
mentation? of and Compliance with International Environmental Commitments: The Rocky Roadfrom Rio, 5 COLO. J.
INT'L ENVTL. L. & POL Y 305, 319-27 (1994).
179 ECE Convention, supra note 178, Art. 3, para. 8, and Art. 4, para. 2.
180 Council Directive 90/313 on the Freedom of Access to Information on the Environment, 1990 O.J.
(L 158) 56. See generally Dietrich Gorny, The European Environment Agency amid the Freedom of Emivironmental
Information Directive: Potential Cornerstones of EC Environmental Law, 14 B.C. INT'L & COMP. L. REV. 279
(1991); Ludwig Kramer, La Directive 90/313/CEE sur l'Acces a l'information en mnatiere d'environnement: Genese
et perspectives dapplication, 353 REVUE DU MARCHE COMMUN 866 (1991).
181 According to Article 3 of the directive, supra note 180, at 57, access can be denied for the following
reasons: national defense or public security; or the information concerns confidential deliberations of author-
ities, cases pending in court, business secrets, or confidential personal data or files; or the information
would magnify the probability of environmental harm.
The only provision of the Convention or its protocols that involves participation is
Article 3 of the First Protocol, which provides for free elections. 182 In contrast to Article
25 of the Political Covenant, Article 3 does not provide for a right "[t]o take part in the
conduct of public affairs, directly or through freely chosen representatives."'183 There-
fore, its role is limited. In its general meaning, a right to information may cover notions
that extend from the right to receive and seek information to the duty of the state to
obtain or provide information.'84 As will be seen below, Article 10 of the Convention
has a more limited reach, but it might be applicable in certain circumstances.
The Right to Participation
Article 3 is too general to be applicable to specific decision-making procedures, even

if a group of persons has particular concerns to assert.'85 For instance, in G. and E. v.
Nonvay, the applicants alleged that the Lapps were a minority suffering from discrimi-
nation and that their rights were not adequately protected by Norwegian law. The
Commission, after noting that no specific minority rights were guaranteed under the
Convention, added: "The applicants are Norwegian citizens, living in Norway, and un-
der Norwegian jurisdiction. They have, as other Norwegians, the right to vote and to
stand for election to the Norwegian Parliament. They are thus democratically repre-
sented in Parliament, although the Lapps have no secured representation for them-
selves. "186
Article 6 of the Convention, which provides for a right to a tribunal,'87 permits the
indirect protection of the right to participation when it is recognized in municipal law.
In the Zander case,'88 the applicants owned property adjacent to land on which a com-
pany was storing and treating household and industrial wastes. Refuse containing cya-
nide had been left in the dump and analysis of local drinking water revealed that the
level of cyanide in nearby wells was excessive. The municipality prohibited use of the
water and furnished a provisional supply of drinking water. The permissible level of
cyanide was subsequently raised and the supply by the municipality was interrupted.
The company later asked a licensing board to renew its permit and for authorization to
expand its activities. The applicants argued before the board that since the new activi-
ties entailed additional risks of water contamination, the renewed permit should impose
an obligation to supply drinking water free of charge in case of pollution. The board
granted the permit but not the applicants' request, and an appeal to the Government
was rejected. Before the Commission, the applicants alleged a violation of Article 6,
since they could not obtain judicial review of the board's decision. The Court found
that the applicants could invoke Article 6 since they "could arguably maintain that they
were entitled under Swedish law to protection against the water in their well being
polluted as a result of VAFAB's activities on the dump."' 89 Concluding that the decis
of the licensing board had not been reviewed by a tribunal, the Court ruled that Article
6 had been violated.
182 Article 3 of the First Protocol, supra note 103, reads: "The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballots, under conditions which will ensure the free expression
of the opinion of the people in the choice of the legislature."
183 Political Covenant, supra note 26, Art. 25(a).
184 For a comparison between the EU Council Directive 90/313, supra note 180, and the right to informa-
tion under the European Convention, see Weber, supra note 44, at 183-84.
185 On the right to political participation, see generally Henry J. Steiner, Political Participation as a Hu-
man Right, 1 HARV. HUM. RTS. Y.B. 77 (1988).
186 G. and E. v. Norway, supra note 85, at 35. 187 See text at note 215 infra.
188 Zander v. Sweden, 279-B Eur. Ct. H.R. (ser. A) (1993).
Id., para. 24.
The Right to Information
The main elements of Article 10 of the European Convention are the right to receive
and the right to impart information and ideas.'90 These rights can be viewed as the two
faces of the right of expression, but they are autonomous'9' and their scope does not
correspond exactly.'92
The right to receive information. The right to receive information is not confined to the
passive reception of information disseminated by various sources. Although Article 10
does not specifically enunciate a right to seek information actively,'93 most writers main-
tain that this right is guaranteed when the information was intended for the public in
general or for the person seeking it in particular.'94 However, the right to seek infor-
mation actively does not impose on public authorities any positive obligation to provide
information they hold: "Traditionally, constitutional freedom to receive (and seek) in-
formation does not include a general 'democratic' right of access to administrative
records or other information; this 'public' access depends on additional legisla-
tion ... . 195
A right of access can nevertheless be derived from the right to receive information
when the information is especially important for the person or group of persons seeking
it.'96 At least, the Commission did not dismiss that possibility in certain circumstances.
It noted that "it follows from the context in which the right to receive information is
mentioned ... that it envisages first of all access to general sources of information which
may not be restricted by positive action of the authorities unless this can be justified
under the second paragraph of Article 10." Continuing its argument, the Commission
posed the assumption "that the right to receive information may under certain circum-
stances include a right of access by the interested person to documents which although
not generally accessible are of particular importance for his own position.' 197
In the Sunday Times case,'98 the Court underlined that the families of the victims of
thalidomide "had a vital interest in knowing all the underlying facts and the various
90 Article 10 reads:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television
or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the pre-
vention of disorder or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in confidence, or for maintain-
ing the authority and impartiality of the judiciary.
191 Giorgio Malinverni, Freedom of Information in the European Convention on Human Rights and the Interna-
tional Covenant onz Civil and Political Rights, 4 HUM. RTS. L.J. 443, 447 (1983).
192 Martin Bullinger, Report on "Freedom of Expression and Information: An Essential Element of Democracy, " in
6 PROC., supra note 79, at 45, 56.
193 It is specifically provided for in Article 13 of the American Convention, supra note 34, and in Article 19
of the Political Covenant, supra note 26.
194 Bullinger, supra note 192, at 66; Malinverni, supra note 191, at 448-49. The latter cites two judgments
of the Swiss Federal Tribunal on Article 10 of the European Convention: Judgment of Mar. 8, 1978, Arrets
du Tribunal federal suisse [ATF] 104 Ia 88 (1978); andJudgment of Sept. 17, 1982, ATF 108 Ia 275 (1982).
195 Bullinger, supra note 192, at 70. See also SUDRE, supra note 86, at 162; VELU & ERGEC, supra note 30,
at 608.
19 Bullinger, supra note 192, at 71; Malinverni, supra note 191, at 450.
197 X. v. Federal Republic of Germany, App. No. 8383/78, 17 Eur. Comm'n H.R. Dec. & Rep. 227, 228-
29 (1980). The applicant claimed that the postal service had delivered important documents to his old ad-
dress, so that they had reached him after substantial delay.
198 Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) (1979). The House of Lords had granted
an injunction to prohibit the publication of articles on the thalidomide affair. The European Court held this
restriction on the freedom of expression to be in violation of the Convention.
possible solutions. They could be deprived of this information, which was crucially im-
portant for them, only if it appeared absolutely certain that its diffusion would have
presented a threat to the 'authority of thejudiciary'.''199 The Court went on to say that
imparting information and ideas about matters in the public interest is incumbent on
the mass media.200 However, they do not have privileged access to information held by
public authorities.20' The right to seek information is additionally limited by its avail-
ability. The state does not have a duty to gather information on subjects of general
interest. One might attribute an obligation to governments or other public authorities
to disseminate information on important matters as deriving from the effective practice
of political democracy, but a corresponding individual right does not appear to fall
within the realm of Article 10.202
In two recent judgments, the Court gave a strict construction to Article 10 regarding
a right of access. In the Leander case,203 the applicant was denied a public position with
important national security implications because of information provided to the em-
ployer by a secret police register. He alleged a violation of Article 10 since he was denied
access to the file. The Court stated unanimously that
the right to receive information basically prohibits a Government from restricting

a person from receiving information that others wish or may be willing to impart
to him. Article 10 does not, in circumstances such as those of the present case,
confer on the individual a right of access to a register containing information
on his personal position, nor does it embody an obligation on the Govern-
ment to impart such information to the individual.204
In the Gaskin case,205 the applicant had been a ward of the public until his majority
and had lived in several successive foster families. When he reached his majority, he
sought to institute proceedings against the local authority alleging child abuse. He was
denied access to his personal file, which was held by the municipality. The Court, citing
Leander, again held that "in the circumstances of the present case, Article 10 does not
embody an obligation on the State concerned to impart the information in question to
the individual."206
These two decisions, however, may not completely rule out a right of access. They
may indicate merely that, in the given circumstances, the applicants did not enjoy a
right of access and the public authorities were not obliged to provide the information.
But the Court has not indicated the circumstances that would give rise to such a right.
It must be stressed that, in both cases, the information sought concerned the applicants
themselves. Some writers have argued that a right of access could be granted when
the information is of general significance.207 Environmental information is usually of
general importance or of interest to many people. It may concern activities likely to
affect the environment, such as the storage of hazardous wastes and exploitation of
natural resources.208 However, restrictions on such a right could be justified under the
second paragraph of Article 10, by invoking reasons of national security or the protec-
tion of the rights of others.
199 Id., para. 66. 200 Id., para. 65.

201 In Sixteen Austrian Communes and Some of their Councillors v. Austria, A
72 & others, 17 Y.B. EUR. CONV. ON H.R. 338, 355, para. 4 (1974), on the claim t
councilors, the applicants had a right of access to information that was not norm
public, the Commission stated that "Article 10 does not accord to public officials a s
which is wider than that of other persons."
202 Bullinger, supra note 192, at 70.
203 Leander v. Sweden, 116 Eur. Ct. H.R. (ser. A) (1987).
204 Id., para. 74.
205 Gaskin v. United Kingdom, 160 Eur. Ct. H.R. (ser. A) (1989).
206 Id., para. 52.
207 Malinverni, supra note 191, at 450; VELU & ERGEC, supra note 30, at 608; Weber, supra note 44, at 180.
208 Dejeant-Pons, supra note 47, at 468.
A right to information derived from the right to respect for private life.
Gaskin cases, both applicants also alleged a violation of their right to respect for private
life. In Leander, the Court decided that the storage of personal information, its com-
munication to the employer and the denial of the concerned individual's access to the
file constituted interference with private life. However, these acts were done according
to the law, national security was a valid justification, and the means were not dispro-
portionate to the objective.209
In Gaskin, as the denial of access did not constitute interference in the individual's
private life, the issue was to determine whether the state had a duty to act, that is, to
provide the information. In assessing the balance between the interest of the individual
and the general interest, the Court emphasized that "persons in the situation of the
applicant have a vital interest, protected by the Convention, in receiving the informa-
tion necessary to know and to understand their childhood and early development. "210
Because public records must be kept confidential in order to receive objective and reli-
able informatiohi and protect third persons, the need for the source of information to
consent to its release could be held compatible with Article 8. However, when consent
is not given, an independent authority must decide if it is being properly withheld.
Since in Gaskin no such procedure was provided, the Court found that there had been a
violation of Article 8.21 It can be inferred from these two cases that, under Article 8,
an individual may have a right of access to information held by public authorities, if the
information sought concerns essential personal information and its confidentiality is not
required to protect the interests enumerated in the second paragraph.212
In some circumstances, other factors may be taken into account to determine if there
is a duty to provide information. In Association X. v. United Kingdom, the Commission
held that, "in a voluntary vaccination scheme, Article 8 does not impose an obligation
on the State to provide specific detailed information to parents on either contra-indica-
tions or the risks associated with particular vaccines. "213 This finding was based on the
fact that the risks involved in vaccination were common knowledge and that "it [was]
legitimate for the State to take the view that checks for contra-indications [were] matters
best left to clinical judgments."'214 Whether exposure to the risks was voluntary or in-
voluntary and whether information was available to the public could thus be relevant to
determining if there is a duty to provide information on activities that might endanger
life or health.
The Right to a Tribunal
On its face, the first paragraph of Article 6215 appears merely to provide judicial
guarantees of a fair determination of a dispute brought before a court. This entitle-
ment, however, has been construed as including a right to a tribunal for the determi-
nation of one's rights.216 According to the Court, the guarantees offered by Article 6
would be meaningless if states could freely prevent access to courts.217 Moreover,
209 Leander, supra note 203, paras. 48-68. 210 Gaskini, supra note 205, para. 49.
211 Id.
212 Weber, supra note 44, at 179; Leighton Schwartz, supra note 13, at 370-71 n.82.
213 Association X. v. United Kingdom, supra note 42, at 35.
214 Id.
215 Article 6, paragraph 1 states: "In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an inde-
pendent and impartial tribunal established by law."
216 Pieter van Dijk, The Interpretation of "Civil Rights and Obligations" by the European Court of Human Rights-
One More Step to Take, in PROTECTING HUMAN RIGHTS, supra note 161, at 131, 139.
217 This was first established in Golder v. United Kingdom, 18 Eur. Ct. H.R. (ser. A) (1975).
[t]he rule of law implies, inter alia, that an interference by the executive authorities
with an individual's rights should be subject to an effective control which should
normally be assured by the judiciary, at least in the last resort, judicial control
offering the best guarantees of independence, impartiality and a proper
procedure.
The scope of the right to a tribunal. The applicability of Article 6 rests on the notion of
''civil rights and obligations." The first condition regarding the application of Article
6, paragraph 1 is the existence of a dispute concerning a right recognized in municipal
law. In each case where the Commission had to determine if a right was established in
municipal law, it was careful to explain that the interpretation of Article 6 could not
create a substantive right in the law of the state concerned:
[W]hether a right is at all at issue in a particular case depends primarily on the

legal system of the State concerned. It is true that the concept of a "right" is itself
autonomous to some degree. Thus it is not decisive for the purposes of Article 6
para. 1 that a given privilege or interest which exists in a domestic legal system is
not classified or described as a right by that system. However it is clear that the
Convention organs could not create by way of interpretation of Article 6 para. 1 a
substantive right which has no legal basis whatsoever in the State concerned.219
The "European" notion of right, however, has not been the focus of the case law.
The Commission and the Court have circumvented the difficulty by incorporating into
the notion of "rights and obligations" covered by Article 6 licenses, authorizations and
permits that have a direct link with private rights or that have affected the use of prop-
erty or the exercise of commercial activities. In the Benthem case,220 the applicant ap-
plied for a license to operate an installation for the delivery of liquid petroleum gas for
motor vehicles. The license was necessary to construct or operate installations that
might constitute a source of danger or disturbance to their surroundings. The munici-
pal authorities granted the license, but the decision was later quashed by a Crown de-
cree. The applicant alleged that the dispute had not been heard by an independent and
impartial tribunal. The Court, without examining the nature of the entitlement to ob-
tain the license, found that "[t]he grant of the licence to which the applicant claimed to
be entitled was one of the conditions for the exercise of part of his activities as a busi-
nessman. It was closely associated with the right to use one's possessions in conformity
with the law's requirements."22' Article 6 was found to be applicable. Thus, whether
the national legal system classifies an entitlement as a privilege or a right is often not the
determining element in establishing the applicability of Article 6.
The distinction between the nonexistence of the right and a restriction on the right to
bring action has raised more difficulties.222 In Baggs v. United Kingdom,223 the applicant
alleged a violation of Article 6, because no remedy was available under British law for
victims of noise pollution in the vicinity of airports. A British statute specifically pro-
vided that "[n]o action shall lie in respect of trespass or in respect of nuisance, by reason
only of the flight of an aircraft over any property" as long as air navigation regulations
were duly complied with. The Commission, considering that the aim of that provision
218 Klass, supra note 161, para. 55.

219 Sporrong anzd Lonnroth, supra note 105, para. 150 (Commission report).
220 Benthem v. Netherlands, 97 Eur. Ct. H.R. (ser. A) (1985).
221 Id., para. 36. In Fredin, supra note 145, para. 63, the Court also found that "the applicants' right to
develop their property in accordance with the applicable laws and regulations was 'civil' within the meaning
of Article 6, para. 1."
222 See generally Francoise J. Hampson, Restrictions on Rights of Action anid the Europeani Conivention on Hu-
mani Rights: The Case of Powztell and Rayner, 61 BRIT. Y.B. INT'L L. 279 (1990).
223 Baggs v. United Kingdom, supra note 79.
was to exclude any eventual claim and not simply to limit civil courts'juris
that "[t]he applicant, therefore, [could not] invoke under English law a substantive right
to compensation for the alleged noise nuisance."224 The application of Article 6 was
thus excluded. This interpretation is debatable. By considering Article 6 as precluding
the existence of a right to bring action and not as a restriction on the jurisdiction of the
courts to hear such claims, the Commission relinquished all control over the compati-
bility of such provisions with the Convention.225 Curiously, while a state may refuse to
recognize a right that is usually granted in other states without running afoul of Article
6, if an entitlement is classified as a privilege in a national legal system, as opposed to
a right in other states, and it can be linked to a right of a civil nature, Article 6 is
applicable.
The case law on the nature of "civil" rights and obligations is considerable and com-
plex. Although the Court has never defined the notion, it is assimilated to "private"
rights and obligations.226 According to the Commission:
[T]he concept of civil rights and obligations is not to be interpreted solely by ref-
erence to the respondent State's domestic law and ... Article 6(1) applies irrespec-
tive of the parties' status, be it public or private, and of the nature ot the legislation
governing the matter in which the dispute is to be determined. It is sufficient that
the action was "pecuniary" in nature and that the action was founded on an alleged
infringement of rights which were likewise pecuniary rights.227
Most of the issues relating to Article 1 of the First Protocol fall within the sphere of
application of Article 6. In the Oerlemans case,228 a Dutch citizen alleged a violation of
Article 6 on the ground that he could not challenge a ministerial order designating his
land as a protected site. The Court considered that, without doubt, the right to use his
property was "civil" in nature.229 In Zander v. Sweden, where the contamination of the
applicants' well was at stake, the Commission stated:
As regards the character of the right at issue, the Commission notes that the right
related to the environmental conditions of the applicants' property and that exist-
ence of environmental inconveniences or risks might well be a factor which affects
the value of a property. Consequently the right at issue must be considered to be a
civil right to which Article 6, para. 1 of the Convention applies.230
The right to obtain damages is also considered as a right of a civil nature falling under
Article 6. In Zimmerman and Steiner,23i the applicants' complaint concerned the length
of proceedings before the Swiss Federal Tribunal in which they were seeking compen-
sation for the injury caused by noise and air pollution emanating from an airport. The
Court found Article 6 to be applicable.
The guarantees offered by Article 6. This right to a tribunal also implies concrete and
effective access. In the de Geouffre de la Pradelle case,232 part of the applicant's land had
been designated as an area of outstanding beauty, which restricted its use. An applica-
224 Id. at 18, 21. The same provision was at stake in Powell and Rayner. As the Commission had dismissed
the complaint under Article 6 as ill-founded, the Court did not formally rule on the point, although it seems
to have approved the interpretation of the Commission. Powell and Rayner, supra note 68, para. 36.
225 Hampson, supra note 222, at 288.
226 Gerard Cohen-Jonathan &Jean-Paul Jacque, Activite'de la Commission europeenne des droits de I'homme, 38
ANNUAIRE FRAN:AIS DE DROIT INTERNATIONAL 663,666 (1992).
227 Zanzder, supra note 188, para. 38.
228 Oerlemans v. Netherlands, 219 Eur. Ct. H.R. (ser. A) (1991).
229 Id., para. 47. No violation of Article 6 was found since, according to Dutch case law, the order cou
challenged.
230 Zander, supra note 188, para. 45 (Commission opinion).
231 Zimmerman and Steiner v. Switzerland, 66 Eur. Ct. H.R. (ser. A) (1983).
232 De Geouffre de la Pradelle v. France, 253-B Eur. Ct. H.R. (ser. A) (1992).
tion to the French Conseil d'Etat forjudicial review of the decree was held inadmissible
on the ground that it was not timely, the two months' period allowed by the law to
challenge such decrees having expired. The applicant alleged before the Court that it
had been hampered by the uncertainty of French law on the classification of decisions
to designate places of interest. The Court decided that, "[a]ll in all, the system was ...
not sufficiently coherent and clear. Having regard to the circumstances of the case as a
whole, the Court finds that the applicant did not have a practical, effective right of
access to the Conseil d'Etat."233
The right to a court of law for the determination and enforcement of one's rights
also appears as a counterweight to the margin of appreciation of administrative author-
ities. Most cases raising environmental issues have involved the right to judicial review
of administrative acts. When no judicial review is provided,234 as in Denev v. Sweden,235
the Skdrby case236 and the Fredin case,237 there is a violation of Article 6. Article 6 does
not, however, permit challenges to the validity of a law or its conformity with the na-
tional constitution. In Braunerheilm v. Sweden,238 the owner of a plot of land objected to
new legislation that permitted the granting of individual licenses to the public at large
to fish in waters where he previously had an exclusive right to fish. The applicant alleged
a violation of Article 6239 because he could not challenge the legislation before the
courts. Noting that exclusive fishing rights had been taken away by a law passed by
parliament, the Commission observed that Article 6 was not intended to encompass
judicial review of legislative acts.
IV. CONCLUSION
Not surprisingly, the numerous issues involving environmental protection raised in

the European framework of human rights protection show that the quality of the envi-
ronment is closely related to the effective enjoyment of human rights. Protection of the
environment has been recognized as an important public interest and it appears, in
this sense, to be a value protected by the Convention. However, one is struck by the
discrepancy between the importance attached to environmental protection as a collec-
tive value and that attached to environmental quality as a private interest. The thresh-
old for finding a violation on environmental grounds of the right to private life or
the right to the enjoyment of one's possessions is high. Thus far, the Court and the
Commission have not completely closed the circle of the interrelationship between the
enjoyment of human rights and the level of environmental quality. Although they have
recognized the importance of environmental protection, they have not integrated its
collective and individual aspects. To infuse public environmental values into the
content of protected rights, the Convention institutions should try to establish a mini-
mum standard of environmental quality that should take into account not only the neg-
ative effects of environmental degradation on health, but also the nonmonetary value
that individuals attach to the quality of their surroundings.
233Id., para. 35.

234 Vincent Coussirat-Coustere,Jurisprudence de la Cour europeienne des droits de I'hoinme en 1992, 38 ANNU-
AIRE FRANIAIS DE DROIT INTERNATIONAL 629, 643 (1992).
255 Supra note 141.
236 Skarby v. Sweden, 180-B Eur. Ct. H.R. (ser. A) (1990).
237 Supra note 145. 238 Supra note 129, at 18.
239 The applicant also alleged a violation of his right not to be deprived of
the First Protocol. The Commission considered that there had been interfere
possessions but, in the circumstances, the margin of appreciation of the sta
though no monetary compensation had been offered.
Human rights litigation under the Convention presents limited opportunities to fos-
ter the protection of the environment in general. Environmental protection has an im-
portant public facet that cannot be translated into an individual perspective and in-
volves social choices that cannot be dealt with piecemeal. A system of protection of
human rights, given its individualist bias, is not the best forum to further objectives that
go beyond individual interests.240
Procedural rights, as they appear in the Convention, mostly rely for effectiveness on
the national environmental legal regime through the application of the right to a tribu-
nal. Thus, national environmental policy and law assume major importance in meeting
environmental protection goals. The right to environmental information and partici-
pation receives little protection under the Convention, but the Commission and the
Court have taken into account the availability of information and the opportunity to
participate in the decision-making process when assessing the reasonableness of meas-
ures limiting guaranteed individual rights.24' However, these criteria seem to have been
used only when the information was, in fact, available or an opportunity for participa-
tion provided, in support of the reasonableness of the measures. It should also be used
to indicate the unreasonableness of measures taken or not taken when no such oppor-
tunity was offered. The principle of public participation and access to environmental
information when acts or decisions are likely to affect a person's immediate environ-
ment is now widely recognized. It should be considered as embodied in the duty of the
state to strike a fair balance between private and public interests.
240 Handl, supra note 8, at 20.

241 See, e.g., Powell anid Raynier, supra note 68, para. 44.

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Integrating Environmental Values into the European Convention on Human Rights

Author(s): Richard Desgagne

Cambridge University Press, American Society of International Law are collaborating

II. ENVIRONMENTAL PROTECTION: THE HUMAN RIGHTS PERSPECTIVE

A RIGHT TO ENVIRONMENT AS A COROLLARY SUBSTANTIVE RIGHT

The Right to Life

The fulfillment of human fundamental needs is dependent on many elements of the

The Inter-American Commission on Human Rights similarly established a link be-

(a) in defence of any person from unlawful violence;

The Right to Physical Integrity and Health

The prohibition of degrading treatment. Article 3 of the European Convention provides

The Right to Respectfor One's Private Life

of Article 8, establishment of interference by a public authority, and consideration of

ond paragraph.88 An intervention that affects the integrity or physical well-being of

88 Connelly, supra note 64, at 580-82.

Delmas-Marty, su(pra note 67, at 325.

The development of international environmental law may someday create a common

The Right to the Peaceful Enjoyment of Possessions

a pleasant environment.'""10 This is an excessively stri

ENVIRONMENTAL REGULATIONS AS LIMITING PROTECTED RIGHTS

To ensure that the environment is effectively protected, governmental policies and

130 Fromont, supra note 112, at 226.

The Legitimacy of Measures that Protect the Environment

The Commission has clearly recognized that environmental protection is a legitimate

III. HUMAN RIGHTS: THE ENVIRONMENTAL PERSPECTIVE

SUBSTANTIVE HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION

148 SERMET, supra note 111, at 38.

153 Handl, supra note 8.

asserting a collective interest through a procedure that is primarily designed to protect

The Victim Requirement

PROCEDURAL RIGHTS AS "ENVIRONMENTAL RIGHTS"

17' Rio Declaration, supra note 9, Principle 10, 31 ILM at 878.

The Right to Participation

Article 3 is too general to be applicable to specific decision-making procedures, even

The Right to Information

the right to receive information basically prohibits a Government from restricting

199 Id., para. 66. 200 Id., para. 65.

The Right to a Tribunal

[W]hether a right is at all at issue in a particular case depends primarily on the

218 Klass, supra note 161, para. 55.

Not surprisingly, the numerous issues involving environmental protection raised in

233Id., para. 35.

240 Handl, supra note 8, at 20.

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