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Human Rights Approaches to Environmental Protection at the International Level and their Application in the Czech R.

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Written by: Hana Müllerová

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Motto: It is time to recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.
Klaus Toepfer[1]

1. Introduction

The need for effective protection of the global environment is nowadays evident. National and international communities search for instruments as effective as possible to stop or rather slow the destruction of the environment. While the predominant legal approaches to environmental protection are currently based on public regulation by imposing duties, there has been a new legal approach emerging based on each individual's right to a certain quality of environment,[2] which supposes connections between environmental protection and human rights. The well-established national and international systems of human rights guarantees have been increasingly used as an effective instrument for environmental protection.[3]

The purpose of this article is to introduce current international approaches to the links between human rights and environmental protection and examine how these legal approaches are applied in the Czech Republic.

2. Human Rights Instruments In Environmental Protection at the International Level

2.1 Links between Human Rights and Environmental Protection in General

The first significant international event where the connection between human rights and environmental protection was formulated was the Stockholm conference in 1972.[4] Its concluding document, the Stockholm Declaration,[5] established the basis for the so-called "environmental approach to human rights". This approach asserts that environmental protection is an essential precondition for effective universal enjoyment of internationally - guaranteed human rights.[6] Since then, other rights-based approaches to environmental protection have appeared, consisting mostly of procedural environmental rights and the substantive right to environment.[7]

The "procedural rights" approach is exactly the opposite of the "Stockholm" one - it views certain procedural human rights as essential instruments for achieving environmental protection.[8] The third and most recent approach posits the right to a healthy environment as an independent substantive human right, which is based on an indivisible and inseparable connection between human rights and environmental protection.[9] In the following sections the three mentioned approaches are dealt with in more detail.

2.2 Environmental Approach to Human Rights

The enforcement of international environmental law is, on account of its specificity, generally considered to be problematic and not fully successful.[10] Although some existing international courts (e.g. International Court of Justice) could be theoretically used for international environmental disputes,[11] they are not a substitute for an as yet hypothetical international environmental court, or other supervisory mechanisms open not only to states, but also to individuals and NGOs.

Alternatively, human rights systems do provide such mechanisms.[12] Therefore, since the late 1980s, a practice of bringing cases concerning the impact of environmental damage to international human rights institutions has evolved.[13] Most human rights treaties were adopted before environmental protection became a matter of international concern and hardly referenced environmental matters. However, applicants invoked certain "traditional" human rights and the main emphasis lay in the manner of their interpretation in relation to the human environment.

The development of internationally guaranteed human rights through interpretation may be illustrated by the example of the decision-making practices of the European Court of Human Rights when interpreting the European Convention on Human Rights.[14] According to the Court's interpretation, the Convention is taken as a living instrument: the meaning of its provisions has evolved in response to changed social and legal conditions.[15] Although the Convention does not ensure any right to the environment, several cases concerning environmental damage were successful, thanks to the broad interpretation of certain Articles of the Convention.[16]

2.3 Procedural Environmental Rights: the Aarhus Convention

The second right-based approach to environmental protection, which is based on procedural rights, has found its most unique expression in the Aarhus Convention of 1998.[17] This United Nations contribution to environmental rights guarantees the public basic procedural rights in the field

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of environmental protection. This was aimed at ensuring that the concerned public had the possibility of real participation in the protection of "their" environment. The signatory parties are required to incorporate into their law three procedural elements, the so-called pillars of the Convention. The three pillars cover: (i) access to information regarding the environment, (ii) public participation, and (iii) access to justice.

The first pillar guarantees the public the right to information on all components of the environment. The second pillar requires the States to ensure that the concerned public participate in decision-making on specific activities and during preparation of environmental plans, programs and policies. By virtue of the third pillar, the states have to guarantee access to an effective judicial or administrative review procedure to persons covered by environmental matters, regarding the first and second pillar.

2.4 A New Human Right to a Healthy Environment?

General acknowledgment of the human right status to the right to the environment could be seen as a logical conclusion to the two above-mentioned right-based approaches. However, things have not come so far yet. In the area of international environmental law, there is a great number of soft law documents which refer to a right to the environment[18] but no international convention recognizes such a right. Among regional human rights systems, only the African and Inter-American conventions contain a right to the environment in a limited form.[19] According to Shelton, at the present time, it is unlikely that international conventions at a global level will explicitly recognize this right because States fear the corresponding duties.[20] On the contrary, at a national level, the right to an environment of a certain quality (healthy, favourable, decent, balanced etc.) has already been recognized by more than a hundred national constitutions.[21] Thus, at present, the third right-based approach is mainly visible in regional international treaties and national law.

3. Application of Human Rights to Environmental Protection in the Czech Republic

3.1 Right to the Environment under the Czech Constitution

Czech environmental law is based for the most part on the traditional public regulation approach[22] centering on imposition of duties. Its application is predominantly within administrative decision-making. The entry of right-based approaches, and thus entry of judicial decision-making into the environmental protection sphere, was enabled only after the ”velvet revolution" of 1989. At this point environmental rights were incorporated into the Czech Constitution[23] and judicial review started to cover  administrative acts of authorities in the environmental area.

In particular, Article 35 of the Czech Charter of Fundamental Rights and Freedoms[24] (the "Charter") which is of a constitutional nature, guarantees everyone the right to the environment, including the right to a favourable environment and the right to timely and complete information about the state of the environment and natural resources. While the right to environmental information is set forth in great detail in the implementing legislation,[25] there is no particular implementing legislation regarding the right to a favourable environment. Thus, the interpretation of the words "favourable environment" and "everyone" is left open to interpretation by academics and the Courts.

According to the prevailing academic opinion, the word "favourable" is generally relatively vague.[26] Therefore, it is suggested that it must be interpreted neither subjectively (i.e. in relation to a certain person), nor in an absolute manner as meaning a completely pollution-free environment. A favourable environment is then, such an environment where the amount of pollution or level of damage does not exceed the environmental standards given by law. Particular levels of these standards are set by legislation and their determination is of a technical nature.

Although the right to the environment is constitutional, it is not directly applicable to individuals, as follows from Art. 41(1) of the Charter.[27] Therefore, the lack of a special Act implementing the right to a favourable environment creates a situation where the right is not enforceable before the Czech Courts.

3.2 Claiming the Right to the Environment in Courts and its Barriers

The legality of administrative decisions (including decisions in environmental matters) can generally be questioned within the judicial review process before the regional courts. Likewise it could be questioned on a complaint before the Supreme Administrative Court.[28] In addition, the constitutionality of administrative and judicial decisions could be reviewed before the Constitutional Court.

Environmental case-law, however, is limited and according to Damohorský, is generally not appreciated properly and is relatively little known and used.[29] This applies even more in relation to decisions of the Constitutional Court: from the moment the Czech Constitution became effective in 1993, the Constitutional Court has heard only 10 constitutional complaints claiming violations of the right to the environment. [30] Surprisingly, in only two of these cases - Storage of nuclear fuel Dukovany[31] and Water reservoir Vesec[32] - the Court commented on the right to the environment and as such interpreted some aspects of it.

What can be drawn from the existing case law? The first point, is on the question of standing, i.e. who within the term "everyone" is entitled to claim the right to the environment. This was addressed by the Constitutional Court in the Water Reservoir Vesec case. The Court emphasised that it is only individuals who could enjoy the right to the environment in its entirety, both in substantive and procedural terms.

This  is to be compared with the position regarding legal entities which, according to the Court, could only enjoy procedural rights in the field of environmental protection: "It is clear that rights concerning environment pertain only to individuals because they are biological organisms which are, in contrast with legal persons, influenced by eventual negative impacts of the environment."[33] This interpretation of standing by the Constitutional

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Court has a practical impact on the standing of claimants within judicial review. Naturally, a person could ask for judicial review of an administrative act issued in proceedings to which the person was a party.[34] Moreover, several special statutes give standing to ecological NGOs in certain administrative proceedings which may affect the interests of the environment.[35] Finally, individuals could participate in administrative proceedings in cases which could have negative influence on the environment provided that their property is affected.

Secondly, Courts persist in dismissing actions alleging anything other than the claimant's exclusive individual rights. In the judicial review of administrative acts before the Czech Courts, there is no legal provision establishing a public interest complaint (actio popularis), i.e. a the type of complaint enabling claimants to challenge and assert merely an infringement of a public interest (e.g. environment), without the need to challenge infringement of their own rights. In the case of Storage of Nuclear Fuel Dukovany, the High Court held:

"[t]he concept of public interest complaint against administrative decisions is not (yet) known to the Czech administrative justice […] Nevertheless, the court, which is not a legislator, cannot go further than to state the difference between the public interest complaint and the action made by an association of citizens, arising from the law, and to comply with it." [36]

Similarly, Courts do not accept actions defending somebody else's rights: "[w]ithin administrative justice, a participant of administrative proceedings is not entitled to adopt in his application objections of an other participant".[37]

Surprisingly, the opposite view on this issue was formulated by the High Court in Prague in the case of Motorway Bypass of Pilsen.[38] Here, the Court admitted the objections of individuals - proprietors of land situated on the planned route of a motorway - despite the fact that these objections referred primarily to violations of environmental regulations and not of their proprietory rights, and further were regarding a different part of the planned route than the one where their lands were situated. As the Court explained, due to the absence of legal regulation of public interest complaints, there would be (except for individual proprietors) no one entitled to effectively protest in Court against breaches of environmental laws. Regrettably, this approach was not followed by subsequent case law.

In conclusion, the narrow judicial interpretation of standing in relation to claims regarding the right to the environment results, firstly, in a small number of "environmental" complaints being brought by individuals,[39] and, secondly, in the use of artificial, "camouflage" reasoning in the complaints of environmental NGOs. With respect to NGOs, although the real objective of their applications seems to be environmental protection, they base their claims on violation of procedural rights. The reason is that given the narrow interpretation of standing, environmental NGOs have better chances in changing or even quashing the challenged decisions of administrative authorities by challenging them for procedural errors rather than on the basis that their right to the environment was affected. Environmental NGOs also succeed by using other means of obtaining a standing, such as through purchasing the affected land.[40]

3.3 Using Other Human Rights to Improve Environmental Protection

Environmental claimants before the Czech Courts often base their claims not only on the right to the environment embedded in the Charter but also on the other rights in Charter as well as of certain international conventions. Examples of such international treaties include the European Convention on Human Rights and, more recently, the Aarhus Convention. Claimants often claim the right to a fair trial[41] and, more particularly, the right to have their case considered without unnecessary delay.[42]

3.4 Procedural Environmental Rights: Application of the Aarhus Convention

In the first years after the ratification of the Aarhus Convention in 2004, Czech environmental NGOs hoped above all that it would significantly improve the enforcement of the right to the environment. However, several authors subsequently indicated that Czech law does not fully comply with the Aarhus Convention, especially with its third pillar.[43] According to these authors, contrary to the requirements of the Aarhus Convention,[44] the public has only limited access to challenge the substantive and procedural legality of an administrative decision or act. They propose to change the existing line of case law relating to the right to the environment, such as by recognizing a substantive right to the environment available to legal entities or by acknowledging the direct applicability of the Aarhus Convention in judicial review.[45] There has been a significant effort among complainants within the judicial review proceedings to change the case law in the past two years, relying on the Aarhus Convention. However, the Supreme Administrative Court has dashed their hopes. In the case of Downhill Course in Beskydy,[46] the Court emphasised that Art.9(3) of the Aarhus Convention does not have a self-executing character, as the Convention is addressed to signatory parties and their public administration, i.e. not to individuals. According to the Court, the Aarhus Convention only provides for general principles that must be implemented by national legislation. As the Supreme Administrative Court stressed in two other cases, the Aarhus Convention does not prevail over Czech statute and the Courts only interpret it in harmony with national laws.[47]

4. Conclusion

The connection between environmental protection and human rights has been discussed in the international field since the 1970s. The links between the two fields have served as a basis for establishment of the so-called rights-based approach to environmental protection. All the new approaches (such as the environmental consequences of newly interpreted traditional human rights, procedural aspects of environmental protection and a new substantive human right to a healthy environment) are aimed at increasing the effectiveness of environmental protection and improving the quality of the human environment. Indeed, human rights-based approaches seem to be an efficient means of fulfilling this goal, however there is still room for positive development - the right to a healthy environment still cannot be seen as having a stable position in an internationally guaranteed human rights catalogue.

In the Czech Republic, the focal point of legal regulation of environmental protection still remains distinctly in the public regulatory approach. The mere possibility of applying rights-based approaches has been brought about by the incorporation of environmental rights in the Czech Constitution in 1993. However, their enforcement is weak due to legislative and judicial limitations. The first stems from the fact that the Czech Constitution leaves the right to a favourable environment to be implemented by further legislation. The second is caused by the existing judicial interpretation of the right to the environment and a narrow interpretation of standing to claim this right. Regrettably, the Aarhus Convention has not had much impact on Courts so far, contrary to many expectations. It seems that the human rights based approach for enforcing environmental rights is still searching for its place in the Czech Republic.

JUDr. Hana Müllerová, Ph.D., graduated from the Faculty of Law, Charles University, in Prague. She worked in the Legislative Department at the Czech Ministry of Environment. At present she is a researcher at the Institute of State and Law, Academy of Science of the Czech Republic.




Footnotes

  1. Former Executive Director of the United Nations Evironment Programme (UNEP) on the 57th Session of the Commission on Human Rights in 2001.
  2. Shelton, D. Human Rights and the Environment: Problems and Possibilities. Environmental Policy and Law, 38/1-2 (2008), p. 42.
  3. Hunter, D., Salzman, J. and Zaelke, D. International Environmental Law and Policy. 2nd Ed. New York: Foundation Press, 2002, p. 1284.
  4. The 1st UN Conference on the Human Environment held on June 5 to 15, 1972 in Stockholm.
  5. Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF/48/14/REV.1.
  6. Shelton, op.cit., note 2, p. 42.
  7. Shelton, ibid., p. 43.
  8. Shelton, ibid., p. 42.
  9. Shelton, D. The Links between International Human Rights Guarantees and Environmental Protection. University of Chicago: Center for International Studies, 2004, p.3. Available at: http://internationalstudies.uchicago.edu/environmentalrights/shelton.pdf.
  10. Jančářová, I. Mezinárodní smlouvy na ochranu životního prostředí - vybrané otázky. Brno: Masarykova Univerzita Brno, 1997, pp. 34-35.
  11. Šturma, P., Damohorský, M. a kol. Mezinárodní právo životního prostředí, I. část, Praha: IFEC, 2008, pp. 178-179.
  12. Hunter, D., Salzman, J. and Zaelke, op.cit., note 3, p. 1318. The European and Inter-American systems both have human rights courts, while the African system has a commission. All three provide opportunities for individuals to bring claims. The UN system also has opportunities for individuals to raise claims, although it does not have its own human rights court and the ICJ is open only to States and select UN organs.
  13. Shelton, op. cit., note 9, p. 3.
  14. European Convention for the Protection of Human Rights and Fundamentals Freedoms, 213 U.N.T.S. 222 (1950).
  15. E.g. Case 11 Soering v. United Kingdom [1989] EHRR 439.
  16. See, e.g. Repík, B. Chrání Evropská úmluva o lidských právech právo na životní prostředí? Bulletin advokacie, 7-8(2005), pp. 20-24 and 9(2005), pp. 65-68.
  17. UN Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, UN Treaty Series, Vol.2161, p. 447.
  18. E.g. the Stockholm Declaration (1972); the Hague Declaration on the Environment (1989); the Rio Declaration (1992).
  19. Art. 24 of the African Charter on Human and Peoples' Rights and Art. 11(1) of the Additional Protocol to the American Convention on Human rights in the Area of Economic, Social and Cultural Rights
  20. Shelton, op. cit., note 2, p. 46.
  21. Shelton, op. cit., note 9, p. 4. As regards member states of the EU, see also Damohorský, M. and Müllerová, H. Ochrana životního prostředí v ústavách zemí Evropské unie. In: Klíma, K. and Jirásek, J. (eds.). Pocta Jánu Gronskému. Plzeň: Aleš Čeněk, 2008, pp. 375-381.
  22. E.g. Damohorský, M. a kol. Právo životního prostředí 2. vyd., Praha: C.H.Beck, 2007, p. 36.
  23. Constitutional Act No. 1/1993 Coll., the Constitution of the Czech Republic. Available in English at:http://www.nssoud.cz/en/docs/constitution.pdf.
  24. Resolution of the Presidium of the Czech National Council No. 2/1993 Coll. of 16 December 1992, on the Declaration of the Charter of Fundamental Rights and Basic Freedoms as a Part of the Constitutional Order of the Czech Republic. Available in English at : http://angl.concourt.cz/angl_verze/rights.php.
  25. Act No. 123/1998 Coll., providing for the Right to Information on the Environment.
  26. E.g. Damohorský, M. Právo na příznivé životní prostředí jako základní lidské právo. In: Jirásková, V. and Vondráček, J. (eds.). Právní stát - současnost a budoucnost. Praha: Právnická fakulta Univerzity Karlovy, 2004, pp. 65-74.
  27. The rights specified in enumerated Articles of the Charter (incl. Art. 35) may be claimed only within the confines of the laws implementing these provisions.
  28. Act No. 150/2002 Coll., Code of Administrative Justice. Available in English at: http://www.nssoud.cz/en/docs/caj2002.pdf.
  29. Damohorský, M. Role soudů při ochraně životního prostředí. In: Humlíčková, P. (ed.) Jaké jsou limity soudní ochrany v Čechách? Praha: Zelený kruh, 2008, p. 33.
  30. See http://nalus.usoud.cz. Only in one case the Court satisfied the complainant by pronouncement of an environmental right violation; all other complaints were dissmissed.
  31. Finding of the Constitutional Court of 10 July 1997, No. III.ÚS 70/97. Available at: http://nalus.usoud.cz. Courts and the doctrine in the Czech Republic do not normally name cases; names I formulated for this section are thus not official and shall only help to clarify the text
  32. Resolution of the Constitutional Court of 6 January 1997, No. I.ÚS 282/97. Available at http://nalus.usoud.cz.
  33. Ibid., p. 2.
  34. §65 of the Code of Administrative Justice.
  35. §70 of the Act No. 114/1992 Coll., on the protection of nature and landscape and a few similar provisions of other environmental statutes; §115 of the Act No 254/2001 Coll., Waters Act, §23(9) of the Act No. 100/2001 Coll., EIA Act, §7 (d) of the Act No. 76/2002 Coll., IPPC Act and §85(1)(c) of the Act No. 183/2006 Coll., Building Act.
  36. Judgment of the High Court in Prague of 17 May 1999, No. 6 A 95/94-87. Available e.g. at: http://www.pilaw.cz/index.php?cat=cz&art=pilk/619. It is a decision following the Constitutional Court's finding mentioned supra note 32 in the same case. Although the High Court pronounced (in accordance with Constitutional Court's finding) that the petitioner's procedural rights were violated, it did not find this error to have caused the unlawfulness of the challenged decision and thus it dismissed the action.
  37. Ibid. According to the decision, the municipality of Dukovany did not file an action and the petitioner (environmental NGO "Hnutí DUHA - Friends of the Earth Czech Republic") is not entitled to assert its rights.
  38. Decision of the High Court in Prague of 25 August 1997, No. 6 A 40/96-140. Available e.g. at: http://www.pilaw.cz/index.php?cat=cz&art=pilk/656.
  39. E.g. Only three of 10 above-mentioned constitutional complaints challenging the right to environment were submitted by individuals.
  40. E.g. in the case Motorway Bypass of Pilsen, the ecological NGO Brontosaurus Prague 7 with 91 Czech citizens purchased a piece of land situated in the planned route of the motorway in 1996. See http://www.ekolist.cz/zprava.shtml?x=1929421.
  41. Art. 36(1) of the Charter and Art. 6 of the European Convention.
  42. Art. 38(2) of the Charter and Art. 6(1) of the European Convention. All three rights mentioned were claimed together e.g. in the case Storage of nuclear fuel Dukovany, supra note 32.
  43. Analýza implementace Aarhuské úmluvy v právním řádu ČR. Ekologický právní servis, 2007, Available at: http://www.eps.cz/php/eps.site/programy/files/Aarhus_analyza_EPS.pdf. Motzke, R. and Podskalská, S. Aarhuská úmluva ve správní a soudní praxi. Planeta 6/2007 (XV). Available at: http://www.env.cz/osv/edice.nsf/E24BD91EAB985E0AC12572590045770C/$file/planeta6.pdf
  44. Art. 9 (2) of the Aarhus Convention.
  45. Art. 9 (2) of the Aarhus Convention, if directly applied, could offer as standing in connection with §66 (3) of the Czech Code of Administrative Justice.
  46. Judgment of the Supreme Administrative Court of 19 June 2007, No. 5 As 19/2006-59. Available at www.nssoud.cz.
  47. Case of "Widening of a Motorway D1", see judgment of the Supreme Administrative Court of 28 June 2007, No. č.j. 5 As 53/2006-46. Available at www.nssoud.cz; case of Speedway Pohořelice - Mikulov, see judgment of the Supreme Administrative Court of 22 February 2008, No. 6 As 52/2006-155. Available at www.nssoud.cz.