Its protection remains unquestionably one of the concerns that increasingly haunt the international community if we are to believe the various international conventions and state legislation, without obscuring the world summits or international conferences on its subject, which continue to grow. In this sense, it is appropriate to mention Principle 1 of the Declaration of the United Nations Conference on the Human Environment. It states that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”.
The Nuclear Tests case before the International Court of Justice (ICJ) buttresses this point of view of the major importance reserved for the environment. The stake was to obtain from France, as defendant, that it put an end to its nuclear explosions in the Pacific atmosphere which would have caused radioactive fallout harmful to the protection of maritime resources, the environment and the health of the populations of Australia and New Zealand [2].
Regional organizations are not on the sidelines of this awareness of environmental issues. Among them is the Council of Europe. Even if the protection of the environment was not part of its initial objective, its contribution to the establishment of the European Court of Human Rights nevertheless responds to the concern to protect the environment [3]. Because, among the rights that could be asserted before this Court, some relate to the protection of the environment. This is the case of the right to a healthy environment, the right to access to environmental justice, the right to information and participation in environmental matters, etc. It is in this sense that this Court should be recognized as a protector of the environment.
However, the concern lies in the marginalization of this phenomenon that is the environment within the European Convention of Human Rights (ECHR), by the fact that none of its articles refer to it from the point of view of expressly, much less any of its additional protocols are not related to it [4] well that it increasingly appears to be part of the human rights to be protected yet. Indeed, this is what Judge Weeramantry recalled in the terms of his individual opinion in the case of the Project Gabčikovo-Nagymaros. He noticed that “the protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself” [5].
As a result, this absence of direct reference by the ECHR to the environmental cause is not exempt from raising major concerns about its justiciability before the European Court of Human Rights. The reason lies in the fact that it makes the right to a healthy environment appear in the human rights theory in filigree, which is generally relegated to a secondary position [6]. Based on the interpretation of human rights, this theory advocates that it be extracted from the rights formally recognized and inscribed in the texts, a right that is not inscribed but whose implementation conditions the enjoyment of the other rights inscribed.
In other words, the right that is extracted must be indispensable to the enjoyment of the rights recognized and inscribed in the texts. Anything that could obviously complicate his defense before the courts with regard to the principle of the legality of penalties, namely that “nullum crimen, nulla poena sine lege” [7]. The idea is that there can be no crime or misdemeanor for an act in the absence of a law that represses it, especially since "only the law can define a crime and a penalty" [8]. The ECHR has adopted this principle in Article 7 (1), which states that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”.
In such a logic, a merging interrogation can be to know at what extent does the European Court of Human Rights contribute to the protection of the environment ?
To answer this question, on the one hand, we will try to show how the European Court of Human Rights plays a role in the defence of the environmental problem (I). On the other hand, we will dwell on the challenges related to the protection of the environment by this Court (II).
I- The European Court of Human Rights as a defender of the environmental problems.
The first step will be to analyze the legal foundations of the intervention of the European Court of Human Rights on the issues of the environmental (A). Second, we will discuss the scope of the jurisprudence of this Court in the protection of the environment (B).
A- The legal regime for the intervention of the European Court of Human Rights in environmental issue.
The non-existence within the ECHR of articles typically devoted to the environment and of an additional protocol relating to this matter does not necessarily hinder the jurisdiction of the European Court of Human Rights on questions relating to the protection of the environment. This reality was highlighted by the Court itself when it had to identify in its case law problems related to the environment and which rhyme with rights expressly enshrined in the aforementioned Convention [9].
These are the right to life under article 2, the right not to be subjected to degrading treatment under article 3, the right to a fair trial and access to a court under article 6, the right to respect for private and family life and the home under article 8, the right to receive and impart information and ideas in article 10, the right to freedom of association in article 11, the right to an effective remedy in Article 13, the right to non-discrimination in article 14 and the right to peaceful enjoyment of property in Article 1 of Protocol 1 to the Convention [10].
It should be noted, however, that these articles are not the only ones that can serve as a basis for the jurisdiction of the European Court of Human Rights, especially since the experience drawn from its case law has made it possible to realize that it refers to other standards or principles of international environmental law. For example, in Okyay et al. v. Turkey, the Court applied the Rio Declaration on Environment and Development [11]. As for the Mangouras v. Spain case, the Court relied on the United Nations Convention on the Law of the Sea of 10 December 1982, the jurisprudence of the International Tribunal for the Law of the Sea, the International Convention for the Prevention of Pollution from Ships of 2 November 1973 and its Protocol of 17 February 1978, and the International Convention on Civil Liability for Oil Pollution Damage of 1992 [12]. In the case of Tătar v. Romania, the Aarhus Convention, as well as the principles of the Stockholm Declaration and the Rio Declaration on Environment and Development and Resolution 1430/2005 of the Parliamentary Assembly of the Council of Europe on industrial risks, served as the legal basis for the Court’s judgment [13]. The list is not exhaustive.
What about the contributions of the European Court of Human Rights to the protection of the environment ?
B- The contributions of the European Court of Human Rights in the protection of the environment.
In its judgment of January 18, 1978 in Ireland v. United Kingdom [14], the Court stated that "its judgments serve not only to decide cases before it, but more broadly to clarify, safeguard and develop the standards of the Convention and thus to contribute to the observance by States of the commitments they have assumed as Contracting Parties". Without departing from the definition of its mission assigned to it by the ECHR (Article 19 of the Convention in question), the Court seems to provide an innovation in the exercise of its competence by this declaration, even if it is not even that by the expression "to develop the standards of the Convention". This article gives a dynamic character to the ECHR. In this regard, Judge Walter Ganshof Van Der Meersch rightly argued that "the law of the Convention is not static. Its object does not permit it (...). The objectives of the Convention are mutually supportive in keeping with the pace of social change" [15].
Consequently, while opening up to the environment, the experience has led the Court to extend important principles of law to this matter, thus opening the way for litigants to rely on them before its court. By way of illustration, it would be interesting to mention the case of Guerra and al. v. Italy, which was an opportunity for the Court to enshrine the following the right to environmental information, which should make it possible to guarantee the right of applicants to respect for their private and family life. Paragraph 60 of the judgment states that "in the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory". Thus, Italy, as defendant, "did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention" [16].
In L.C.B. v. United Kingdom, it was the right to life that was at issue. The Court was fortunate to find that "the first sentence of Article 2§1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction" [17]. Thus, the Court enshrined in its case law the doctrine of the so-called positive obligations that call on States to act to ensure the enjoyment of rights relating to a healthy environment, resulting from the agreements between them [18]. Recall the Court did not allow the applicants in this case on the ground that there was no evidence that the right to life has been violated [19]. On the other hand, in Verein Gegen Tierfabriken Schweiz (VGT) v. Switzerland, the Court condemned Switzerland on the ground that the refusal of its competent authorities to broadcast a disputed television spot of an Association which related to the protection of the environment was contrary to the freedom of expression guaranteed by Article 10 of the Convention. The content of this advertising spot can be summed up as follows : "Eat less meat, for the sake of your health, the animals and the environment !” [20].
These various cases testify to the impact of the European Court of Human Rights on environmental issues. In this way, it is developing its interpretation of the ECHR to extend the obligations of Member States. It is in such a perspective that it is not surprising to see sectors relating to nuclear testing, ecology, oil spills, etc., falling within its competence [21].
However, this should in no way obscure the major challenges that this Court faces when it is sometimes confronted with cases dealing with environmental matters with a view to contributing to its protection.
II- Challenges related to the protection of the environment by the European Court of Human Rights.
These challenges relate to the limits relating to the declaratory nature of the Court’s judgments and to the limited body of environmental law (A). They are also linked to the expertise of the judges of the European Court of Human Rights in environmental law (B).
A- Limitations related to the declaratory nature of the judgments of the European Court of Human Rights and the limited legal corpus in environmental matters.
The drafters of the ECHR took care to insert an article to make the judgments of the European Court of Human Rights binding and enforceable. This is a major advantage, because the binding force and enforceability of the decisions of a Court of Justice, are two key elements that are worth giving it more meaning in order to create confidence among the justiciable. This means that, it would be better for a litigant to take advantage of his time and money in terms of legal costs by refraining from bringing an action before a Court, without being able to obtain from his opposite party the implementation of the decision that would make him succumb. It is article 46 of the Convention in question, which refers to this binding force and the enforceability of the judgments of the European Court of Human Rights. Its paragraph 1, relating to the binding force of judgments, stipulates that “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. As for its paragraph 2, it states that “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”. From this article 46 of the Convention is deduced the respect devoted by member states to the Court’s judgments by refraining from any conduct that might prejudice their meaning.
However, this reality does not oblige the States that might succumb to this Court under the terms of its judgments to correct their incriminated acts that were the basis for its referral. Convictions under the Court’s judgments have often resulted in the payment of compensation to victims for damages suffered, as was the case in Okyay et al. v. Turkey [22] or in Tătar v. Romania [23]. In other words, the judgments of the European Court of Human Rights remain for the following reasons the essential, declaratory [24].
The Court itself made this known in its judgment in Marckx v. Belgium. The case concerned a complaint brought by Ms. Paula Marckx and Ms. Alexandra before it against Belgium. Under the terms of their application, they challenged clauses of the Belgian Civil Code relating to the method of establishing "natural" maternal filiation and the effects of this establishment on the scope of the family and the property rights of the child and the mother. The Court considers that “it is not required to undertake an examination in abstracto of the legislative provisions complained of : it is enquiring whether or not their application to Paula and Alexandra Marckx complies with the Convention” [25]. Far from stopping there, the Court goes on to argue that "its decision cannot of itself annul or repeal these provisions : the Court’s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53” [26].
It is important here to recall that these various considerations of the Court are of a general nature. That is to say, they are in fact valid for all matters on which it will have to pronounce. This means that even when the Court is seized of cases that relate to environmental protection, it does not have the power to obtain from the member states of the Council of Europe that might be condemned under the terms of its judgments, that they modify their domestic legislation to adapt it to what it might judge to be favorable to the construction of a healthy environment, conducive to the enjoyment of human rights.
In addition, there is a limited body of environmental law to serve as a legal basis for its jurisdiction [27]. Consequently, it remains that certain situations that would be capable of constituting offences in relation to environmental law, may prove to be unfounded in law before the European Court of Justice human rights [28]. As we have previously pointed out, in addition to the absence of a clear article of the ECHR (of which the European Court of Human Rights is called to ensure) explicitly addressing the environment issue, there is to date no additional protocol to this Convention devoted to this matter. Clearly, that is a limit for the Court’s action in favour of environmental protection under the principle of legality.
In addition to such inadequacies related to the action of the European Court of Human Rights in the field of environmental protection, the fact remains that the expertise of its judges, who are not always specialists in environmental law, may nevertheless constitute a limit to this action.
B- Inadequacies related to the expertise of the judges of the European Court of Human Rights in environmental law.
In the case of the Gabčikovo-Nagymaros Project, Judge Weeramantry said that “it is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine al1 the human rights spoken of in the Universal Declaration and other human rights instruments” [29]. This point of view was favourably received by the European Court of Human Rights when it was hammering at the terms of its judgment in López Ostra v. Spain. So, the Court considers that “naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely” [30].
In spite of this existence of links between these different areas of law as it is possible to see through these points of view, the specific nature of each of them, namely “human rights” and “environmental law”, cannot be overlooked. That said, even in universities, they often constitute different disciplines which, consequently, do not come under the same teaching or even the same specialization. This is why, for the same degree or program of study for a master or doctorate in law, for instance, some may opt for a specialization in “human rights”, while others may opt for “environmental law”.
We thus come to deduce a limit, which is not the least, from the role of the European Court of Human Rights to be able to constitute itself as a protector of the environment. This limit stems from the field of specialization of its judges. Article 21 of the ECHR, which provides for the “conditions for the exercise of the functions” of a judge at this Court, has remained silent on this subject. It only states that
“1. The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. 2. The judges shall sit on the Court in their individual capacity. 3. During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office ; all questions arising from the application of this paragraph shall be decided by the Court”.
Clearly, this article does not imply that the judges of the European Court of Human Rights actually have notorious competence in environmental law to be able to decide a case relating to this subject without the slightest difficulty and as quickly as possible to create confidence among the litigants. One can even believe that the judges of this Court are more specialized in the discipline of human rights than in environmental law, based on the preamble of the ECHR, which only emphasizes human rights and fundamental freedoms and democracy, without in any way mentioning the environment to reserve special consideration for it. Also, we can better get this reality by consulting the CVs of the judges of this Court, available on its website [31].
That said, judges who are experts in environmental law are better able to make the following recommendations in a short period of time, reducing a decision on a case that affects the environment while avoiding miscarriages of justice [32]. However, there is no presumption that this is the case for the judges of the European Court of Human Rights.
So, the reason is that, "increasingly, it is being recognized that a court with special expertise in environmental matters is best placed to play this role in the achievement of ecologically sustainable development" [33]. This is the reason why, even within the world’s highest court, the ICJ, an environmental chamber was established in 1993, consisting only of judges with expertise in environmental law to hear cases relating to this field [34]. We would like to recall that the fact that this chamber has never been seized until now by the States, finds its justification in the mechanism of the ad hoc chambers (article 26, paragraph 2 of the ICJ Statute). This mechanism is more inclined to respect the principle of sovereignty (Article 2, paragraph 1, of the UN Charter). Clearly, it leaves the parties to a dispute free to choose, on the one hand, the number of judges who are to compose the ad hoc chambers and, on the other hand, the person of each of the judges who is to sit in each of these chambers. This fact allows the States to be able to involve in the defense of their interests judges with whom they have a certain affinity or whom they consider capable of making decisions that would better take into account their aspirations because of their professional or scientific experience in relation to the nature of the disputes between them [35].
For this reason, Jean Combacau and Serge Sur argued that this mechanism of ad hoc chambers is explained by the desire to attract before the Court States ready to allow their dispute to be settled by third parties on condition that their point of view can be received with particular benevolence within the Court by the judge who presents in this judicial formation the usual guarantees of a national arbitrator [36]. Consequently, the no States’ recourse to the environmental chamber of the ICJ should in no way be interpreted as meaning that this Court is not concerned with the protection of the environment.
It should be noted that despite the encouraging prospects offered by its jurisprudence in the area of environmental protection, the European Court of Human Rights is facing major challenges that limit its action in this area. It only considers environmental protection when the enjoyment of a human right (subjective right) is at stake, and apart from any violation of such a right, one cannot bring a case before it, unless it is referred to it by a State party to the ECHR. However, inter-State applications have so far proved to be rare in the history of this Court, mainly because of the boomerang effect that each State seeks to avoid. This is why it is easy to understand that the issue of environmental protection continues to occupy a secondary place before this court. Whereas, the need for this protection can obviously arise outside of any direct threat to the human rights of present generations, thinking in particular of the fauna and flora, taken individually and also of future generations.
In conclusion, we hope to obtain from the member states of the Council of Europe, through this contribution, a radical change in their environmental management policies and plans, with a view to increasing the powers of the European Court of Human Rights. This could consist of the adoption of an additional protocol to the ECHR that would make environmental protection a goal in its own right and the constitution of an environmental chamber within the European Court of Human Rights with judges specialized in environmental law. Because, "The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world ; it is the urgent desire of the peoples of the whole world and the duty of all Governments" [37], in addition to the fact that "in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it" [38].
