© Nova univerza, 2018 DIGNIT AS Revija za človekove pravice Slovenian journal of human rights ISSN 1408-9653 Council of Europe and the Right to a Healthy Environment Maša Marochini Article information: To cite this document: Marochini, M. (2018). Council of Europe and the Right to a Healthy Environment, Dignitas, št. 59/60, str. 123-164. Permanent link to this doument: https://doi.org/ 10.31601/dgnt/59/60-12 Created on: 07. 12. 2018 To copy this document: publishing@nova-uni.si For Authors: Please visit http://revije.nova-uni.si/ or contact Editors-in-Chief on publishing@nova-uni.si for more information. This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. 123 DIGNITAS n The council of europe and the right to a healthy environment 1* AbSTrA cT The paper looks at the right to a healthy environment as gu- aranteed by two main instruments of the council of Europe for the protection of human rights: the European convention on Human rights, and the European Social charter. As an in- strument on civil and political rights, the convention contains no explicit or implicit reference to the right to a healthy envi- ronment. Nevertheless, in its jurisprudence, particularly regar- ding Article 8 (and in certain situations Article 2), the European court of Human rights has started to interpret the conventi- on so as to include the right to a healthy environment. On the other side, as an instrument on economic and social rights the charter also does not explicitly include the right to a healthy environment, although it does so implicitly under Article 11(3) which obliges State parties to take appropriate measures to pre- vent, as far as possible, epidemic, endemic and other diseases, as well as accidents. This provision seems much more suitable for interpretation in such a way as to guarantee the right to a he- althy environment than Articles 2 and 8 of the convention that guarantee the right to life and the right to respect for private and family life, home and correspondence. Already in its conclusi- ons in the r eporting system, the European committee on Social rights has started interpreting the charter so as to guarantee the right to a healthy environment and this has continued in the committee’s decisions on collective complaints. Therefore, as 1* Senior r esearch Assistant, Department for Theory of Law and State, Philosophy of Law, Human rights and Public Policy, Pravni fakultet u rijeci (Faculty of Law, University of rijeka), Hahlić 6, 51000 rijeka, croatia, email: mmarochini@gmail.com. This article is part of a PhD thesis defended at the University of Dundee, Scotland in November 2012. The council of europe and the right to a healthy environment Maša Marochini 1 * 124 DIGNITAS n Človekove pravice will be argued, the right to a healthy environment is now inclu- ded in the charter through the interpretation of the committee. consequently, what this paper contends is that the right to a he- althy environment is more suitable and better placed under the charter than the convention. Keywords: the right to a healthy environment, Articles 2 and 8 of the European convention on Human rights, judgments con- cerning the right to a healthy environment, Article 11 of the Eu- ropean Social charter, decisions and conclusions concerning the right to a healthy environment Svet Evrope in pravica do zdravega okolja POvzETEk Ta članek se spoprijema s pravico do zdravega okolja, kot je zagotovljena v okviru dveh glavnih instrumentov Sveta Evrope za varstvo človekovih pravic: Evropske konvencije o varstvu člo- vekovih pravic in temeljnih svoboščin ter Evropske socialne listi- ne. konvencija kot instrument o državljanskih in političnih pra- vicah ne vsebuje eksplicitne ali implicitne omembe pravice do zdravega okolja. kljub temu pa je Evropsko sodišče za človekove pravice skozi svojo sodno prakso, zlasti na podlagi člena 8 (in v nekaterih primerih člena 2), konvencijo začelo razlagati tako, da vključuje pravico do zdravega okolja. Po drugi strani pa Listina kot instrument o ekonomskih in socialnih pravicah, čeprav eks- plicitno ne vključuje pravice do zdravega okolja, to počne impli- citno na podlagi člena 11 (3), ki države pogodbenice obvezuje, da sprejmejo ustrezne ukrepe za preprečitev, kolikor je mogoče, epidemičnih, endemičnih ter drugih bolezni in nesreč. Ta do- ločba se zdi veliko bolj primerna od členov 2 in 8 konvencije za razlago, da zagotavlja pravico do zdravega okolja. Skozi sistem poročanja je Evropski odbor za socialne pravice Listino že za- čel razlagati tako, da zagotavlja pravico do zdravega okolja. To se je pokazalo tudi v odločbah Odbora o kolektivnih pritožbah. Pravica do zdravega okolja je torej na podlagi razlage Odbora vsebovana v Listini. Ta članek torej trdi, da je pravica do zdravega okolja bolje zaščitena v Listini kot v konvenciji. 125 DIGNITAS n The council of europe and the right to a healthy environment Ključne besede: pravica do zdravega okolja, člena 2 in 8 Evropske konvencije o varstvu človekovih pravic in temeljnih svoboščin, sod- be v zvezi s pravico do zdravega okolja, člen 11 Evropske socialne listine, odločbe in sklepi v zvezi s pravico do zdravega okolja 1. Introduction The European convention on Human rights (the E cHr, the convention) does not contain a guaranteed right to a healthy en- vironment, nor does its counterpart in the area of economic and social rights, the European Social charter (the ESc , the charter). However, through the jurisprudence of the European court of Hu- man rights (the E ctHr, the court) and the decisions and reports of the European committee on Social rights (the committee, the EScr) many aspects of the right to a healthy environment are now very much included in the council of Europe (the coE) system for the protection of human rights. Some scholars consider the right to a healthy environment as a third-generation right. 2 Nevertheless, it is now implicitly included in the ESc (as will be discussed here) and explicitly in the Inter-American Protocol on Social, Economic and cultural rights (San Salvador Protocol, Article 11) as well as in the African charter on Human and Peoples’ rights (the AfcHPr, Article 24). It is thus generally treated as a second-generation ri- ght. According to A. boyle, environmental rights do not fit into any category of human rights and can be seen from at least three different perspectives, straddling all of the various categories of human rights. 3 It is not my intention here to question whether the 2 S. P Marks, ‘Emerging Human rights: A New Generation for the 1980s?’ (1980-1981) 33 r utgers L. r ev. 435; JA Downs, ‘Healthy and Ecologically balanced Environment: An Argument for a Third Genera- tion right’ (1992-1993) 3 Duke J. comp. & Int’l L. 352; S. Atapattu, ‘right to a Healthy Life or the right to Die Polluted: The Emergence of a Human right to a Healthy Environment under International Law’ (2002-2003) 16 Tul. Envtl. L.J. 65. 3 A. boyle, ‘Human rights and the Environment: A r eassessment’ (2007) XvIII Fordham Environmen- tal Law r eview 471, 471. On the right to the healthy environment and the convention, also see OW Pedersen, ‘The Ties that bind: the Environment, the European convention on Human rights and the r ule of Law’ (2010) 16(4) European Public Law 571; NA Morenham, ‘The right to r espect for a Private Life in the European convention on Human rights: a r e-examination’ (2008) 1 E.H.r.L.r. 44; L. G. Loucaides, The European Convention on Human Rights: Collected Essays (Martinus Nijhoff Publishers 2007) chapter 10 “Environment Protection through the Jurisprudence of the European convention on Human rights; M. DeMerieux, ‘Deriving Environmental rights from the European convention for the Protection of Human rights and Fundamental Freedoms’ (2001) 21(3) Oxford Journal of Legal Studies 521; Manual on Human Rights and the Environment, Principles Emerging from the case-law of the European Convention on Human Rights (coE Publishing 2006); and D. Garcia San Jose, Environmental Protection and the European Convention on Human Rights (coE Publishing 2005). 126 DIGNITAS n Človekove pravice right to a healthy environment is a second- or a third-generation right (or even a first-generation one). My intention is to look at the existing machineries for human rights protection within the council of Europe and to propose a solution for the effective pro- tection of the right to a healthy environment. What can be seen from the global and regional practice is that environmental rights are considered to be more appropriate for protection under eco- nomic and social instruments and are nowadays included in the mainstream of human rights. Within the convention system, alleged violations of the right to a healthy environment have been considered by the court under Articles 2 and 8. both Article 2 and Article 8 of the convention consist of two paragraphs. In the first paragraph, the rights are expressed while, in the second paragraph, permissible interfe- rences with those rights are elaborated. Article 8 obliges states to respect a wide range of personal interests. Generally, four main interests are protected: private life, family life, home and corre- spondence and all of those interests have an ‘autonomous’ mea- ning. In its application of Article 8, the court has taken a flexible approach to the definition of the individual interests protected, with the result that the provision continues to broaden in scope. One of the interests pursued in this paper is the inclusion of the right to a healthy environment under Article 8. The cases where the court has been willing to require the protection of persons from serious environmental pollution under the aegis of Article 8 will be examined. Further, when dangerous and hazardous acti- vities have had detrimental effects on the health of the applicant or resulted in death, they have resulted in claims for a violation of Article 2 of the convention. Those cases will also be elaborated upon. After discussing the most relevant case-law regarding viola- tions of Articles 8 and 2 due to environmental pollution, the current state of the execution of judgments concerning that ca- se-law will be presented. What will be argued is that the execu- tion of general measures required from states in environmental cases is a long and financially demanding process. My question here will be whether it is really necessary, or I might even say wise, to consider the issue of the right to a healthy environment under the convention. With regard to that question, the discus- sion that ensued within the coE in relation to making an Addi- 127 DIGNITAS n The council of europe and the right to a healthy environment tional Protocol to the convention on the right to a Healthy En- vironment will be presented. This question was raised in 2003 and 2009 and on both occasions the opinion of the c ommittee on Legal Affairs and Human rights (cLAHr) of the Parliamenta- ry Assembly was that it did not believe that extending the con- vention with the proposed additional protocol was the correct solution. After presenting that discussion, I will look at the ESc system. In both the collective complaints and the r eporting systems, the EcSr has read a right to a healthy environment into the right to health in Article 11 of the charter. The reason for doing so is to show that nowadays, considering all the problems the convention system is facing (particularly the extensive caseload, the long time it takes to produce a judgment and even longer time it takes to enforce it), this is one issue that might be better dealt with through the ESc system of collective complaints and through the r epor- ting system for those states that have not (yet) accepted the system of collective complaints. In my opinion, the right to a healthy en- vironment is still too vague and has too many socio-economic ele- ments to be guaranteed under the convention, despite the non- absolute nature of Articles 2 and 8. Moreover, I see no reason why this right should not be secured through the ESc without in any way lessening its relevance. 2. The european convention on human rights and the right to a healthy environment 2.1. Article 8 of the echr and the right to a healthy environment Article 8 states: 1. Everyone has the right to respect for his private and family 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 natio- nal security, public safety or the economic well-being of the coun- try, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 128 DIGNITAS n Človekove pravice In its application of Article 8, the court has taken a flexible and evolutive approach to defining the individual interests pro- tected, with the result that the provision continues to broaden in scope in line with social and technical developments. Issues falling within Article 8 now even include search and seizure, sec- ret surveillance, immigration law, paternity and identity rights, child and family law, assisted reproduction, suicide, prisoners’ rights, inheritance, tenants’ rights, and environmental protecti- on. 4 What is of interest in this paper is environmental protec- tion. The court has made it clear that there are positive obli- gations inherent in Article 8(1), including both those requiring states to take steps to provide rights or privileges for individuals and those which require states to protect persons against the ac- tivities of other private individuals which prevent the effective enjoyment of their rights. 5 In most cases regarding Article 8, its application requires a two-stage test. The question of whether the complaint falls within the scope of Article 8(1) comes in the first stage. If it does, the second stage entails an examination of whether the state’s interference is consistent with the require- ments of Article 8(2). The determination of whether a positive obligation exists un- der Article 8 cannot be precisely defined. The court has stated: “In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the indivi- dual, the search for which balance is inherent in the whole of the convention”. 6 In Johnston and Others v Ireland, it concluded: “… 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 contrac- ting states, the notion’s requirement will vary considerably from case to case. Accordingly, this is an area in which the contracting 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”. 7 4 D. Harris, M. O’boyle and c . Warbrick, Law of the European Convention on Human Rights (2 nd ed OUP 2009) 361. 5 Ibid. 362. X and Y v Netherlands (1986) 8 E.H.r.r. 235 6 Rees v United Kingdom (1987) 9 E.H.r.r. 56 7 Johnston and Others v Ireland (1987) 9 E.H.r.r. 203 [55] 129 DIGNITAS n The council of europe and the right to a healthy environment The court has held that a state’s positive obligations include an obligation to take action to deal with serious environmental pol- lution affecting an applicant’s home. Environmental degradation does not necessarily involve a violation of Article 8, but will do if the adverse effects reach a certain minimum level. The assessment of that minimum will depend on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical and mental effects, as well as on the general environmental con- text. 8 The court has even found a state in breach for its failure to notify affected residents of the risks associated with the operation of a fertiliser plant emitting toxic substances and inflammable ga- ses. 9 The Guerra judgment indicated that states may be found in breach of their positive obligations under Article 8 if they fail to provide crucial safety and environmental information to local re- sidents facing serious risks of severe pollution. Later, in McGinley and Egan v United Kingdom the court held that: “…(w)here a Go- vernment engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for pri- vate and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information”. 10 These cases consider the issue of providing information on dangerous activities to the people that may be affected. What will be looked at now are cases where the court examined the issue of protecting persons from serious environmental pollution un- der the aegis of Article 8. As stated by one of the most eminent experts in the area of the European system for human rights pro- tection: “That type of protection can involve considerable public expenditure and may be characterised as a newer generation ri- ght than the civil and political rights underpinning most of the convention’s substantive guarantees”. 11 One of the first environmental cases, Powell and Rayner v Uni- ted Kingdom, 12 involved pollution, whereby the applicants clai- 8 Manual on Human Rights and the Environment (n 2) 14 9 Guerra and Others v Italy (1998) 26 E.H.r.r. 357 10 McGinley and Egan v United Kingdom (1999) 27 E.H.r.r. 1 [101] 11 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing 2004) 149-150 12 Powell and Rayner v United Kingdom (1990) 12 E.H.r.r. 355 130 DIGNITAS n Človekove pravice med that noise from Heathrow Airport gave rise to a violation of Article 8. The court agreed with the applicants that the “scope for enjoying the amenities of his home have been adversely affected’ and that Article 8 is a ‘material provision’”. 13 It concluded, however, that in the light of the public need for the airport and the efforts that had been made to limit the noise, no violation of Article 8 had been made out. The first applicant lived under a flight departure route several miles from Heathrow Airport, whilst the second ap- plicant lived directly under flight paths just over one mile from the airport’s northern runway. The court held that Article 8 applied to both applicants as the quality of their private lives and their ability to enjoy the amenities of their homes had been adversely affected, to different degrees, by noise from aircraft using Heathrow. This airport had been privatised in 1986; therefore the government submitted that its only obligations under Article 8 with regard to the applicants’ homes were positive ones. In the court’s opinion: “Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an ‘interference by a public authority’ to be justified in accordance with paragraph 2, the applicable principles are broa- dly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the in- dividual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, ‘in striking [the required] ba- lance the aims mentioned in the second paragraph may be of cer- tain relevance.” 14 The court noted the uncontested data produced by the gover - nment demonstrating the economic importance of Heathrow and that many measures, including restrictions on night flights, aircraft noise monitoring, a £19 million scheme for the sound insolation of 16,000 homes and the purchase of homes very close to the run- ways, had been undertaken to reduce the noise pollution from Heathrow. consequently, the court determined that “there is no serious ground for maintaining that either the policy approach to 13 Ibid. [40] 14 Ibid. [41] 131 DIGNITAS n The council of europe and the right to a healthy environment the problem or the content of the particular regulatory measures adopted by the United kingdom authorities gives rise to violation of Article 8, whether under its positive or negative head”. 15 Strictly speaking, this case was not decided under Article 8, but under Article 13, which involved the court having to determine whether the applicants had an arguable case under Article 8. However, it is important to consider it in the context of including the right to a healthy environment under the aegis of Article 8. Another significant environmental case concerning Heathrow Airport is Hatton and Others v United Kingdom. 16 Here, unlike in Powell and Rayner the chamber majority found the regime go- verning night flights from Heathrow to be in breach of Article 8. The applicants complained that the government’s policy on night flights at Heathrow Airport in London violated their rights under Article 8. The chamber, by five votes to two, distinguished the cur - rent case from the earlier Heathrow case by reference to the diffe- rent factual circumstances since the present action was concerned with night flights under the post-1993 regime. The majority held that mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others. It considered that states are required to minimise, as far as possible, the interference with these rights by trying to find alternative solutions and by, ge- nerally seeking, achieving their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should pre- cede the relevant project. 17 In her partly dissenting opinion, Judge Greve stated that she did not believe there had been a breach of Article 8. She believed that the majority had impermissibly narrowed the margin of appreci- ation accorded to states in environmental matters by the establis- hed case-law and made the following interesting statement: “In modern society, environmental problems are not discre- et and only of concern to those who may invoke Article 8, given their proximity to the source of the given problem. One of the functions of planning is, to the extent possible, to protect people against the negative impact on the environment of, for instance, 15 Ibid. [42] 16 Hatton and Others v United Kingdom (2002) 34 E.H.r.r. 1 17 Ibid. [97] 132 DIGNITAS n Človekove pravice and as in casu, the transport infrastructure; another function is to ensure that no group of people is disproportionately affected by what is considered necessary to meet the needs of modern urban society. The amount and complexity of the factual informa- tion needed to strike a fair balance in these respects is more often than not of such a nature that the European court will be at a mar - ked disadvantage compared to the national authorities in terms of acquiring the necessary level of understanding for appropria- te decision-making. Moreover, environmental rights represent a new generation of human rights. How the balance is to be struck will therefore affect the rights not only of those close enough to the source of the environmental problem to invoke Article 8, but also the rights of those members of the wider public affected by the problem and who must be considered to have a stake in the balancing exercise. Furthermore, the general principle concer- ning the assessment of facts argues in favour of a wide margin of appreciation in these cases.” 18 This case was later referred to the Grand chamber which found no violation of the same article. It explained that in cases invol- ving state decisions affecting environmental issues there are two aspects to the court’s inquiry: the first is to assess the substantive merits of the government’s decision to ensure that it is compatible with Article 8 and the second is to scrutinise the decision-making process to ensure that due weight has been accorded to the inte- rest of the individual. 19 Significantly, with respect to the former, the Grand chamber avoided identifying which approach to the appli- cation of Article 8 was applicable in this case, viewing the central issue as simply whether a fair balance has been struck between the relevant interests. It remarked that economic interests were specifically enumerated as a legitimate aim under Article 8(2) and that, accordingly, it was appropriate for the state to take them into account in policy-making. 20 It suggested that the essential que- stion is the breadth of the state’s margin of appreciation. 21 The Grand chamber did not find that the authorities had overstepped their margin of appreciation by failing to strike a fair balance be- tween the right of the individuals affected by those regulations to 18 Ibid., partly dissenting opinion of Judge Greve 19 Hatton and Others v United Kingdom (Gc judgment) (2003) 37 E.H.r.r. 28 [128] 20 Ibid. [121] 21 Ibid. [100]-[103] and [122] 133 DIGNITAS n The council of europe and the right to a healthy environment respect for their private life and home and the conflicting intere- sts of others and of the community as a whole, nor did it find that there had been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights. Therefore, it found no violation of Article 8. However, five judges issued a joint dissenting opinion which advocated a stronger role for the court in responding to compla- ints concerning environmental pollution. 22 They stated that, while it is true that the original text of the convention does not disclose an awareness of the need to protect environmental human rights, in the 1950s the universal need for environmental protection was not yet apparent. 23 They also emphasised that the Grand chamber’s judgment in the present case, in so far as it concludes, contrary to the chamber’s judgment of 2 October 2001, that there was no violation of Article 8, seems to deviate from the developments in the case-law and even takes a step backwards. According to them, it gives precedence to economic considerations over basic health conditions in qualifying the applicants’ sensitivity to noise as that of a small minority of people. 24 The dissenters considered that in the context of constant disturbance to persons’ sleep at night by aircraft noise there was a positive obligation upon States to ensu- re as far as possible that ordinary people enjoy normal sleeping conditions. 25 consequently, the margin of appreciation of the sta- te is narrowed because of the fundamental nature of the right to sleep, which may be outweighed only by the real, pressing (if not urgent) needs of the state. 26 In Hatton, the judges were not unanimous in their approach regarding the protection of the right to a healthy environment un- der Article 8 of the convention. The chamber found there had been a violation, thereby narrowing the state’s margin of appreci- ation, whereas the Grand chamber found that economic interests prevailed over the applicant’s right not to be subjected to noise from the airport. I would mostly agree with Judge Greve and her dissenting opinion on the chamber judgment since the right to a healthy environment is not a right that is appropriate for protec- tion under the convention because environmental problems are 22 Ibid., joint dissenting opinions of Judges costa, r ess, Turmen, zupancic and Steiner 23 Ibid. [1] 24 Ibid. [5] 25 Ibid. [12] 26 Ibid. [17] 134 DIGNITAS n Človekove pravice not discreet and only of concern to those who may invoke Article 8, given their proximity to the source of the given problem. 27 This line of thinking will be elaborated on further in the paper. The first case where an environmental complaint was upheld came in 1994 in Lopez Ostra v Spain. 28 The applicant complained that the fumes and noise from a waste treatment plant situated near her home made her family’s living conditions unbearable. After having had to bear the nuisance caused by the plant for more than three years, the family moved when it became clear that the nuisance could go on indefinitely and when the applicant’s daughter’s paediatrician recommended that they do so. While re- cognising that the noise and smells had a negative effect on the applicant’s quality of life, the national authorities argued that they did not constitute a grave health risk and that they did not reach a level of severity whereby the applicant’s fundamental rights were breached. The court balanced the ‘town’s economic well-being’ against the applicant’s interest in home and private and family life when deciding whether there had been a breach of Article 8. Whilst the plant was necessary for the economic well-being of the town and its leather industry, the judges were united in con- cluding that a fair balance had not been struck by the authoriti- es in seeking to protect the applicant from the effects of severe pollution. The court found that severe environmental pollution may affect individuals’ well-being and prevent them from enjo- ying their homes in such a way as to adversely affect their private and family life, even though it does not seriously endanger their health. In this case, the court found a violation of Article 8. This decision gave an indication that it will not be sufficient for states to simply create pollution control regimes; instead, they must also take adequate steps to enforce those rules. Are we talking here of a negative or positive obligation on the part of the state? Again, the court has not made this clear but it stated that in both contexts regard must be had to the fair balance that has to be struck between the competing interests of the indi- vidual and of the community as a whole, and in any case the state enjoys a certain margin of appreciation. 29 Another relevant case regarding a healthy environment in the 27 Hatton and Others v United Kingdom (n 15), partly dissenting opinion of Judge Greve 28 Lopez Ostra v Spain (1995) 20 E.H.r.r. 513 29 Ibid. [51] 135 DIGNITAS n The council of europe and the right to a healthy environment context of industrial pollution is Fadeyeva v Russia. 30 Here, the applicant lived in the vicinity of a steel plant, an important steel- producing centre in the respondent state. From 1982 on, the appli- cant and her family were living less than 500 metres from the large steel plant. In order to limit the impact of pollution from the plant, a 5,000 metre wide ‘sanitary security zone’ existed. The zone was supposed to separate the plant from residential areas although, in practice, several thousand people, including the applicant and her family, lived in the zone. In 1996, the government noted that the plant was responsible for 96 per cent of all emissions in the area and that the overlap between industrial and residential are- as was plainly harmful to health. The pollution was found to be responsible for the huge increase in the number of children with respiratory and skin diseases and the higher number of adult can- cer deaths. The court observed that, in order to fall under Article 8, complaints relating to environmental nuisances have to show that there has been actual interference with an individual’s “priva- te sphere” and that these nuisances have reached a certain level of severity. In the case in question, the court found that over a signi- ficant period of time the concentration of various toxic elements in the air near the applicant’s house had seriously exceeded safe levels and that the applicant’s health had deteriorated as a result of the prolonged exposure to the industrial emissions from the steel plant. Therefore, the court accepted that the actual detriment to the applicant’s health and well-being had reached a level suffici- ent to bring it within the scope of Article 8. Finally, it concluded that there had been a violation of Article 8. Further, in Giacomelli v Italy 31 the applicant had lived since 1950 in a house on the outskirts of brescia, 30 metres away from a plant for the storage and treatment of ‘special waste’. An opera- ting licence for the plant had been granted for the storage and tre- atment of hazardous and non-hazardous waste. The regional co- uncil subsequently authorised the treatment of harmful and toxic industrial waste by a detoxification process involving significant risks to the environment and human health. The applicant brou- ght judicial review proceedings, and the national court held that the renewal of the operating licence had been unlawful and orde- red the suspension of operations pending an environmental im- 30 Fadeyeva v Russia (2007) 45 E.H.r.r. 10 31 Giacomelli v Italy (2007) 45 E.H.r.r. 38 136 DIGNITAS n Človekove pravice pact assessment which the regional council had previously orde- red. The assessment was carried out and revealed that the plant’s operation was incompatible with environmental regulations, but would be allowed to continue provided that it complied with requirements laid down by the regional council. The respondent government submitted that the interference with the applicant’s right to respect for her home was justified as being in accordance with the law and in pursuit of the legitimate aims of protecting the public health and preserving the region’s economic well-being. The court upheld the applicant’s complaint and found a violation of Article 8 of the convention. It stated that the respondent gover - nment had not succeeded in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant’s effective enjoyment of her right to respect for her home and her private and family life. One of the most recent cases concerning hazardous industrial processes and their impact on the local population is Tatar v Ro- mania. 32 In this case, the applicants lived in baia Mare. In 1998, the company S.c . Aurul S.A., obtained a licence to exploit the baia Mare gold mine. The company’s extraction process involved the use of sodium cyanide and part of its activity was located in the vicinity of the applicants’ home. On 30 January 2000, an environmental accident occurred at the site. A UN study reported that a dam had breached, releasing about 100,000 m3 of cyanide-contaminated tailings water into the environment. The report stated that S.c . Au- rul S.A. had not halted its operations. The applicants complained under Article 2 that the activities carried out by the company was putting their lives in danger, and that the authorities had failed to take any action. In its admissibility decision of July 2007, the court ruled that the applicants’ complaints should be examined under Article 8. When it comes to the medical condition of the first ap- plicant, the court noted that the applicant had failed to prove the existence of a causal link between exposure to sodium cyanide and asthma. Nevertheless, despite the lack of such a link, the exi- stence of a serious and material risk for the applicants’ health and well-being entailed a duty on the part of the state, under Article 8, to assess the risks both at the time it granted the operating per- mit as well as subsequent to the accident, and to take appropria- 32 Tatar v Romania App no 67021/01 (EctHr, 27 January 2009) 137 DIGNITAS n The council of europe and the right to a healthy environment te measures. The court noted that, even after the accident, from January 2000 the company was allowed to continue its industrial operations, in breach of the precautionary principle according to which the absence of certainty with regard to current scientific and technical knowledge could not justify any delay on the part of the state in adopting effective and proportionate measures. The court also stressed the authorities’ duty to inform the public and guarantee the right of its members to participate in the decision- making process concerning environmental issues. 33 Finally, the court concluded that the r omanian authorities had failed in their duty to assess the risks entailed by the activity, and had failed to take suitable measures to protect the applicants’ rights under Arti- cle 8 and more generally their right to a healthy environment. 34 All of these judgments demonstrate the court’s willingness to accept that complaints concerning environmental pollution can be made within the ambit of Article 8. Further, states may be liable if they fail to take adequate measures, such as through enacting and enforcing appropriate regulatory regimes or ame- liorating the effects of significant forms of pollution caused by private sector business that affect persons’ enjoyment of their homes. Acknowledging the need for many possible sources of pollution in modern developed societies, the court has also ac- corded states a margin of appreciation in their task of balancing the conflicting interests of society as a whole and the needs of residents near unavoidable sources of pollution. 35 Where deci- sions of public authorities affect the environment to the extent that there is an interference with the right to respect for private and family life or the home, they must accord with the conditi- ons set out in Article 8(2), 36 meaning that such decisions must be provided for by law, follow a legitimate aim and must be pro- portionate to the legitimate aim pursued. As mentioned, this basically means that a fair balance must be struck between the individual and the interests of a community as a whole. Therefo- re, in certain situations, interference by public authorities may be acceptable under the convention, but it has to be justified. These cases also show that on certain occasions protecting civil 33 Ibid. [115]-[118] 34 Ibid. [122]-[125] 35 Mowbray (n 10) 182-183 36 Manual on Human Rights and the Environment (n 2) 14 138 DIGNITAS n Človekove pravice rights, such as the right to private and family life, and to respect for the home, enters the sphere of socio-economic protection, such as protection of the right to a healthy environment. The socio-economic elements of the rights to a healthy environment are particularly visible when it comes to the execution of jud- gments concerning this right. 2.2. The execution of article 8 ‘environmental judgments’ As with all the court’s judgments, the committee of Ministers (the coM) is the body responsible for monitoring the execution of judgments. 37 The first case to consider is the execution in Lopez Ostra v Spain where the coM adopted a r esolution a year after the court had delivered a judgment 38 stating that the Government of Spain had paid the applicant the sum provided for in the jud- gment and had therefore exercised its functions under Article 54 of the convention in this case. Therefore, in this case only indivi- dual measures were necessary. Now, the latest coM report on the execution of judgments of the last three cases described above, the most recent ones, viewed in July 2012 will be presented. In Tatar v Romania, the authorities provided information on the execution of this judgment on 5 Mar- ch 2010. bilateral contracts are underway to secure the additional information necessary to present an action plan/action report to the coM. 39 37 The coM is the coE’s decision-making body which comprises of the Foreign Affairs Ministers of all the Member States, or their permanent diplomatic representatives in Strasbourg. Under Article 14 of the Statute of the council of Europe each Member State shall be entitled to one representative on the coM, and each representative shall be entitled to one vote. The work and activities of the coM include political dialogue, interacting with the Parliamentary Assembly, interacting with the congress of Local and r egional Authorities of the coE, admitting new Member States, monitoring respect of commitments by Member States, concluding conventions and agreements, adopting recommenda- tions to Member States, adopting the budget, adopting and monitoring the Programme of Activities, implementing cooperation and assistance programmes and supervising the execution of judgments of the court. currently the main tasks of the coM relating to the court are the supervision of the execution of judgments of the court, receiving and forwarding the lists of candidates for the elec- tion of judges to the Parliamentary Assembly, requesting advisory opinions of the court and setting the court’s annual budget. The coM, when supervising the execution of judgments, operates under r ules of Procedure adopted in May 2006 (r ules of the coM for the supervision of the execution of judgments and the terms of friendly settlement, adopted by the committee of Ministers on 10 May 2006 at the 964th meeting of the Ministers’ Deputies). 38 r esolution DH(95)252 adopted by the committee of Ministers on 20 November 1995 at the 549th meeting of the Ministers' Deputies. 39 current state of execution, Tatar v Romania accessed 10 September 2013 139 DIGNITAS n The council of europe and the right to a healthy environment In Giacomelli v Italy, in relation to the individual measures, information is awaited on implementation of the environmental requirements of the Decree of the Ministry of the Environment of 2004, which were issued five years after the judgment. As to the general measures, the coM is awaiting for confirmation of dis- semination of the judgment to the Ministry of the Environment authorities so that they may take the court’s findings into account and be aware of their obligations under the convention. 40 When it comes to the Fadeyeva case, the coM report points out that all information provided by authorities so far regarding the execution of the judgment as well as the outstanding issues are summarised in Memorandum cM/Inf/DH(2007)7. 41 The coM report on the execution of judgments concerns not only the Fa- deyeva case but also the Ledyayeva, Dobrokhotova, Zolotareva and Romashina cases. 42 The Memorandum has been prepared to assist the coM in its supervision of the judgment in the Fadeyeva case and is being updated on the basis of information provided by the applicants. 43 “The memorandum sums up the information provided by the r ussian authorities to the committee of Ministers and notes the positive environmental dynamic around Severstal plant since the facts at issue in the judgment. It further points out a number of outstanding issues arising in the light of the court’s findings. The- se issues concern in particular: - the general legislative and regulatory framework governing the decision-making process leading to the setting up of sanitary zones around polluting enterprises; - the public scrutiny of this decision-making process and do- mestic remedies available to the population; - close supervision of polluting enterprises’ compliance with the domestic environmental rules and the action to be taken to ensure compliance.” 44 The information is provided by the authorities regarding the measures they are taking to improve the situation. However, regar- 40 current state of execution, Giacomelli v Italy ac- cessed 10 September 2013 41 Ministers’ Deputies Information documents cM/Inf/DH(2007)7 13 February 2007, Industrial pollu- tion in breach of the European convention: Measures required by a European court judgment 42 App nos. 53157/99; 53247/99, 56850/00 and 53695/00 (EctHr, 16 October 2006) 43 Ibid. 44 Memorandum cM/Inf/DH(2007)7 (n 40) 140 DIGNITAS n Človekove pravice ding all the information provided by the r ussian authorities, the coM Secretariat wrote in its assessment: “The statistics provided by the r ussian authorities are encouraging as they show a positive general dynamic as regards the decrease of the level of air polluti- on in the region. However, it remains to be demonstrated whether the level of air pollution all along the new border of the sanitary zone is below the MPLs provided for by r ussian legislation”. 45 As to the long-term programmes to improve the situation, the Secre- tariat pointed out that the authorities indicated in the framework of the proceedings before the court that the new deadline for bringing the plant’s emissions below the dangerous level is now 2015. The court considered that the overall improvement of the environmental situation appeared to be very slow and that the authorities had failed to clearly show what their policy was in or- der to accelerate the plant’s compliance with the standards. The authorities mention in their action plan that certain environmen- tal programmes are under way without specifying what kind of measures have been taken by the local authorities or by the plant itself. Therefore, the coM requested more details about these pro- grammes. 46 Most cases pertaining to violations of the right to a healthy en- vironment concern not only the applicants, but also a population that might be (or is) affected. In addition, judgments concerning the right to a healthy environment cannot be executed immedia- tely but require an action plan from the states and, furthermore, the enforcement of that action plan. This is chiefly visible in the Fadeyeva case where the coM prepared a Memorandum consi- sting of the required measures. The r ussian authorities have sho- wn that they have taken certain measures to improve the situation regarding the industrial pollution together with the resettlement of the applicants in an ecologically safe area. However, despite the applicants’ resettlement and the measures taken, the situation is still not satisfactory. It will take years for the situation in the area to conform with the healthy environment requirements, which is in connection with the great financial expenditure needed by the r ussian government. This all shows the significant socio-econo- mic elements inherent in the execution of healthy environment judgments and the challenges for both the coM when supervising 45 Ibid. [53] 46 Ibid. [55] and [56] 141 DIGNITAS n The council of europe and the right to a healthy environment the execution of judgments, and for states when trying to bring the situation in conformity with the healthy environment require- ments. In the following section, environmental cases decided under the aegis of Article 2 of the convention will be discussed. 2.3. ‘Environmental cases’ decided under article 2 of the convention When it comes to Article 2 and environmental issues, the court has not considered them in as many cases as it has under Article 8. Further, Article 2 is likely to only be applicable in the case of environmental disasters where there is a loss of life, whereas more routine instances of violations of a claimed right to a healthy envi- ronment will fall under Article 8. However, judgments decided un- der Article 2 are also worth mentioning and analysing here since, once again, the execution of these judgments requires numerous general measures. Although Article 2 is primarily negative in cha- racter since its purpose is to prevent the state from deliberately taking life, as with all the other convention articles, it was impossi- ble to keep this right absolutely negative in its nature because the living instrument and the dynamic and evolutive interpretation doctrines have stimulated the development of positive obligati- ons for the state. It was the L.C.B. case 47 where the court recognised for the first time that obligations from Article 2 require the State to not only refrain from the intentional or unlawful taking of life, but to also take all appropriate steps to safeguard the lives of those within their jurisdiction. 48 Here, the applicant’s father had been exposed to radiation whilst serving in the armed forces on christmas Island in 1957 and 1958 when a number of nuclear tests were carried out by the Uk. The applicant was born in 1966 and in 1970 she was diagnosed as having leukaemia which she attributed to her father’s exposure to radiation. In 1993 she applied to the commis- sion, which referred her case to the court. She contended that the Uk’s failure to warn her father of the possible risks to health and its failure to monitor the dose of radiation which he received amo- 47 L.C.B. v United Kingdom (1999) 27 E.H.r.r 212 48 r obin c .A. White and clare Ovey, The European Convention on Human Rights (5 th ed OUP 2010) 15 2 142 DIGNITAS n Človekove pravice unted to breaches of the convention’s Articles 2 and 3. The court considered that the Uk would only have been required to act on its own motion to advise her parents and monitor her health if it had appeared likely that the father’s exposure to radiation might have caused a real risk to her health. In the instant case, the court considered that the applicant had not established a causal link be- tween her father’s exposure to radiation and her leukaemia. The- refore, the Uk’s failure to take any measures regarding the risk to L.c .b.’s health between 1966 and the date of the diagnosis in 1970 did not constitute a breach of Articles 2 or 3. Nevertheless, it was the first case where environmental hazards and issues were raised before the court. The next significant and much more complex case concerning environmental issues was Oneryildiz v Turkey. 49 This case was considered before the chamber and before the Grand chamber and here only the Grand chamber’s decision will be presented. The applicant complained that the failure of the Turkish authori- ties to take appropriate steps to prevent the accidental death of nine of his relatives and the destruction of his property breached Articles 2 and 13 of the convention and Article 1 of Protocol 1. The applicant had lived with his family in a slum bordering on a municipal refuse tip. A methane explosion at the tip caused a lan- dslide which engulfed his house, killing 39 people, of whom nine were his relatives. r esponsibility was attributed to a number of public authorities. The applicant commenced administrative pro- ceedings against the authorities responsible for the tip and clai- med compensation for the loss of his relatives and destruction of his possessions. In its assessment of the case, the court found a di- rect causal link between the accident and the contributory negli- gence of the authorities. As to a possible violation of Article 2, the applicant argued that the death of his relatives and the flaws in the ensuing proceedings violated the Article 2 right to life. The Grand chamber found a violation of the substantive aspect of Article 2. In its assessment of the general principles applicable in this case, the judges stated that the positive obligation to take all appropri- ate steps to safeguard life for the purposes of Article 2 above all entails a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterren- 49 Onerylidiz v Turkey (2005) 41 E.H.r.r. 20 143 DIGNITAS n The council of europe and the right to a healthy environment ce against threats to the right to life. 50 Although this had previously been applied in the context of law enforcement, the significan- ce of the Öneryıldız judgment is that the judges stated that this also applies in the context of dangerous activities. The judges said that the regulation of such activities should make it compulsory for all those concerned to take practical measures to protect peo- ple whose lives might be endangered by the inherent risks. That obligation had to be construed as applying in the context of any activity, whether public or not, where the right to life might be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous . . 51 Information had been available to the authorities to the effect that inhabitants of the slum were in danger on account of the shortcomings of the tip. However, the authorities had failed to take the necessary measures to protect those inhabitants. Further, where lives have been lost in circumstances potenti- ally engaging the responsibility of the state, that provision entails a duty on the state to ensure, by all available means, an adequate response, judicial or otherwise. This response by the state inclu- des the duty to promptly initiate an investigation. In Öneryıldız v Turk e y, where lives had been lost, the Grand chamber held that the authorities should on their own initiative have launched inve- stigations into the accident which led to these deaths. Therefore, the Grand chamber found violations of both substantive and pro- cedural aspects of Article 2 showing that a state can and will be responsible for the loss of lives caused by dangerous industrial activities. The next relevant case in terms of the right to a healthy and safe environment that was examined under Article 2 is Budayeva and Others v Russia 52 where the court extended the state’s positive obligation even to situations involving natural disasters. Here the court directly addressed questions concerning recourse to the convention in circumstances of an allegedly ineffective regulato- ry performance on the part of the state. The applicants lived in an area which over several decades had suffered from regular, annual mudslides, and these culminated (in 2000) in a week-long series 50 Ibid. [89] 51 Ibid. [70] 52 Budayeva and Others v Russia, App nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (EctHr, 20 March 2008) 14 4 DIGNITAS n Človekove pravice of mudslide events. consequences included eight deaths, nume- rous serious injuries and other health effects, together with the destruction of homes and other property. Although the authoriti- es had responded by providing replacement housing and lump- sum emergency allowances, the disaster appeared to be officially regarded as accidental, and no public investigation, criminal or otherwise, had been launched thereafter. Meanwhile, civil procee- dings taken out against the authorities had been dismissed on the basis that local residents had been informed of the risk, and that all reasonable mitigating measures had been taken by the authori- ties. The applicants alleged violations of Articles 2, 8 and 13 of the convention and of Article 1 of Protocol No. 1. As to the alleged violation of Article 2, the applicants com- plained that the authorities had failed to comply with their po- sitive obligations to take appropriate measures to mitigate the risks to their lives against the natural hazards. The first applicant complained that the local authorities were responsible for the death of her husband in the mudslide of July 2000. She and the other applicants also complained that the local authorities were responsible for putting their lives at risk as they had failed to di- scharge the state’s positive obligations and had been negligent in maintenance of the dam, in monitoring the hazardous area and in providing an emergency warning or taking other reaso- nable measures to mitigate the risk and the effects of the natural disaster. In its assessment, the court reiterated that Article 2 lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction. 53 The court applied the general principles mentioned in the L.C.B. and One- dryildiz cases to the alleged failure to maintain defence and war- ning infrastructures (a substantive aspect of Article 2) and to the judicial response required in the event of alleged infringements of the right to life (a procedural aspect of Article 2). As to the sub- stantive aspect, the court concluded that there was no justificati- on for the authorities’ omissions in implementing the land-plan- ning and emergency relief policies in the hazardous area given the foreseeable exposure of residents, including all applicants, to mortal risk. It found that there was a causal link between the serious administrative flaws that impeded their implementation 53 Ibid. [128] 145 DIGNITAS n The council of europe and the right to a healthy environment and the death of Mr budayev and the injuries sustained by the first and second applicants and members of their family. The authorities had thus failed to discharge the positive obligation to establish a legislative and administrative framework designed to provide effective deterrence against threats to the right to life as required by Article 2. Accordingly, the court found a violation of Article 2 in its substantive aspect. 54 In relation to the procedural aspect, having found that the question of state responsibility for the accident in Tyrnauz had never as such been investigated or examined by any judicial or administrative authority, the court concluded that there had also been a violation of Article 2 in its procedural aspect. 55 It is clear from Budayeva that factors crucial to determining whether interference with convention rights is justified will en- compass circumstances such as anticipated levels of risk, past events, and the imminence and seriousness of future threats. 2.5. Execution of article 2 ‘environmental judgments’ Let us now take a look at the execution of the Onedryildiz and Budayeva cases where the court found a violation of Article 2 ca- used by the environment-related hazards and accidents. In the Onedryildiz case, the damage caused by the violati- ons including the unpaid sums awarded by domestic courts has been covered by the just satisfaction awarded by the court. Ho- wever, what are again of interest here are the general measures. The coM noted that the Turkish authorities had submitted nu- merous pieces of information regarding a plan of action for exe- cuting this judgment. The Ümraniye tip had been covered with earth following a decision of the local council which also in- stalled air ducts on it. Further, a rehabilitation project had been put into force by the Istanbul Metropolitan Municipality, which planted trees in the area of the former site of the tip and had a sports ground laid down. The new criminal code had been bro- ught into force and a strategic plan for solid waste management in Istanbul, guided by the environmental regulations of the Eu- ropean Union, had been prepared and put into practice. Howe- ver, despite all these measures, the judgment has still not been 54 Ibid. [158]-[160] 55 Ibid. [165] 146 DIGNITAS n Človekove pravice fully executed and the information from the Turkish authorities has still to be provided. 56 In Budayeva v Russia, regarding individual measures only just satisfaction for the non-pecuniary damage had to be paid. Howe- ver, concerning the general measures, the coM reported: “Information provided by the Russian authorities (1059th me- eting, June 2009): On 6/01/2006 the government of the r ussian Federation adopted a Federal Programme aimed at lowering the risks and reducing the consequences of emergencies of natural and industrial origins covering the period until the end of 2010. To implement it, a regional programme for the r epublic of k abardino- balkariya (rkb), was adopted by the Parliament of the rkb. The regional programme focuses not least on setting up an adequate le- gislative and administrative framework, improving monitoring and forecasting systems and developing the warning infrastructure. • This information is being assessed.” 57 The coM decided to resume consideration of this item in the light of the information to be provided on general measures. What can be concluded is that the Onedryildiz and Budaye- va cases are particularly important for establishing the principle of positive obligations under Article 2 of the convention and the protection of life, although from the perspective of protecting the right to a healthy environment their contribution is not so signi- ficant. Further, the governments are not keen on executing these judgments speedily and, as we will see, they are reporting on the same issues to the EcSr through the r eporting and the collecti- ve complaints procedures. Therefore, it does not seem that these judgments will have any significance in terms of protecting the right to a healthy environment as such. 2.6. Conclusion on environmental cases decided under the ECHR We can draw certain conclusions from all these cases that con- cern Article 8 and Article 2 violations regarding environmental 56 current state of execution, Onedryildiz v Turkey accessed 10 September 2013 57 current state of execution, Budayeva and others v Russia accessed 10 September 2013 147 DIGNITAS n The council of europe and the right to a healthy environment issues. First of all, “states have a positive duty to take appropriate measures to prevent industrial pollution or other forms of envi- ronmental nuisance from seriously interfering with health or the enjoyment of private life or property”. 58 The extent of that duty will depend on the harmfulness of the activity and the foreseea- bility of the risk. Second, although the court refers to the need to balance the rights of the individual with the needs of the commu- nity as a whole, in some cases a state’s failure to apply or enforce its own environmental laws has left no room for such a defence. 59 States cannot expect to persuade the court that the needs of the community can best be met in such cases by not enforcing the law. Third, the beneficiaries of this duty to regulate and control sources of environmental harm are not the community at large, still less the environment per se, but only those individuals whose rights will be affected by any failure to act. The duty is not one of protecting the environment, but of protecting humans from signi- ficantly harmful environmental impacts. 60 r egarding the third point mentioned, in Kyrtatos v Greece 61 the court took an opportunity to clarify the scope of Article 8 with regard to environmental issues. It noted first: “Severe environmental pollution may affect individuals’ well- being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, howe- ver, seriously endangering their health. The crucial element in determining whether pollution has adversely affected one of the rights safeguarded by Art.8(1) is a harmful effect on a person’s private or family sphere, not simply the general deterioration of the environment. Neither Art.8 nor any of the convention’s other Articles provide general protection of the environment.” 62 And, second: “Even if the environment has been severely damaged by urban development, the applicants have not shown that the alleged da- mage to the birds and other protected species living in the swamp directly affected their own rights under Art.8(1). It might have been otherwise if the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of 58 boyle (n 2) 488 59 Ibid., 489 60 Ibid. 61 Kyrtatos v Greece (2005) 40 E.H.r.r. 16 62 Ibid. [52] 148 DIGNITAS n Človekove pravice the applicants’ house, a situation which could have affected their own well-being more directly. As it is, however, the interference with the conditions of animal life in the swamp does not constitu- te an attack on the applicants’ private or family life.” 63 In this case, the court found no violation of Article 8 since the disturbances caused by urban development of the area had not re- ached a sufficient degree of seriousness to be taken into account for the purposes of Article 8. Therefore, an application under the convention can only be brought by direct victims of environmental hazards who can prove a causal link between their loss and the environmental disturban- ces. As we have seen, applicants are not always able to show there has been a causal link between their right to private life and an en- vironmental hazard, and even more rarely with their right to life. What will also not be taken into account are potential violations of the convention. 64 Finally, while cases are brought by individuals, in many of those cases hundreds or thousands of other people are affected by the same harmful activity. Therefore, even when the court delivers a judgment finding a violation such a judgment will have wide-ranging socio-economic elements since there will usu- ally be numerous other people affected by the same environmen- tal hazard and it will take years for the state to bring the situation into conformity with the healthy environment standards. The individual cases concerning environmental issues do not have much impact on protection of the environment itself, nor is the convention system suitable for those issues. These judgments, particularly those where a violation of Article 8 has been found, only bring uncertainty regarding states’ obligations under the convention and make the supervision of the execution extremely demanding and the point at which the judgment is actually enfor- ced in its entirety uncertain. The appearance of ‘environmental cases’ raised the idea of ma- king an additional protocol to the convention on the right to a healthy environment. The discussion on adopting an additional protocol to the convention will now be analysed before turning to a healthy environment as protected under the ESc system. As 63 Ibid. [53] 64 Tauira and Eighteen Others v France, App no 28204/95 (EcomHr Decision, 4 December 1995). Also see similar cases where the environmental claims were rejected due to the inability to satisfy the ‘victim requirement’: Balmer- Schafroth v Switzerland (1998) 25 E.H.r.r. 598; Athanassoglou and Others v Switzerland (2001) 31 E.H.r.r. 13. 149 DIGNITAS n The council of europe and the right to a healthy environment will be seen, the ESc system, both the r eporting and the collecti- ve complaint systems, are much more suitable for cases involving environmental hazards since no victim is required, potential viola- tions are taken into account and by its character it is more suitable for non-individual complaints. 3. Discussion on adopting an additional protocol to the european convention on the right to a healthy environment In response to new environmental cases that had appeared be- fore the court, in 2009 the committee on the Environment, Agri- culture and Local and r egional Affairs of the coE’s Parliamenta- ry Assembly recommended that the coM draw up an additional protocol to the convention, recognising the right to a healthy and viable environment. 65 However, already in June 2003 the Parliamentary Assembly’s cLAHr had rejected the idea of an additional protocol on the right to a healthy environment as being unjustifiable and potentially co- unterproductive. 66 The new recommendation from 2009 made by the committee on the Environment, Agriculture and Local and r e- gional Affairs afforded the cLAHr the opportunity to re-examine its position, and the justifications and viability of such a Protocol. On 29 December 2009, the cLAHr published its opinion on the “Preparation on an additional protocol to The European con- vention on Human rights, on the right to a healthy environment”. At the beginning of its opinion, the cLAHr stated that although it recognises the importance of a healthy, viable and decent enviro- nment, it did not believe that extending the convention through the proposed additional protocol was the correct solution. 67 In its explanatory memorandum, the cLAHr considered the background history and existing case-law. It stressed that the co- urt had already identified in its case-law issues related to the envi- ronment which could affect the right to life (Article 2), the right to 65 Parliamentary Assembly, ‘Preparation on an additional protocol to The European convention on Human rights, on the right to a healthy environment’, Opinion, committee on Legal Affairs and Hu- man rights, Doc. 12043, 29 September 2009 66 Parliamentary Assembly, ‘Preparation on an additional protocol to The European convention on Human rights, on the right to a healthy environment’, Opinion, committee on Legal Affairs and Hu- man rights, Doc. 9833, 19 June 2003 67 Parliamentary Assembly, Doc. 12043 (n 64) [I] 15 0 DIGNITAS n Človekove pravice respect for private and family life as well as the home (Article 8), the right to a fair trial and access to a court (Article 6), the right to receive and impart information and ideas (Article 10), the right to an effective remedy (Article 13) and the right to the peaceful enjo- yment of one’s possessions (Article 1 of Protocol No. 1). 68 In an- swer to the question whether the environment is protected under the convention, it is stated that “The convention is not designed to provide a general protection of the environment as such and does not expressly guarantee a right to a sound, quiet and healthy environment. However, the convention indirectly offers a certain degree of protection with regard to environmental matters as de- monstrated by the evolving case law of the court in this area”. 69 In the 2009 Opinion, in his explanatory memorandum the cLAHr rapporteur, Mr chope, stated that the inclusion of a new protocol, which was so vague, would lead to uncertainty and be a recipe for a substantial increase in the court’s case load. In 2003, Mr Erik Jurgens had expressed similar concerns, stating: “It must be remembered that, despite its enormous success in advancing the protection of a particular range of human rights in Europe, the convention is not an instrument that is appropriate for all forms of rights. The convention was intended to protect a narrow range of rights and its mechanisms designed specifically with those rights in mind; it is not structured for, nor capable of, the protection of all rights addressed by international instruments. Its past achievements are not a guarantee of limitless resilience: indeed, this very success can generate risks to its future integrity and to the capacity of the court to work effectively in enforcing its provisions. These risks include the temptation to extend its ju- risdiction to other forms of rights of uncertain content, scope and application. The inclusion of such ‘untested rights’ – which to a large extent could require primary elaboration not on national political and legal levels but through the case law of a pan- Euro- pean judicial body – could not only undermine the standing of the court but threaten it with an unmanageable burden of new applications (at a time when the level of applications is already a serious problem), to the detriment of protection of the rights currently included.” 70 68 Ibid. [12] 69 Ibid. [13] 70 Parliamentary Assembly, Doc. 9833 (n 65) [9] 151 DIGNITAS n The council of europe and the right to a healthy environment In his opinion, Mr chope again quoted Mr Jurgens’ warning that “If we give citizens a broadly formulated, individual right to a healthy environment without being more specific as to the basis on which and against whom a citizen can in fact make a claim arising from that right, it becomes difficult for a judge to adjudicate”. 71 Mr chope went on to emphasise that “introducing a right into the convention that is impossible to enforce endangers the who- le system”. 72 In his concluding remarks before stating his belief that an additional protocol was not the correct solution, Mr chope stated: “There is a significant difference between an environment that is healthy and one that merely supports life. In order for the court not to be overwhelmed with ambitious and speculative ap- plications, any additional protocol would need to clearly define which acts or omissions constitute a human rights violation. It must be remembered that not every environmental problem can be perceived as a potential human rights violation”. 73 As we can see from both of the opinions in 2003 and 2009, the experts agreed that it would not be advisable to make an additional protocol to the convention on the right to a healthy environment. As the main obstacle, the rapporteurs in both opi- nions mentioned the vagueness and uncertainty of the right to a healthy environment and its broadness as well as the danger that a huge number of new applications might come before the court. The convention, despite being a living instrument, is intended to protect a narrow range of rights with mechanisms designed specifically with those rights in mind and it does not seem to be a good idea to include the right to a healthy environment under the convention. However, the convention is not the only human rights instrument in Europe. The following part of the paper ad- dresses the right to a healthy environment as interpreted by the EcSr under the ESc , and will consider whether that would be a possible alternative to the convention and court as a means of guaranteeing the right to a healthy environment. 71 Parliamentary Assembly, Doc. 12043 (n 64) [17] 72 Ibid. [41] 73 Ibid. [43] 15 2 DIGNITAS n Človekove pravice 4. The ESc and the right to a healthy environment Article 11 of the ESc guarantees the right to the protection of health. 74 The wording of Article 11 is the same in both versions of the charter, with a difference in paragraph 3 of the r evised char - ter where it urges states to take appropriate measures to prevent as far as possible epidemic, endemic and other diseases, as well as accidents, while the original version of the charter does not re- fer to accidents. Taking account of the complementarity with the convention and the growing link that State parties to the charter and other international bodies now make between the protection of health and a healthy environment, the EcSr has interpreted Ar - ticle 11 as including the right to a healthy environment. 75 In an information document on the right to health prepared by the secretariat of the ESc in March 2009, with regard to the right to a healthy environment the EcSr emphasised that: “The EcSr acknowledges that overcoming pollution is an objec- tive that can only be achieved gradually. States must nevertheless take measures to achieve this goal within a reasonable time, with measurable progress and making maximum use of available reso- urces. The measures taken are assessed with reference to their na- tional legislation and regulations and undertakings entered into with regard to the European Union and the United Nations, and in terms of how the relevant law is applied in practice.” 76 Further, under the heading “air pollution”, the EcSr pointed out: “In order to guarantee a healthy environment, states must the- refore: – develop and regularly update sufficiently comprehensive le- gislation and regulations in the environmental field; – take specific steps (such as modifying equipment, introdu- cing threshold values for emissions, measuring air quality, etc.) to 74 Article 11 of the r evised charter: “With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health. 3. to prevent as far as possible epidemic, endemic and other diseases, as well as accidents.” 75 Marangopoulos Foundation for Human Rights (MFHR) v Greece (30/2005), (2007) 45 E.H.r.r. SE11, [195] 76 The right to health and the European Social charter, Information document prepared by the secre- tariat of the ESc (March 2009) 2 15 3 DIGNITAS n The council of europe and the right to a healthy environment prevent air pollution at local level and to help reduce it on a global scale…; – ensure that environmental standards and rules are properly applied, through appropriate supervisory machinery that is both effective and efficient, i.e. comprising measures which have been shown to be sufficiently dissuasive and have a direct effect on pol- luting emission levels; – assess, systematically if necessary, health risks through epide- miological monitoring of the groups concerned.” 77 The right to a healthy environment is not something that can be achieved and realised immediately. The EcSr has stressed the economic and social nature of the right to a healthy environment, regardless of its obvious importance for society and its individu- als. This information document is based on EcSr decisions and conclusions as the EcSr has been scrutinising the situation in Member States regarding environmental issues for years. Even though states only have to report every four years, through the r eporting system states are informing the EcSr of relevant mat- ters regarding the environment. One might suspect that, by sta- ting how overcoming pollution is an objective that can only be achieved gradually, the EcSr will be tolerant to and open handed in its conclusions and decisions concerning states when assessing the measures they have introduced in order to secure a healthy environment. However, we will see from the collective complaints and reports that will be discussed that is not the case at all. 4.1. Collective complaints concerning the right to a healthy environment According to the preamble to the 1995 Protocol providing for a system of collective complaints, the Member States have “r esol- ved to take new measures to improve the effective enforcement of the social rights guaranteed by the charter; considering that this aim could be achieved in particular by the establishment of a col- lective complaints procedure, which, inter alia, would strengthen the participation of management and labour and of non-gover- nmental organisations”. 78 Under this Protocol, which came into 77 Ibid. 2-3 78 Additional Protocol to the European Social charter Providing for a System of collective complaints, Strasbourg, 9 XI 1995, ETS No. 158 15 4 DIGNITAS n Človekove pravice force in 1998, complaints of violations of the ESc may be lodged with the EcSr. 79 So far, only 15 Member States have ratified the collective complaints Protocol. 80 Unfortunately, the EcSr case-law on the right to a healthy en- vironment is not extensive; in fact, only two collective complain- ts on that issue have been lodged to date and, regarding one of them, the EcSr adopted a decision on the merits. 81 Nevertheless, this single decision does give us a very valuable overview of the EcSr’s standpoint on the issue of the right to a healthy enviro- nment. The Marangopoulos Foundation for Human rights lodged a complaint on 4 April 2005 in relation to Article 11 (right to pro- tection of health), Article 2(4) (right to reduced working hours or additional holidays for workers in dangerous or unhealthy occu- pations), Article 3(1) (safety and health regulations at work) and Article 3(2) (provision for the enforcement of safety and health regulations by measures of supervision) of the ESc . It was alleged in the complaint that in the main areas where lignite is mined Gre- ece had not adequately prevented the impact on the environment nor developed an appropriate strategy in order to prevent and re- spond to the health hazards for the population. It was also alleged that there was no legal framework guaranteeing the security and safety of persons working in lignite mines and that the latter did not benefit from reduced working hours or additional holidays. Here, only that part of the complaint regarding Article 11 will be analysed. Greece is the second largest lignite producer in the EU and the fifth in the world. Since the Greek government had acknowledged the polluting effects of lignite production, the questions before the EcSr were whether the pollution was attributable to Greece and whether it led to a violation of the right to health (as well as of the right to just conditions of work and the right to safe and he- 79 r. churchill and U. khaliq, 'v iolations of Economic, Social and cultural rights: The current Use and Future Potential of the collective complaints Mechanism of the European Social charter' in M. A. baderin and r. Mccorquodale (eds) Economic, Social and Cultural Rights in Action (OUP 2007) 80 European Social charter website http://www.coe.int/T/DGHL/Monitoring/Socialcharter/, visited 20 September 2013 81 Marangopoulos Foundation for Human Rights (MFHR) v Greece (n 74) and International Federa- tion for Human Rights (FIDH) v Greece (72/2011), decision on admissibility of 7 December 2011. (The later complaint concerns the effects of massive environmental pollution on the health of per- sons living near the Asopos river and in proximity to the industrial zone of Inofyta. The complainant organisation alleges that the State has not taken adequate measures to eliminate or reduce these dangerous effects and to ensure the right to health protection, in violation of Article 11 of the ESc). 15 5 DIGNITAS n The council of europe and the right to a healthy environment althy working conditions). The government claimed that the mi- ning operations were undertaken by private entities for whose ac- tions the state could not be held accountable. In response to that argument, the EcSr concluded that regardless of the company’s legal status Greece was required to ensure compliance with its positive undertakings under the charter. The E cSr’s jurisdicti- on ratione temporis also had to be considered since the Protocol establishing the collective complaint procedure came into force in Greece in August 1998. The Greek government maintained that acts or omissions prior to that date could not be taken into con- sideration. On this issue (which had already been considered in the decision on admissibility), the EcSr relied on the notion of a “continuing violation” developed by the court, 82 meaning that the government will be held accountable for an event occurring before the entry into force of a treaty if it continues to produce effects after this. The EcSr found that there might be a breach of the duty to prevent damage arising from air pollution for as long as the pollution continues. It also needs to be emphasised that, when deciding whether a violation of the charter had occurred, the EcSr stressed that the ESc is a living instrument and that the rights and freedoms set out in it are to be interpreted in the light of current conditions. 83 The EcSr acknowledged that the use of lignite and its mining serve legitimate objectives under the charter (such as energy in- dependence, access to electricity at a reasonable cost, and econo- mic growth), but it nonetheless identified several areas in which the state’s efforts fell short of Greece’s national and international undertakings to overcome pollution which, in turn, had resulted in a failure to protect the health of the population. It found that, although the Greek constitution makes protection of the enviro- nment an obligation of the state and, at the same time, an indivi- dual right, national environmental protection legislation and regu- lations were not applied and enforced in an effective manner, and that the environmental inspectorates were not sufficiently equi- pped. 84 based on these and other facts before it, the EcSr found no real evidence of Greece’s commitment to improving the situ- 82 Papamichalopoulos v Greece (1993) 16 E.H.r.r. 440 83 Marangopoulos Foundation for Human Rights (MFHR) v Greece (n 74) [194] 84 Ibid. [208]-[216] 15 6 DIGNITAS n Človekove pravice ation within a reasonable time. 85 The EcSr also concluded that, “even taking into consideration the margin of discretion granted to national authorities in such matters, Greece had not managed to strike a reasonable balance between the interests of persons living in the lignite mining areas and the general interest”, 86 and thus that there had been a violation of Greece’s obligations with respect to the right to protection of health under the charter. In her paper, M. Trilisch wrote that Marangopoulos v Greece is, “undoubtedly, one of the most important decisions the EcSr has taken so far. Not only does it provide some much-needed input on the social right to health, it also clarifies the EcSr jurisdiction ra- tione temporis when dealing with positive obligations under the charter. Most importantly, however, it places the right to a healthy environment in the mainstream of human rights”. 87 Further, she emphasised the impact this decision has on the material content of the right involved as well as on the removal of the right to a he- althy environment from the constrained realm of so-called third- generation rights. She mentioned one of the first cases examined by the court (Lopez Ostra v Spain), emphasising that “the court did not expressly rely on the right to a healthy environment as such. Therefore, the committee’s decision can be understood as further advancing the progressive endorsement of environmental issues by the European human rights institutions”. 88 This is some- thing to be welcomed and encouraged. Through this decision, the EcSr has proven its willingness and ability to provide decisions on complex and demanding issues like environmental pollution. In its r esolution on the case 89 adopted on 16 January 2008, the coM stated with regard to violation of Articles 11(1), 11(2) and 11(3) of the charter: “The Greek National Action Plan for 2005-2007 (NAP1) pro- vides for greenhouse gas emissions for the whole country and all sectors combined to rise by no more than 39.2% until 2010, whereas Greece was committed, in the framework of the kyoto Protocol, to an increase in these gases of no more than 25% in 85 Ibid. [207] 86 Ibid. [221] 87 M. Trilsch, ‘European committee of Social rights: The right to a Healthy Environment’ (2009) 7(3) I.J.c .L. 529, 532 88 Ibid. [533] 89 r esolution cM/r eschS(2008)1 on the collective complaint No. 30/2005 by the Marangopoulos Foundation for Human rights (MFHr) against Greece (Adopted by the committee of Ministers on 16 January 2008 at the 1015th meeting of the Ministers' Deputies) 157 DIGNITAS n The council of europe and the right to a healthy environment 2010. When air quality measurements reveal that emission limit values have been exceeded, the penalties imposed are limited and have little dissuasive effect. Moreover, the initiatives taken by DEH (the public power corporation operating the Greek lignite mines) to adapt plant and mining equipment to the ‘best available tech- niques’ have been slow. The committee finds that Greek regulations satisfy all the requirements concerning information to the public about and their participation in the procedure for approving environmen- tal criteria for projects and activities. However, the circumstances surrounding the granting and extension of several authorisations, and the publication on the Internet of such a complex document as the NAP1 for just four days, show that in practice the Greek authorities do not apply the relevant legislation satisfactorily. The committee considers that the government does not provi- de sufficiently precise information to amount to a valid education policy aimed at persons living in lignite mining areas. Finally, very little has so far been done to organise systematic epidemiologi- cal monitoring of those concerned and no morbidity studies have been carried out.” 90 Unfortunately, not only did it take two years for the coM to adopt a r esolution but it seems relatively mild by only stating that it welcomes the measures already taken by the Greek authorities as well as further measures envisaged in order to ensure the effec- tive implementation of the rights protected by the ESc . However, as will be seen, through the r eporting procedure the EcSr is also continuously supervising the situation in Greece concerning the environmental problems arising from lignite mining. 4.2. The reporting system concerning the right to a healthy environment The r eporting system has been in existence since 1961 and is obligatory for all State parties to the ESc . When it comes to the r e- porting procedure, every year State parties submit a report indi- cating how they are implementing the ESc in law and in practice. Each report concerns some of the accepted provisions of the ESc . The provisions are divided into four thematic groups and each provision of the ESc will be reported on once every four years. 90 Ibid. 15 8 DIGNITAS n Človekove pravice The EcSr examines the reports and decides whether the situati- ons in the countries concerned are in conformity with the ESc . Its decisions, known as “conclusions”, are published every year. 91 There is an ongoing dialogue between states that send reports and the EcSr that adopts conclusions on those reports. Unlike the collective complaints where there have only been two complaints concerning the right to a healthy environment, there are numero- us reports and conclusions regarding Article 11(3) of the both the Original and the r evised charter. Unfortunately, despite the fact that states often take years to bring their behaviour into line with the ESc rights, to date the coM has not yet issued any r ecommendation or r esolution regar- ding the rights protected by Article 11(3). When it comes to the collective complaints system, as discussed above, regarding the Marangopoulos decision the coM adopted quite a bland r esoluti- on two years after the EcSr had adopted its decision on the merits of that case. First, we will look at the conclusions related to the previously discussed decision on Maragngopoulos Foundation v Greece. The EcSr adopted its conclusions after Greece sent its 19th r eport to the EcSr on, inter alia, Article 11, for the period 01/01/2003 – 31/12/2007 92 . There it again concluded that Greece was in non- conformity with the requirements of Article 11(3) of the r evised charter. The E cSr noted progress in Greece’s policies on the pre- vention of avoidable risks and reduction of environmental and other issues examined under Article 11(3); however, in relation to most of the issues it requested further information. 93 Further, the EcSr focused on the Marangopoulus Foundation for Human Rights complaint where the coM had found the measures taken by the authorities to improve the situation were insufficient. The EcSr took note of the information provided by the Greek gover - 91 For more on the ESc supervisory system, see P. Alston, ‘Assessing the Strength and Weaknesses of the European Social charter’s Supervisory System’ in G. de burca and b. de Witte, Social Rights in Europe (OUP 2005); U. khaliq and r. churchill, ‘The European committee of Social rights: putting flesh on the bare bones of the European Social charter’ in M. Langford (ed), Social Rights Jurispru- dence, Emerging Trends in International and Comparative Law (cUP 2008); churchill and khaliq, ‘v iolations of Economic, Social, and cultural rights…’ (n 78); and D. Harris and J. Darcy, The European Social Charter (Ardsley N.Y. 2001). 92 19 th report on the implementation of the European Social charter and 5 th report on the implementa- tion of the 1998 Additional Protocol submitted by the Government of Greece (Articles 3, 12 and 13 for the period of 01/01/2005-31/12/2007; Articles 11, 14 and Article 4 of the Additional Protocol for the period 01/01/2003-31/12/2007), c ycle 2009, rAP/cha/Gr/XIX(2009) 93 ESc , EScr conclusions XIX-2 (2009) (GrEE cE), Articles 3, 11, 12, 13, 14 and Article 4 of the Addi- tional Protocol of the charter (coE Publishing 2010) 15-18 15 9 DIGNITAS n The council of europe and the right to a healthy environment nment in its latest report and noted that it was quite similar to that provided in its submissions in the case. It concluded that the situ- ation was still not in conformity with Article 11(3) on the ground that it had not been demonstrated that sufficient measures had been adopted during the reference period to improve the right to a healthy environment of persons living in lignite mining areas. 94 Obviously, ensuring the situation is in harmony with the Article 11(3) requirements is a long process. The important thing is that both the EcSr and, we might say, the coM are closely monitoring the situation and the fact that the case was decided and supervi- sed under the ESc did not diminish its relevance. Now, the reports and conclusions on Turkey, Italy, r omania and the United kingdom, which were the respondent states in the court cases analysed above on the right to a healthy enviro- nment, will be looked at. In relation to r ussia, there is currently no information. The r ussian Federation signed the r evised ESc on 14 September 2000 and ratified it on 16 October 2009. It has accepted 67 of the r evised charter’s 98 paragraphs, including all three paragraphs of Article 11. The first report to be submitted by the r ussian Federation on implementation of the r evised charter was due by 31 October 2011, but it did not concern Article 11 on the right to health. In March 2009, Turkey submitted its 15 th report on the Origi- nal charter and 1 st report on the r evised charter on the accepted provisions of Thematic Group 2 “Health, social security and social protection” (Articles 3, 11, 12, 13, 14, 23 and 30). conclusions in re- spect of these provisions were published in January 2010. In its re- port, Turkey presented in detail all the administrative and legisla- tive work it had been doing on the provisions mentioned above. 95 In its conclusion, in respect of Article 11(3) the E cSr stated that it took note of the information contained in the report submitted by Turkey. However, it also noted that much of the information needed to assess the situation was lacking. It considered that if the information requested later in its conclusion were not to be pro- 94 Ibid. 18 95 European Social charter, 15 th National r eport on the Implementation of the European Social char - ter and 1 st National r eport on the implementation of the European Social charter (revised) submitted by the government of Turkey, Articles 11, 12, 13 & 14 for the period between January 1, 2003 to July 31, 2007 (1961 charter) and August 1, 2007 to December 31, 2007 (r evised charter) Articles 3, 23 & 30 for the period between August 1, 2007 to December 31, 2007 (r evised charter) c ycle 2009 rAP/ rcha/TU/I(2009) 18-20 160 DIGNITAS n Človekove pravice vided in the next report there would be nothing to show that the situation in Turkey is in conformity with this provision of the r evi- sed charter. Since information was lacking on all aspects of Article 11(3), the EcSr decided to defer its conclusion pending receipt of the information requested. 96 The same conclusion was adopted regarding r omania where once again the EcSr could not reach a final conclusion regarding conformity or non-conformity due to a lack of information, and so decided to defer its conclusion. 97 In the same 2009 conclusions regarding Italy, the E cSr stated that although some information was still awaited, the situation in Italy was in conformity with Article 11(3) of the r evised charter. 98 Finally, in the 2009 conclusions on the Uk on Article 11(3) of the Original charter (the Uk has not ratified the r evised charter) the EcSr concluded that the situation in the Uk was in conformity with Article 11(3) of the charter. 99 Therefore, states can be and some are in conformity with the Article 11(3) requirements, and the EcSr r eporting system is de- aling with all the environmental risks one country is facing. One can see from the 2009 conclusions on the r evised charter that out of the twenty-three states that have accepted Article 11(3) ten had been found to be in conformity, in relation to eight states the EcSr had decided to defer its conclusion, while five had been fo- und to be in non-conformity. 100 In the conclusions from the same year but on the Original charter, the E cSr had found eleven out of fifteen states to be in conformity with Article 11(3), while only two had been found to be in non-conformity. 101 The number of states that are in conformity and the improvements states are ma- king suggests that the charter and the pressure of the r eporting procedure are (at least to some extent) the cause of this. Of cour- 96 Ibid. 97 ESc (r evised), EcSr conclusions 2009 (r omania), Articles 3, 11, 12 and 13 of the r evised charter (coE Publishing) 16-17 98 ESc (r evised), EcSr conclusions 2009 (Italy), Articles 3, 11, 12, 13, 14, 23 and 30 of the r evised charter (coE Publishing 2010) 17-18 99 ESc , EcSr conclusions XIX- 2 (2009) (United kingdom), Articles 3, 11, 12, 13 and 14 of the charter (coE Publishing 2010) 13-17 100 States that are found to be in conformity with Article 11(3) of the r evised charter are: Estonia, Finland, France, Italy, Lithuania, Malta, the Netherlands, Norway, Slovenia and Sweden. ESc (r evised), EcSr conclusions 2009- volume I (Albania, Andorra, Armenia, Azerbaijan, belgium, bulgaria, c yprus, Estonia, Finland, France, Georgia, Ireland, Italy) (coE Publishing 2010) 16. 101 States that are found to be in conformity with Article 11(3) of the Original charter are: Austria, croatia, czech r epublic, Denmark, Germany, Hungary, Iceland, Luxemburg, Poland, Spain and the United kingdom. ESc , EcSr conclusions XIX-2 (2009) (Austria, croatia, czech r epublic, Denmark, Germany, Greece, Hungary, Iceland, Latvia, Luxembourg, Poland, Slovakia, Spain, »the Former Yugo- slav r epublic of Macedonia«, the United kingdom) (coE Publishing 2010) 16. 161 DIGNITAS n The council of europe and the right to a healthy environment se, this system is not ideal because of its non-binding form and the long time periods between the country reports. However, within the coE it is the most detailed and most regular way to supervise the countries’ methods of dealing with environmental risks. 5. conclusion The EcSr has not developed nearly as significant or extensive case-law as the court since the collective complaints system has only been in operation since 1998 and only 15 Member States to the coE have so far accepted it. Another disadvantage of the col- lective complaints system is the absence of a judicial body, with only the EcSr which at most can be called a ‘quasi-judicial’ body. However, the number of complaints is increasing and awareness of the protection of economic and social rights through the sy- stem of collective complaints is growing. On the other hand, the r eporting system on Article 11(3), despite having the same disad- vantages as the collective complaints system – the small number of states that have accepted Article 11(3) and the EScr conclusi- ons that are non-binding in character – shows that it is the most detailed supervising process of environmental hazards. The EcSr is looking at all the elements necessary for fulfilling the healthy environment conditions, which are numerous, and is placing pressure on states to bring the situation in conformity with Article 11(3). Further, there are two other problematic issues with the ESc sy - stem that cannot be ignored. First, the more information the EcSr requires from State parties to provide for it to be able to make a judgment about their compliance with the Article 11(3) obligati- ons, the more difficult it becomes for the EcSr to make a definite judgment about such compliance. 102 This is evident from all the EcSr conclusions where it decided to defer its conclusion and, as we saw in the previous section, there are quite a few of such conclusions. Another and even bigger disadvantage and proble- matic issue of both the EcS r eporting and collective complaints systems is the ineffectiveness of the coM and its unwillingness to issue r ecommendations and r esolutions. Moreover, even when it adopts them they are rather vague and bland. Unfortunately, we 102 khaliq and churchill, ‘The European committee of Social rights: putting flesh… (n 90) 452 162 DIGNITAS n Človekove pravice have seen that the coM is the same when supervising the execu- tion of the court’s judgments, and it places relatively mild, if any, pressure on states. On the other hand, the EcHr system is seriously over-burde- ned now and it is not wise for the court to extend its interpretati- on of convention rights into the area of protecting the right to a healthy environment. both the court and the E cSr have admitted that a healthy environment is something that cannot be achieved immediately but can only be achieved gradually. Although nowa- days there is a tendency to abandon the distinction between eco- nomic and social and civil and political rights, the fact that they are guaranteed by two separate documents remains. After looking at the ESc r eporting and the collective complaints systems with a special overview of the right to a healthy environment, it may be concluded that, although problematic issues remain, the right to a healthy environment can be protected under the ESc system. Further, it seems that the court and the E cSr are starting to dupli- cate each other’s work and, in my opinion, this is not a solution to be welcomed. The ESc system is developing, together with its machinery of protection. The EcSr and the coE bodies should focus on im- proving the ESc system, including the protection of the right to a healthy environment. The right to a healthy environment should primarily be a collective right and not an individual right since the effects of pollution or any other kind of environmental ha- zard will generally affect a large group of people, not just one in- dividual. Since the court deals only with individual complaints and the EcSr with collective ones, the court should not deal with the healthy environment issue, only the EcSr should. As stated by Margared DeMerieux: “central to the idea of environmental ri- ghts and of the protection of the environment is that the interests of populations as a whole and indeed of unborn generations are crucial”. 103 In addition, environmental disasters should be preven- ted rather than treated after they have happened, which is only possible under the ESc system. And if the coE bodies try to im- prove the ESc system and make the r eporting procedure together with the system of collective complaints as effective as possible, the environmental threats to people living in a particular territory 103 DeMerieux (n 2) 534 163 DIGNITAS n The council of europe and the right to a healthy environment might be much better protected than under the convention. The coE bodies should urge states to ratify the collective complaints Protocol 104 as well as the coM to start making recommendations to states, recommendations that are not mild and bland, both un- der the collective complaints and the r eporting procedure. The EcHr’s biggest contribution to human rights protection in Europe is that it protects individuals against state actions and that it imposes positive obligations on the state to protect individuals from various types of human rights violations. When it comes to the right to a healthy environment, this is not an issue that should be left for the convention and the court. The court should not deliver judgments concerning the right to a healthy environment since it has numerous socio-economic elements. Environmental hazards on most occasions affect hundreds or thousands of pe- ople and the execution of such a judgment can only be achieved progressively at substantial financial cost. Instead of entering this sphere, when an application that concerns the right to live in a healthy, sound and viable environment comes before the court, it should not deal with it. One way of doing so might be for the court to announce in the next environmental case that all future environmental applications will be declared incompatible ratione materiae with the provisions of the convention or the Protocols thereto (based on Article 35(3)(a) of the convention), and there- fore inadmissible. 105 104 See, for example, Parliamentary Assembly r ecommendation 1795 (2007) ‘Monitoring of commit- ments concerning social rights’. Text adopted by the Standing committee, acting on behalf of the Parliamentary Assembly, on 24 May 2007. “The Assembly therefore recommends that the committee of Ministers: 11.1. take the necessary measures to ensure that member states that have not already done so ratify the revised European Social charter, the Protocol amending the European Social charter and the Ad- ditional Protocol to the European Social charter Providing for a System of collective complaints and grant national NGOs the right to lodge complaints.” [11] 105 See Practical Guide on Admissibility Criteria (coE 2011) 44-45; White and Ovey (n 47) 33-34; Mark W. Janis, richard S. k ay and Anthony W. bradley, European Human Rights Law: Text and Materials (3 rd ed, OUP 2008) 47-49; Harris, O’boyle and Warbrick (n 3) 800-801; and case Pančeko v Latvia App No 40772/98 (EctHr Decision, 28 October 1999) 164 DIGNITAS n Človekove pravice