On October 7, 2015, a judge ruled in favor of a farmer who, in response to the devastation of three deadly floods, asked the high court of Justice in Lahore to recognize the fundamental right to a clean climate. The floods, caused by rising temperatures, have threatened Pakistan’s agricultural production. The court agreed that Pakistan’s climate change minister breached his duty to uphold the right to a clean environment. The court stated that the government failed to act on its climate change policy, and it proposed that a new climate council oversee climate initiatives. The council would be composed of civilians and government officials, and would be a response to politicians’ lack of action on climate issues. The court’s decision would allow citizens to hold the government accountable for this type of inaction. For an article about the decision, click here.
Case Studies Archive
On September 18, 2015, the Constitutional Tribunal of Peru reversed and remanded a Superior Court’s dismissal of a claim to the right to live in an adequate and balanced environment.
Complainant Marco Antonio Arana Zegarra filed for a remedy because Minera Yanacocha S.R.L.’s Conga project allegedly threatened significant, irreversible harm to the Cajamarca ecosystem and communities. Complainant asserted that the Ministry of Energy and Mines improperly approved the project’s Environmental Impact Assessment (“EIA”).
Two lower courts dismissed the complainant’s claim for failure to exhaust administrative remedies. However, the Constitutional Tribunal ruled that the lower courts had erred by improperly applying constitutional environmental jurisprudence as well as failing to assess the imminent risk of environmental degradation that the project imposed.
The Constitutional Tribunal stated that Peruvians have a constitutional and international-treaty-based right to live in a healthy environment, including the right to enjoy environmental preservation and a balanced and adequate environment. The Tribunal emphasized the precautionary principle and warned that environmental damage harms present and future generations. It also stated that courts must pay special attention to cases in which there is an alleged threat to the right of an adequate and balanced environment.
For more information about the case, click here.
The Hague District Court held that the Netherlands must ensure that Dutch emissions of greenhouse gases in the year 2020 are at least 25% lower than the level of emissions in 1990. The Court based its decision on a general duty of care under Dutch law. (Urgenda also raised several other legal grounds, including Articles 2 and 8 of the European Human Rights Convention, which protect the rights to life and privacy, respectively. The Court stated that while Urgenda could not rely on these provisions directly, apparently because it is a legal rather than a natural person, they could still serve as a source of interpretation in implementing private-law standards such as the Dutch duty of care. Paras. 4.45, 4.46.) The Court found that the duty of care was not met because scientific studies (notably the 2007 report of the IPCC) indicated that developed countries must lower their emissions by 25-40% from 1990 levels in order to be able to have the average global temperature increase by no more than 2 degrees Celsius (the amount agreed by the international community to be the maximum allowable without massive harm), and that the government of the Netherlands itself had previously committed to that target, before more recently changing it without sufficient justification.
The applicant complained that the construction of a cemetery near his home in Tatariv, in Yaremeche, violated his right to respect for his home and private life, in violation of Article 8 of the European Convention. Specifically, he argued that the cemetery had led to the contamination of his water supply. The European Court stated that in the absence of actual damage to the applicant’s health, the Court must establish whether the potential environmental risks established a close link with his private life and home sufficient to affect his quality of life. It noted that the cemetery was sited in clear and blatant violation of applicable environmental health and sanitary regulations, which prohibited placing it in close proximity to residential buildings and water sources. Therefore, the cemetery reached the minimum level of interference with the right to respect for home and private life to trigger application of Article 8. In deciding whether the State had met the requirements of Article 8, the Court found that because the cemetery was built and used in breach of the applicable domestic regulations, “the interference with the applicant’s right to respect for his home and private and family life was not ‘in accordance with the law’ within the meaning of Article 8 of the Convention.”
(Admissibility Decision), Report No. 96/14
On May 4, 2006, the petitioners filed a petition claiming that the State has failed to adopt effective mechanisms to protect the existence of the Tagaeri and Taromenani indigenous peoples in voluntary isolation and in their ancestral territory. They claim that these peoples have suffered acts of violence and killings, including massacres in May 2003 and April 2006 that were allegedly committed by illegal loggers and members of the Waorani indigenous people. In particular, the application alleged that on April 26, 2006, in the Cononaco Chico sector of the Yasuni National Park, as many as thirty Taromenanis were killed by illegal loggers. The petition “contended that the incident was related to illegal logging activities and to the absence of effective measures taken by the State to control logging and to prevent attacks on the peoples in isolation and their ancestral territory.” On May 10, 2006, the Commission asked Ecuador to adopt effective measures to protect the lives and physical integrity of the members of the peoples and to adopt the measures necessary to protect the territory they inhabit, including the steps necessary to prevent the entry of third parties.” On Sept. 11, 2013, and May 9, 2014, Ecuador indicated to the Commission its belief that the precautionary measures are not provided for in the American Convention or the Commission Statute and “therefore the State will not recognize any of those measures or issue a response in their regard.”
In this decision, the Commission rules that the petition is admissible as regards its claims based on articles 4 (right to life), 8 (right to a fair trial), 19 (rights of the child), 21 (right to property), 24 (right to equal protection), 25 (right to judicial protection), and 26 (progressive realization of economic, social and cultural rights) of the American Convention. It rules that the petition is not admissible regarding the alleged violations of articles 3 (right to recognition) and 23 (right to participate in government).
The applicants were employees at Malta Drydocks Corporation (MDC), a state-owned enterprise, where they alleged that they had been constantly and intensively exposed to asbestos. They brought their complaints under Articles 2 and 8 of the European Convention. Additional applicants were the wife and children of Mr Attard, a former employee of MDC, who had died as a result of mesothelioma, a malignant cancer linked to exposure to asbestos.
With respect to Article 2, the Court reiterated that it “does not solely concern deaths resulting from the use of unjustified force by agents of the State but also . . . lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This obligation is construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous.” The Court stated that these obligations may apply in cases dealing with exposure to asbestos at a workplace run by a public corporation owned and controlled by the Government. The Court noted that it has applied the Article both when an individual has died and “where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application,” including cases involving persons suffering from serious illnesses. The Court considered that Article 2 applied to the complaint brought by the survivors of Mr Attard, but not to the complaint of the other applicants, who had neither been diagnosed with malignant mesothelioma nor any other condition related to asbestos of a life-threatening nature. The Court noted, however, that “in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8,” which it stated did apply to the present case.
Drawing on earlier decisions, including Kolyadenko and Others v. Russia, the Court reviewed the basic principles:
“The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among these preventive measures particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels. As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres” (citations omitted). The Court stated that in determining whether a State has complied with its positive obligation, the Court must consider the particular circumstances of the case, including “the domestic legality of the authorities’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved.”
The Court also stated that Article 8 requires national authorities “to take the same practical measures as those expected of them in the context of their positive obligation under Article 2.”
After reviewing scientific and legal attention to the effects of asbestos on health beginning in the 1930s, the Court concluded that the Maltese Government knew or should have known of the dangers at least as of the early 1970s. It considered that waiting 15 years, until the mid-1980s, to adopt specific legislation to address the problem “can hardly be seen as an adequate response in terms of fulfilling a State’s positive obligations.” Moreover, it stated that from the mid-1980s to the early 2000s, when the applicants left the MDC, “the legislation was deficient in so far as it neither adequately regulated the operation of the asbestos-related activities nor provided any practical measures to ensure the effective protection of the employees whose lives might have been endangered.” In addition, the legislation appears to have been unenforced. Nor were other practical measures taken, or access to information provided to the applicants. The Court concluded that the Government had failed to satisfy its positive obligations under Article 2 (with respect to the survivors of Mr. Attard) and Article 8 (with respect to the other applicants), and awarded damages.
The Court rejected the applicants’ claim under Article 3, which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The applicant complained that noise from a bar below her home interfered with her rights protected by Article 8 of the European Convention. The Court recalled that “Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, this may involve those authorities adopting measures designed to secure respect for private life even in the sphere of relations between individuals. Whether the case is 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 broadly similar.” Although the evidence was mixed, the Court concluded that the disturbances from the bar reached the minimum level of severity that required the authorities to implement measures to protect the applicant.
The Court noted that there are two aspects to its assessment of a governmental decision under Article 8: the Court may assess the substantive merits of the government’s decision, and it may review the decision-making process itself. On the second point, the Court concluded that by allowing the situation to persist for more than ten years without finally settling the issue, the State had “failed to approach the matter with due diligence and to give proper consideration to all competing interests, and thus to discharge its positive obligation to ensure that applicant’s right to respect for her home and her private life.” It awarded the applicant damages.
(Admissibility Decision), Report No. 62/14
On Feb. 28, 2003, the Commission received a petition from the National Coordinator of Peruvian Communities Affected by Mining on behalf of 54 inhabitants of Quishque-Tapayrihua, in the district of Tapairihua, Apurima, claiming that the State of Peru granted Southern Peru Copper Corporation a mining concession on lands traditionally inhabited by the Quishque community. The petition claims that since 1996, through its “Los Chancas” mining project, the Southern Peru Copper Corporation, without first consulting the local communities, has conducted prospecting and mining activities that have harmed the inhabitants’ access to drinking water and other natural resources, and have destroyed crops, schools, and archaeological sites. The petition alleges that the activities caused the pollution of the Negropuguio River basin and the Quishque spring, on which the Quishque-Tapayrihua community depended. The Commission concludes that the petition is admissible regarding the claims under articles 5 (right to physical, mental and moral integrity), 8 (right to a fair trial), 12 (freedom of conscience and religion), 13 (freedom of thought and expression), 19 (rights of the child), 21 (right to property), 22 (freedom of movement), 23 (right to participate in government), 24 (equal protection), 25 (judicial protection, and 26 (progressive development of economic, social and cultural rights) of the American Convention, and as regards Article 13 (right to education) of the Additional (San Salvador) Protocol to the American Convention.
The applicant complained that the authorities had failed to prevent his neighbor from using her property as a slaughterhouse and meat-processing facility, which interfered with his rights under Article 8. The Court noted that “under Article 8 the alleged nuisance must have attained the minimum level of severity required for it to amount to an interference with applicants’ right to respect for their private lives and their homes. The assessment of that minimum is relative and depends on all the circumstances: the intensity and duration of the nuisance, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards symptomatic of life in every modern city.” The Court also stated that it may review the decision-making process to ensure that it balances the interests of the community against the individual’s right to respect for his or her home and private life. “[A]lthough Article 8 contains no explicit procedural requirements, that process must be fair and must afford due respect to the interests of the individual safeguarded by Article 8. In particular, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight.”
In this case, the Court held that the applicant did not substantiate his complaint. He did not, for example, provide any medical or environmental expert opinions or other evidence of the damage allegedly caused to him, or show that the pollution exceeded safe levels set by the applicable regulations. As a result, the Court found the application inadmissable.
The applicants live near the Leipzig/Halle airport, and complain that the expansion of the airport would substantially affect their private and family life. On the substantive merits, the Court reiterated that “in cases raising environmental issues the State must be allowed a wide margin of appreciation.” The national authorities are “in principle better placed than an international court to assess the requirements relating to the operation of an airport in a particular local context and to determine the most appropriate environmental policies and individual measures.” It noted the desire to turn the airport into an international hub for air freight, with positive economic effects for the region, and stated that under Article 8(2), “restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others.”
The Court recalled the “settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8. . . . A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake.” In this case, the Court observed that the planning materials and expert reports were made public, the residents affected by the planning had the right to participate actively, and there was access to judicial review. The Court concluded that because the German courts took into account all relevant factors and balanced them in a reasonable manner, “the impugned decisions cannot be held to have overstepped the margin of appreciation as regards Article 8.”