Abstract
This introductory chapter serves to highlight the progressive shift in international law as to environment, intended as the physical surroundings in which humans exist, from an object (value, interest and competence) to be protected, preserved in international environmental law and international human rights law and practice as well as even improved (at the EU level) in its natural dimension and utilitarian character—also in its temporal representation transcending generations and individual human lives to signify the perpetuation of the human species amid all number of environmental temporalities. This shift in fact has operated towards an environmental right(s)-based approach which has recognized environment-related rights in international human rights, more recently expanded to a right to healthy environment, though only by the Human Rights Council and at some regional level but with still some difficulties at the European one. Building upon these premises, the chapter highlights the links between a safe and healthy environment on the one hand and children’s rights on the other evoked with increasing insistence both by children and international bodies, but so far failed to be comprehensively considered by legal scholars; and purports to fill that gap in the existing literature by considering the contribution a group-specific perspective can make to the fruitful development of children’s environmental rights.
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Notes
- 1.
Bioret et al. 2009.
- 2.
- 3.
Contrasting with the Paris Convention of 19 March 1902 on the protection of birds useful for agriculture, which views nature in terms of its utility to mankind rather than for its own sake, see, e.g., the first international congress on nature conservation in 1923 in Paris, the Convention on the Conservation of Natural Habitats in their Natural State of 1933 and the creation of the International Union for Conservation of Nature in 1948 in Fontainebleau.
- 4.
The starting point for official recognition of the environmental issue at international level was the United Nations Conference on the Human Environment held in Stockholm in 1972. Prieur 2014, p. 74, points out that on 22 July 1971 the Commission of the European Communities adopted the first communication on the Community’s environmental policy, outlining future action. Van Lang 2021, p. 74, notes that in 1972 member state heads of state and government adopted a declaration proclaiming the need to improve the quality of life and to give especial attention to protection of the environment. The first Community action plan, for the years 1974–1976, soon followed; for the first time, it established basic principles and global objectives, including the preservation of a balance in the management of natural resources, while also referring to the fight against pollution and nuisances, the improvement of the quality of life and the need to protect the natural environment.
- 5.
Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, opened for signature 21 June 1993, ETS No. 150, Article 2(10).
- 6.
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, UN Economic Commission for Europe, adopted 25 June 1998, UN Doc. ECE/CEP/43, entered into force 30 October 2001. The Convention was ratified by the European Union by Council Decision 2005/370/CE of 17 February 2005, OJEU 2005 L124/1
- 7.
Ibid., Article 3(a), (c).
- 8.
The Convention on the Conservation of European Wildlife and Natural Habitats, opened for signature 19 September 1979, ETS No. 104, entered into force 1 June 1982, recognizes ‘that wild flora and fauna constitute a natural heritage of aesthetic, scientific, cultural, recreational, economic and intrinsic value that needs to be preserved and handed on to future generations’; the Convention on Biological Diversity, opened for signature 5 June 1992, entered into force 29 December recalls the ‘intrinsic value of biological diversity’; the World Charter for Nature, adopted 28 October 1982 by UN General Assembly Resolution 37/7, proclaims that ‘[e]very form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action’.
- 9.
United Nations 1973, p. 3.
- 10.
Ibid., preamble, first paragraph.
- 11.
Despax 1980, pp. xii–xiii, points out that stopping such a process of destruction, while part of a policy to protect nature, can be part of a broader global policy to protect the human environment.
- 12.
Bonn Convention of 23 June 1979.
- 13.
Martin 1998, p. 458 notes that until recently law considered that risk had to be prevented when foreseeable and that prevention lay at the heart of many legal provisions, particularly concerning the environment, security and occupational safety.
- 14.
Gautier 1995 underlines the gap that may exist between the perception of risk and the risk itself.
- 15.
Godard 2002, p. 59.
- 16.
- 17.
Van Lang 2021, p. 101.
- 18.
Rouyère A (2001) Responsabilité et principe de précaution. https://www.senat.fr/colloques/colloque_responsabilite_publique/colloque_responsabilite_publique13.html. Accessed 20 September 2020.
- 19.
De Sadeleer 1999, p. 180ff, points out that in positive law criteria relating to the seriousness of the damage are generally mentioned for the application of the precautionary principle.
- 20.
There are international conventions on liability for such matters as pollution or dangerous activities—e.g. International Convention on Civil Liability for Oil Pollution Damage, adopted in Brussels on 29 November 1969, pursuant to which the International Oil Pollution Compensation Fund (IOPCF) was established. According to the IOPCF Claims Manual, any loss of property and economic loss are covered, though compensation for impairment of the environment is limited to costs of reasonable measures of reinstatement (2019 edition, p. 13). This has been characterized as a matter of strict liability; see, e.g., Scovazzi 1992; De Sadeleer 2009, 2018; Giuffrida and Amabili 2018; Rizzo 2021.
- 21.
Legality of the Use by a State of Nuclear Weapons in armed Conflict, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 66 at para 29. The Court also made reference to Principle 24 of the Rio Declaration (UNGA, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc. A/CONF.151/26 (Vol. I), Annex I), which reads: ‘Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.’
- 22.
Report of the International Law Commission on the work of its thirty-second session, 5 May–25 July 1980, UN Doc. A/35/10, p. 32. According to the draft articles on state responsibility, international crime is any ‘internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole’ (Article 19(2)), whereas an international delict is ‘[a]ny internationally wrongful act which is not an international crime’ (Article 19(4)).
- 23.
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), adopted 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978, Article 35(3).
- 24.
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted 10 December 1976, 1108 UNTS 151, entered into force 5 October 1978, Article I(1)
- 25.
Ibid., Article II.
- 26.
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, adopted 10 October 1980, opened for signature 10 April 1981, 1342 UNTS 137, entered into force 2 December 1983, Article 2(4).
- 27.
- 28.
Office of the Prosecutor (2016) Policy Paper on Case Selection and Prioritisation, https://www.icc-cpi.int/sites/default/files/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf. Accessed 5 June 2022 [https://perma.cc/UY3NC62R], paras 40, 41. In relation to Rohingya Muslims in Myanmar and countryside peoples in Cambodia, both the States and individuals at governmental level in those States were found to be responsible for decisions and related practices (dispossessions, expulsions) with significant negative impact on living conditions, basic rights and the consequent forced migrations of local populations. See Council on Foreign Relations (2018) The Rohingya Crisis, https://perma.cc/BU32-C5ER. For relevant case law, see International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order of 23 January 2020, ICJ Reports 2020, p. 69.
- 29.
Article 10 of the Rome Statute specifies that ‘[n]othing in [Part 2 on jurisdiction, admissibility and applicable law] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’.
- 30.
Use and Conservation of the Biosphere, Proceedings of the intergovernmental conference of experts on the scientific basis for rational use and conservation of the resources of the biosphere, Paris, 4–13 September 1968.
- 31.
Bartenstein 2005, p. 292.
- 32.
- 33.
- 34.
United Nations 1973, p. 4 (‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’).
- 35.
UN Environment Programme, Governing Council, 2 May 1975, Decision 20(III), para II.9(b). See Schrijver 2008, p. 47.
- 36.
International Union for Conservation of Nature and Natural Resources 1980, sec. 1, paras 3 (‘For development to be sustainable it must take account of social and ecological factors, as well as economic ones; of the living and non-living resource base; and of the long term as well as the short term advantages and disadvantages of alternative actions.’), 4 (defining conservation as ‘the management of human use of the biosphere so that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations’). See also Lanfranchi 2016, para 11, pointing out that conservation and development are interdependent.
- 37.
UN General Assembly 1987, p. 54.
- 38.
Above n. 21.
- 39.
- 40.
Piette 1993, p. 8.
- 41.
Dupuy 1997, p. 886.
- 42.
Ibid., pp. 886–887. It is, for example, mentioned as an objective in the preambles to the Helsinki Convention on the Transboundary Effects of Industrial Accidents of 17 March 1992 (para 2), the Rotterdam Convention on Chemicals and Pesticides of 10 September 1998 (para 8) and the Kiev Protocol to the Aarhus Convention on Pollutant Release and Transfer Registers of May 2003 (paras 2, 11, 14). It also appears in the operative provisions of the 1997 Kyoto Protocol on Climate Change, the 2001 Stockholm Convention on Persistent Organic Pollutants, the 1994 Danube River Protection Convention, the 1995 Mekong River Agreement, the 2001 Mercosur Framework Agreement on the Environment and the 2003 African Convention on the Conservation of Nature and Natural Resources. In these cases, it plays an important role in the implementation of the conventions.
- 43.
- 44.
Soeilhac 2006, p. 1316.
- 45.
- 46.
Parliamentary Assembly, Future action to be taken by the Council of Europe in the field of environment protection, Recommendation 1431 of 4 November 1999, calling for the Committee of Ministers to ‘instruct the appropriate Council of Europe bodies with the task of examining the feasibility of … drafting an amendment or an additional protocol to the European Convention on Human Rights concerning the individual’s right to a healthy and viable environment’; Reply from the Committee of Ministers, Doc. 8892, 20 November 2000, noting that ‘at present the conditions are not ripe to initiate a study geared to drawing up such a right for inclusion in an additional protocol to the European Convention on Human Rights’.
- 47.
Parliamentary Assembly, Environment and human rights, Recommendation 1614 of 27 June 2003, considering the national, European and international context to have become more favourable to the environmental cause and calling for the Committee of Ministers to ‘draw up an additional protocol to the European Convention on Human Rights concerning the recognition of individual procedural rights intended to enhance environmental protection, as set out in the Aarhus Convention’.
- 48.
Parliamentary Assembly, Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment, Recommendation 1885 (2009), calling for the Committee of Ministers to ‘draw up an additional protocol to the European Convention on Human Rights, recognising the right to a healthy and viable environment’.
- 49.
EctHR, see Apanasewicz v. Poland, App. No. 6854/07, Judgment of 3 May 2011, para 94; Flamenbaum and Others v. France, App. Nos. 3675/04 and 23264/04, Judgment of 13 December 2012, para 133; Lars and Astrid Fägerskiöld v. Sweden, App No. 37664/04, Admissibility decision of 26 February 2008; Chiş v. Romania, App. No. 55396/07, Admissibility decision of 9 September 2014, para 29; Frankowski and Others v. Poland, App. No. 25002/09, Admissibility decision of 20 September 2011; Aydin and Others v. Turkey, App. No. 40806/07, Admissibility decision of 15 May 2012, para 24; Otgon v. Moldova, App. No. 22743/07, Judgment of 25 October 2016, para 15; Fieroiu and Others v. Romania, App. No. 65175/10, Admissibility decision of 23 May 2017, para 18.
- 50.
ECtHR, Fredin v. Sweden (No. 1), App. No. 12033/86, Judgment of 18 February 1991, para 48.
- 51.
ECtHR, Tyrer v. United Kingdom, App. No. 5856/72, Judgment of 25 April 1978, para 31 (‘the Convention is a living instrument which ... must be interpreted in the light of present-day conditions’). See Alston and Goodman 2013, pp. 117–118 (‘The long-term treaty must rest upon a certain flexibility and room for development if it is to survive changes in circumstances and relations between the parties.’); Allot 2015, pp. 376, 382–383 (suggesting that interpretation can be understood as the resolution of the tension between the text and its context and apprehending the text as a ‘living process’). See also Cali 2012, p. 538; Fitzmaurice 2013, p. 767; Arato 2015, p. 206.
- 52.
ECtHR, Hatton and Others v. United Kingdom, App. No. 36022/97, Judgment of 8 July 2003, Joint Dissenting Opinion of Judges Costa, Ress, Türmen, Zupančič and Steiner, paras 1–2 (‘It is true that the original text of the Convention does not yet disclose an awareness of the need for the protection of environmental human rights. In the 1950s, the universal need for environmental protection was not yet apparent. Historically, however, environmental considerations are by no means unknown to our unbroken and common legal tradition whilst, thirty-one years ago, the Declaration of the United Nations Conference on the Human Environment stated as its first principle: ‘... Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being ...’ … This ‘evolutive’ interpretation by the Commission and the Court of various Convention requirements has generally been ‘progressive’, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the Convention to develop the “European public order”. In the field of environmental human rights, which was practically unknown in 1950, the Commission and the Court have increasingly taken the view that article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on’ (footnotes omitted)).
- 53.
ECtHR, Simili v. Belgium, App. No. 11965/86, Commission decision on admissibility, 12 December 1988.
- 54.
ECtHR, Denev v. Sweden, App. No. 12570/86, Commission decision on admissibility, 18 January 1989.
- 55.
ECtHR, Lundquist v. Sweden, App. No. 10911/84, Commission decision on admissibility, 7 July 1986.
- 56.
ECtHR, Herrick v. United Kingdom, App. No. 11185/84, Commission decision on admissibility, 11 March 1985.
- 57.
ECtHR, N. v. Austria, App. No. 10395/83, Commission decision on admissibility, 18 July 1986, 48 Eur. Comm’n HR Decisions and Reports 65.
- 58.
Ibid., p. 71.
- 59.
ECtHR, Fredin v. Sweden, App. No. 12033/86, Judgment of 18 February 1991, paras 15, 35.
- 60.
Ibid., para 48.
- 61.
Ibid., para 51.
- 62.
ECtHR, Pine Valley Development Ltd and Others v. Ireland, App. No. 12742/87, Judgment of 29 November 1991.
- 63.
Ibid., para 9.
- 64.
Ibid., para 50.
- 65.
Ibid., para 57.
- 66.
Ibid.
- 67.
ECtHR, Matos e Silva Lda and Others v. Portugal, App. No. 15777/89, Judgment of 16 September 1996.
- 68.
Ibid., para 54.
- 69.
Ibid., para 88.
- 70.
Ibid., paras 89–93.
- 71.
ECtHR, Kyrtatos v. Greece, App. No. 41666/98, Judgment of 22 May 2003.
- 72.
Ibid., para 52.
- 73.
ECtHR, Hamer v. Belgium, App. No. 21861/03, Judgment of 27 November 2007.
- 74.
Ibid., para 79. The Court held that the Belgian authorities had struck a fair balance when interfering with the applicant’s Article 8 right to ‘possession’ by favouring the purely environmental aim of preserving a forest (ibid., para 77).
- 75.
ECtHR, Di Sarno v. Italy, App. No. 30765/08, Judgment of 10 January 2012, referencing EU legislation relevant to waste management and the protection of public health (Council Directive 75/442/EEC of 15 July 1975 on waste, OJ (L194) 39, replaced by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste, OJ (L114) 9; Council Directive 91/689/EEC 12 December 1991 on hazardous waste, OJ (L377) 20, replaced by Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, OJ (L312) 3; Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, OJ (L182) 1. See also Case C-135/05, Commission v. Italy, 26 April 2007, ECLI:EU:C:2007:250, para 39; C-297/08, Commission v. Italy, 4 March 2010, ECLI:EU:C:2010:115, para 113, ruling against the Italian government, first, for failing to perform its obligations in the field of waste disposal (the operators had not recovered or disposed of waste in such a way as not to endanger human health ) and, second, for not having set up an adequate and integrated installation and disposal network in the Campania region, which was facing urban waste management problems.
- 76.
ECtHR, Depalle v. France, App. No. 34044/02, Judgment of 29 March 2010; Brosset-Triboulet and Others v. France, App. No. 34078/02, Judgment of 29 March 2010.
- 77.
ECtHR, Yasar v. Romania, App. No. 64863/13, Judgment of 26 November 2019, para 59ff.; Kristiana Ltd v. Lithuania, App. No. 36184/13, Judgment of 6 February 2018; O’Sullivan McCarthy Mussel Development Ltd v. Ireland, App. No. 44460/16, Judgment of 7 June 2018.
- 78.
ECtHR, Mangouras v. Spain, App. No. 12050/04, Judgment of 28 September 2010, para 86.
- 79.
Ibid., para 92.
- 80.
Ibid., para 87 (‘the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies’).
- 81.
Declaration issued at the close of the conference, reproduced in Commission of the European Communities (1973) Sixth General Report on the Activities of the Communities 1972, p. 8, http://aei.pitt.edu/31349/1/GEN_RPT_6th_1972_1.pdf. Accessed 6 June 2022, at 8. See also Shelton 1993.
- 82.
Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, OJ (L194) 26.
- 83.
See, e.g., Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ (L103) 1 (subsequently repealed by Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, OJ (L20) 7). For later instruments, see Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ (L206) 7 (known as the Habitats Directive), the first recital of which refers to the preservation, protection and improvement of the quality of the environment as an ‘essential objective’ of general interest; Decision No. 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme, OJ (L242) 1, recital 20 of which states that ‘[h]ealthy and balanced natural systems are essential for supporting life on the planet’; Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ (L327) 1, Article 4(7)(c).
- 84.
Commission Decision 85/71/EEC of 21 December 1984 concerning the list of chemical substances notified pursuant to Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, OJ (L30) 33.
- 85.
Directive 2004/10/EC of the European Parliament and of the Council of 11 February 2004 on the harmonization of laws, regulations and administrative provisions relating to the application of the principles of good laboratory practice and the verification of their applications for tests on chemical substances, OJ (L50) 44.
- 86.
Thematic Programme and the sustainable management of Natural Resources (ENRTP), Commission Decision C (2007) 2572 of 20 June 2007; Annual Action Programme 2007, adopted by the European Commission on 3 December 2007 and amended on 19 December 2007 (an action programme was adopted each year up until 2013). On global commons, see Suy and Fabregoule 2009; Ranganathan 2016; Smith 2017; Iovane et al. 2021.
- 87.
Council of the European Union, European Commission (2008) Climate Change and International Security: Paper from the High Representative and the European Commission to the European Council, https://data.europa.eu/doi/10.2860/50106. Accessed 6 June 2022.
- 88.
Commission Implementing Decision of 23 July 2014 adopting a Multiannual Indicative Programme for the Thematic Programme ‘Global Public Goods and Challenges’ for the period 2014–2020, C(2014)5072 final.
- 89.
See the Preamble of the European Economic Community Treaty of Rome.
- 90.
Statement from the Paris Summit (19 to 21 October 1972), Bulletin of the European Communities, October 1972, No. 10, pp. 14–26, https://www.cvce.eu/content/publication/1999/1/1/b1dd3d57-5f31-4796-85c3-cfd2210d6901/publishable_en.pdf. Accessed 12 May 2022. Subsequently, the idea of sustainable development was progressively incorporated into directives and regulations, sometimes being referred to in the introductory grounds for the act, sometimes in the operative provisions or sometimes in an amendment to a pre-existing act.
- 91.
Case C-302/86, Commission v. Denmark, Judgment of 20 September 1988, ECLI:EU:C:1988:421. For commentary, see Sexton 1991.
- 92.
Case C-240/83, Procureur de la République v. Association de défense de brûleurs d’huiles usagées, Judgment of 7 February 1985, ECLI:EU:C:1985:59.
- 93.
- 94.
Treaty on European Union, signed at Maastricht on 7 February 1992, OJ 1992 C191/1, Article B stressing that among the objectives the Union shall set itself should be included ‘to promote economic and social progress which is balanced and sustainable’ and Article G where it was suggested to replace Article 2 with ‘The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing the common policies or activities referred to in Articles 3 and 3a, to promote throughout the Community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States’.
- 95.
See Case C-240/83, above n. 92, para 13; Case C‑195/90 Commission v. Germany, Judgment of 19 May 1992, ECLI:EU:C:1992:219, para 29; Case C‑487/06 P, British Aggregates v. Commission, Judgment of 22 December 2008, ECLI:EU:C:2008:757, para 91. Similarly, Treaty of Nice, signed 26 February 2001, entered into force 1 February 2003, OJ 2001 C80/78 with its Declaration No. 9, on which see Petit 2007.
- 96.
European Environment Agency 2005, p. 10.
- 97.
- 98.
Pallemaerts et al. 2007.
- 99.
See Case C‑440/05, Commission v. Council, Judgment of 23 October 2007, ECLI:EU:C:2007:625, para 60.
- 100.
See, e.g., Case C‑343/09, Afton Chemical, Judgment of 8 July 2010, ECLI:EU:C:2010:419, para 32; Case C‑77/09; Gowan Comércio Internacional e Serviços, Judgment of 22 December 2010, ECLI:EU:C:2010:803, para 71.
- 101.
See Case C‑524/07, Commission v. Austria, Judgment of 11 December 2008, ECLI:EU:C:2008:717, para 56.
- 102.
The Treaty of Lisbon, amending the Treaty on European Union and the Treaty establishing the European Community, signed 13 December 2007, entered into force 1 December 2009, OJ 2007 C306/1, considered sustainable development as operative on three levels—economic, social and environmental, as reflected in the expressed determination of member states to promote ‘economic growth’, ‘social progress’ and ‘a high level of protection and improvement of the quality of the environment’ (ibid., p. 11). Inspired by international climate change law, the European legislator incorporated the expression ‘climate change’ into the Lisbon Treaty (ibid., p. 87). The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), which form the primary law and constituent acts of the European organization, now provide a formal legal basis for European climate change law. Although European environmental policy dates back to 1972, it was thus not until 2007 (two years after the entry into force of the Kyoto Protocol) that climate change was introduced into primary law. With the Lisbon Treaty, the fight against climate change became a central objective in EU policy and development strategy.
- 103.
Charter of Fundamental Rights of the European Union, OJ 2007 C303/1.
- 104.
Ibid., p. 13.
- 105.
While this formulation is arguably preferable to no formulation at all, the loose language used illustrates the ‘significant challenges’ the drafters encountered during negotiation of the Charter. As a result, Article 37 is a principle rather than a subjective right and it cannot be invoked directly by individuals. See Commission Communication on the Charter of Fundamental Rights of the European Union, 13 September 2000, COM(2000)559 final, para 25. On the distinction between rights and principles in the Charter, see, e.g., Lazzerini 2017, p. 1076; Amalfitano 2018; Nascimbene 2021.
- 106.
Jacobs 2006, p. 195; Joined Cases 68/94 and 30/95, French Republic and Société commerciale des potasses et de l’azote (SCPA) and Entreprise minière et chimique (EMC) v. Commission, Judgment of 31 March 1998, ECLI:EU:C:1998:148, paras 223, 224; CFI, Case T-5/02, Tetra Laval BV v. Commission, ECLI:EU:T:2002:264 .
- 107.
De Sadeleer 2010, p. 32.
- 108.
Ibid. See also TFEU, Article 114(3) (the institutions ‘will … seek to achieve this objective’), 191(2) (Union environmental policy ‘shall aim at’ this objective).
- 109.
Case C-284/95, Safety Hi-Tech v. S. & T., Judgment of 14 July 1998, ECLI:EU:C:1998:352 and Case C-341/95, Bettati v. Safety Hi-Tech, Opinion of AG Léger, 3 February 1998, ECLI:EU:C:1998:353, para 67.
- 110.
As noted in Kramer 2011, p. 51, rather than giving a clear description of what constitutes a high level of protection, EU institutions prefer simply to state that a particular legislative act they are proposing or adopting affords a high level of protection, even when the level of protection proposed by the Commission is significantly reduced in the act as finally adopted.
- 111.
- 112.
CFI, Case T-74/00, Artegodan and Others v. Commission, Judgment of 26 November 2002, ECLI:EU:T:2002:283, paras 174, 183–186.
- 113.
Consolidated version of the Treaty establishing the European Community, OJ 2002 C325/33, p. 108 (‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.’).
- 114.
See Case C‐127/02, Waddenvereniging and Vogelsbeschermingvereniging, Judgment of 7 September 2004, ECLI:EU:C:2004:482, [2004] ECR I-7448, para 44. See also Case C-418/04, Commission v. Ireland, Judgment of 13 December 2007, ECLI:EU:C:2007:780, [2007] ECR I-10947, para 254.
- 115.
See TFEU, Article 114(3) (‘The Commission, in its proposals ... will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.’), 191(2), (3) (environmental policy as a whole to be informed by scientific data: ‘Union policy on the environment shall aim at a high level of protection ... . In preparing its policy on the environment, the Union shall take account of … available scientific and technical data ... .’).
- 116.
See C-341/95 and Case C-284/95.
- 117.
Misonne 2011, p. 118.
- 118.
Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ (L334) 17. A definition of ‘best available techniques’ is provided in Article 3(10); here, ‘“best” means most effective in achieving a high general level of protection of the environment as a whole’.
- 119.
ECJ, Case C-284/95, Safety Hi-Tech v. S. & T., Judgment of 14 July 1998, ECLI:EU:C:1998:352 para 48 and Case C-341/95, Bettati v. Safety Hi-Tech, [1998] ECR I-4304, para 46.
- 120.
Case T-229/04, Sweden v. Commission, Judgment of 11 July 2007, ECLI:EU:T:2007:217, paras 187–188.
- 121.
In its General Comment No. 3 of 14 December 1990, the UN Committee on Economic, Social and Cultural Rights (CESCR) cautioned against ‘any deliberately retrogressive measures’ (para 9); in other words, a human right cannot be restrained, destroyed or repealed once it has been recognized. This is a position common to all major international instruments on human rights—e.g. 1948 Universal Declaration of Human Rights (Article 30), 1950 European Convention on Human Rights (Articles 17 and 53), 1966 International Covenant on Civil and Political Rights (Article 5), as well as the 1966 International Covenant on Economic, Social and Cultural Rights (Article 5). Beyond human rights law, the unacceptability of any reversal of established rights has also been affirmed in international environmental law through such wording as ‘improving the environment’ and ‘conserve, protect and restore the health and integrity of the Earth’s ecosystem’, used in Principle 7 of the 1992 Rio Declaration on Environment and Development, or provisions prohibiting any reduction in the level of environmental protection, as found in the 1994 North American Agreement on Environmental Cooperation. For recent critical reflection on this matter, see Vordermayer-Riemer 2020; Prieur 2018, pp. 251–259.
- 122.
European Parliament resolution of 29 September 2011 on developing a common EU position ahead of the United Nations Conference on Sustainable Development (Rio+20), OJ 2013 C56E/106, para 97.
- 123.
Misonne 2011, p. 72.
- 124.
Case C-284/95, Safety Hi-Tech v. S. & T., Judgment of 14 July 1998, ECLI:EU:C:1998:352, para 49.
- 125.
Misonne and Ost 2013. See Case C‐127/07, Société Arcelor Atlantique et Lorraine and Others, Judgment of 16 December 2008, ECLI:EU:C:2008:728, para 58.
- 126.
Case C-122/07 P, Eurostrategies SPRL v. Commission, Order of 29 November 2007, ECLI:EU:C:2007:743, [2007] ECR I-00179, para 56.
- 127.
Case T-70/99, Alpharma v. Council, Judgment of 11 September 2002, ECLI:EU:T:2002:210, ECR 2002 II-03495.
- 128.
Case C-180/96, United Kingdom v. Commission, Judgment of 5 May 1998, ECLI:EU:C:1998:192, ECR 1998 I-02265. See also Case C-318/98, Fornasar and Others, Judgment of 22 June 2000, ECLI:EU:C:2000:337, para 37 (‘By virtue of [the principle of preventive action and the precautionary principle], it is for the Community and the Member States to prevent, reduce and, in so far as is possible, eliminate from the outset, the sources of pollution or nuisance by adopting measures of a nature such as to eliminate recognised risks’).
- 129.
Misonne 2011, pp. 313–314.
- 130.
Misonne and Ost 2013, p. 362.
- 131.
Misonne 2011, p. 294.
- 132.
Misonne and Ost 2013, p. 360.
- 133.
Ibid., p. 361.
- 134.
Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, OJ 2006 L190/1.
- 135.
Case C-1/11, Interseroh Scrap and Metals Trading, Judgment of 29 March 2012, ECLI:EU:C:2012:194, paras 7, 8.
- 136.
Case C-127/07, Arcelor Atlantique and Lorraine and others, Judgment of 16 December 2008, ECLI:EU:C:2008:728.
- 137.
Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ (L275) 32, as last amended by Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the greenhouse gas emission allowance trading scheme of the Union and amending Directive 2003/87/EC, OJ (L264) 1.
- 138.
One would be hard put, however, to find an environmental case that refers to the Rio Declaration on Environment and Development or to the Stockholm Declaration of the United Nations Conference on the Human Environment.
- 139.
EU Commission, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Green Deal, 11 December 2019, COM(2019)640 final. The Commission presented the legislative means by which the Union was to deliver on the targets agreed in the European Climate Law. This was to be achieved through a combination of: (i) application of emissions trading to new sectors and a tightening of the existing EU Emissions Trading System; (ii) increased use of renewable energy; (iii) greater energy efficiency; (iv) a faster roll-out of low emission transport modes and the infrastructure and fuels to support them; (v) an alignment of taxation policies with the European Green Deal objectives; (vi) measures to prevent carbon leakage; and (vii) tools to preserve and grow natural carbon sinks. The means proposed comprised revision of the EU Emissions Trading System (EU ETS) (https://ec.europa.eu/clima/eu-action/eu-emissions-trading-system-eu-ets_en. Accessed 13 May 2022); the Effort Sharing Regulation to assign strengthened emissions reduction targets to each member state for buildings, road and domestic maritime transport, agriculture, waste and small industries (Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2018/842 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement, COM(2021)555 final); the Regulation on Land Use, Forestry and Agriculture to set an overall EU target for carbon removals by natural sinks (Proposal for a Regulation of the European Parliament and of the Council amending Regulations (EU) 2018/841 as regards the scope, simplifying the compliance rules, setting out the targets of the Member State for 2030 and committing to the collective achievement of climate neutrality by 2035 in the land use, forestry and agriculture sector, and (EU) 2018/1999 as regard for improvements in monitoring, reporting, tracking of progress and review, COM(2021)554 final); the Renewable Energy Directive to set an increased target of producing 40 per cent of energy from renewable sources by 2030 (Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2018/2001 of the European Parliament and of the Council, Regulation (EU) 2018/1999 of the European Parliament and of the Council and Directive 98/70/EC of the European Parliament and of the Council as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652, COM(2021)557 final); the Energy Efficiency Directive (Proposal for a Directive of the European Parliament and of the Council on energy efficiency (recast), COM(2021)558 final); the Alternative Fuels Infrastructure Regulation (Proposal for a Regulation of the European Parliament and of the Council on the deployment of alternative fuels infrastructure, and repealing Directive 2014/94/EU of the European Parliament and of the Council, COM(2021)559 final); and the Energy Taxation Directive (Proposal for a Council Directive restructuring the Union framework for the taxation of energy products and electricity (recast), COM(2021)563 final); as well as the introduction of the ReFuelEU Aviation initiative (Proposal for a Regulation of the European Parliament and of the Council on ensuring a level playing field for sustainable air transport, COM(2021)561 final); and a new Carbon Border Adjustment Mechanism (Proposal for a Regulation of the European Parliament and of the Council establishing a carbon border adjustment mechanism, COM(2021)564 final).
- 140.
EU Commission, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Green Deal, 11 December 2019, COM(2019)640 final, p. 2.
- 141.
Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No. 401/2009 and (EU) 2018/1999 (‘European Climate Law’), OJ (L243) 1.
- 142.
This was the target communicated to the UNFCCC in December 2020 as the EU’s contribution to meeting the goals of the Paris Agreement. Union greenhouse gas emissions decreased by 24 per cent between 1990 and 2019, while the economy grew by 60 per cent over the same period.
- 143.
The Paris Agreement was adopted on 12 December 2015 at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC), held in Paris between 30 November and 13 December 2015, and entered into force on 4 November 2016. Article 2(1)(a) lists as one of its goals: ‘Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change’. For more on the UNFCCC, see Chap. 3.
- 144.
Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088, OJ (L198) 13.
- 145.
Ibid., Article 9. The Climate Delegated Act, which was formally adopted in June 2021, provides details on the technical screening criteria (TSC) for determining whether an economic activity makes a substantial contribution to the climate change mitigation or adaptation objectives and whether it does no significant harm to the other environmental objectives. The European Commission will develop further delegated acts for activities contributing substantially to the remaining four objectives. It is also considering how to treat nuclear energy and natural gas, and whether the taxonomy should extend to social objectives. Unfortunately, ‘for several sectors covered by the climate mitigation and adaptation delegated act, the principle that is supposed to prevent harmful activities rarely goes beyond reiterating the rules which every actor is anyway legally obliged to comply with, especially on biodiversity … . The criteria fall far short of what was proposed by the Technical Expert Group (TEG) in March 2020, thus compromising what should be an effective safeguard based on latest available science and evidence and a way to distinguish sustainable investments from those which are merely legally tolerated.’ Green 10 and Euronatur (2021) EU funds should never harm nature, climate or the environment: Statement of the Green 10 on the ‘do no significant harm’ principle, https://green10.org/wp-content/uploads/2021/11/Statement-of-the-Green-10-on-the-do-no-significant-harm-principle.pdf. Accessed 23 January 2022.
- 146.
See EU Technical Expert Group on Sustainable Finance 2020.
- 147.
Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Free Trade Agreement (EUSFTA) delivered on 16 May 2017, ECLI:EU:C:2017:376.
- 148.
Proposal for a Council Decision concerning the conclusion of the Framework Convention on Climate Change, COM(92)508 final. For the Kyoto Protocol, by contrast, the choice of legal basis was changed during the procedure leading to the decision to enter into the agreement. In its proposal for the decision, the Commission suggested Article 174(4) TEC (Article 191(4) TFEU) as the legal basis. However, the Commission modified its proposal in the wake of European Court of Justice’s Opinion 2/00 and instead based the Community’s competence on Article 175(1) TEC. See Proposal for a Council Decision concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder, OJ 2002 C75E/17, general remark (11).
- 149.
See Proposal for a Council Directive introducing a tax on carbon dioxide emissions and energy, COM(92)226 final.
- 150.
Opinion 1/76 of 26 April 1977 on the compatibility of the draft Agreement on the establishment of a European Laying-up Fund for Inland Waterway Vessels with the EEC Treaty, [1977] ECR 751. See Dutheil de La Rochère 1995.
- 151.
Council Decision 94/69/EC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change, OJ (L33) 11.
- 152.
- 153.
See Von Lucke 2021.
- 154.
A Commission press release insisted on the need to ‘avoid an irresponsible attitude to the management of the environment and the use of natural resources which would irreversibly jeopardize the environment that we have inherited, to the detriment of our children and our children's children’. See European Commission, A Community Strategy to Limit Carbon Dioxide Emissions and Improve Energy Efficiency, Press Release P/92/29, 13 May 1992, https://ec.europa.eu/commission/presscorner/detail/en/P_92_29. Accessed 28 May 2022. See also Chap. 3.
- 155.
Ibid.
- 156.
Oberthür and Dupont 2011.
- 157.
Commission (1997) Communication from the Commission on Environment and Employment (Building a Sustainable Europe), COM(97)592 final, p. 4.
- 158.
Commission (2009) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Towards a Comprehensive Climate Change Agreement in Copenhagen, COM(2009)39 final, p. 3. This would also necessitate emission reductions by developed countries of 25–40 per cent before 2020 and 80–95 per cent by 2050 (ibid., p. 4). See also Commission, 2020 Climate & Energy Package, https://ec.europa.eu/clima/eu-action/climate-strategies-targets/2020-climate-energy-package_en. Accessed 9 June 2020.
- 159.
Council of the European Union (2015) EU position for the UN climate change conference in Paris: Council conclusions, Press release 657/15, pp. 2–3.
- 160.
- 161.
European Commission (2021) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Forging a Climate-Resilient Europe—The New EU Strategy on Adaptation to Climate Change, COM(2021)82 final.
- 162.
- 163.
Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part. This is the authentic and definitive text of the agreement which replaces ab initio 22020A1231(01). OJ (L 149) 10.
- 164.
But see Lee 2000, pp. 291–292, underlining how ‘claiming an environmental component to a recognized human right is to give a new component of a presently recognized right the same legal footing as the recognized definition’. For this recognition to be accepted, the new component must develop as a principle of customary international law, or else be accepted through a convention or binding multilateral treaty) as it would be irrational for human rights law to provide less protection in the environmental scenario than it does in the case of non-environmental deprivations of life; Desgagné 1995, p. 269, arguing that ‘[i]n view of the fact that the obligation to respect the right to life encompasses avoidance of serious risks to human life, the source of such risks should not be relevant’.
- 165.
Anderson 1996, p. 4. See also Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/1I.96, Doc. 10 rev. 1 (24 April 1997), ch. VIII, http://www.cidh.org/countryrep/ecuador-eng/index%20-%20ecuador.htm. Accessed 26 May 2022, where it was specified that ‘[c]onditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being’.
- 166.
See, e.g., ECtHR, Factsheet: Environment and the European Convention on Human Rights, https://echr.coe.int/documents/fs_environment_eng.pdf. Accessed 9 June 2022.
- 167.
See International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted 16 December 1966, entered into force 3 January 1976, Article 12(2) (‘The steps to be taken by the States Parties to the present Covenant to achieve the full realization of [the right of everyone to the enjoyment of the highest attainable standard of physical and mental health] shall include those necessary for . . . [t]he improvement of all aspects of environmental and industrial hygiene … .’). In General Comment No. 12, UN Doc. E/C.12/1999/5, paras 7, 8, 28, the United Nations Committee on Economic, Social, and Cultural Rights explicitly recognizes the links between the right to food and environmental conditions. Although routinely cited as evidence of an emerging right to a healthy environment, it is perhaps more appropriate to read this language as a recognition of the entwined nature of a healthy environment, an adequate food supply and healthy people. See also Convention on the Elimination of All Forms of Discrimination Against Women, Articles 12, 14(2)(b); Convention on the Rights of the Child, Article 24; Convention on the Rights of Persons with Disabilities, Article 16; International Convention on the Elimination of All Forms of Racial Discrimination, Article 5(e)(iv).
- 168.
See Inter-American Court of Human Rights, Moiwana Village v. Suriname, Preliminary Objections, Merits, Reparation and Costs, Judgment of 15 June 2005, Series C No. 124, https://www.corteidh.or.cr/docs/casos/articulos/seriec_124_ing.pdf. Accessed 9 June 2022; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparation and Costs, Judgment of 31 August 2001, Series C No. 79, https://www.corteidh.or.cr/docs/casos/articulos/seriec_79_ing.pdf. Accessed 9 June 2022; Inter-American Commission on Human Rights, Resolution 12/85, Case No. 7615, Coulter et al. v. Brazil (Yanomami), 5 March 1985, OEA/Ser.L/V/1I.66, Doc. 10 rev. 1, http://www.cidh.org/annualrep/84.85eng/Brazil7615.htm. Accessed 9 June 2022.
- 169.
See UN Human Rights Council 2013.
- 170.
See Atapattu 2002.
- 171.
See Picolotti and Taillant 2003.
- 172.
- 173.
Ibid.
- 174.
- 175.
ECtHR, Tătar v. Romania, App. No. 67021/01, Judgment of 27 January 2009, para 107 (‘un environnement sain et protégé)’; Di Sarno and Others v. Italy, App No. 30765/08, Judgment of 10 January 2012, para 110 (‘safe and healthy environment’).
- 176.
ECtHR, Flamenbaum and Others v. France, App. Nos. 3675/04 and 23264/04, Judgment of 13 December 2012, para 113.
- 177.
ECtHR, Okyay and Others v. Turkey, App. No. 36220/97, Judgment of 12 July 2005, paras 65, 67.
- 178.
See ECtHR, Öneryildiz v. Turkey, App. No. 48939/99, Judgment 30 November 2004, paras 89–90, noting, in relation to a methane explosion at a nearby municipal waste dump, that ‘[t]he positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 [ECHR] ...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 ... . This obligation indisputably applies in the particular context of dangerous activities, where, in addition, 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.’ Furthermore, the Court held that where the loss of life is the result of reckless or intentional conduct on the part of state authorities, ‘the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative’ (para 93). On the evidence before it, the Court found that the public authorities in question were fully aware of the serious risk of methane explosion (with resultant loss of life and property damage) and failed to take adequate preventative measures (paras 100–107). As a result, the substantive component of the Article 2 right to life was violated (para 110). Further, the failure to bring criminal proceedings against those responsible for the deaths in question represented a violation of the procedural component of Article 2 (paras 116–118).
- 179.
UN Human Rights Committee 2018.
- 180.
UN Human Rights Committee, Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication No. 167/1984, Views adopted 26 March 1990, UN Doc. CCPR/C/38/D/167/1984, para 33. But see also Ilmari Lansman et al. v. Finland, Communication No. 511/1992, Views adopted 26 October 1994, UN Doc. CCPR/C/52/D/511/1992; Jouni Länsman et al. v. Finland, Communication No. 671/1995, Views adopted 30 October 1996, UN Doc. CCPR/C/587/D/671/1995; Jouni Länsman et al. v. Finland, Communication No. 1023/2001, Views adopted 17 March 2005, UN Doc. CCPR/C/83/D/1023/2001; Mahuika v. New Zealand, Communication No. 547/1993, Views adopted 27 October 2000, UN Doc. CCPR/C/70/D/547/1993; Ángela Poma v. Peru, Communication No. 1457/2006, Views adopted 27 March 2009, UN Doc. CCPR/C/95/D/1457/2006.
- 181.
UN Human Rights Committee 2018, para 26.
- 182.
General Comment on Article 6 (Cont’d)—3323rd meeting 118th Session of Human Rights Committee, 26 October 2016, https://media.un.org/en/asset/k1u/k1u32uc95t. Accessed 31 May 2022, Special Rapporteur Mr Yuval Shany, 1.23.41 min, also related to para 26 of the General Comment itself.
- 183.
See International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted 16 December 1966, entered into force 3 January 1976, which recognized a right to health in Article 12, plus a separate implicit right to a healthy environment based on a combined reading of Arts 1 (right to self-determination and right to freely dispose of natural wealth and resources), 7 (right to decent, safe and healthy living and working conditions), 11 (right to adequate standard of living, including food and housing, and right to the continuous improvement of living conditions), 12 (right to health, including all aspects of environmental and industrial hygiene) and 15 (right to the benefits of scientific progress and its applications). See UN Committee on Economic, Social and Cultural Rights 2000, para 4.
- 184.
UN Committee on Economic, Social and Cultural Rights 2000, para 11.
- 185.
Ibid., para 15.
- 186.
Ibid., para 36.
- 187.
UN Committee on Economic, Social and Cultural Rights 2003, para 28.
- 188.
Ibid.
- 189.
Ibid.
- 190.
Ibid., para 21.
- 191.
UN OHCHR, Five human rights bodies issue a joint statement on human rights and climate change, 16 September 2019, paras 1–2 of the section entitled ‘States’ Human Rights Obligations’, https://www.ohchr.org/en/statements/2019/09/five-un-human-rights-treaty-bodies-issue-joint-statement-human-rights-and?LangID=E&NewsID=24998. Accessed 9 June 2022.
- 192.
Preparatory Committee for the United Nations Conference on the Human Environment (1972) Report of the Preparatory Committee on the Fourth Session, UN Doc. A/Conf.48/PC/17, para 77. See also Collins 2015, p. 229; Sohn 1973; Popovic 1996, p. 504. The Rio Declaration signalled global recognition of the fact that human activity was undermining the integrity of natural systems on which human life and society depend, though it did not affirm an explicit human right to a healthy environment, as proposed language to this effect was rejected (see Shelton 1992). During the years following Rio, state practice in the international arena remained aligned with this position: no such fundamental right was mentioned in international environmental treaty negotiations, whether they concerned access to environmental information, greenhouse gas emissions or persistent organic pollutants. See Aarhus Convention above n; 6; United Nations Framework Convention on Climate Change (UNFCCC), adopted June 1992, 1771 UNTS 107, entered into force 21 March 1994; Kyoto Protocol to UNFCCC, adopted 11 December 1997, 2303 UNTS 162, entered into force 16 February 2005; Stockholm Convention on Persistent Organic Pollutants, adopted 22 May 2001, 2256 UNTS 119.
- 193.
Preliminary report on human rights and the environment prepared by Mrs Fatma Zohra Ksentini, Special Rapporteur, UN Commission on Human Rights pursuant to Resolutions 1990/7 and 1990/27 of Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1991/8, para 25. Since the 1990s, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Economic and Social Council Commission on Human Rights has included the issue of human rights and the environment on its agenda. See, e.g., Sub-Commission Resolution 1989/12, adopted by Commission Resolution 1990/43, UN Doc. E/CN.4/1990/94; Sub-Commission Resolution 1989/108, UN Doc. E/CN.4/1990/2 & E/CN.4/Sub.2/1989/58 (commissioning of above study mentioned p. 73).
- 194.
Preliminary report by Mrs. Fatma Zohra Ksentini, Special Rapporteur, UN Commission on Human Rights pursuant to Resolutions 1990/7 and 1990/27 of Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1991/8, para 73.
- 195.
Ibid., para 101.
- 196.
UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities (1994) Final report on human rights and the environment prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1994/9, Annex I.
- 197.
Ibid., Principle 2.
- 198.
Ibid.
- 199.
Ibid., Principle 5.
- 200.
Ibid., Principle 6.
- 201.
Declaration of Bizkaia on the Right to the Environment, adopted 12 February 1999, UNESCO Doc. 30 C/INF.11, Article 1(1).
- 202.
Ibid., Article 2(1).
- 203.
UN Commission on Human Rights (2005) Draft Resolution, Promotion of a Democratic and Equitable International Order, UN Doc. E/CN.4/2005/L.73, para 4; UN Commission on Human Rights (2001) Resolution 2001/65: Promotion of a Democratic and Equitable International Order, para 3(k); UN Commission on Human Rights (2003) Resolution 2003/21: Effect of Structural Adjustment Policies and Foreign Debt on the Full Enjoyment of Human Rights, Particularly Economic, Social and Cultural Rights in Report to the Economic and Social Council on the Fifty-Ninth Session of the Commission, UN Doc. E/CN.4/2003/L.11/add.3, para 11.
- 204.
Malé Declaration on the Human Dimension of Climate Change, adopted 14 November 2007, preambular para 8.
- 205.
See Gormley 1990; Lee 2000; Turner 2004. See also Steiner 2010. Alternatively it could be incorporated in an additional protocol to an existing human rights treaty. For example, the right to a safe, clean, healthy and sustainable environment could be the focus of an optional protocol to the International Covenant on Economic, Social and Cultural Rights or the European Convention on Human Rights (Lambert 2020). Or it could be incorporated into the European Social Charter together with the right to food and water, while also extending the Charter’s scope in terms of persons protected (Appendix, Article 1). See position paper of 21 October 2020 on follow-up to the report and proposals of the CDDH, https://rm.coe.int/ecsr-position-paper-on-follow-up-to-the-report-and-proposals-of-the-cd/1680a0663a and Giuseppe Palmisano’s address to the Committee of Ministers, 25 November 2020, https://rm.coe.int/exchange-of-views-palmisano-cm-25-11-2020/1680a081f9 (accessed 10 June 2022), as well as Palmisano 2021. A third and potentially more expeditious approach would be for the General Assembly to adopt a resolution focused on the right to a healthy environment. A model could be the resolution in which the Assembly recognized the rights to water and sanitation, which, like the right to a healthy environment, were not explicitly recognized in United Nations human rights treaties but are clearly necessary to the full enjoyment of human rights. A preliminary political declaration on the basis of the Global Pact for the Environment, presented for consideration in 2017, refers to ‘the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment’ (Article 1); there are hopes it will be adopted in 2022. See UN General Assembly (2019) Resolution 73/333: Follow-up to the report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277, UN Doc. A/RES/73/333, https://undocs.org/en/A/RES/73/333. Accessed 10 June 2022.
- 206.
Gormley 1990.
- 207.
- 208.
Turner 2004.
- 209.
Macdonald 2008.
- 210.
- 211.
Gormley 1990.
- 212.
Ibid.
- 213.
UN Human Rights Council 2017.
- 214.
Turner 2004.
- 215.
Of the UN’s 193 member states, 106 have enshrined the right to a healthy environment in their domestic constitutions (94 explicitly and 12 through judicial interpretation of related rights), and a total of 143 nations recognize this right in either a constitution or a legally binding regional treaty. See Boyd 2012 (‘If one includes the Small Island States who signed the Malé Convention on the Human Dimension of Global Climate Change, 90 percent of UN Nations (174 of 193) recognize the right to a healthy environment.’).
- 216.
Turner 2004, p. 294.
- 217.
McClymonds 1992.
- 218.
United Nations Office of the High Commissioner for Human Rights (OHCHR), About human rights and the environment: Special Rapporteur on human rights and the environment, https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/AboutHRandEnvironment.aspx Accessed 11 June 2022.
- 219.
UN Human Rights Council (2021) Resolution 48/13: The human right to a clean, healthy and sustainable environment, UN Doc. A/HRC/RES/48/13. Following the Special Rapporteur’s recommendations, the Human Rights Council replaced ‘enjoyment of a safe, clean, healthy and sustainable environment’ with the much-anticipated wording ‘enjoyment of the right to a safe, clean, healthy and sustainable environment’, opening the way to formal recognition of this right by the UN General Assembly. The adoption of Resolution 48/13 represents the culmination of a process that started in 2011, when the Human Rights Council requested the OHCHR to prepare a study on human rights and the environment (UN Human Rights Council (2011) Resolution 16/11: Human rights and the environment, UN Doc. A/HRC/RES/16/11) and, to this end, appointed an independent expert to explore the subject further (UN Human Rights Council (2012) Draft resolution on human rights and the environment, UN Doc. A/HRC/19/L.8/Rev.1, para 2). Over the years, the Human Rights Council has served as an important platform for furthering the analysis of human rights obligations related to the enjoyment of a healthy environment. In this connection, the Special Rapporteur, relying on developments within ‘national courts, regional tribunals, treaty bodies, special procedures and many international institutions’ [UN General Assembly (2018) Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/73/188, para 29), has elaborated on the content, scope and parameters of this right, leading to the framework principles on human rights and the environment (UN Human Rights Council (2018) Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/37/59, Annex). These set out the basic (procedural and substantive) obligations of states under human rights law concerning the enjoyment of a healthy environment. The use of the word ‘enjoyment’ in several Human Rights Council resolutions in relation to a safe, clean, healthy and sustainable environment has been seen by some as a stepping-stone towards recognition of the healthy environment as a human right. See UN Human Rights Council (2012) Draft resolution on human rights and the environment, UN Doc. A/HRC/19/L.8/Rev.1, para 2; UN Human Rights Council (2016) Resolution 31/8: Human rights and the environment, UN Doc. A/HRC/RES/31/8.
- 220.
UN Human Rights Council (2021) Resolution 48/13: The human right to a clean, healthy and sustainable environment, UN Doc. A/HRC/RES/48/13, operative paras 1, 2.
- 221.
See Savaresi 2021.
- 222.
UN Human Rights Council (2021) Mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, UN Doc. A/HRC/48/L.27, https://documents-dds-ny.un.org/doc/UNDOC/LTD/G21/268/23/PDF/G2126823.pdf?OpenElement.A accessed 10 November 2021; UN Human Rights Council (2021) Resolution 48/14: Mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, UN Doc. A/HRC/RES/48/14.
- 223.
This was the final step following the eleven resolutions on human rights and climate change adopted by the UN Human Rights Council between 2008 and 2021 (see UN OHCHR, Human Rights Council resolutions on human rights and climate change, https://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/Resolutions.aspx. Accessed 11 June 2022) and the two reports of the UN Special Rapporteur, one in 2016 (UN Doc. A/HRC/31/52, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/015/72/PDF/G1601572.pdf?OpenElement. Accessed 11 June 2022) and the other in 2019 (UN Doc. A/74/161, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N19/216/42/PDF/N1921642.pdf?OpenElement. Accessed 11 June 2022). The Office of the High Commissioner on Human Rights has furthermore made a series of submissions (https://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/UNFCCC.aspx) to the climate regime’s treaty bodies (see UN OHCHR, Integrating human rights at the UNFCCC, https://www.ohchr.org/en/climate-change/integrating-human-rights-unfccc. Accessed 11 June 2022) on matters like the Warsaw International Mechanism for Loss and Damage (see Inputs of the Office of the High Commissioner for Human Rights to the 12th meeting of the Executive Committee of the Warsaw International Mechanism for Loss and Damage, 16 October 2020, https://unfccc.int/sites/default/files/resource/OHCHR%20Input.pdf. Accessed 11 June 2022) and the terms of reference of the Independent Redress Mechanism of the Green Climate Fund (see Comments of the Office of the High Commissioner for Human Rights on the Review of the Terms of Reference of the Independent Redress Mechanism of the Green Climate Fund, 2 February 2017, https://www.ohchr.org/Documents/Issues/ClimateChange/GCF2Feb2017.pdf. Accessed 11 June 2022).
- 224.
Statement by UN High Commissioner for Human Rights Michelle Bachelet on the COP-26 meeting on 28 October 2021. https://www.ohchr.org/en/2021/10/statement-un-high-commissioner-human-rights-michelle-bachelet-cop-26-meeting, accessed 12 November 2021.
- 225.
UN Human Rights Council (2021) Resolution 48/14: Mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, UN Doc. A/HRC/RES/48/14, preambular para 14.
- 226.
Ibid., preambular para 10.
- 227.
African Charter on Human and Peoples’ Rights, adopted 1 June 1981, entered into force 21 October 1986, https://au.int/en/treaties/african-charter-human-and-peoples-rights. Accessed 10 June 2022.
- 228.
Ibid., Article 24. Article 16 affirms that everyone has ‘the right to enjoy the best attainable state of physical and mental health’ and that states must take ‘the necessary measures to protect the health of their people’. See Sueli 2004, p. 387.
- 229.
African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, Communication No. 155/96, Decision of 27 October 2001, http://www.umn.edu/humanrts/africa/comcases/155-96.html. Accessed 10 June 2022; see paras 52, 53.
- 230.
Ibid., para 52.
- 231.
- 232.
African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, Communication No. 155/96, Decision of 27 October 2001, http://www.umn.edu/humanrts/africa/comcases/155-96.html. Accessed 10 June 2022, para 51.
- 233.
Ibid., para 54.
- 234.
Ibid., para 52.
- 235.
Ibid., para 53.
- 236.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted 1 July 2003, entered into force 25 November 2005, Articles 18, 19, https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa. Accessed 10 June 2022.
- 237.
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador, adopted 17 November 1988, Inter-American Commission on Human Rights, Basic Documents in the Inter-American System, https://www.oas.org/en/iachr/mandate/basic_documents.asp. Accessed 11 June 2022.
- 238.
Acevedo 2000, p. 462.
- 239.
Inter-American Court of Human Rights, Advisory Opinion OC-23/17 of 15 November 2017, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity: Interpretation and scope of Articles 4(1) and 5(1) in relation to Articles 1(1) and 2 of the American Convention on Human Rights), para 62.
- 240.
Organization of American States, Executive Secretariat for Integrative Development (2013) Progress indicators for measuring rights under the Protocol of San Salvador: Second group of rights, OAS Doc. OEA/Ser.L/XXV.2.1, GT/PSS/doc.9/13, para 26.
- 241.
Ibid., paras 29–34.
- 242.
Ibid., para 33.
- 243.
Ibid., para 38.
- 244.
American Declaration on the Rights of Indigenous Peoples, adopted 15 June 2016, OAS Doc. AG/RES. 2888 (XLVI-O/16).
- 245.
Social Charter of the Americas, adopted 4 June 2012, OAS Doc. AG/doc.5242/12 rev. 2, preamble.
- 246.
Ibid., Article 17.
- 247.
Ibid., Article 22.
- 248.
Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, adopted 4 March 2018, Article 4(1). Although signed by sixteen states, the Agreement is not yet in force.
- 249.
League of Arab States (2004) Arab Charter on Human Rights, Article 38, https://digitallibrary.un.org/record/551368. Accessed 11 June 2022.
- 250.
Amnesty International, ‘Human Rights in the Middle East and North Africa: Review of 2018’ (2019). www.amnesty.org. Accessed 9 May 2020.
- 251.
ASEAN Human Rights Declaration, adopted 19 November 2012, Article 28(f). https://asean.org/asean-human-rights-declaration/. Accessed 11 June 2022.
- 252.
Ibid., Article 35.
- 253.
See in this chapter, Sect. 1.2.
- 254.
ECtHR, Hatton and Others v. United Kingdom, App. No. 36022/97, Judgment of 8 July 2003, para 5.
- 255.
ECtHR, Taşkin and Others v. Turkey, App. No. 46117/99, Judgment 10 November 2004.
- 256.
Ibid., paras 26, 90, 117, 121, 129, 132, 133.
- 257.
See ECHR, preamble.
- 258.
ECtHR, Taşkin and Others v. Turkey, App. No. 46117/99, Judgment 10 November 2004, para 117.
- 259.
Ibid.
- 260.
Ibid., paras 127–138.
- 261.
Reference was made to the Rio Declaration and the Aarhus Convention and the major components of these rights (access to information, participation, access to justice) as well as to the relevant part of the Parliamentary Assembly of the Council of Europe’s Recommendation 1614 (2003).
- 262.
ECtHR, Tătar v. Romania, App. No. 67021/01, Judgment of 27 January 2009.
- 263.
Ibid., para 73.
- 264.
Ibid., para 109.
- 265.
Ibid., para 122.
- 266.
Ibid., paras 107 (the risk of a serious and substantial threat to health and well-being put the state under an obligation to adopt reasonable and adequate measures to protect individuals’ rights to respect for their private life, home and, more generally, the enjoyment of a healthy and protected environment), 109, 112, 122.
- 267.
ECtHR, López Ostra v. Spain, App. No. 16798/90, Judgment of 9 December 1994.
- 268.
ECtHR, Guerra and Others v. Italy, App. No. 116/1996/735/932, Judgment of 19 February 1998.
- 269.
ECtHR, Fadeyeva v. Russia, App. No. 55723/00, Judgment of 9 June 2005.
- 270.
ECtHR, Giacomelli v. Italy, App. No. 59909/00, Judgment of 2 November 2006.
- 271.
ECtHR, Dubetska and Others v. Ukraine, App. No. 30499/03, Judgment of 10 May 2011.
- 272.
For a tentative definition of what is covered by the right to a healthy environment, see Atapattu 2002, p. 111 (the right to a healthy environment would be violated by activities that make an environment unhealthy according to a standard established by a regional or international authority such as the World Health Organization), p. 73 (the right to a healthy environment must be independent of other existing rights); Lee 2000, p. 339.
- 273.
See ECtHR, Taşkin and Others v. Turkey, App. No. 46117/99, Judgment 10 November 2004, para 119; Giacomelli v. Italy, App. No. 59909/00, Judgment of 2 November 2006, para 83.
- 274.
ECtHR, see Guerra and Others v. Italy, App. No. 116/1996/735/932, Judgment of 19 February 1998,, para 60; McGinley and Egan v. United Kingdom, App. No. 10/1997/794/995-996, Judgment of 9 June 1998, para 97. See also Chap. 4.
- 275.
Parliamentary Assembly of the Council of Europe, Anchoring the right to a healthy environment: Need for enhanced action by the Council of Europe’, Resolution 2396 (2021). https://pace.coe.int/en/files/29499/html (accessed 14 May 2022) Recommendation 2211 (2021). https://pace.coe.int/en/files/29501. Accessed 14 May 2022.
- 276.
Resolution 2396 (2021) https://pace.coe.int/en/files/29499/html. Accessed 14 May 2022, para 8.
- 277.
Ibid., para 9.
- 278.
Proposed text of additional protocol to European Convention on Human Rights concerning the right to a safe, clean, healthy and sustainable environment, Article 1. See Parliamentary Assembly, Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe, Report of Special Rapporteur Simon Moutquin, Doc. 15367, 13 September 2021. https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=29409&lang=en. Accessed 3 June 2022.
- 279.
Ibid., Draft resolution, para 9.
- 280.
Ibid., preamble to proposed text of additional protocol.
- 281.
Case C-176/03, Commission of the European Communities v. Council of the European Union, Judgment of 13 September 2005, ECLI:EU:C:2005:542, para 41.
- 282.
Case C-176/03, Commission of the European Communities v. Council of the European Union, Opinion of AG Ruiz-Jarabo, 26 May 2005, ECLI:EU:C:2005:311.
- 283.
Ibid., para 66.
- 284.
Ibid., para 67.
- 285.
Ibid., para 68.
- 286.
Ibid., para 70.
- 287.
Case C-366/10, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change, Judgment of 21 December 2011, ECLI:EU:C:2011:864, paras 125, 128.
- 288.
See Quirico 2016, p. 299.
- 289.
EU Charter of Fundamental Rights, preamble. Human dignity, freedom and equality are the other three values.
- 290.
Nivard 2012, p. 22.
- 291.
The distinction between subjective and objective justiciability is taken from Braibant 2001.
- 292.
Ibid., p. 21.
- 293.
Regulation (EC) No. 2493/2000 of the European Parliament and of the Council of 7 November 2000 on measures to promote the full integration of the environmental dimension in the development process of developing countries, OJ (L288) 1, Article 2.
- 294.
Renewed EU Sustainable Development Strategy, as adopted by the European Council on 15–16 June 2006, https://data.consilium.europa.eu/doc/document/ST-10917-2006-INIT/en/pdf. Accessed 11 June 2022.
- 295.
Latour 2009.
- 296.
- 297.
For cases in which NGOs obtained the annulment of acts through which institutions and agencies of the EU refused them access to documents, see C-57/16 P, ClientEarth v. Commission, ECLI:EU:C:2018:660; C-615/13 P, ClientEarth and Pesticide Action Network Europe (PAN Europe) v. EFSA, ECLI:EU:C:2015:489. However, instituting proceedings against legislative or regulatory acts or, more generally, against acts of which the NGOs are not the addressees is particularly difficult due to the settled case law of the Court (Case C-25/62, Plaumann v. Commission, ECLI:EU:C:1963:17) which, while not relating to the environment, is of general application. (For a recent example of application of this case law in an environment-related action see GCEU, T-330/18, Carvalho and Others v. European Parliament and Council of the EU, ECLI:EU:T:2019:324.) Greenpeace failed in its effort to obtain a less restrictive interpretation of ‘individual concern’ in environmental matters; see T-585/93, Stichting Greenpeace Council (Greenpeace International) and Others v. Commission, Order of 9 August 1995, ECLI:EU:T:1995:147; C-321/95 P, Stichting Greenpeace Council (Greenpeace International) and Others v. Commission, Judgment of 2 April 1998, ECLI:EU:C:1998:153. Under Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation (EC) No. 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters to Community Institutions and Bodies, OJ (L356) 6, NGOs have the right, with regard to regulatory acts which do not entail implementing measures, to request an internal review of regulatory acts that do not entail implementing measures by the EU institution which adopted the act and, if the institution refuses to withdraw or amend the act, to challenge this this refusal before the ECJ. A request for an internal review may also be made by members of the public on condition that they collectively demonstrate the existence of a public interest in preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilization of natural resources or in combatting climate change and that their request for review is supported by a sufficient number of natural or legal persons across the Union through the collection of signatures physically or digitally.
- 298.
See Council Directive 92/43/EEC 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ (L206) 7. The system of protection must include prohibitions of all forms of deliberate capture or killing of specimens of these species in the wild; deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; deliberate destruction or taking of eggs from the wild; deterioration or destruction of breeding sites or resting places.
- 299.
EU environmental legislative acts in fact generally impose positive obligations to take measures to protect—and negative obligations to refrain from harming—various aspects of the environment such as air (Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe OJ (L152) 1) and water (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ (L327) 1).
- 300.
- 301.
The EU 2020 biodiversity strategy (Our life insurance, our natural capital: an EU biodiversity strategy to 2020, COM(2011)244) recognized ‘biodiversity’s intrinsic value’, while the new 2030 biodiversity strategy (EU Biodiversity Strategy for 2030: Bringing nature back into our lives, COM(2020)380) chose other language, recognizing instead the ‘intrinsic connection between human health, animal health and healthy resilient nature’.
- 302.
Case C-88/19, Aliantţa pentru combaterea abuzurilor v. TM and Others, Judgment of 11 June 2020, ECLI:EU:C:2020:458.
- 303.
Ibid., para 39.
- 304.
Ibid., para 50.
- 305.
- 306.
CRC, Article 24(2)(c).
- 307.
World Declaration on the Survival, Development and Protection of Children, para 20(9); see UN General Assembly (1990) Ceremony for the Presentation of the Declaration and Plan of Action Adopted by World Leaders at the World Summit for Children: Note by the Secretary-General, UN Doc. A/45/625, Annex.
- 308.
UN General Assembly (1996) Resolution 50/81: World Programme of Action for Youth to the Year 2000 and Beyond, UN Doc. A/RES/50/81, p. 9, para 20.
- 309.
UN General Assembly (2002) Resolution S-27/2: A world fit for children, UN Doc. A/RES/S-27/2, para 7(10) (‘We must safeguard our natural environment, with its diversity of life, its beauty and its resources, all of which enhance the quality of life, for present and future generations. We will give every assistance to protect children and minimize the impact of natural disasters and environmental degradation on them.’).
- 310.
UN Human Rights Council (2016) Resolution 32/33: Human rights and climate change, UN Doc. A/HRC/RES/32/33, preambular para 13.
- 311.
UN Human Rights Council (2017) Resolution 35/20: Human rights and climate change, UN Doc. A/HRC/RES/35/20, preambular para 28.
- 312.
UN General Assembly, Human Rights Council, 35th session, Analytical study on the relationship between climate change and the full and effective enjoyment of the rights of the child, UN Doc. A/HRC/35/13, 4 May 2017. https://undocs.org/en/A/HRC/35/13, operative para 3.
- 313.
UNICEF 2015.
- 314.
UN Human Rights Council (2016) Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, UN Doc. A/HRC/33/41.
- 315.
UN Human Rights Council (2017) Analytical study on the relationship between climate change and the full and effective enjoyment of the rights of the child, UN Doc. A/HRC/35/13, https://undocs.org/en/A/HRC/35/13. See also UN General Assembly, Human Rights Council, 35th session, Analytical study on the relationship between climate change and the full and effective enjoyment of the rights of the child, UN Doc. A/HRC/35/13, 4 May 2017. https://undocs.org/en/A/HRC/35/13, operative para 5.
- 316.
- 317.
UN Committee on the Rights of the Child 2016b.
- 318.
Ibid., p. 5.
- 319.
See UN OHCHR, The UN Committee on the Rights of the Child commits to a new General Comment on Children’s Rights and the Environment with a Special Focus on Climate Change, 4 June 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27139&LangID=E. Accessed 11 June 2022
- 320.
UN Human Rights Council (2018) Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/37/58, para 15.
- 321.
See UN Committee on the Rights of the Child 2013a, para 19; UN Committee on the Rights of the Child 2009b, para 100 (‘Children, including young children, should be included in decision-making processes, in a manner consistent with their evolving capacities.’). On the use of ‘evolving capacities’ as an enabling principle, an interpretative principle and a policy principle, see Varadan 2019.
- 322.
UN Committee on the Rights of the Child 2016a, para 3.
- 323.
UN Committee on the Rights of the Child 2005a, para 36.
- 324.
UN Committee on the Rights of the Child 2005b, paras 16, 20, 31, 40, 47 68, 90, 23 (‘Separated and unaccompanied children are vulnerable to various risks that affect their life, survival and development, such as trafficking for purposes of sexual or other exploitation or involvement in criminal activities which could result in harm to the child, or in extreme cases, in death. Accordingly, Article 6 necessitates vigilance by States Parties in this regard, particularly when organized crime may be involved.’).
- 325.
UN Committee on the Rights of the Child 2013b, para 75.
- 326.
UN Committee on the Rights of the Child 2007, para 6.
- 327.
Ibid., para 39.
- 328.
UN Committee on the Rights of the Child 2013b; UN Human Rights Council (2018) Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/37/58, para 24. On those affected by HIV, see also UN Committee on the Rights of the Child 2003a.
- 329.
UN Committee on the Rights of the Child 2014, paras 52(b), 53(b).
- 330.
UN Committee on the Rights of the Child 2009b, para 34 (referring explicitly to the right to development, as opposed to a broad and vague reference to development, which is the Committee’s usual practice when expressing its concern that, due to the particular vulnerability of indigenous children and to the high level of poverty among them, discrimination could impact not only their survival and development but also their right to an adequate standard of living.
- 331.
UN Committee on the Rights of the Child 2013c, para 299.
- 332.
UN Committee on the Rights of the Child 2011, paras 43(ii), 48, 72(g). The Committee on Economic, Social and Cultural Rights takes a less wide-ranging view; those children it considers as particularly vulnerable include children with disabilities, children from minorities, children seeking asylum, refugee children, children in hospital, children in care, children deprived of their personal liberty, undocumented children, pregnant teenagers and teenage mothers. See UN Committee on Economic, Social and Cultural Rights, Mental Impairment Advocacy Center (MDAC) v. Bulgaria, Complaint No. 41/2007, Decision on the merits of 3 June 2008. Interestingly, the Committee for the Elimination of the Racial Discrimination has focused instead on the African context, highlighting the situation of children of African descent and the fact that their particular vulnerability may lead to the transmission of poverty from generation to generation (UN Committee on the Elimination of Racial Discrimination (2011) General Recommendation No. 34: Racial discrimination against people of African descent, para 25).
- 333.
UN Committee on the Rights of the Child 2003b, UN Doc. CRC/GC/2003/4, paras 30–34.
- 334.
See UN Committee on the Rights of the Child 2013c, para 51.
- 335.
See, e.g., UN Committee on the Rights of the Child 2003b, para 38; UN Committee on the Rights of the Child 2006, paras 670–672; UN Committee on the Rights of the Child (2005) Report on the fortieth session (Geneva, 12 to 30 September 2005), UN Doc. CRC/C/153, paras 670–672 (Report of day of general discussion on children without parental care). On undocumented migrant children, with reference to a different lexicon, see Ringaert and Vandenhole 2017, p. 212.
- 336.
Sandberg 2015 at 236.
- 337.
See UN Committee on the Rights of the Child 2009a that made explicit references to the right to development that it makes, as opposed to merely referring to the broad, and vague, ‘development’ of the child, as the Committee usually does when it expresses its concern that, due to the particular vulnerability of indigenous children and to the high level of poverty among them, discrimination could not only impact their ‘survival and development’, but also their right to an adequate standard of living (para 34).
- 338.
UN Committee on the Rights of the Child 2013c, para 299.
- 339.
UN Committee on the Rights of the Child 2011, paras 43(ii), 48, 72(g). Less variety in the ESC Committee which included among particularly vulnerable children, beside children with disabilities, children from minorities, children seeking asylum, refugee children, children in hospital, children in care and children deprived of their personal liberty and undocumented children, pregnant teenagers, teenage mothers. See ESC Committee, Mental Impairment Advocacy Center (MDAC) v. Bulgaria, Complaint No. 41/2007, decision on the merit of 3 June 2008. Interestingly, the Committee for the Elimination of the Racial Discrimination has instead essentially focused on the African context and on the consideration of particular vulnerability only for children of African descent, on the basis that it may lead to the transmission of poverty from generation to generation (CERD Committee, General Recommendation No. 34 of 2011 Section VI, para 25).
- 340.
UN Committee on the Rights of the Child, Sacchi et al. v. Argentina, Brazil, France, Germany and Turkey, Communications Nos 104/2019–108/2019, Decisions adopted 22 September 2021.
- 341.
- 342.
See WHO Global Plan for Action on Children’s Health and the Environment (2010–2015), https://www.who.int/docs/default-source/child-health/global-plan-of-action-for-children%27s-health-and-the-environment-%282010-2015%29.pdf. Accessed 12 June 2022, p. 1: ‘Each year, at least 3 million children under the age of five die due to environment-related diseases’; Bearer 1995, pp. 11–12.
- 343.
UNICEF 2012, p. 61.
- 344.
- 345.
Boyle 1998, pp. 48–49.
- 346.
Taylor 1998, p. 311.
- 347.
See Shelton 1991, pp. 133–134.
- 348.
See, e.g., UN Committee on Economic, Social and Cultural Rights 2000, paras 18, 37, 43(a); UN Committee on Economic, Social and Cultural Rights 2003, para 7; UN Committee on Economic, Social and Cultural Rights 2008, paras 23, 28; UN Committee on Economic, Social and Cultural Rights 2005; UN Committee on Economic, Social and Cultural Rights 2009; UN Committee on Economic, Social and Cultural Rights 2020, paras 2, 5; UN Committee on Economic, Social and Cultural Rights 2019, paras 6–10. On international assistance and cooperation, see, e.g., UN Committee on Economic, Social and Cultural Rights 1990, paras 13–14; UN Committee on Economic, Social and Cultural Rights 1999, paras 36–41; UN Committee on Economic, Social and Cultural Rights 2000, paras 38–42, 45; UN Committee on Economic, Social and Cultural Rights 2003, paras 30–36, 38; UN Committee on Economic, Social and Cultural Rights 2017, paras 11, 30–35; UN Committee on Economic, Social and Cultural Rights 2016, paras 7–9.
- 349.
Hart 1982.
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Ippolito, F. (2023). Setting the Scene: From the Environment as an Object To Be Protected Towards an Environmental Right(s)-Based Approach—International and EU Law Perspectives. In: Children’s Environmental Rights Under International and EU Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-547-8_1
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