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Published online by Cambridge University Press: 27 October 2017
The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.
1 From a voluminous literature, see, for example, Miller, C, Environmental Rights: Critical Perspectives (Oxford, Routledge, 1998)Google Scholar; Boyle, A and Andersen, M (eds), Human Rights Approaches to Environmental Protection (Oxford, Clarendon Press, 1996)Google Scholar; DeMerieux, M, ‘Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2001) 21 Oxford Journal of Legal Studies 521 CrossRefGoogle Scholar; Miller, C, ‘Environmental Rights in a Welfare State? A Comment on DeMerieux’ (2003) 23 OJLS 111 CrossRefGoogle Scholar; Boyle, A, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471 Google ScholarPubMed; Thornton, J and Tromans, S, ‘Human Rights and Environmental Wrongs’ (1999) 11 Journal of Environmental Law 35 CrossRefGoogle Scholar.
2 The article that comes closest is DeMerieux, above n 1. However, although this discusses many of the relevant risk cases, it does so only incidentally as part of an Article-by-Article assessment of the ECHR for environmental rights.
3 On liberalism, information and choice, see further Lewis, N, Choice and the Legal Order: Rising Above Politics (London, Butterworths, 1996)Google Scholar.
4 See, eg, Hilson, C, ‘Information Disclosure and the Regulation of Traded Product Risks’ (2005) 17 JEL 305 CrossRefGoogle Scholar; Carson, L and Lee, R, ‘Consumer Sovereignty and the Regulatory History of the European Market for Genetically Modified Foods’ (2005) 7 Environmental Law Review 173 CrossRefGoogle Scholar; and Lee, M, EU Regulation of GMOs: Law and Decision Making for a New Technology (London, Edward Elgar, 2008)CrossRefGoogle Scholar.
5 On Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The influence of Aarhus on the ECtHR has been noted, in a broader context, by Boyle (2007), above n 1. Evidence of the Court’s engagement with the Convention can be found in particular in the Court’s judgments in, for example, Okyay and Others v Turkey (App no 36220/97) (2006) 43 EHRR 37, para 52; Tasşkin and Others v Turkey (App no 46117/99) (2006) 42 EHRR 50, paras 99–100; and Taǎtar v Romania (App no 67021/01), judgment of 27 January 2009, nyr, paras 69 and 118. See also Demir v Turkey (App no 34503/97) (2009) 48 EHRR 54, where the Grand Chamber stated: ‘In the Tasşkin … case, the Court built on its caselaw concerning Article 8 of the Convention in matters of environmental protection … largely on the basis of principles enshrined in the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’ (para 83).
6 Boyle ‘Human Rights or Environmental Rights?’, above n 1.
7 In EU environmental law, this process tends to refer to a shift away from a reliance on substantive environmental standards in EU legislation to a more procedural emphasis. Here in the ECHR context, it can be seen as involving a move away from the Court engaging in substantive balancing of individual versus wider community interests towards a greater reliance on ensuring that states have put in place appropriate, Aarhus-type procedures. On ‘proceduralisation’ in EU environmental law, see further Scott, J, ‘Flexibility, “Proceduralization” and Environmental Governance in the EU’ in Búrca, de and Scott, (eds), Constitutional Change in the EU: From Uniformity to Flexibility (Oxford, Hart Publishing, 2000), 259 Google Scholar; Scott, J, ‘Flexibility in the Implementation of EC Environmental Law’ (2000) 1 Yearbook of European Environmental Law 37 Google Scholar; Lee, M, EU Environmental Law: Challenges, Change and DecisionMaking (Oxford, Hart Publishing, 2005) 151–2, 163Google Scholar.
8 Guerra v Italy (1998) 26 EHRR 357.
9 Directive 82/501/EEC on the major-accident hazards of certain industrial activities, OJ 1982 L230/1.
10 Guerra, above n 8, para 53; see also Roche v UK (App no 32555/96) (2006) 42 EHRR 30, paras 172–3.
11 Guerra, above n 8, para 60.
12 See also Giacomelli v Italy (App no 59909/00) (2007) 45 EHRR 38, para 83; T aǎtar, above n 5, para 113; Branduse v Romania (App no 6586/03) ECHR judgment of 7 April 2009, nyr, para 74.
13 Öneryildiz v Turkey (App no 48939/99) (2005) 41 EHRR 20.
14 Ibid, para 84.
15 Ibid, para 82.
16 Ibid, paras 85–86.
17 Budayeva and Others v Russia (App no 15339/02) ECHR judgment of 20 March 2008, nyr.
18 Öneryildiz, above n 13, para 130.
19 Ibid, para 130.
20 Ibid, para 131.
21 The emphasis of ‘life-threatening’ reflects the Art 2 right. See also Art 8, considered below at n 113, where (more logically it would seem) information comes within the procedural aspect.
22 Öneryildiz, above n 13, para 131.
23 Ibid, para 132.
24 Ibid, para 132.
25 Ibid, para 134.
26 Ibid, paras 154–6.
27 Such as those, as in the Budayeva case, involving a meteorological event (mudslide caused by excessive rainfall)—ibid, para 135.
28 Ibid, para 135. The margin of appreciation for states is also (as one might expect) larger in relation to the right to property under Art 1 of Protocol 1 than under Art 2 of the Convention relating to the right to life—ibid, para 175.
29 Ibid, para 152.
30 Ibid, paras 153–5.
31 See, eg, McGinley and Egan v United Kingdom (App nos 21825/93 and 23414/94) (1998) 27 EHRR 1, para 99, distinguishing McGinley from Guerra, above n 8, on the basis, inter alia, that it was not disputed that the applicants in Guerra were at risk from the factory in question. See also Roche v United Kingdom, above n 10, para 160.
32 The relevant information could also, conceivably, provide them with a choice as to potential medical monitoring or treatment.
33 See n 31 above.
34 McGinley, above n 31, para 10. The applicants contended that this was deliberate exposure for scientific purposes; the UK Government claimed it was to ensure that all personnel were seen to obey orders to look away.
35 In McGinley’s case, there was evidence that he came to attribute his health problems to the exposure after reading a series of press articles in 1982 about the potential health effects of the Christmas Island explosions—ibid, para 22.
36 Ibid, para 64.
37 Ibid, para 97.
38 Ibid, para 101.
39 Ibid, para 102.
40 Ibid, para 103.
41 See n 10 above.
42 Roche, above n 10, para 149.
43 Compare the fact that both private and family life were considered in McGinley, above n 31. The Court in Roche, above n 10, para 155, considered it unnecessary to consider the separate issue of family life.
44 Roche, above n 10, para 162.
45 Ibid, para 164.
46 LCB v United Kingdom (1999) 27 EHRR 212, para 29.
47 Ibid, para 41.
48 Ibid, para 38. As DeMerieux, above n 1, 543, notes, this requirement for near certainty before taking action seems out of line with the precautionary principle.
49 Ibid, para 39. Reay and Hope v British Nuclear Fuels [1994] Env LR 320.
50 Ibid, para 40.
51 Ibid.
52 See n 5 above.
53 Ibid, para 106. Note the partially dissenting judgment of Judge Gyulumyan.
54 Fadeyeva v Russia (App no 55723/00) (2007) 45 EHRR 10.
55 Ibid, para 112.
56 Ibid, para 120.
57 Ibid.
58 Ibid.
59 Ibid, para 121.
60 Hatton v United Kingdom (App no 36022/97) (2003) 37 EHRR 28.
61 Ibid, para 127.
62 Ibid.
63 For academic endorsement of such a liberal approach to location, see further Miller, ‘Environmental Rights in a Welfare State?’, above n 1.
64 See Slovic, P, ‘Perception of Risk’ (1987) 236 Science 280 CrossRefGoogle ScholarPubMed; and Sunstein, C, Risk and Reason (Cambridge, Cambridge University Press, 2002)Google Scholar; Stanley, N, ‘Public Concern: The Decision-Makers’ Dilemma’ (1998) Journal of Planning Law 919 Google Scholar, provides a helpful analysis in a UK planning law context.
65 Zander v Sweden Series A No 279, (1994) 18 EHRR 175.
66 Ibid, para 29.
67 Ibid, para 31.
68 Ibid, para 23. As Demerieux, above n 1, 556, states, this does indeed represent ‘a vivid articulation of the potential of Article 6(1) as an article from which to derive procedural environmental rights’.
69 Prior to the change in 1998, introduced by Protocol 11, to a single, Court system.
70 Noel Narvii Tauira and Eighteen Others v France (1995) 3 IELR 774.
71 In relation to Art 3, the applicants contended that their feelings of fear and anxiety in connection with the tests meant that they had suffered inhuman and degrading treatment within the terms of the Article.
72 Noel Narvii Tauira, above n 70, para 798.
73 Ibid, para 799.
74 Though one was not legally required for such military testing under EU law.
75 For example, through a public inquiry.
76 L, M and R v Switzerland (App no 30003/96) (1996) 22 EHRR CD130.
77 Ibid, para 1.
78 See further Schall, C, ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’ (2008) 20 Journal of Environmental Law 417, 437–8CrossRefGoogle Scholar.
79 On the distinction between technical compliance and compliance with the spirit, see Schall, ibid, 437–41.
80 See, eg, EU law with cases such as Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305 involving challenges based on the precautionary principle (on which see further below, n 89). Of course standing before the ECJ for non-commercial applicants is also a problem there.
81 Balmer-Schafroth and Others v Switzerland (1998) 25 EHRR 598. DeMerieux, above n 1, 548, 554, points out that it is hard to see how the nuclear cases like Balmer can be distinguished from Zander, above n 65 (which was not mentioned in them), except insofar as they relate to nuclear power which is more of a matter of high-politics.
82 Balmer-Schafroth and Others v Switzerland, above n 81, paras 7–9.
83 Ibid, para 11.
84 Ibid, para 27.
85 Ibid, para 40.
86 As well as one further, separate one.
87 Balmer, above n 81, Dissenting Opinion, para 42.
88 Ibid.
89 On the precautionary principle, see further, for example, Fisher, E, ‘Is the Precautionary Principle Justiciable?’ (2001) 13 JEL 315 CrossRefGoogle Scholar; Sadeleer, N de, Environmental Principles: From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2000)Google Scholar; Scott, J, ‘The Precautionary Principle Before the European Courts’ in Macrory, R (ed), Principles of European Environmental Law (Groningen, Europa, 2004)Google Scholar; Heyvaert, V, ‘Facing The Consequences of the Precautionary Principle in European Community Law’ (2006) 31 European Law Review 185 Google Scholar.
90 Athanassoglou and Others v Switzerland (App no 27644/95) (2001) 31 EHRR 13.
91 Ibid, para 38.
92 Ibid, paras 52–4.
93 See also DeMerieux, above n 1, 546, who points out that Zander, above n 65, contained no such requirement of imminence of the risk.
94 Athanassoglou and Others v Switzerland, above n 90, paras 49–51.
95 Ibid, Dissenting Opinion, para O-I6.
96 Ibid, Dissenting Opinion, para O-I7.
97 Tasşkin and Others v Turkey, above n 5.
98 Ibid, para 128.
99 Ibid, para 133.
100 Ibid, para 133.
101 Ibid, paras 135–8.
102 Okyay and Others v Turkey, above n 5.
103 Ibid, para 61.
104 Ibid, para 66.
105 Ibid.
106 Ibid, paras 67–75.
107 Taşkin and Others v Turkey, above n 5, para 107.
108 Ibid.
109 Taşkin, above n 5, para 113.
110 Ibid. See also Branduse v Romania, above n 12, para 65.
111 See also Giacomelli v Italy, above n 12, para 79; Branduse v Romania, above n 12, para 62.
112 See n 7 above.
113 Taşkin and Others v Turkey, above n 5, para 118. This is then further fleshed out in para 119, which mentions, inter alia, the need, under the procedural aspect, for the public to be able to access information on risk. See also Art 2, above n 21, where information comes within the substantive part (which is less logical in terms of Aarhus fit).
114 The precautionary principle played a significant role in the recent Tǎtar case, above n 5, paras 69, 109, 120, where the Court drew attention to the principle in criticising the State’s failure to halt the mine’s operation after the accident.
115 Taşkin and Others v Turkey, above n 5, paras 124-5.
116 See the reference to para 119 of the Taşkin judgment contained in n 113 above.
117 As noted earlier, above n 5, this Aarhus influence is apparent in the case itself and has been confirmed in the later Demir case. Also noting this Aarhus influence, see Boyle (2007), above n 1; and Schall, above n 78, 433. In the more recent Tǎtar case, above n 5, the Court’s reference to Aarhus in the main body of the judgment is more explicit, perhaps reflecting the fact that the respondent State, Romania, had ratified the Convention (unlike Turkey in Taşkin and Others v Turkey, above n 5, which had neither signed nor ratified).
118 See, eg, Fischer v Austria (App no 16922/90) (1995) 20 EHRR 349, on Art 6.
119 To similar effect, see Boyle, ‘Human Rights or Environmental Rights?’, above n 1.
120 See the quotation in the main text and the sentence following it at n 113 above.
121 Boyle, ‘Human Rights or Environmental Rights?’, above n 1, argues convincingly for a procedural approach to rights across all environmental cases—that is, not just ones involving risk.