From the perspective of international environmental law, there is already a lively debate about the proposed Global Pact for the Environment, including this blog. The contributions appear more limited on the topic of the Pact’s potential impact on EU environmental law, and it is on this issue we are particularly interested. In this post, we will discuss the right and the duty to environmental protection. In our opinion, both would introduce new elements into EU environmental law, but the changes would not be radical. Accordingly, ratification by the EU should not face overwhelming obstacles. Our remarks will be based on the preliminary draft of a Global Pact for the Environment, as proposed by the Group of Experts under the leadership of Mr. Fabius.
Under Article 1 every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment.
Article 2 provides that every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem.
Building blocks for a right and a duty to environmental protection under EU law
There are already some building blocks in place for a right and a duty to environmental protection in EU law.
Article 37 of the EU Charter of Fundamental Rights addresses the environment, but merely restates a policy objective, namely the achievement of a high level of protection and the improvement of the quality of the environment, as also stated in Article 3 of the Treaty on European Union and Article 191 of the Treaty on the Functioning of the European Union. These EU provisions do not create rights or duties, but their objectives are at least possible seeds of a duty of the European Union to take care of the environment.
EU law in general, however, acknowledges the existence of such rights and duties, given that the Aarhus Convention is an integral part of EU law. According to Article 1 of the Convention, the rights set out therein shall contribute to the right of every person “… to live in an environment adequate to his or her health and well-being”. The 7th recital of the preamble combines this right with the duty “… to protect and improve the environment for the benefit of present and future generations.”
Difficulties arise because the Aarhus Convention does not in itself create this right or the duty and it is unclear whether and to which degree they are part of EU law. Alternatively, they could be either part of Member State law or shared between the Member States and the EU. Therefore, it is no surprise that, up to now, the provisions have not explicitly been applied by the Court of Justice of the European Union, even though some Advocates General have made reference to them.
Conversely, the other European Court, the European Court of Human Rights in Strasbourg, has developed jurisprudence on fundamental environmental rights. The Court has referred, in particular, to the right to life, Article 2 of the European Convention on Human Rights, and the right to respect for private and family life, Article 8. By way of the Charter of Fundamental Rights, this case law is relevant for EU law and the CJEU, too. But again, the allocation of responsibilities between the EU and the Member States in this regard remains unclear.
Nevertheless, we are not sure whether the Strasbourg jurisprudence covers the whole scope of the proposed right and duty. The European Convention on Human Rights is not violated every time environmental deterioration occurs. In order to raise an issue under Article 8 of the Convention, the interference must directly affect the applicant’s home, family or private life. Moreover, the adverse effects of environmental pollution must attain a certain minimum level. An infringement of the right to life under Article 2 will obviously meet an even higher threshold. We expect a right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment, in particular if combined with a duty to care for the environment to, in principle, require more far-reaching protection than can be read into human rights. Moreover, the duty to care for the environment not only is put on the state, but also bears upon individuals.
Possible effects of a right and a duty to environmental protection in EU law
But what would it mean, if a right and a duty to Environmental Protection with a more far-reaching scope became part of EU law by way of the pact? Could plaintiffs go to court and request specific measures?
The white paper to the draft global pact considers the pact a binding instrument, capable of being relied upon in court. In the Court of Justice, we would in this regard discuss the direct effect of the provision at stake. Provisions of international agreements are directly applicable under EU law if they contain clear and precise obligations which are not subject, in their implementation or effects, to the adoption of any subsequent measure. Additionally, the ‘nature and broad logic’ of the agreement must not stand against direct effect. An example of the ‘nature and broad logic’ of an agreement preventing direct effect is WTO law. The WTO dispute settlement system accords considerable importance to negotiation between the parties. If one party were to give WTO provisions unilaterally direct effect within its legal order, other parties would lose an incentive to enter negotiations. In contrast, we agree with the White Paper that international environmental agreements by their ‘nature and broad logic’ should be open to direct application.
But the devil lies in the detail. A direct effect of the right to an ecologically sound environment would be difficult to establish because the provision does not spell out what this encompasses. This applies in particular to well-being, dignity, culture and fulfilment, but neither is the scope of the right with regard to health obvious. And it would be even more sensitive to directly apply the duty to take care of the environment.
Does this mean that, under EU law, the right and the duty could only have symbolic value, but no legal effects? Certainly not! Spontaneously, we identify two dimensions where the right and the duty could become effective:
The first dimension lies in safeguarding the core conditions of an ecologically sound environment. In this regard, Strasbourg jurisprudence would be a valuable source. Once the idea of a core is established, it could be extended beyond the human centric focus of the European Convention on Human Rights to other essential objectives of environmental protection. The practical effect of such core would be a limit to the discretion of the Member States and the EU with regard to the implementation of the right and the duty. Therefore, plaintiffs could demand in court that the core elements of an ecologically sound environment be respected.
The second dimension would be the strengthening and underpinning of existing EU environmental law, i.e. the legislation specifying what the legislator considers an ecologically sound environment. If this legislation is understood as an expression of a more general right, any doubt that it can be invoked in court should be dispelled. Additional guarantees provided by the draft pact for the environment, such as access to environmental justice, Article 11, the role of non-State actors and subnational entities, Article 14, as well as non-regression, Article 17, confirm this reading.
As we have seen, the right to an ecologically sound environment and the duty to take care of the environment would provide added value to existing building blocks in EU environmental law. But as these building blocks already exist, the right and the duty would not introduce radical change. Therefore, they should be understood as a welcome affirmation of EU environmental values.