CYIL vol. 12 (2021)

CYIL 12 (2021) THE (MISSING) RIGHT TO A HEALTHY ENVIRONMENT IN INTERNATIONAL HUMAN … In sum, however, Mr Daems considers that drafting the protocol should be our strategic priority. This opinion was shared by Michelle Bachelet, the UN High Commissioner for Human Rights, who in a conference that took place at the Strasbourg court in 2020 said that adopting a new protocol on the right to a healthy environment would be a major step in the right direction. 11 In my opinion, the wording of treaties matters and although developing jurisprudence by means of interpretation is without any doubt legitimate, in the long term it would be advantageous to elaborate a definition of the right to a healthy environment that could be included in the Convention system and provide a formal legal basis for the decision-making of the Court. With regard to the time factor, it should be an additional protocol that does not require ratification of all States Parties to enter into force. In the meantime, and later with respect to States that do not ratify the new protocol, the Court would develop its environmental jurisprudence by means of interpretation. 3.2 Interpretation of environmental matters in the current case law of the European Court of Human Rights Although the Convention and its protocols do not contain any specific reference to the protection of the environment, environmental considerations are present in the Court’s jurisprudence, as the quality of the environment may constitute a precondition for full enjoyment of the human rights that are included in the Convention. In fact, the Court has already ruled on some 300 environment-related cases. 12 In contrast to bodies that can make use of explicit references in their respective legal instruments, the European Court of Human Rights provides only ‘proxy protection’ to environmental rights, which is derived from a number of rights included in the Convention. 13 In general, States have a wide margin of appreciation in determining their environmental policies and measures. Nevertheless, in certain areas States have positive obligations which place a duty on State authorities to take active steps in order to safeguard Convention rights. In most cases, positive obligations have not been specified in the text of the Convention but by the Court. Positive obligations are undoubtedly also relevant for decision-making in environmental matters. Moreover, the Court has developed the living instrument doctrine which has, and might have in the future, major importance in the discussed area as it allows the Court to interpret the Convention in the light of present-day conditions. Even in the first decade of the 21st century it was quite clear that environmental matters constitute a somewhat distinct part of the Court’s jurisprudence. 14 A good overview of environmental case law is provided for by the Court’s factsheet on the environment and the 11 The video recordings from the conference accessed 1 August 2021. 12 Protecting the environment using human rights law. Council of Europe accessed 1 August 2021. 13 See video recordings of the author’s interview with Natalia Kobylarz, which serves as a source of some of the information presented in subchapters 3.2 and 3.3 accessed 1 August 2021. 14 See REPÍK, Bohumil. Chrání Evropská úmluva o lidských právech právo na životní prostředí? [Does the ECHR protect the right to environment?] Bulletin advokacie , no. 7–8 and 9, 2005. Furthermore, see the overview of the jurisprudence in PEDERSEN, Ole W. The Ties that Bind: The Environment, the European Convention on Human Rights and the Rule of Law. European Public Law , vol. 16, no. 4, 2010.

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