CYIL vol. 12 (2021)

jan lhotský CYIL 12 (2021) European Convention on Human Rights. 15 In this regard, mainly five rights included in the Convention have been successfully used to argue in environmental cases. First, there are issues concerning Article 2 defining the right to life. The Court has dealt with situations such as methane explosion, exposure to radiation or preventable consequences of natural disasters. The extent of the State’s positive obligations depends on the origin of the threat and on the extent to which the risk could be mitigated. In general, man-made risks are considered more strictly than natural hazards. Naturally, Article 6 defining the right to a fair trial, which is the most commonly used Convention article by the applicants, also offers potential for arguments in environmental matters. These are mainly the right to access to court, such as providing the possibility for a judicial review of permits and failure to enforce final judicial decisions, or the right to participate in a decision-making process, such as a public consultation prior to authorising an industrial activity and an environmental impact assessment. A very important area with respect to the possibilities of subsuming environmental rights under the rights contained in the Convention is presented in Article 8 which defines the right to respect for private and family life. This is mainly because according to the Court, ‘ severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health ’. 16 That means that severe pollution, radiation or noise, regardless of whether it is caused by a State or a private company, could violate the right to private and family life. In this area, the Court has dealt with industrial pollution, noise pollution, insufficient waste management, water contamination, as well as the right to information on environmental risks. Freedom of expression contained in Article 10 encompassing the freedom to receive and impart information can also be successfully used in environmental matters when the right of people to information about the quality of their environment is at stake. Last but not least, environmental harm or policies can also interfere with the protection of property according to Article 1 of the Protocol no. 1 of the Convention. Such cases include withdrawal of a licence for industrial activity, an order for demolition of a house or various kinds of use of a property. In general, mainly Articles 2 and 8 of the Convention commit States to protecting people from real and imminent risks of environmental and natural disasters. 17 With respect to the recent scientific, political, but also legal developments related to the threat of a climate change, it should be stressed that so far the European Court of Human Rights has never ruled on the topic of climate change. 18 However, two cases that have already been communicated to governments are pending before the Court, in which the applicants are bringing a complaint 15 See the factsheet accessed 1 August 2021. Furthermore, see guides to different articles or themes, including the environment accessed 1 August 2021. In addition, relevant information can be found at Human rights and the environment, a priority for the Council of Europe. Council of Europe accessed 1 August 2021. 16 Para. 51, López Ostra v. Spain , no. 16798/90. 17 With respect to potential violations of Articles 2 and 8 of the Convention by means of greenhouse gas emissions, see the relevant part of an analysis published by the Norwegian National Human Rights Institution accessed 1 August 2021. 18 See more on climate change and human rights in Europe in the paper by the European Network of Human Rights Institutions accessed 1 August 2021.

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