7 April 2022 – Online conversation
The PhD conference entitled ’Current Challenges of Environmental Law from a Human Rights Perspective’ was organized as part of the ‘Constitutional framework for the protection of future generations and the environment’ research group of the Central European Professors’ Network 2022. The event took place online on 7th April 2022 via Microsoft Teams.
The aim of this conference was to gather ideas of how the human rights approach can influence the overall protection of the environment through the presentation of the theoretical foundations of the interrelation of human rights and the environment, the constitutional framework of environmental protection in different countries, as well as the jurisprudence of national constitutional courts, regional human rights courts and other international judicial forums.
The topic and the problematic issues the conference aimed to address could be summarized as follows. The importance of the protection of the environment is by now recognized on a global level, and the challenges that environmental changes pose to humankind are targeted by the instruments of international law, as it is shown by the variety of international environmental treaties. Apart from international treaties, however, an even more protective approach is needed, in order to reverse or slow down certain environmental processes that might cause huge damages for the planet. Such an approach could be guaranteed by the international human rights system, as it offers sophisticated legal and extra-legal mechanisms that could be applied for environmental issues: harms, such as pollution, explosion, dumping, emission of hazardous materials, etc. could be addressed through human rights forums, as these problems interfere with the values that human rights are designed to protect.
The conference was opened and moderated by Professor Dr. János Ede Szilágyi, Full Professor of the Faculty of Law at the University of Miskolc and Head of the Ferenc Mádl Institute of Comparative Law, who pointed out that the issue was particularly important in the 21st century and that discussion about environmental matters was crucial among young researchers from different countries. Dr. Enikő Krajnyák, Researcher of the Central European Academy, as well as the scientific organizer of the event, gave an introductory presentation entitled ‘The Interrelations of Human Rights and the Environment in the Regional Human Rights Regimes’. The starting point of the presentation was the fact that there was yet no international consensus on the legal status of the environment in international human rights law, despite the fact that the United Nations Human Rights Council had adopted Resolution 48/13 of October 8, 2021, recognizing the right to a clean, healthy and sustainable environment as a human right. The presenter pointed out that this document was not legally binding, however, its adoption could certainly be a promising step towards the higher-level recognition of environmental matters in the international human rights regimes. Nevertheless, there is an indubitable relation between the environment and human rights: the presenter highlighted two perceptions which proved the strong relation of the two issues. Firstly, the environment could be regarded as a pre-condition for the satisfaction of a wide spectrum of human rights, such as the right to life or the right to respect for private and family life. Secondly, certain human rights – mainly procedural rights, e.g. public participation, could also serve as a tool for the promotion of a healthy environment. The presenter further compared the regional human rights regimes, pointing out that the African Charter on Human and Peoples’ Rights and the Protocol of San Salvador to the American Convention on Human Rights had explicitly declared the right to a healthy environment, while the European Convention on Human Rights had not. However, the European Court of Human Rights developed an extensive interpretation of certain provisions of the ECHR, adding an environmental dimension to certain human rights enshrined in the Convention. The presenter also referred to the Aarhus Convention, which declared procedural human rights specifically linked with environmental matters. Lastly, the researcher presented the potential impact the explicit recognition of a right to a healthy environment could have on environmental protection: firstly, human rights institutions would set out new forums through which environmental claims could be brought and secondly, the application of human rights law, through providing obligations to governments and policy makers – could result in the fact that environmental matters would be given more importance which could lead to a higher level of environmental protection that would result in the implementation of sustainability and potentially the reverse of harmful environmental processes.
After the introductory remarks by the scientific organizer, the first panel was opened, which dealt with cross-border issues of environmental law. The first presenter, Barbara Simonič, gave a presentation entitled ‘Human rights (or the absence thereof) in the climate change regime’. She pointed out that climate change is the biggest threat to humankind and therefore it certainly poses challenges for human rights. She further analysed climate change treaties, such as the UNFCCC and the Paris Agreement, and the reference to human rights in these documents. The high number of climate change litigation cases was noted in front of several judicial forums, such as national courts, the European Court of Justice or the European Court of Human Rights. The presenter concluded that the individual decisions on climate change could only be part of the solution but not a panacea and emphasized the importance of a supranational consensus and an international approach.
JUDr. Rebecca Lilla Hassanová introduced a sadly actual topic, that was ‘The Law of Armed conflicts and Environmental disasters’. She noted that environmental destruction could be an unintended result of armed conflicts, of which the main purpose would rather be the destruction of everything the enemy could still gain in territory during the retreat. During the presentation, several binding and non-binding documents were introduced, which regulate environmental destruction during warfare. Namely, the World Nature Charter, the ENMOD Convention, Protocol I and III of the Geneva Convention were mentioned. As a conclusion, she pointed out that environment could generally be regarded as a victim in case of an armed conflict. However, it is imortant to note that the right to choose methods or means of warfare is not unlimited.
The next presenter, Kaja Hopej dealt with the topic of the ‘Protection of the Earth’s Environment in the Context of Damage Caused by Space Activities’. She noted that there were several sources that could cause damage to the space environment, such as explosions, collisions or military tests. During such activities, space debris are created as a consequence, which cause severe damages to both the space and the terrestrial environment. The presenter emphasized that such damages could infringe human rights, which are guaranteed, for instance, in the ICCPR, the ICESCR or the UDHR.
Urška Stopar, the following presenter discussed the issue of ‘Human rights implications of hydroelectric power plants’. Firstly, she drew the attention to the negative impact of fossil fuels on the environment hydroelectric power plants could cause to humans, despite the fact that they could be considered as renewable energy sources. Moreover, their activities could violate a number of human rights, primarily the right to property and the right to adequate housing, the right to water, food, education, health, as well as the right to meaningful and informed participation and the right to self determination. Later, she analysed the possible consequences of the infringement of these rights could cause and did cause: loss of home and personal possessions, physical abuse, harassment and unlawful detention, as well as the reallocation of communities without adequate resources were among the most serious effects. The presenter also brought certain factual examples that helped the participants in the better understanding of the severity of issue, such as, the Bujagali hydropower project, the Rogun dam case or the Bakun hydroelectric dam. The presenter concluded that the link between human rights and environmental matters was enormous and in case of the construction of hydroelectric projects, not only environmental risks, but also possible threats to human rights shall also be taken into account.
Matic Burkeljc, the next speaker, emphasized the importance of right to water in the context of climate change, as it had been mentioned in the previous presentation. In the framework of his presentation entitled ‘The Role of the Right to Safe and Clean Drinking Water in Protecting the International Groundwater Resources’, the presenter pointed out that human rights treaties, such as the ICESCR, guarantee the right of everyone to an adequate standard of living, which includes the right to safe and clean drinking water. The quality of water, therefore, is of crucial importance not only in the human rights approach, but in international environmental law in general. He further referred to the Pulp Mills case by the International Court of Justice, in which in the Court emphasized the necessity of striking a balance between the use of waters and the protection of the river consistent with the objective of sustainable development.
The last presenter of the first panel, Anita Klimas analysed the issue of ‘The Impact of Armed Conflicts on the Environment and Human Rights’. She pointed out that the natural environment could be regarded as a civilian object in armed conflicts, thereby causing serious damages for humans as well: the contamination of water and food, for instance, could certainly result in the threat or even in the violation of the right to life of the civilian population. The presenter further analysed how the principle of proportionality could be interpreted in the light of environmental damages during warfare: the principle shall not be understood in a way that the greater the military benefit, the greater the collateral damage would be acceptable. To sum up, the presenter noted that one of the biggest problems with environmental damages in armed conflicts was that the assessment of the legality of such activities was dependent entirely on the knowledge and standards of the people who were actively involved in the conflict.
The second panel was addressed to discuss domestic environmental issues in an international context. The first presenter, Ivan Jokanović analysed three judgements as part of his presentation entitled ‘Environmental Issues before the ECHR through Certain Italian Cases’. He emphasized that the Italian Constitution had been amended in February 2022: the amendment introduced the obligation of the State to safeguard the environment, biodiversity and the ecosystems in the interest of future generations. Despite the fact that the ECHR does not entail the right to a healthy environment, there had been numerous cases against the Italian state in relation with environmental damages. In the Giacomelli case, for instance, the right to respect for private and family life was seriously violated, given the fact that there was no fair balance between the competing interests of the applicant and of the community as a whole in relation with a plant that was treating harmful and toxic waste. In relation with the Ilva steel plant, the largest industrial steelwork complex in Europe (Cordelle vs. Italy), the Court also stated that there had been a violation of the right to respect for private and family life, as the State failed to implement an environmental plan in time. In the case Di Sarno and others vs. Italy, the Court confirmed the violation of the above mentioned right on the basis of the fact that the State referred to a circumstance that could not be considered as a vis maior and thus failed to manage an emergency situation in relation with the collection, treatment and disposal of waste. The speaker noted that there were several interesting pending cases before the Court in relation with toxic waste management, hoping that the recent constitutional amendments would bring positive changes to the Italian system of tackling environmental matters.
Irem Nur Üstüntay, in her presentation ‘Human Rights to Healthy Environment taking into account the Turkish Constitutional Practice’, gave an overview on the Turkish approach to environmental issues. She highlighted that the Turkish Constitution guarantees the right to live in a healthy and balanced environment but certain other constitutional provisions, namely the immunity of the person, protection of material and spiritual existence, freedom of residence and movement, utilization of the coasts, land ownership and protection of agriculture, as well as the right to property, right to housing, protection of historical, cultural and natural assets. Furthermore, she pointed out that the Turkish Constitutional Court tends to list certain elements and conditions of a healthy environment, rather than giving a definition of the right. According to the Court, protection of natural beauties, prevention of air and water pollution form part of the constitutional right to live in a healthy environment. However, the presenter drew the audience’s attention to the fact that the Turkish jurisprudence focuses on certain aspects of the environment, and there are several issues which are not covered: those are, inter alia, the challenges caused by soil or air pollution. Lastly, she emphasized the importance of the inclusion of international norms and standards.
The next presenter, Maria Skwarcan presented the Polish approach to the interrelation of the environment and human rights in her presentation entitled ‘The Right to Healthy and Clean Environment – references to Article 8 of the ECHR in the Case Law Practice of the ECtHR and its Impact on the Jurisprudence of Polish Courts’. She referred to the fact that the ECHR does not expressis verbis mention the right to a healthy environment and that the right to private and family life is one of those rights through which environmental issues could be addressed in front of the Strasbourg Court. In the case Apanasewicz vs. Poland, the Court accentuated the fact that the right to home did not only include tangible or bodily violations but intangible and incorporeal violations such as noise, emission of noxious substances, unpleasant odours and other intrusions. She also pointed out that the reasoning of the Court had a direct influence on domestic jurisdiction.
The last presenter of the conference was Ádám Pál, whose topic was related to environmental taxation. In his presentation, Can Environmental Taxes Pave the Way towards a Healthy Environment – A Case Study of Slovakia, he firstly gave an introduction to the issue of environmental taxes, which include several kinds of public levies, but – on national level – there was no comprehensive regulation of such duties. The presenter listed the benefits of how taxes could be used as tools of environmental protection: principally, they have a dissuasive effect on harmful activities, and they could ensure funds for activities of environmental protection. In the second part of the presentation, the speaker gave examples of how environmental issues are currently targeted through taxation: the introduction of an explicit carbon-tax, differentiation between exercise taxes based on carbon content fuels, as well as land taxes differentiation by carbon sequestration could be mentioned as the most significant steps to ensure a better environmental protection.
At the end of the conference, Professor Szilágyi gave a short conclusion, pointing out that there could be several approaches to environmental protection: from the side of international law, domestic law, constitutional law, space law, humanitarian law or financial law. This fact shows the importance of the necessity of discussion about environmental problems for which this conference was a useful and fruitful tool.
