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EU Environmental Law, International Environmental Law, and
Human Rights Law
International Environmental Law

Volume 11

The titles published in this series are listed at brill.com/iel

 EU Environmental Law,
International Environmental Law,
and Human Rights Law
The Case of Environmental Responsibility

By

Armelle Gouritin

LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data

Names: Gouritin, Armelle, editor.

Title: EU environmental law, international environmental law, and human rights law : the case of
environmental responsibility / Edited by Armelle Gouritin.
Other titles: European Union environmental law, international environmental law, and human rights law
Description: Leiden : Brill, Nijhoff, 2016. | Series: International environmental law ; volume 11 | Includes
bibliographical references and index. | Description based on print version record and CIP data provided
by publisher; resource not viewed.
Identifiers: LCCN 2015045081 (print) | LCCN 2015041816 (ebook) | ISBN 9789004302143 (E-book) | ISBN
9789004302136 (hardback : alk. paper)
Subjects: LCSH: Environmental law—European Union countries. | Environmental law. | Human rights.
Classification: LCC KJE6242 (print) | LCC KJE6242.E915 2016 (ebook) | DDC 344.04/6—dc23
LC record available at http://lccn.loc.gov/2015045081

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering
Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities.
For more information, please see www.brill.com/brill-typeface.

issn 1873-6599
isbn 978-90-04-30213-6 (hardback)
isbn 978-90-04-30214-3 (e-book)

Copyright 2016 by Koninklijke Brill NV, Leiden, The Netherlands.

Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and
Hotei Publishing.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided
that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive,
Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

This book is printed on acid-free paper and produced in a sustainable manner.

Contents

Acknowledgments vii
Executive Summary viii

1 Introduction. Methodology, Terminology, Basic Concepts and

Tensions 1
1.1 What: Subject, Questions, Thesis and Hypothesis 1
1.2 How: The Comparative Approach Applied in the Book. A Particular
Focus on the Human Rights Approach 4
1.3 Introduction to Environmental Responsibility 36
1.4 Foundational Difficulties Encountered by the EU Legislator that are
Addressed in the Book 45

2 International Environmental Law and Human Rights Partially

Conflict but Mainly Confirm the Anthropocentric Conceptions of
the Directives 64
2.1 Gaps in the Directives: Definition of Damage and Harm.
The Anthropocentric and Regulatory Approaches 64
2.2 Gaps in the Directives: The Grounds for Responsibility. Limits of the
Public and Regulatory Approach 91
2.3 International Environmental Law Partially Conflicts with the
Directives: Natural Resources vs. Biodiversity 134
2.4 International Environmental Law and Human Rights Confirm the
Directives through Policy Diffusion: Damage and Harm to Natural
Resources 151
2.5 Conclusion 173

3 Conflict with Human Rights: Deference to the International Civil

Liability Frameworks that Applies to Oil Spills in Directive 2004/35 176
3.1 Limited Scope of Application of the Directive: The Exclusions of
Responsibility Mechanisms 177
3.2 Deference to International Law Conflicts with Human Rights:
The Case of the Exclusion of Oil-spill Damage 187
3.3 Conclusion 232
vi contents

4 Human Rights and Procedural Limitations in the Directives:

Complement and Conflict 234
4.1 Gaps in the Directives that have a Procedural Dimension 234
4.2 Impartiality and Independence Requirements and the Discretion of
Public Authorities: A Complement Case 290
4.3 The Obligation to Guarantee Access to Environmental Information
on Risk and the Boundaries of the Development Risk Defence:
A Complement Case 302
4.4 Access to Justice and Prescription: A Conflict Case 330
4.5 Conclusion 336

5 Conclusions 341
5.1 The First Hypothesis is Verified: Gaps in Directives 2004/35 and
2008/99 341
5.2 The Second Hypothesis is Partially Verified: International
Environmental Law and Council of Europe Human Rights Law as
Limited Gaps-fillers. In between Complement, Confirmation and
Conflict 346
5.3 The Thesis is not Verified: The Comparative Approach does not Help
to Depart from the Cost-allocation Paradigm 351
5.4 Taking Stock of the Results 361

Annex—Summary of the Findings: Complement, Confirmation and

Conflict 369
Bibliography 383
Academic Works 383
Case Law (Chronological Order) 399
Legal Texts (Chronological Order) 403
Reports and Press Releases (Chronological Order) 410
Index 414
Acknowledgments

I am much indebted to the supervisors of the thesis which is the origin of this
book: Paul de Hert, Harri Kalimo and, particularly, Marc Pallemaerts who has
constantly supported me before, during and after the production of the thesis.
The reflections, comments and criticisms of the supervisors of the thesis have
been invaluable.
I also thank the members of the jury of the PhD (Ludwig Krämer, Francesco
Francioni, Sari Kouvo and Sebastian Oberthür) for their time and invaluable
and challenging comments and criticisms.
I thank the FWO for granting me with fellowship that enabled me to stay at
the European University Institute (June-September 2009) in very comfortable
and supportive conditions.

Armelle Gouritin
Visiting Professor
Centro de Investigación y Docencia Económicas, A. C.—Sede Región Centro
[email protected]
www.cide.edu
Executive Summary

This book aims to answer the question of whether international environmen-

tal law and Council of Europe human rights law (European Convention on
Human Rights as interpreted by the European Court of Human Rights) fill gaps
identified in EU environmental responsibility law (Directive 2004/35 on envi-
ronmental liability with regard to the prevention and remedying of environ-
mental damage and Directive 2008/99 on the protection of the environment
through criminal law). The answer to the question is, as will be proved: “to
some degree, but rather poorly”. Three cases of interplay between EU environ-
mental responsibility law, international environmental law and human rights
law are identified. The latters either confirm, complement, or conflict with EU
environmental responsibility law.
The first part of each chapter is devoted to the critical appraisal of Directive
2004/35 and Directive 2008/99. The book is built upon the premise that ten-
sions initially occurred when the EU legislator adopted the Directives. The
hypothesis that tensions resulted in some important gaps in EU environmental
responsibility texts is explored and verified. Through legal theory, the critical
assessment of the legal constructs enshrined in the Directives enables us to
identify a whole series of gaps. Three main lines of analysis reveal and explain
the gaps. Firstly, how law approaches the environment. Environmental features
are protected and endorsed in the responsibility text for their instrumental or
inherent value. Secondly, the impact of the regulatory approach on EU envi-
ronmental responsibility law, i.e. the consequences of the dependence of EU
environmental responsibility law upon EU environmental law. Responsibility
or exceptions to the responsibility principle are based upon EU existing regu-
lation of human activities. The greatest weight of significance does not rest
upon environmental damage and harm and the corresponding harmlessness
obligations are phrased under due diligence or obligation of results. Thirdly,
the shift from responsibility (breach of an obligation and of victims’ rights)
to cost-allocation. As a consequence of this regulatory approach, which is not
centred on the notions of environmental damage and injury, the Directives
address cost-allocation matters instead of identifying due diligence or harm-
lessness obligations towards the environment.
These limits are explained and criticised in three chapters: first, environ-
mental damage and harm (chapter 2); second, exceptions to the responsibil-
ity principle (chapter 3); and third, procedural aspects of the environmental
responsibility mechanisms (chapter 4). The eight gaps that best reflect the
three lines of analysis are studied in the second part of each chapter. They are:
Executive Summary ix

• The limited notion of natural resources (section 2.1)

• The limited recognition of the intrinsic value of the environment
(section 2.1)
• The threshold condition for damage and harm to be legally defined
(section 2.1)
• The rejection of diffuse pollution from the scope of application of the
Directives (section 2.2.2)
• Deference to international law that applies to oil-spills (in Directive 2004/35)
(section 3.1.5)
• The public trust doctrine and more particularly the legal practice that flows
from the doctrine (section 4.1.1)
• The development risk defence as an exception to the responsibility princi-
ple (in Directive 2004/35) (section 4.1.2)
• The 30 years prescription (Directive 2004/35) (section 4.4)

The second part of each chapter is devoted to the comparison exercise. It

is conducted through the analysis of international environmental law and
Council of Europe Human Rights Law. The substantive norms of Council of
Europe human rights law and international environmental responsibility law
are tested in order to identify whether they confirm, complement or conflict
with the gaps of EU environmental responsibility law. The second hypothesis,
that international environmental law and Council of Europe human rights law
can fill the gaps identified in the Directives, is partially verified: the formers are
gap-fillers to a limited extent.
From the outset, the limits of the approach adopted in order to fill the
Directives’ gaps are acknowledged. On the one hand, only a few international
environmental law norms are mobilised. The reason is that few norms address-
ing environmental responsibility of private persons have entered into force.
On the other hand, the limits of Council of Europe human rights law in rela-
tion to the purpose of filling the Directives’ gaps cannot be ignored. Indeed,
Council of Europe human rights law does not guarantee the right to a healthy
environment. This law remains largely anthropocentric and individualistic.
The comparison exercise nevertheless delivered some outcomes.

A first set of five cases of confirmation is identified. International environ-

mental law and Council of Europe human rights law confirm EU environmen-
tal responsibility law and the gaps therein. They are:

• The limited notion of natural resources in the Directives and Council of

Europe human rights law (section 2.4)
x executive summary

• The limited recognition of the intrinsic value of the environment in the

Directives and the UN Convention on Biodiversity and Council of Europe
human rights law section 2.3.2)
• The threshold condition for damage and harm to be legally defined in the
Directives and international environmental law (Biodiversity Convention,
Cartagena and Kuala-Lumpur Protocols) and Council of Europe human
rights law (section 2.4)
• The rejection of environmental harm resulting from damage caused by a
diffuse pollution in the Directives and international environmental law
(Kuala-Lumpur Protocol) (section 2.4.1)

A second set of two cases of complement is identified. Council of Europe

human rights law complement EU environmental responsibility law and the
gaps therein. They are:

• The boundaries of the development risk defence in Directive 2004/35

and the Council of Europe human rights law (section 4.3)
• The public trust doctrine and the discretion of public authorities that set
environmental responsibility into motion in the Directives and Council of
Europe human rights law (section 4.2)

A third set of four cases of conflict is identified. International environmental law

and Council of Europe human rights law conflict with EU environmental respon-
sibility law and the gaps therein. They are:

• The limited notion of natural resources in the Directives and international

environmental law (the UN Convention on Biodiversity) (section 2.3.1)
• The rejection of environmental harm resulting from damage caused by a
diffuse pollution in the Directives and Council of Europe human rights law
(2.4.2)
• Deference to international law that applies to oil-spills in Directive 2004/35
and Council of Europe human rights law (section 3.2)
• The 30 years prescription established in Directive 2004/35 and Council of
Europe human rights law (section 4.4)

The thesis, that the gap-filling exercise can support a return to the responsibil-
ity paradigm which is opposed to the cost-allocation paradigm endorsed in the
Directives, is not verified: the comparative approach does not support a return
to the responsibility paradigm or the autonomy of environmental responsibil-
ity law from environmental law.
Executive Summary xi

All in all, the results of the gap-filling exercise can be viewed as rather lim-
ited. The research started with an open question and this limited result was, to
some extent, predictable. Nevertheless, this lacklustre performance is, so the
author believes, not entirely unproductive. It can rather be seen as scientific
evidence of the current limits of international environmental law and Council
of Europe human rights law. Consequently, were international environmental
law and Council of Europe human rights law to fulfil the gap-filling exercise,
potential paths for improvement are identified.
 CHAPTER 1

Introduction. Methodology, Terminology,

Basic Concepts and Tensions

In this introductory chapter, the author discusses the methodology applied in

the book (1.1) and the environmental responsibility concepts used in the analy-
sis of environmental responsibility (1.2). Also, the general difficulties that arise
when conceptual aspects are articulated into a legal norm are elaborated on.
Tensions arose when the EU legislator operated the concepts in the Directives
studied. They are examined at more length (1.3). These tensions and the fol-
lowing trade-offs are the starting point of the hypothesis explored in the book.
The tensions are expounded in greater detail when checking the hypothesis
against the scope of research: environmental damage, harm, and the grounds
for environmental responsibility and exceptions to the responsibility principle.
In a final section, the author provides insights on the comparative approach
applied in the book, and introduces the “human rights approach” (1.4).

1.1 What: Subject, Questions, Thesis and Hypothesis

The research is concerned with EU environmental law.1 The theme of the

research is private persons’ environmental responsibility. This research
looks at environmental responsibility as opposed to environmental liability.2
The obligations resulting from responsibility do not fall within the scope of
research. The scope of research is limited to environmental damage, harm,
grounds for responsibility, and grounds for exceptions to the responsibil-
ity principle.3 More specifically, the object of the research is the substantive
interplay between EU environmental responsibility law (as regulated in

1 As of 1 December 2009, the European Union succeeded the European Community (Treaty of
Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community). EC law has become EU law. In this book the author refers to EU law, even when
referring to law that was adopted before the Lisbon Treaty.
2 Different definitions of responsibility and liability exist. For example, scholars who conduct
research into responsibility and liability in international law work with different notions that
reflect the peculiarities of international law. The definitions in international law are reported
and explained below, see section 1.3.1.
3 On the responsibility principle, see H. Jonas (1984).

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004302143_002

2 CHAPTER 1

Directives 2004/35 on environmental liability with regard to the prevention

and remedying of environmental damage and 2008/99 on the protection of
the environment through criminal law) on the one hand, and international
environmental law and Council of Europe human rights law on the other hand.
Council of Europe human rights law refers to the European Convention on
Human Rights as interpreted by the European Court of Human Rights, alto-
gether Council of Europe human rights law.
The question to be answered in this book is whether international environ-
mental law and Council of Europe human rights law can fill some gaps in the
Directives addressed in the book. In order to answer this question, a compara-
tive approach is adopted. Attention is directed to overlapping substantive rules
regarding environmental responsibility within three legal systems: EU law,
international law and Council of Europe law.
The comparative approach is by no means considered a panacea. Inter­
national environmental law itself is limited when it comes to environmental
responsibility. This is widely recognised by scholars and will appear in the
subsequent developments. Similarly to EU environmental law, international
environmental law is the result of compromises and tensions. To some extent,
international environmental law is also moved by an integration approach.
The human rights approach is not considered to be the ultimate solution to
foster environmental protection either. As exposed in the first chapter below
at more length and as will be evidenced in subsequent chapters, the protection
approach endorsed by human rights mechanisms at the Council of Europe
level is not a priori considered the most obvious path to advance environmen-
tal protection claims.
The comparative approach is not considered as a panacea but is rather the
object of the research. Eventually, the outcome of the comparative approach
will enable the following theory to be tested.

Confronting EU environmental responsibility law—triggered by a regulatory

approach—with Council of Europe human rights law and international envi-
ronmental law—triggered by a protection approach (of both the environment
as such and environmental rights)—eventually results in a re-systematisation
of EU environmental law and a shift towards the environmental responsibility
paradigm, as opposed to the allocation of costs.
Two distinct hypotheses are explored in this book. The first hypothesis is
that gaps can be found within EU environmental responsibility law as regu-
lated in the Directives. These gaps result from and exemplify three aspects that
are considered in the book.
The first aspect is EU decision-making process and the object of regulation:
the environment. In this regard, attention is directed to how law approaches
Introduction 3

the environment. The gaps result, secondly, from the regulatory approach
endorsed by EU environmental law. In the framework of this book, the “regu-
latory approach” is distinct from the broader meaning of regulating, under-
stood as normative activity. In this book, the regulatory approach is defined
as the approach whereby the legislator relies upon existing law (“regulation”)
in order to provide environmental responsibility with a scope of application
and content. In this case, the regulatory approach is more specifically the
approach whereby the EU legislator relates back to EU environmental law,
i.e. the Directives and Regulations that constitute EU environmental law. This
approach eventually results with environmental responsibility’s dependence
on EU environmental law. Thirdly, this approach results in a shift of paradigm,
from responsibility to cost-allocation. In other words, the responsibility frame-
work is more concerned with the allocation of costs than the obligations and
rights associated with environmental responsibility, i.e. matters of fault, due
diligence (understood as the duty to prevent, reduce and control environmen-
tal harm), obligation of result or “protection obligation” (understood as the
duty not to generate environmental damage and harm), or the victims’ rights.
In this work it is assumed that Council of Europe human rights law and
international environmental law endorse a protection approach that has the
potential to fill the gaps identified in the Directives. The protection approach
can, on the one hand, support a shift of paradigm towards responsibility, when
it comes to EU environmental responsibility law as such. On the other hand,
the protection approach triggers a re-systematisation of EU environmental
law, in the direction of a protection paradigm. This re-systematisation is ren-
dered possible because of the EU regulatory approach, which refers to EU envi-
ronmental law.
Much literature has been devoted to environmental liability as codified in
Directive 2004/35. Less work has been devoted to Directive 2008/99. Authors
generally focus on the Directives themselves, their implementation in national
law, or look at EU law in a comparative perspective (mainly with US law). Their
focus also generally lies on the procedural aspects of environmental respon-
sibility (for example, standing). The “human rights approach” is increasingly
being researched. However, the author has not found it applied to assess EU
environmental law standards in-depth. When it comes to international envi-
ronmental law which addresses responsibility, much work has already been
devoted to the issue.4 Legal scholars’ works usually focus on State or public
bodies’ responsibility and tend to be very critical.

4 More particularly, on the interplay between EU environmental responsibility law and inter-
national law, see E. Orlando (2010).
4 CHAPTER 1

Against this background, the book aims at treating Directives 2004/35 and
2008/99 equally, and focusing on responsibility. With the view to consistently
assess EU environmental responsibility law against Council of Europe human
rights law and international environmental law, the starting points for exami-
nation are the concepts and regulatory choices made by the EU legislator.

1.2 How: The Comparative Approach Applied in the Book. A Particular

Focus on the Human Rights Approach

1.2.1 Identification of Gaps in EU Environmental Responsibility Law

The first part of each chapter is devoted to the identification of gaps in Directives
2004/35 and 2008/99. Attention is directed to EU concepts of environmental
responsibility and how they are articulated. The objective is to understand the
legal treatment of environmental responsibility under Directives 2004/35 and
2008/99. This exercise goes together with a critical approach.
More specifically, gaps are identified alongside the following elements:
contradictions, lack of coherence and discrepancies between EU environmen-
tal responsibility law and EU environmental law. In addition, power struggles
that belonged firmly in the integration and harmonisation process can be
found in the analysis of the legislative process that resulted in the adoption of
the Directives with regards to matters that were contentious (for example, the
scope of the Directive, definition matters). Power struggles are also evidenced
as they are described and analysed in legal scholars’ works.
It is worth emphasising that a functional approach is not adopted. In other
words, arguments grounded in the objectives of environmental responsibil-
ity or any other functional approach (for example the law and economics
approach to environmental law) will not be put forward. References to this
kind of arguments will be provided in the footnotes.
All of the gaps cannot be covered in the book. The gaps that are most
closely linked with the research framework of this book are selected, i.e. three
aspects: how law approaches the environment (anthropocentric vs. ecocentric
approach: the instrumental, inherent or intrinsic value of the environment),5
the impact of the regulatory approach (dependence of EU environmental
responsibility law upon EU environmental law), and the shift from responsibil-
ity (breach of an obligation and of victims’ rights) to cost-allocation.

The five gaps identified in chapters 2, 3 and 4 which best reflect the three
aspects considered in the book are: the limited notion of natural resources, the

5 This is elaborated below, see section 2.1.1.

Introduction 5

exclusion of diffuse pollution from the scope of application of the Directives

(chapter 2), deference to international law when international law norms
regulate private persons’ responsibility (chapter 3), reliance upon public
authorities and environmental NGOs in order to bring about responsibility
(chapter 4), the permit and development risk defences as exceptions to the
responsibility principle and prescription limits (chapter 4).

1.2.2 Gaps in EU Environmental Responsibility Law, International

Environmental Law, and Human Rights Law: The Gap Filling
Exercise. Cases of Accumulation, Complement, Confirmation,
and Conflict
The research seeks to answer whether and how international environmental
law and Council of Europe human rights law can overcome the gaps in EU
environmental responsibility law. The articulation test applied to the com-
munication between the legal systems at stake (EU law, international environ-
mental law and Council of Europe human rights law) focuses on the substance
of the norms studied. Overall, the legal technique exercise exclusively addresses
the content of the norms. The research is devoted to the substantive interplay
between these legal systems.
In addition, the essentialist approach is applied over the course of the
whole book: environmental damage and harm, environmental responsibility,
and grounds for responsibility or responsibility defences provisions are identi-
fied in substance, even when not literally referred to as such.
Regarding the “how” question, i.e. the articulation between international
environmental law, Council of Europe human rights law and EU environmen-
tal responsibility law can be analised along two scenarios: accumulation and
conflict.6
In a first scenario, the rules derived from international environmental law or
Council of Europe human rights law accumulate with the rules derived from
the Directives. Two cases are distinguished: complement and confirmation.
The confirmation case is the simplest of all cases: rules of international
environmental law or Council of Europe human rights law merely confirm the
rules of the Directives.
The second case is the “complement” case. The rules of international
environmental law or Council of Europe human rights law complement the
Directives without contradicting them. In that case, the rules of international
environmental law and Council of Europe human rights law can have two pur-
poses that refer to the interpretation and the application of the rules of the

6 This grid has been elaborated (partly) following J. Pauwelyn (2009), pp. 158–188 and 200–221.
6 CHAPTER 1

Directives. On the one hand, if the provisions or terms of the Directives are
amibiguous, international environmental law or Council of Europe human
rights law can come into play in order to interpret these provisions or terms.
On the other hand, international environmental law and Council of Europe
human rights law apply in the cases that are not regulated by the Directives. In
other words, the Directives are not applied in isolation.
In a second scenario the rules of the Directives are in conflict with interna-
tional environmental law and Council of Europe human rights law: they are
either inconsistent, incompatible or contradictory.
The hierarchy between the legal systems considered (and the norms that
belong to these) is not the object of this research. It will be taken as granted
that international environmental law and Council of Europe human rights law
are supreme over and bind EU secondary law.7 In short, the Directives that
regulate environmental responsibility must conform to international environ-
mental law and Council of Europe human rights law. The latters are considered
in this book as setting minimum standards that cannot be derogated from.
The sources are manifold. Quite obviously, the analysis of written legal
norms constitutes a firm ground and provide precious insights in regards to
States’ will. Several other sources are mobilised. The case law of the European
Court for Human Rights is utilised as quite a useful second source. The Court’s
case law is part of the Council of Europe human rights law.8 General principles
of law and the work of scholars are also mobilised.9

7 Legal scholars extensively study this point of law. As a short insight, international environ-
mental law binds EU secondary law insofar as international environmental law is embodied in
a Treaty to which the EU is a party, or customary law (as recently reaffirmed in EUCJ C-366/10,
Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United
Airlines Inc. v. Secretary of State for Energy and Climate Change, 21 December 2011—Grand
Chamber, ECR 2011 I-13755, para. 101: “Under Article 3(5) TEU, the European Union is to con-
tribute to the strict observance and the development of international law. Consequently,
when it adopts an act, it is bound to observe international law in its entirety, including cus-
tomary international law, which is binding upon the institutions of the European Union.”
The case is introduced and discussed at length in the subsequent chapters). The relationship
between the Council of Europe human rights law and EU secondary norms is slightly more
complicated. This issue is addressed in section 1.2.7.
8 As evidenced for example in the Charter of Fundamental Rights of the European Union,
Preamble: “the rights as they result, in particular, from (. . .) the European Convention for the
Protection of Human Rights and Fundamental Freedoms (. . .) and the case-law (. . .) of
the European Court of Human Rights”.
9 To sum up, the variety of sources equally mobilised in the second part of each chapter in
order to conduct the (legal technique) lawfulness assessment reflects the sources of law
Introduction 7

1.2.3 A Few Norms of International Environmental Law as Potential

Gap Fillers
In the second part of each chapter, some of the gaps identified in Directives
2004/35 and 2008/99 are challenged against the standards endorsed in interna-
tional environmental law and Council of Europe human rights law. Assessing
EU law against international (environmental) law is anything but original.
No further explanation on this approach is required. There is nevertheless
the need to highlight that legal technique is applied in the book. De lege lata
reasonings are applied. Only international norms that entered into force
(or are expected to enter into force) are considered. Scholars commonly
report that international norms addressing private persons’ responsibility
for environmental damage suffer a shortfall in becoming positive law.10 As a
consequence, there are only a few norms that can be scrutinised. Amongst
others, the following norms will not be addressed in the book as potential
gap fillers: the Annex VI to the Protocol on Environmental Protection to the
Antarctic Treaty, Liability Arising from Environmental Emergencies adopted in
Stockholm on 17 June 2005, the Basel Protocol on Liability and Compensation
adopted on 10 December 1999 (Protocol to the Basel Convention on the Control
of Transboundary Movements of Hazardous Wastes and their Disposal),
the Protocol on Civil Liability and Compensation for Damage Caused by the
Transboundary Effects of Industrial Accidents on Transboundary Waters,
adopted under the auspices of the United Nations Economic Commission for
Europe in Kiev on 21 May 2003.
In the book, attention will be directed to the Convention on Civil Liability
for Oil Pollution Damage adopted on 29 November 1969 (the “Civil
Liability Convention”) amended by the Protocol of 1992 to amend the 1969
International Convention on Civil Liability for Oil Pollution Damage adopted
on 27 November 1992) and the Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage adopted on

listed in Article 38(1) of the Statute of the International Court of Justice. Article 38(1) of
the Statute of the International Court of Justice reads:
“The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. (. . .) judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of law.”
10 See for example A. Daniel (2003), p. 225.
8 CHAPTER 1

18 December 1971 (the “Fund Convention”), amended by the 1992 Protocol

to amend the 1971 Fund Convention adopted on 27 November 1992. These
Conventions were adopted under the auspices of the International Maritime
Organisation. The book will also address the UN Convention on Biological
Diversity (the “Biodiversity Convention”) adopted on 5 June 1992 and two
Protocols to the Biodiversity Convention: the Protocol on Biosafety adopted
on 29 January 2000 and the Supplementary Protocol on Liability and Redress
to the Cartagena Protocol adopted on 15 October 2010.
The human rights approach applied in the book is much more original. It
is far less widely applied than the international environmental law approach
described above. Accordingly, it is appropriate to explain this approach below.
This explanation facilitates the provision of the grid that is applied in the
book and is intended to assist the reader in understanding the developments
therein.

1.2.4 Introduction to the Interplay between Environmental Protection and

Human Rights Protection
In the first part of each chapter the question is: can some gaps be found in
Directives 2004/35 and 2008/99? The author focuses on the notions of envi-
ronmental damage, environmental harm and the grounds for responsibil-
ity and exceptions to the responsibility principle. Can the Council of Europe
Convention on Human Rights (the Convention) as interpreted by the European
Court of Human Rights (the Court) fill these gaps? Assessing if, and to what
extent the Convention as interpreted by the Court can fill the gaps identified
in Directives 2004/35 and 2008/99 requires to first expose how the Convention
and Court approach environmental affairs, and how the approaches will
address the gaps identified in the first part of the book. This is done below and
followed in the next section by theoretical developments on the potential
and difficulties inherent to this human rights approach.

Once highly challenged, the nexus between human rights claims and envi-
ronmental protection has been constantly and increasingly recognised at the
international, European and national level during the last decades.11
Nevertheless, the nexus between human rights protection and environmen-
tal protection is not clear-cut. It would be wrong to assume that human rights
law and environmental protection law are in any case mutually supportive.
On the contrary, doctrinal works and concrete cases show that human rights

11 On the link between human rights and the environment see for example Boyle A. and
Anderson M. (Ed.) (1998); R. Picolotti and al. (2003); D. Shelton (2007); M. Pallemaerts
and M. Déjeant-Pons (2002); and N. de Sadeleer (2012).
Introduction 9

protection and environmental protection can in some cases conflict. The

values protected can be in conflict: sometimes, the interplay does not create
mutual support between human rights and environmental protection.
The developments currently occurring within the international framework
on climate change with regards to the protection of forests are a good exam-
ple of the conflict between environmental protection and human rights val-
ues. The United Nations “Reducing Emissions from Deforestation and Forest
Degradation, sustainable forest management, conservation and increasing for-
est carbon stocks” (REDD+) programme is intended to reduce greenhouse gas
emissions through the halting of deforestation and the protection of forests
which function as carbon sinks. Financial aid will be granted to the Countries
that set REDD+ strategies. The programme has been severely criticised by NGOs
and scholars. Basically, these contend that governments have such appetite
for financial aid that they may deprive indigenous and local communities of
their rights in relation to lands covered by forests in order to receive financial
aid. They also shed light on the fact that despite having set up their REDD+
strategies, the governments do not sufficiently consult local and indigenous
communities.12 This example clearly illustrates the conflict that can occur

12 For a critical assessment of the REDD+ program and the impact of the program on human
rights, see I. Fry (2008), particularly p. 177:
“Another concern being expressed regarding an international REDD (Reducing
Emissions from Deforestation and Forest Degradation) carbon market is the effects that
such a regime may have on the rights of indigenous peoples and local communities. In
some situations, the property rights of indigenous peoples and local communities are far
from settled, much less the right to benefit from the carbon market. Introducing carbon
rights over land occupied and used by these people may have the potential to further
compromise their tenure and use of the land. There is a real fear among some indigenous
peoples and some NGOs that the establishment of protected areas as a response to REDD
(Reducing Emissions from Deforestation and Forest Degradation) could seriously compro-
mise their rights to land. Based on past experience, statements like ‘identifying and pro-
moting alternative sustainable livelihoods near protected areas’, while presumably well
intentioned, is cold comfort for some indigenous peoples.”,
and S. Lemaitre (2011) who reports on the experience gained so far in Guyana and con-
cludes p. 162:
“Indigenous peoples inhabiting forests are particularly concerned with the impact
that REDD (Reducing Emissions from Deforestation and Forest Degradation)projects could
have on their lives. Given past experiences in which governments have at times disre-
garded their rights, indigenous peoples have repeatedly stated that they must be involved
in the negotiations and conclusions of a REDD (Reducing Emissions from Deforestation
and Forest Degradation) agreement. Indigenous peoples’ land rights are recognized by
several international instruments. Their rights are also “enforced and strengthened
10 CHAPTER 1

when environmental protection eventually clashes with human rights. Scholars

have conducted in-depth research on the relationship between environmen-
tal protection law and human rights law. Some scholars contend that human
rights law and environmental protection law are in conflict with one another.
More particularly, some argue that environmental protection law could hinder
human rights law, or even that the contrary could occur (human rights law that
hinders environmental law, on account of the lack of efficiency of the former).13
Others argue that they are interdependent14 and reinforce one each other.15
In this book the author focuses on instances of mutual support. Attention
is directed to instances in which Council of Europe human rights law supports
environmental protection law. More specifically, this support is identified
in the instances where Council of Europe human rights law fills the gaps
identified in Directives 2004/35 and 2008/99. In this respect, three cases
are identified in the book. Two are “conflict cases”: Council of Europe human
rights law sanctions a choice made by the EU legislator (the exclusion of oil-
spills from the scope of application of Directive 2004/35 and the prescription
mechanism in the same Directive). Two other cases are “accumulation cases”.
These cases complement the Directives: they call for a specific interpretation
of some legal mechanisms endorsed in the Directives (the development risk
defence as an exception to the responsibility principle), or calls for a specific
implementation of the legal mechanisms (impartiality and independence of
the authorities setting environmental responsibility in motion in the context
of the permit defence).

1.2.5 Two Human Rights Approaches Applied: Environmental Substantive

Rights and Environmental Procedural Rights
As reported above, the human rights approach to environmental affairs
is increasingly applied in scholars’ works and before adjudicating bodies.

by regional courts. However, these instruments and for a are not legally binding or they
do not cover all aspects of indigenous peoples’ land rights. Moreover, there is often a gap
between the protection granted by international law and how it is implemented domesti-
cally. REDD (Reducing Emissions from Deforestation and Forest Degradation) will poten-
tially increase this difference as large sums of money are at stake.”
13 See for example E. Louka (2002) p. 20. At the same page, the author answers the “why”
question (to biodiversity protection). The author concludes p. 180 that “biodiversity pro-
tection should not be pursued if it results in human rights violations”. See also C. Miller
(1998), particularly pp. 176–187 and S. Joubert (2012).
14 For example see K. Woods (2010) and J. Hancock (2003).
15 See for example R. Maciel Cuiabano (2000), D. Loperena Rota (1999), E. Gaillard (2012)
and M. Recio (2012).
Introduction 11

The interplay between a body of law aiming to protect human rights and
another body of law aiming to protect the environment needs a roadmap.
Human rights law and environmental protection law do not only protect
distinct values. They also use different techniques. The increasing application
of the human rights approach before adjudicating bodies and the experience
gained through this have enabled scholars to reveal several ways to categorise
human rights approaches to environmental affairs.16 The author proposes
below a systematisation that only partially reflects legal scholars’ categorisa-
tion in order to have a clear grid for the following chapters that furthermore
best fits with the attempt to systematise the European Court of Human Rights’
case law.
The human rights approach to environmental affairs can be systematised
under four approaches.

1.2.5.1 Environmental Substantive Human Rights

This first approach employs existing substantive human rights to achieve envi-
ronmental protection needs. Scholars distinguish two ways to utilise existing
human rights.
On the one hand, the “indirect” application of human rights to environ-
mental affairs undertakes what could be seen as the “traditional” application
of human rights. For example, a Court can find freedom of expression to be
violated when national authorities hamper an environmental activist from
distributing leaflets. The greatest weight of significance rests on the human
rights provision itself—the existing right is applied; such case will incidentally
have an environmental dimension. The link between the environmental com-
ponent of the case and human rights is indirect. The question here is whether
or not the human rights provision has been infringed. The issue at stake will
be found without strong difficulties to fall under the human rights provision’s
scope (here, the impossibility to distribute tracts as falling under the scope of
the provision for freedom of expression). All in all, existing human rights can

16 See for example M. Anderson (1998), pp. 4–10, K. MacDonald (2008) and D. Shelton (2002)
who distinguishes the following approaches. Firstly, the recognition of a healthy environ-
ment as a condition for the enjoyment of basic human rights. Secondly, some human
rights ground the protection of the environment (the focus is then on procedural rights:
access to justice, access to the information, public participation). Thirdly, the recogni-
tion of an autonomous right to a healthy environment. Approaching environmental law
through the human rights prism is sometimes criticised. For example, some scholars criti-
cise the inherent individual character of the human rights approach. See among others
F. Francioni (2010). On that point see section 1.2.7. in the present book.
12 CHAPTER 1

per se apply to environmental affairs. The Court has applied this approach in
numerous cases, for example in the Chassagnou vs. France case.17 In that case,
the applicants claimed that they had suffered an infringement of their free-
dom of association because pursuant to the relevant provisions of the French
Loi Verdeille, they had against their will been made automatic members of an
approved municipal hunters’ association, which the Law did not permit them
to leave. They relied on Article 11 of the Convention.
On the other hand, the “direct” link between human rights and environmen-
tal cases stems from the gradual recognition of environmental rights linked
to human rights provisions. Quite differently from the indirect application
of human rights (discussed above), using existing human rights requires a
“stretching” of the scope of existing human rights provisions. Indeed, for envi-
ronmental protection to fall under this category, the human rights provisions
must be found to receive environmental claims. The focus is clearly on the
environmental dimension of the claim. For example, an applicant claims that
right to life encompasses the right not to suffer the risk created by danger-
ous or polluting activities, for instance, a waste treatment plant in the Lopez
Ostra vs. Spain case.18 In that case, a waste-treatment plant had been built
to solve a serious pollution problem in Lorca caused by the concentration of
tanneries. Yet as soon as it started up, the plant caused nuisance and health
problems to many local people. The human right at stake was the applicant’s
right to respect for her home and for her private and family life under Article
8 of the European Convention on Human Rights.19 The link between the envi-
ronmental dimension of the claim and the human rights provision is more
direct: the environmental component of the case triggers the mobilisation and
interpretation of existing human rights. The question is whether or not the
environmental dimension of the case falls under the scope of application of
the human rights provision (here a dangerous, polluting activity putting life at
risk). The problems and difficulties encountered when a jurisdiction has to rule
are concerned with whether or not the case will fall under the human rights
provisions, before assessing whether or not the provision has been infringed in

17 European Court on Human Rights (ECtHR), Chassagnou and Others v. France, 29 April
1999 (GC).
18 ECtHR, Lopez Ostra vs. Spain, 9 December 1994. In the same sense and among others,
see ECtHR, 3 May 2011, Apanesewicz v. Poland; and ECtHR, 13 December 2012, Flamenbaum
and Others v. France.
19 The claimant also grounded her arguments on Article 3 of the Convention. Article 3
provides “No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
Introduction 13

the particular case. Overall, human rights provisions apply to environmental

affairs per se.
This direct link requires an active role of the adjudicative bodies to override
the limited wording of the human rights provisions. Indeed, the human rights
provisions usually do not expressly recognise environmental rights.20 As seen
in the following chapters, the European Court of Human Rights has had such
a dynamic role, in gradually extending the European Convention on Human
Rights’ provisions to environmental affairs. Operating such broad interpreta-
tion of the provisions allowed the direct link between environmental affairs
and the European Convention on Human Rights to be made.
The first approach is applied in the book. More specifically, the right to
property is used in order to challenge the exclusion of oil-spills from the scope
of application of Directive 2004/35.

1.2.5.2 Environmental Procedural Rights

A second approach links environmental protection and human rights through
the lens of procedural rights. The European Court of Human Rights has detailed
a broad range of environmental procedural rights. These environmental proce-
dural rights are either specifically guaranteed by the human rights provisions
(Articles 6—right to a fair trial and 14 of the European Convention on Human
Rights—right to an effective remedy) or unveiled by the adjudicating bodies
as flowing from substantive human rights provisions. The Court brought to
light environmental procedural rights that pertain to substantive human rights
provisions. Procedural requirements were revealed as part of the obligations
flowing from Article 8 of the European Convention on Human Rights (right to
respect for private and family life—in, among other cases, Taskin and others
vs. Turkey).21
Environmental procedural rights found a solid basis with the adoption
of the Aarhus Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters on 25 June

20 This is true for the oldest human rights norms, such as the European Convention on
Human Rights. The Convention was adopted in 1950. At that time the focus was on other
issues, such as civil and political rights. On this point see for example K. MacDonald
(2008), pp. 213–216.
21 European Court of Human Rights (ECtHR), Taskin and others vs. Turkey 10 November
2004, para. 119 reads as follows: “Lastly, the individuals concerned must also be able to
appeal to the courts against any decision, act or omission where they consider that their
interests or their comments have not been given sufficient weight in the decision-making
process”. In the same sense, see among others ECtHR, 25 September 2014, Application
No. 29878/09 (admis. Dec.), Karin Andersson and Others v. Sweden.
14 CHAPTER 1

1998.22 The Aarhus Convention was signed by 35 member states of the United
Nations Economic Commission for Europe (UNECE) and by the European
Community. The Aarhus Convention distinguishes three pillars: citizens’
access to information, public participation and access to justice. This distinc-
tion is usually adopted in scholars’ works.
This second approach is applied in the book. It is applied when attention
is directed to the impartiality and independence requirements that apply to
public authorities which initiate the responsibility mechanism and to access
to information.

1.2.6 Two Human Rights Approaches Not Applied: The Autonomous Right
to a Healthy Environment and Environmental Technical Standards
1.2.6.1 The Autonomous (Human) Right to a Healthy and Protected
Environment
The third human rights approach to environmental affairs is the recognition of
an autonomous right to a healthy environment. The autonomous human right
linked to the environment can be phrased in different ways. Reference can be
made to the right to a clean, healthy, safe, ecologically balanced, stable, viable,
sustainable, or protected environment. Some scholars contend that this auton-
omous right should not be understood and articulated as a human right, but
as a right in order to allow this right to reflect a biocentric approach: “Shaping
the right to a healthful environment so as to adopt a biocentric approach to a
healthful environment can benefit both humans and eco-systems: a healthful,
clean, toxic free environment will benefit habitats as well as humans.”23
The movements towards the recognition of an autonomous substantial
human right to a healthy environment is not unanimous. Indeed, while some
scholars reflect on how to conceptualise such right, other scholars reject this
recognition.24 This rejection echoes the reluctance of governments to recog-
nise the autonomous right in a binding text.

22 UN Doc. Sales No. E/F/R.98.II.E.27. The text of the Convention is available at http://www
.unece.org/env/pp/treatytext.htm.
23 K. MacDonald (2008), p. 216. The limits inherent to the human rights approach to environ-
mental claims are further elaborated below in section 1.2.7. The human rights provisions’
anthropocentrism is further elaborated on in point 3 below (‘conceptual difficulties’).
24 See for example C. Tomuschat (2003), pp. 51–52.
Introduction 15

The autonomous right—and the obligations flowing from it—is unequally

recognised by the European Union and the Council of Europe legal systems.
The autonomous right is not recognised in a binding EU norm or in EU judicial
bodies’ case law. The Council of Europe is regularly discussing the recognition
of this autonomous right.
The contentious endorsement of the autonomous right in a binding norm
is reflected at the Council of Europe level with the discussions on the adoption
of an additional Protocol that would add the right to a “healthy and viable”
environment in the catalogue of the human rights guaranteed by the European
Convention on Human Rights. The Parliamentary Assembly of the Council of
Europe adopted in September 2009 a recommendation on a “draft additional
Protocol to the European Convention on Human Rights on the right to a
healthy environment”.25 The reluctance to adopt the Protocol was expressed
as early as one month later at the meeting of the Committee of Experts for the
Development of Human Rights (DH-DEV) that took place on 12–14 October
2009 in the following terms:

It (the Committee of Experts for the Development of Human Rights,

DH-DEV) reiterated the view which both the DH-DEV and the Steering
Committee for Human Rights (CDDH) had expressed in the past that
such a draft additional protocol should not be prepared at this stage, par-
ticularly as there was no clear definition of the content and the scope of
this right and because it would impose extra work on the European Court
of Human Rights.26

“Reservations” were reiterated during the CDDH meeting that took place on
24–27 November 2009: “the CDDH agreed with the DH-DEV’s reservations
about an additional protocol to the ECHR, although it considered it worth con-
tinuing to study the question of a right to a healthy environment.”27

25 Recommendation 1885 (2009), Parliamentary Assembly, Council of Europe. Adopted by the

Assembly on 30 September 2009 (32nd sitting). Source: <http://assembly.coe.int>.
26 As reported in “Overview of the recent case-law of the European Court of Human Rights
and the European Committee of Social Rights on the environment”, DH-DEV(2010)02,
Steering Committee for Human Rights (CDDH), Committee of Experts for the Development
of Human Rights (DH-DEV), Strasbourg, 26 March 2010, document elaborated by the
Secretariat, p. 3.
27 Ibid.
16 CHAPTER 1

Such a cautious approach is clearly at odds with the ever-growing recognition

of such autonomous right in national laws and constitutions in other regional
human rights systems28 and at the global level.29 The Parliamentary Assembly
of the Council of Europe acknowledges this discrepancy:

Setting out the individual right to a healthy environment in an additional

protocol to the European Convention on Human Rights would also be an
appropriate way of bringing the content of the rights protected into line
with changes in society and in the concept of “human rights” (in accor-
dance with Article 1.b of the Statute of the Council of Europe). As it is
now very widely recognised as a fundamental human right, both nation-
ally and internationally, and especially at European level, the human
right to a healthy environment should naturally be included in the
Convention.30

Contrary to the discussions within the Council of Europe institutions, the

autonomous right has been temporarily recognised by the European Court of
Human Rights as the right to a healthy and protected environment in the Tatar
vs. Romania case in 2009.31 In the Tatar case, the Court refers to the right to a

28 Such as the African regional human rights framework (art. 24, Human Rights Charter,
Nairobi, 1981) or the Inter-American regional human rights framework (art. 11-1 of the
Additional Protocol (San Salvador Protocol), adopted on 17 November 1988). On the right
endorsed in national Constitutions, see M. de Jesús Rodrigues Araujo Heilmann (2008).
29 As reported for example in the Council of Europe Parliamentary Assembly’s “Report
on the Drafting an additional protocol to the European Convention on Human Rights
concerning the right to a healthy environment”, Committee on the Environment,
Agriculture and Local and Regional Affairs (rapporteur: Mr José Mendes Bota), under “II.
The gradual recognition of the right to a healthy environment”, Doc. 12003, 11 September
2009, available on 30 June 2010 at <http://assembly.coe.int/main.asp?Link=/documents/
workingdocs/doc09/edoc12003.htm>.
30 Ibid. para. 13.
31 European Court of Human Rights (ECtHR), Tatar v. Romania case, 27th January 2009, No.
67021/01, paras. 107 and 112. The applicants (Vasile Gheorghe Tătar and Paul Tătar) are
Romanian nationals who lived in Baia Mare (Romania) at the time of the Baia Mare acci-
dent. On 30 January 2000 an environmental accident occurred at the Baia Mare gold mine.
The company S. C. Aurul S. A., obtained a licence in 1998 to exploit the Baia Mare gold
mine. The company’s extraction process involved the use of sodium cyanide. Part of its
activity was located in the vicinity of the applicants’ home. According to the studies per-
formed by international organizations, a dam had breached, releasing about 100,000 m3
of cyanide-contaminated tailings water into the environment. The incident caused a
severe pollution to ground waters, surface waters, soil and air. The substantial pollution
Introduction 17

healthy and protected environment (while, as noted above, the Parliamentary

Assembly refers to the right to a healthy and viable environment). However,
no obligations binding states have been clearly recognised in that case as spe-
cifically resulting from the right to a healthy and protected environment. In
addition, the Court returned to its more traditional case law, whereby the rec-
ognition of the protection of the environment is not guaranteed.32 Overall, it
cannot be said that the Court guarantees the autonomous right. The autono-
mous right is not recognised in positive law. Accordingly, this approach is not
applied in this book.

1.2.6.2 The Setting of Environmental Standards

According to a fourth approach not applied in the book, environmental regu-
lation per se creates rights.33 This approach identifies regulation as making a
link between environmental affairs and rights. The case law of the European
Court of Justice34 and the European Court of Human Rights indirectly back
such approach. As seen in the following chapters, this approach was endorsed

of the Danube and destruction of aquatic life has been widely reported by the media
and studied by a broad range of governmental and non-governmental organizations. S. C.
Aurul S. A. had not halted its operations after the incident. The Court sanctioned the lack
of appropriate measures and found a violation of Article 8 of the European Convention
on Human Rights.
32 See for example ECtHR, 10 February 2011, Dubetska and Others v. Ukraine and ECtHR,
10 January 2012, Di Sarno and Others v. Italy; and ECtHR, 26 November 2013, Application
No. 26040/06 (admis. Dec.), Ioana Şchiopu and Tomiţa Verzescu v. Romania.
33 On this approach see for example K. Hectors (2008), p. 165: “In general, four approaches
have been used in legal practice”, and in footnote n. 7 p. 166: 4) regulatory approach: inte-
gration of environmental protection in many policy fields (this approach is the only non
rights-based approach)”; and M. Pallemaerts and A. Gouritin (2011).
34 The link between the EC environmental law direct effect doctrine and environmental
rights is made crystal clear in J. H. Jonas (2008), p. 167:
 “The Court has also stated many times that individuals are entitled to effective judicial
protection of the rights they derive from the European legal order, and that the right to
such protection is one of the principles of law (. . .) as far as European environmental law
is concerned, one aspect deserves our attention in particular, and that is the question of
access to court and legal protection of individuals in case they feel that their ‘environ-
mental rights’ have been infringed.”
On the direct effect of environmental provisions as creating environmental rights, see
for example cases C-72/95 Kraaijeveld (1996) ECR I-5403; C-287/98 Linster (2000) ECR
I-6917; C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee (2004) ECR I-7505;
C-431/92 Commission vs. Germany (1995) ECR I-2189; C-126/96 Inter-Environnement (1997)
ECR I-7411; C-316/04 Stinchting Zuid-Hollandse Milieufederatie (2005) ECR I-9759; C-201/02
18 CHAPTER 1

by the European Court of Human Rights in as much as the Court sanctions the
lack of appropriate regulation of dangerous activities (as in the Tatar case),35
the non-enforcement of such regulation when they exist (as in the Öneryildiz

Wells (2004) ECR I-723; C-57/89 Commission vs. Germany (1991) ECR I-883; C-355/90
Commission vs. Spain (1993) ECR I-167.
35 European Court of Human Rights (ECtHR), Tatar v. Romania case, 27th January 2009, No.
67021/01, para. 112. Similarly see (ECtHR), Öneryildiz v. Turkey, No. 48939/99, 30 November
2004 (GC), Reports of Judgments and Decisions 2004-XII, paras. 89–90:
“89. The positive obligation to take all appropriate steps to safeguard life for the pur-
poses of Article 2 (. . .) entails above all a primary duty on the State to put in place a leg-
islative and administrative framework designed to provide effective deterrence against
threats to the right to life (. . .).
90. This obligation indisputably applies in the particular context of dangerous
activities, where, in addition, special emphasis must be placed on regulations geared
to the special features of the activity in question, particularly with regard to the level of
the potential risk to human lives. They must govern the licensing, setting up, operation,
security and supervision of the activity and must make it compulsory for all those con-
cerned to take practical measures to ensure the effective protection of citizens whose
lives might be endangered by the inherent risks.”
In the same sense, see ECtHR, 28 February 2012, Kolyadenko and Others vs. Russia. In
the Kolyadenko case the applicants live in Vladivostok near a river and water reservoir.
A flood affected them. The flood resulted from an urgent massive evacuation of water
from the reservoir. They claimed that national authorities had violated articles 2, 8 and
13 of the Convention and 1 of the first Protocol to the Convention. The Court found that
article 2 had been violated “in its substantive aspect, on account of the State’s failure to
discharge its positive obligation to protect the first, third and sixth applicants’ right
to life”, “in its procedural aspect, on account of the lack of an adequate judicial response
as required in the event of the alleged infringement of the right to life, in so far as
the first, third and sixth applicants are concerned”, and that article 8 and 1 of the first
Protocol had been had been violated. Pp. 157–158 read:
“The Court reiterates that the positive obligation to take all appropriate steps to safe-
guard life for the purposes of Article 2 (. . .) entails above all a primary duty on the State
to put in place a legislative and administrative framework designed to provide effective
deterrence against threats to the right to life (. . .) The Court considers that this obligation
must be construed as applying in the context of any activity, whether public or not, in which
the right to life may be at stake, and a fortiori in the case of industrial activities, which by their
very nature are dangerous. In the particular context of dangerous activities special empha-
sis must be placed on regulations geared to the special features of the activity in question,
particularly with regard to the level of the potential risk to human lives. They must govern
the licensing, setting up, operation, security and supervision of the activity and must make it
compulsory for all those concerned to take practical measures to ensure the effective protec-
tion of citizens whose lives might be endangered by the inherent risks.” (emphasis added)
 On positive obligations see D. Xenos (2012), and more particularly pps. 57–141 and 173–203.
Introduction 19

vs. Turkey case),36 including when the infringement by a private person was
recognised by a national Court but the national authorities did not act to
enforce this national Court’s findings (as in the Lopez Ostra vs. Spain case).37
Ultimately and when taking into account those features, the European Court
of Human Rights can conclude on the violation of the European Convention
on Human Rights.

1.2.7 Potential and Limits of Council of Europe Human Rights Law as a

Gap Filler in Environmental Law
1.2.7.1 EU Law before the European Court of Human Rights: Jurisdiction
of the Court
This book focuses on the substantive (material) interplay between the 2004/35
and 2008/99 Directives of the EU and the Council of Europe human rights sys-
tem as a public international law autonomous system. Nevertheless, it is not
possible to elude the issue of interplay between the different legal systems.
The author therefore needs to briefly address the question of to what extent the
European Court of Human Rights has jurisdiction over claims that question
the conformity of EU texts against the Convention’s requirements.38
The question is: do the obligations of States to secure the rights guaranteed
by the Convention extend to the engagements undertaken by States under

36 European Court of Human Rights (ECtHR), Öneryildiz v. Turkey, No. 48939/99,

30 November 2004 (GC), Reports of Judgments and Decisions 2004-XII. Para. 102 reads
as follows:
 “However, it appears from the evidence before the Court that Istanbul City Council
in particular not only failed to take the necessary urgent measures, either before or after
14 March 1991, but also—as the Chamber observed—opposed the recommendation to
that effect by the Prime Minister’s Environment Office (. . .). The Environment Office
had called for the tip to be brought into line with the standards laid down in regulations
24 to 27 of the Regulations on Solid-Waste Control, the last-mentioned of which explic-
itly required the installation of a “vertical and horizontal drainage system” allowing the
controlled release into the atmosphere of the accumulated gas”.
37 ECtHR, Lopez Ostra vs. Spain, 9 December 1994, Serie A 303-C, para. 56 reads as follows:
“It has to be noted that the municipality not only failed to take steps to that end after
9 September 1988 but also resisted judicial decisions to that effect. In the ordinary admin-
istrative proceedings instituted by Mrs López Ostra’s sisters-in-law it appealed against
the Murcia High Court’s decision of 18 September 1991 ordering temporary closure of the
plant, and that measure was suspended as a result”.
38 This is the subject of a whole new book, and will not be studied in-depth. References to
such studies will be provided. What is highlighted here is the state-of-the-art, and the
latest developments that occurred under the auspices of both the EU and the Council of
Europe.
20 CHAPTER 1

EU law or international law?39 The answer provided by the Court is affirmative.

The answer was given in the T.I. vs. the United Kingdom40 and Bosphorus cases.41
In other words, EU Member States can be liable before the European Court of
Human Rights for implementing the acts of an EU institution.42 This is critical
since, for the time being, this case law should be acknowledged in the context
that the EU is not a party to the Convention and thus action against the EU as
such before the European Court of Human Rights is currently not possible.
Also, in the Bosphorus case the European Court of Human Rights recognised
that compliance by a State with its obligations under EU law can qualify as pur-
suing the general interest requirement when the European Court of Human
Rights performs the fair balance test.43

Once the matter falling under the jurisdiction of the Convention and the
competence of the Court was established, another question is: which legal

39 Article 1 of the European Convention on Human Rights governs this question. Article 1
reads as follows: “The High Contracting Parties shall secure to everyone within their juris-
diction the rights and freedoms defined in Section I of this Convention.”
40 T.I. vs. United Kingdom, admissibility decision of 7 March 2000.
41 Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi vs. Ireland (“Bosphorus
case”), application no. 45036/98, European Court of Human Rights Grand Chamber
Judgment, 30 June 2005, Reports of Judgments and Decisions 2005-VI; this case concerned
a challenge under the European Convention to action taken by Ireland in giving effect to
Community Regulation 990/93 concerning trade between the EEC and Federal Republic
of Yugoslavia, O.J. 1993, L 102/14. This Community Regulation implemented sanctions
imposed by the UN in the UNSC Resolution 820, 24 U.N. Doc S/RES/820 (April 1993). The
facts of this case concerned the detention of an aircraft owned by the Bosphorus Airline
(a Turkish airline, the claimant) on the Irish territory following a decision to impound by
the Irish Minister of Transport. The Court grounded itself on the detention of the aircraft
on the Irish Territory following the decision of the Minister of Transport to recognize the
complaint to be compatible rationae loci, rationae personae and rationae materiae with
Article 1 of the European Convention on Human Rights. On the case, see for example
S. Douglas-Scott (2006).
42 Bosphorus case, para 153 reads as follows: “On the other hand, it has also been accepted
that a Contracting Party is responsible under Article 1 of the Convention for all acts and
omissions of its organs regardless of whether the act or omission in question was a con-
sequence of domestic law or of the necessity to comply with international legal obliga-
tions. Article 1 makes no distinction as to the type of rule or measure concerned and
does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the
Convention.”
43 Bosphorus case, para 150: “This Court has accordingly accepted that compliance with
Community law by a Contracting Party constitutes a legitimate general-interest objec-
tive”. On the fair balance test operated by the Court, see below. Addressing the structural
causes of environmental degradation: fair balance requirement and pilot judgments.
Introduction 21

treatment is to be applied to national measures adopted in order to comply

with EU obligations? According to the Court’s case law, the control of the Court
of the national measure adopted pursuant to EU or international obligations
falls under the “equivalent protection” doctrine.44 This doctrine is expressed in
the Bosphorus case as follows in para. 155:

In the Court’s view, State action taken in compliance with such legal
obligations is justified as long as the relevant organisation (EC in this
case) is considered to protect fundamental rights, as regards both the
substantive guarantees offered and the mechanisms controlling their
observance, in a manner which can be considered at least equivalent to
that for which the Convention provides (. . .). By “equivalent” the Court
means “comparable”; any requirement that the organisation’s protection
be “identical” could run counter to the interest of international coopera-
tion pursued (. . .). However, any such finding of equivalence could not
be final and would be susceptible to review in the light of any relevant
change in fundamental rights protection.

From this paragraph, four rules or conditions are distinguished. First, the State
can comply with EU obligations in as much the EU protects fundamental
rights through substantive means and procedural means. Second, this pro-
tection must be at least equivalent to the protection offered by the European
Convention on Human Rights. Third, to be equivalent, the protection offered
by the EU does not have to be identical but comparable. Fourth, this equiva-
lence is not recognised once and for all but will be reviewed.
If the Court finds the “equivalent protection” criteria to be met, the State
is presumed not to have departed from the European Convention on Human
Rights’ requirements “when it did nothing more than implement the require-
ments of legal obligations flowing from its membership of the organization”.45
What is at stake here is the discretion left to States when implementing obliga-
tions created by the EU legal system. For the “equivalent protection” doctrine
to apply, a fifth condition has to be met: the State cannot have discretion when
complying with EU obligations. Indeed, otherwise, the “protection guarantee”
afforded by the EU for the norms and obligations flowing from the EU legal
system would extend to norms and obligations that even partly fall outside the
control of the EU.

44 On this doctrine in the Bosphorus case see S. Douglas-Scott (2006), pp. 246–248.
45 S. Douglas-Scott (2006), p. 247.
22 CHAPTER 1

In the Bosphorus case, the Court operated the control of human rights’
“equivalent protection” criteria regarding the EU and the Council of Europe
European Convention on Human Rights. After having referred to both sub-
stantive human rights in the EU and procedural guarantees afforded by the EU
legal system, the European Court of Human Rights concluded that “the gen-
eral of protection of fundamental rights provided for by the ECJ is comparable
to that of the ECtHR, so that the ECtHR will only review national measures
implementing EU law if ‘the protection of Convention rights was manifestly
deficient’”.46 Hence, the equivalent protection doctrine has been found to
apply in the EU law context. The conformity presumption applies when states
do not enjoy a margin of discretion.
When controlling whether the presumption in question had been rebutted
in the case at hand, the Court concluded that

In the Court’s view, therefore, it cannot be said that the protection of the
applicant company’s Convention rights was manifestly deficient, with
the consequence that the relevant presumption of Convention compli-
ance by the respondent State has not been rebutted.47

The abovementioned shows that the European Court of Human Rights is

competent to assess national measures that are adopted by states in order
to comply with their obligations that have their legal source in EU or interna-
tional law. Meanwhile, the protection of fundamental rights in the EU legal
system is reputed equivalent to that of the Council of Europe. Accordingly,
the former benefits from the rebuttable presumption that EU law respects

46 As reported in N. Lavranos (2005), p. 219. In the Bosphorus case, para. 165 reads as follows:
“In such circumstances, the Court finds that the protection of fundamental rights by
Community law can be considered to be, and to have been at the relevant time, ‘equiva-
lent’ (. . .) to that of the Convention system. Consequently, the presumption arises that
Ireland did not depart from the requirements of the Convention when it implemented
legal obligations flowing from its membership of the European Community (. . .).”
47 Bosphorus case, para 166. The Court has been criticised by several authors for having oper-
ated a very light control in this last stage. The Court did mainly ground itself on the ECJ
Advocate General’s Opinion and national case law. For a critic of the control operated by
the Court, see S. Douglas-Scott (2006), pp. 250–251. The author also refers to concurring
judges. In addition, it can be observed that when interpreting and applying the rights
enshrined in the Convention, the Court refers to national, European Union, Council of
Europe and international law.
Introduction 23

the requirements of the European Convention on Human Rights. Eventually,

assessing EU (environmental responsibility) Directives against the European
Convention on Human Rights makes sense. Such a case could actually be
brought before the European Court of Human Rights.

As mentioned above, most of the difficulties when assessing EU norms

at the Council of Europe level flow from the fact that the EU is not a party to
the European Convention on Human Rights. Consequently, there are “two
catalogues” of human rights at the European level: one under the remit of the
EU (the EU Charter of Fundamental rights and the rights recognized by the EU
Courts), and one under the Council of Europe (the European Convention on
Human Rights). The issues of concern are mainly of two kinds.
The first one is one of jurisdiction: does the European Court of Human Right
have jurisdiction over national norms having their source in EU/international
legal systems? It has been seen just above that the Court granted itself such
jurisdiction, while granting the EU legal system with a rebuttable presumption
that the EU legal system does guarantee fundamental rights consistently with
the Council of Europe’s protection. The second concern deals with the sub-
stance of the rights. With two legal systems and judicial bodies, scholars con-
tend there is the risk that the European Court of Justice and European Court of
Human Rights could grant the same rights with distinct substantive content.
This is all the more relevant since the EU Charter of Fundamental Rights was
granted a legally binding force by the Lisbon Treaty.48 This binding force could
generate a great number of cases to be brought before the European Court of
Justice. Finally, the consistent interpretation principle arguably forms a safe-
guard that such dual fundamental rights protection systems would not contra-
dict one another.
The Lisbon Treaty not only recognises the legally binding character of the
EU Charter of Fundamental Rights. It also offers the possibility for the EU to

48 Treaty on the EU, Article 6 (1) (ex Article 6 TEU) provides:

“The Union recognizes the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg,
on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union
as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with
the general provisions in Title VII of the Charter governing its interpretation and applica-
tion and with due regard to the explanations referred to in the Charter, that set out the
sources of those provisions.”
24 CHAPTER 1

be party to the European Convention on Human Rights.49 When the adoption

process is completed, the “dual catalogue” problem (rights guaranteed by EU
law and Council of Europe law) will eventually be over.

1.2.7.2 The EU’s Accession to the European Convention on Human Rights:

Insights for the Interplay between EU Law and the Convention
The relationship between the Council of Europe human rights law and EU
secondary norms is slightly more complicated.
Insofar as the EU has not yet acceded the Council of Europe European
Convention on Human Rights, a point of entry for Council of Europe human
rights law can be identified in the combined reading of Article 51(1) and
Article 52(3) of the Charter of Fundamental Rights of the European Union.
According to Article 51(1) the Charter binds EU institutions, including in their
legislative functions,50 and Article 52(3) provides with the “consistent inter-
pretation” principle: whenever a right guaranteed by the Charter is guaranteed
by the Council of Europe Convention on Human Rights, these rights must be
interpreted according to the interpretation given by the Council of Europe
Court for Human Rights (for example, right to property).51
Several points of entry for environmental related rights recognised by
the European Court of Human Rights can be identified in the EU Charter.

49 Treaty on the EU, Article 6(2) and (3) (ex Article 6 TEU) read as follows:
“2. The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s compe-
tences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms and as they result from the constitutional
traditions common to the Member States, shall constitute general principles of the
Union’s law.”
50 Article 51(1) of the EU Charter reads:
“The provisions of this Charter are addressed to the institutions, bodies, offices and
agencies of the Union with due regard for the principle of subsidiarity and to the Member
States only when they are implementing Union law. They shall therefore respect the
rights, observe the principles and promote the application thereof in accordance with
their respective powers and respecting the limits of the powers of the Union as conferred
on it in the Treaties.”
51 Article 52(3) of the EU Charter reads:
“In so far as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms, the mean-
ing and scope of those rights shall be the same as those laid down by the said Convention.
This provision shall not prevent Union law providing more extensive protection.”
Introduction 25

Article 37 directly relates to the environment52 and the EU Charter guarantees

the rights through which the European Court of Human Rights has received
environmental related affairs (right to property,53 to life,54 to family life,55
freedom of expression56 etc).
In this book attention is directed to the interplay between Council of
Europe human rights law and EU environmental responsibility law. Cases
where Council of Europe human rights law conflicts with, confirm or com-
plement EU environmental responsibility law are identified. Attention to the
interplay between EU secondary law and Council of Europe human rights
law in those terms (conflict/confirmation/complement) is by no doubt to
become very common in literature and EU studies once the EU will have
acceded the European Convention on Human Rights.57
In its very recent Opinion 2/13 dated 18 December 2014 the EU Court has
elaborated a little bit on the status of the European Convention on Human
Rights within the EU legal order.58 The findings of the Court illustrate that
the study of the interplay between EU (secondary) law and Council of Europe
human rights law is very relevant.
In this case, the Court had to assess whether or not the draft agreement pro-
viding for the accession of the European Union to the European Convention
on human rights is compatible with EU law. The Court found that the draft
agreement is not compatible with EU law on several grounds. Of interest for
the purpose of that book, the Opinion of Advocate General Juliane Kokott

52 Article 37 of the EU Charter reads:

“a high level of environmental protection and the improvement of the quality of the
environment must be integrated into the policies of the Union and ensured in accordance
with the principle of sustainable development.”
53 EU Charter, art. 17.
54 EU Charter, art. 2.
55 EU Charter, art. 7.
56 EU Charter, art. 11.
57 The purpose of this section is not to provide a detailed analysis of the accession. On the
accession see for example V. Kosta, N. Skoutaris, and V. Tzevelekos (Eds) (2014); and more
particularly A. Drzemczewski (2014), “The EU Accession to the ECHR: The Negotiation
Process”, in V. Kosta, N. Skoutaris, and V. Tzevelekos (Eds) (2014), pp. 17–28 and O. De
Schutter (2014), “Bosphorus Post-Accession: Redefining the Relationships between
the European Court of Human Rights and the Parties to the Convention”, in V. Kosta,
N. Skoutaris, and V. Tzevelekos (Eds) (2014), pp. 177–198.
58 EUCJ Opinion 2/13, 18 December 2014 (Full Court), not yet published. On this Opinion, see
A. Gouritin (2015)a and A. Gouritin (2015)b.
26 CHAPTER 1

elaborates on the interplay between EU law and the Council of Europe

Convention on human rights.
The Court recalls its settled case-law on the current legal status of Council
of Europe human rights law:

in accordance with Article 6(3) TEU, fundamental rights, as guaranteed

by the ECHR, constitute general principles of the EU’s law. However, as
the EU has not acceded to the ECHR, the latter does not constitute a legal
instrument which has been formally incorporated into the legal order of
the EU.59

The Court also recalls its settled case-law on the future legal status of Council
of Europe human rights law once the EU will have acceded to the Convention:

By contrast, as a result of the EU’s accession the ECHR, like any other
international agreement concluded by the EU, would, by virtue of
Article 216(2) TFEU, be binding upon the institutions of the EU and on its
Member States, and would therefore form an integral part of EU law.60

The View of Advocate General Juliane Kokott is (as all her Views) much more
elaborated. She reflects on “the future ranking of the ECHR within the hier-
archy of norms of the EU legal order.”61 The Advocate General puts forward
that in her views Council of Europe human rights law will have an “interme-
diate ranking”, between primary and secondary law.62 The Advocate General

59 EUCJ Opinion 2/13, 18 December 2014 (Full Court), p. 179.

60 Ibid. p. 180.
61 EUCJ, View of Advocate General Kokott, Opinion Procedure 2/13, delivered on 13 June
2013, p. 200.
62 Ibid., p. 201:
 “as an international agreement concluded by the EU, the ECHR will rank between
primary law and other secondary legislation. The ECHR will thus have precedence
over other secondary legislation, because it is binding upon the institutions of the EU
(Article 216(2) TFEU). At the same time, however, it will be subordinate to primary
law, because the proposed accession agreement is negotiated by the Commission and
approved by the Council, and is therefore subject, as an act of EU institutions, to review
by the Court of Justice as to its legality (see the first paragraph of Article 263 TFEU, the
first paragraph of Article 267 TFEU and, already at a preliminary stage, Article 218(11)
TFEU). That cannot be altered by the fact that this accession agreement requires approval
by the Member States in accordance with their constitutional requirements (last part of
the second subparagraph of Article 218(8) TFEU).”
Introduction 27

underlines that Council of Europe human rights law will have precedence
over secondary law. This is of importance for our purposes. Adding to the cur-
rent points of entry for Council of Europe human rights law within EU law the
validity of the content of EU environmental responsibility law (Directives, i.e.
secondary law) will be assessed against Council of Europe human rights law
after the accession of the EU to the Convention.

1.2.7.3 The Potential to Address Structural Causes: Fair Balance

Requirement and Pilot Judgments
In this book the focus is on mutual support between human rights protection
and environmental protection. The actual potential for the mutual support
hypothesis that is explored in the book remains to be introduced and reflected
upon.
A recurrent criticism directed towards environmental rights claims is
their “symbolic gestures”.63 It has been contended that environmental human
rights claims do not address the

environmental degradation produced by the everyday operations of the

capitalist political economy. (. . .) the legal focus on individual actors
reveals a retrospective tendency of law to identify and punish guilty indi-
viduals rather than pro-actively address structural, or culturally deter-
mined, causes of justice. Thirdly, and most importantly, the function of
law will be argued to be to institutionalize, rather than challenge, existing
power relations.64

Furthermore,

The focus on agents is however inadequate for the task of implementing

human rights when rights violations are produced by the cumulative
actions of individuals or institutions that together constitute structural

The Advocate General then elaborates on the specificities of Council of Europe human
rights law. More specifically, she elaborates on the special status of the latter, including
in cases where it would conflict with primary law. See pp. 202–206. Among others, the
Advocate General argues that
 “the fundamental rights protected by the ECHR are to be taken into account in the
interpretation and application of EU primary law, and that a careful balance must always
be struck between those fundamental rights and the relevant provisions of primary law”
(p. 204).
63 This criticism is reported in M. Anderson (1998), p. 22.
64 J. Hancock (2003), p. 82.
28 CHAPTER 1

processes which have been internalized as normal by members of the

society.65

Without taking position on the accuracy of those statements, two arguments

can be put forward to at least nuance the above criticisms.
First, the fair balance requirement (or “proportionality” requirement) oper-
ated by the European Court of Human Rights can be seen as a mechanism
that enables the Court to question the political choices of states triggered by
the power relations influenced by the “capitalist political economy”. Here,
such power relations result in the adoption of environmental regulations,
standards, lack of enforcement of these, or lack of environmental regulation at
all. Individual applicants, when questioning these before the Court, contend
that they infringe their rights as guaranteed by the European Convention on
Human Rights and interpreted by the European Court of Human Rights.
The fair balance requirement is, as seen in the following chapters, a test that
is performed by the Court. The Court assesses whether a national authority’s
action or lack of action respects the European Convention on Human Rights’
requirements. This test is performed for rights that are being interfered with.66
When operating the “fair balance test” the Court assesses whether a fair
balance has been reached when considering the objective of the measure
on the one hand (for example the social and economic impact resulting
from the construction of a road), and the consequences of the interference
for the individual’s fundamental rights (for example the loss of aesthetic value
of the landscape surrounding the applicant’s home). The European Court of
human rights has more room to operate when applying the “fair balance test”,
compared with the two other tests performed by the Court (legality and legiti-
mate goal of the national authority’s interference with the rights guaranteed
by the Convention). The Court’s case law covering environmental concerns
heavily relies on this requirement.
By operating the fair balance test, the Court will actually review the outcome
of the power relations that lead to the adoption of environmental regulations,
standards, lack of enforcement of these, or lack of environmental regulation at
all, through the assessment of the national measure’s goal.
The second potential for the Court to address structural problems, the “pilot
judgment” technique enables the Court to process repetitive cases and freeze

65 Ibid. p. 85.
66 It is this interference that is assessed against the Convention’s requirements. On the con-
trary, other rights can never suffer any interference. This is the case for example with the
prohibition of torture.
Another random document with
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him that we had a cavalry fight a couple of weeks before at
Bardstown, where no doubt his boys were engaged, when on his
further enquiry about the engagement, I told him how we scattered
them all over the country, killing and wounding a great many. The
ladies burst into tears and went back into their room, and the old
man had nothing more to say about his boys.
I then again tried to persuade him to give us at least one
wagonload of bacon, promising him that if he would send his team
and a boy to drive it to Lebanon, he would surely have them
returned, when he again refused in a spiteful, insulting manner. I told
him that we had understood he had some six or eight yoke of work-
oxen and in Texas we knew all about handling oxen and we would
go into his pasture and drive them up and hitch them to the wagons
that were at the house, but this was only a threat. We gave him up
as a bad job and when we reached the pike about three miles from
there, we met a citizen who told us that Wheeler’s cavalry had
evacuated Lebanon and burnt all the meat stored there, which we
were induced to believe, and decided to ride back to the
Harrodsburg Pike and get with our command, which we did.
Our army then continued to retreat, the main part of the army
moving towards Crab Orchard, where we struck the Cumberland
Gap road, while the army, under Kirby Smith, was struggling over Big
Hill, and had still to join the main army at the junction of the roads at
Pitman’s. The army then moved into the mountains on the
Cumberland Gap road, which, owing to the character of the country,
was generally restricted to a single wagon track. This stretched out
our columns of retreat for perhaps twenty miles or more and cut up
the road very badly, frequently causing wagons to stall. Two
infantrymen consequently were detailed with every wagon, of which
we had thirty-eight hundred, laden with provisions and valuable
stores. This detail of two with each wagon was ordered to assist any
wagon that was stalled by taking hold of the wheels, thereby helping
the team to pull the wagon out of the rut.
A division commander was detailed every day to take charge of
the wagon train and artillery and keep it moving. When a wagon
stalled, the whole line of retreat, infantry, wagons and artillery behind
it, would have to wait until it would move again, thereby seriously
impeding our line of march and causing the cavalry in the rear
desperate fighting sometimes to hold off the enemy.
It was reported of General Cheatham, when he had charge of the
train, that one of his wagons was stalled, and he put spurs to his
horse and rode up the line and reached the wagon. The driver was
whipping his mules and the two infantrymen were standing by the
roadside, resting on their guns. At the sight of this, he jumped off his
horse, took hold of the spokes of the wagon wheel and tried to turn
it, but all to no purpose. The two guards still stood resting on their
guns. General Cheatham lost his patience and turned around and
slapped one of the guards in the face. This happened to be an
Irishman, who said, “Be God; if you were not Gineral Cheatham you
couldn’t do this.” General Cheatham pulled off his sword belt, coat
and hat and threw them down by the side of the road and said, “Now,
there lies General Cheatham and here is Frank Cheatham; now light
in.” They say that at this invitation the Irishman lit in and got the best
of the bargain, of which General Cheatham never made any
complaint. The two men then took hold of the wheels in conjunction
with General Cheatham, and started up the wagon, and with that the
whole line of retreat.
This incident was currently reported and generally believed by all
who knew General Cheatham, but I would not be willing to vouch for
the same, as it is almost past belief.
After leaving Crab Orchard, General Buell dispensed with his
cavalry, as they were unable to cope with ours and moved only with
his infantry and artillery in advance. To enter into the details of the
rest of this campaign, would require too much space and will only
say that the brigade of General Wharton, which always includes the
Terry Rangers, in conjunction occasionally with other cavalry, were
expected to and did succeed in retarding the pursuit of the enemy,
restricting his advance to from six to eight miles a day only, thereby
protecting our infantry column, as well as the artillery, ordnance and
thirty-eight hundred wagons loaded with valuable army stores. On
this retreat the infantry were called on only one time to fire a gun. We
met the enemy in a general engagement at Mount Vernon, Barren
Valley, Rocky Hill, Bushy Mound, Wild Cat, Pitman’s Road, Little
Rock, Castle River and many other points, inflicting on them
considerable loss. This mountain service on the part of the Rangers
proved a most severe tax on their endurance, on account of being
deprived of rations. At one time, for nearly two days, we depended
on picking up raw corn left in the camps of artillery and wagons,
where the horses and mules had been fed. A number of times, after
fighting all day long, we had to go out into the hills ten or twelve
miles to find forage for our horses before we could retire to get a little
rest. Our camping places were frequently by the light of the enemy’s
fires.
To give the reader a better idea of the valuable service we
rendered, I will quote an order issued by General Wheeler, read to
us at Cumberland Gap, October 23, 1862.

GENERAL ORDER NUMBER THREE:

“Soldiers of the Cavalry Corps, Army of Mississippi:

“The autumn campaign in Kentucky is over, your
arduous duties, as the advance and rear guard, for the
present, are finished. Your gallantry in action, your cheerful
endurance in suffering from hunger, fatigue and exposure,
render you worthy of all commendation. For nearly two
months you have scarcely been for a moment without the
range of the enemy’s musketry. In more than twenty pitched
fights, many of which lasted throughout the day, you have
successfully combated largely superior numbers of the
enemy’s troops of all arms. Hovering continually near the
enemy, you have engaged in no less than one hundred
skirmishes. Upon the memorable field of Perryville, alone
and unsupported, you engaged and held in check during
the entire action, at least two infantry divisions of the
opposing army. By your gallant charges on that day you
completely dispersed and routed a vastly superior force of
the enemy’s cavalry, driving them in confusion under their
artillery and infantry supports, capturing in hand-to-hand
conflicts many prisoners, forces and arms. Your continuous
contact with the enemy has taught you to repose without
fear under his guns, to fighting wherever found and to
quietly make your bivouac by the light of his camp fires. On
this continued series of combats and brilliant charges, many
great men have fallen. We mourn their loss. We commend
their valor. Let us emulate their soldierly virtues.
“JOSEPH WHEELER,
“Chief of Cavalry.”
 CHAPTER XVII.

Omissions in Preceding Chapters

After leaving Cumberland Gap our army again moved into Middle
Tennessee, with headquarters at Murfreesboro. Our cavalry in the
advance camped near La Vergne, at Nolandsville and Triune. The
enemy concentrated at Nashville, from whence they sent out
foraging parties, supported by large infantry forces with which we
had daily engagements, restricting their foraging within a small area
of country. At Nolandsville, where General Wharton made his
headquarters, we camped nearly a month, when Lieutenant Decherd
was instructed to select about fifteen men and cross the Cumberland
Mountain, for the purpose of buying fresh horses, which were very
much needed. I was ordered to go with this party.
While camped near Winchester, Tennessee, intending to cross
the mountain the next day, we heard the distant roaring of the guns
of the battle of Murfreesboro, which was not expected so soon when
we left the command, and which proved a great disappointment to
our party, as we felt that every man was needed for such an event.
We, therefore, hastened back to the army, which we found
evacuating Murfreesboro, and reported. Of the Rangers’ part in that
great battle I will not mention in this, as that is of record in the
general reports of General Bragg and others, and will only say that
they fully sustained their character as one of the leading regiments in
this army, capturing prisoners, artillery, wagon trains, etc., and finally
covering the retreat of the army off the field.
Our army then continued its retreat through Shelbyville to
Tullahoma, our cavalry still operating on the north side of Elk River.
Before crossing Elk River a courier reached General Wheeler from
General Forrest, after Wheeler had crossed the bridge, requesting
him to hold the bridge until he (Forrest) could cross with his
command. Promptly on receipt of this information, General Wheeler,
with a portion of his command, notably the Fourth Alabama Cavalry,
recrossed the bridge to the north side, determined to hold the same
until General Forrest had crossed with his command. Before Forrest
reached Shelbyville, however, General Stanley, with a heavy force of
cavalry, outnumbering Wheeler’s little force ten to one, charged and
forced them back across the river, cutting General Wheeler off from
the bridge. General Wheeler spurred his horse to the bank and over
it, into the dangerous river, which had been swollen by excessive
rains, making a leap of not less than twenty feet, with Stanley’s
cavalry shooting after him and continuously firing on him until he
reached the opposite bank. This was, perhaps, the most miraculous
escape he had during the war.
Before reaching Tullahoma, a Captain Gordon, who had
distinguished himself near Bardstown, where he held in check a
whole brigade of the enemy’s infantry on the Bloomfield Road for a
whole day with only twenty men, was ordered to select twenty men
from the Rangers and enter Kentucky, for the purpose of gaining
information of the disposition of the enemy’s forces, preparatory to a
general raid by our cavalry. The history of this trip, which resulted in
my being wounded and captured and held a prisoner just one year,
lacking a day, I have already recorded, and by an oversight, it crept
into this history ahead of the proper time.
Recurring to the hard service sustained by us in the mountains
between Crab Orchard and Cumberland Gap: The last night we were
on picket duty our company had dwindled down to seven men and I
happened to be on vidette with a messmate, John Cochran. Just at
daylight, when the enemy usually made its appearance, we were
relieved by two others of the command and when we reached the
reserve picket, discovering a grassy spot in the middle of the road, I
told Cochran I must try to steal a little nap, and laid down on this
grassy spot, holding my horse by the bridle, when I was awakened,
only about ten minutes after, by Cochran stooping down from his
horse and jabbing me with his pistol. The reserve picket had formed
a line across the road, just a little back of where I was sleeping and
were firing on the enemy’s advancing skirmish line, the noise of
which failed to awake me and it was only his prodding me with the
end of his six-shooter that got me awake. I had just time enough to
swing on to my horse and get out of there. Here Cochran’s
prediction, frequently made, that he would bet Graber would wake up
some fine morning with a Yankee bayonet sticking in him, came very
near being verified. I merely mention this to give the reader a fair
idea of our complete exhaustion for the want of sleep, continuous
hunger and arduous duties.
 CHAPTER XVIII

General Johnston’s Failure to

Strike—Sherman
Recurring to my service in Captain Britton’s company, acting as
escort to General Hood at Dalton, Georgia, where I described the
meeting of the several generals with General Hood at his
headquarters in the rear of Railroad Gap: On our return to camp that
night after supper, Captain Britton suggested he should go up to
headquarters and pump Major Sellars on the meaning of the meeting
that morning. He reported on his return from a visit to headquarters
that General Mower, commanding Hooker’s old corps, had moved
down to Snake Creek Gap during the day, which was located about
nineteen miles in our rear and about ten miles west of Dalton.
General Hood plead with General Johnston that morning for
permission to move out of his works through Railroad and Rocky
Face Gaps with his corps and defeat Sherman’s Army before Mower
could return to reinforce them. Captain Britton said that he would bet
our army would be in full retreat that night, falling back to Resaca,
which prediction was verified, as, by daylight next morning, our
infantry and artillery were engaged with the enemy at Resaca, where
we came very near losing a large part of our army by having their
retreat cut off.
Had General Johnston yielded to General Hood’s plan, there is
no question but what he could have destroyed Sherman’s Army;
here was a golden opportunity lost by General Johnston, and was
the beginning of the downfall of the Confederacy.
After about two weeks I succeeded in getting a horse with the
regiment and continued with the regiment during the whole of the
North Georgia campaign, the details of which I will not venture to
insert, as they will be recorded fully in a history now being written by
Colonel Ben F. Weems of Houston.
During the siege of Atlanta General Sherman started out two
cavalry expeditions, one under a General Stoneman to move around
the right wing of our army, and one under General McCook around
the left wing of our army, both to unite on the Macon line of railroad,
and to destroy and tear up the same, then move on to Andersonville
and release our prisoners. Had these expeditions proven a success,
with an army of probably twenty-five or thirty thousand released
prisoners turned loose in our rear, it would have wound up the
Confederacy. At Atlanta, General Hood took command of our army,
not exceeding thirty-six thousand muskets and, to use his words,
“This army through General Johnston’s retreating from Dalton, had
become an army of laborers by day and travelers by night,” while the
army at Dalton, including Polk’s corps at Rome, numbered eighty-six
thousand muskets, and was better equipped and organized than any
army the West had ever had. The North Georgians and
Tennesseans, largely constituting this army, with their families inside
of the enemy’s lines, were anxious and eager for an advance, and
there is no question of doubt had General Hood been permitted to
give battle at Dalton, our army would have recaptured Tennessee
and Kentucky.
Referring back to the enemy’s cavalry expedition out of Atlanta:
General Stoneman, with a large part of his force, and a lot of
convalescents in the town of Macon, Georgia, were captured near
Macon by General Iverson, commanding Georgia cavalry. General
Wheeler with our brigade, Ross’ and Roddy’s, forced McCook to a
general engagement on the evening of the second day between
Noonan and Philpott’s Ferry, where they finally surrendered, with the
exception of himself and staff, and Colonel Brownlow and some
other line officers, who swam the river that night and made their
escape.
General Wheeler issued an order that night for no man to cross
the river after these fellows, when I, with several of our regiment,
decided there must be some mistake about it and crossed the river
to try to catch these fellows, specially anxious to capture Colonel
Brownlow. Immediately after crossing the river we found a
quartermaster’s clerk, so he represented himself to be, left wounded
at a house. His wound, however, was not very serious we thought.
He had on a magnificent pair of boots, which just about fitted me and
I had been unable to secure boots, only wearing shoes, when I
proposed to him to exchange with me, which he readily did. While he
was pulling off his boots, the lady of the house came in and opened
a tirade of abuse on me for taking a poor, wounded man’s boots. I
told her I had but just come out of a Federal prison where they
treated us worse than that and I was satisfied that my shoes would
prove more comfortable to this man at Andersonville, than the boots,
to which our prisoner agreed. We then continued our pursuit on the
main road to Wedowee, the county seat of Randolph County,
Alabama, occasionally taking a prisoner, whom we would turn over
to reliable citizens, to be taken to West Point where we had a
garrison. We were unable to secure many prisoners, probably not
exceeding eight or ten, as those afoot would hear us coming in the
road and dart into the brush, while their officers impressed every
horse they could lay their hands on and soon outdistanced us with
their fresh horses.
At Wedowee we found a tanyard, where I purchased a lot of good
leather, sufficient to rig a Texas saddle. We had some men detailed
to make saddles, who were experts in such work and moved down
with the army as fast as it retreated. Our first shop was at Ackworth,
Georgia, where they did a good deal of work, but were prevented
from turning out anything extensive ever after, for the reason they
were unable to get leather. I paid one hundred and twenty-five
dollars for the leather I got at this tanyard. Colonel Harrison
promised me, after my return from prison, that if I would furnish the
leather he would have rigged for me one of the finest saddles that
could be made, which was the inducement for me to carry this roll of
leather on my horse’s back.
Going back into the town from the tanyard, we stopped at a hotel
to get some dinner. This was one of the ordinary country hotels with
a porch in front and large square columns under the porch. While
eating dinner, I had a seat at the end of the table where I could see
out on the street. The hotel was located somewhat under the hill,
away from the square, when I discovered Carter Walker, one of our
party, who had finished dinner, behind one of the posts with his pistol
out, talking to some one on the street towards the courthouse.
Having his pistol out suggested to me that there was trouble ahead,
so I jumped up and told the boys to come on. As we got out on the
porch we discovered about fifteen or twenty men on their horses
near the courthouse, with one of them talking to Carter Walker, about
fifty yards distant from us. As soon as we came out, he retired and
when he got back with his crowd, said something to them and
immediately they wheeled and left town. This proved to be a party of
bushwhackers, who were not anxious for a fight with us. We now
decided to return and when a few miles from town, we heard of an
old gentleman, whose name I have forgotten, the only Rebel citizen
in that section, whom we decided to go and see and get some
information from.
After reaching his house and getting acquainted, we decided, on
his urgent request, to stay with him that night, as we were very tired,
as were also our horses, and we did not suppose there was any
great need for our services immediately after the destruction of the
enemy’s cavalry. This old gentleman had had considerable trouble
with his Tory neighbors, who came to his house several nights and
opened fire on him, which he, his old lady and his daughter, a
barefooted girl of eighteen, returned with their squirrel rifles through
port holes cut in the logs of his house.
On the information of our old friend, we decided to visit the house
of a Tory neighbor of his, across the mountain, who belonged to the
Tory regiment in camp at Rome, which we did. Riding up to the
house in blue overcoats, we called for a drink of water, when a lady
invited us in, supposing that we were Federal soldiers. In our talk
with them, there being two other ladies in the house, we represented
that we were Federal spies on our way to Andersonville to make
arrangements about the escape of our prisoners there, which
created quite an interest with these women, who told us that a large
number of young men of the neighborhood belonged to the First
Federal Alabama Cavalry, stationed near Rome, and quite a number
of them were expected home pretty soon on a furlough. We then
arranged with them to tell their boys about our visit and tell them that
we expected to return there in about ten days, as we would probably
need their assistance and we wanted to confer with them. Our idea
was that we would return there at that time, with our company, and
capture the whole outfit.
After making complete arrangements, we started back towards
Philpott’s Ferry, where we again recrossed the Chattahoochie and,
on our arrival at Noonan, found that Wheeler had moved over to
Covington, on the Augusta road.
Riding all that day in a drizzling rain, we called at a house for the
purpose of getting some feed for our horses and something to eat for
ourselves. Night had already set in. We asked the gentleman if he
could take care of us that night, give us a place to sleep on the floor,
as we never slept in a bed, and get something to eat for our horses
and ourselves. His answer was, “Certainly, gentlemen; light and
come in.” I told him before we got off our horses that we were about
out of money and did not have enough, perhaps, to pay our fare,
when he stated that if his wife had anything left from supper we
could have it and he would give us some shattered corn for our
horses. We, of course, didn’t feel very comfortable under such
liberality, but decided to stay, nevertheless, and sleep down in his
barn, some distance from the house.
While we were waiting for his wife to gather what she had left
from supper, he asked us if we were that command the other day
that fired on the Federals when they were tearing up the railroad
near his house. I told him that we were, and he said, “They were in
my pasture trying to catch my horses, when they heard the guns fire
and you ought to have seen those devils run.” When we went in to
supper we found a little piece of cornbread and a little butter, all they
had left from supper, so the woman stated, not enough to satisfy one
man’s hunger. We did not sit down at the table, didn’t touch anything
they had to offer us, and went down to the crib to get the shattered
corn for our horses, which he consented for us to take, fed our
horses and laid down to rest for the balance of the night. Next
morning we got up early and without going to the house, proceeded
on the road towards Covington. Here now, was a fair illustration of
the want of appreciation of a Confederate soldier, with a selfish lot of
people, whom we occasionally met. Rest assured it was very
discouraging to us. The idea of coming all the way from Texas to
fight for and protect these people! He had told us that we saved his
horses from capture by engaging the enemy near his house; you can
imagine our disgust at such treatment. We now proceeded on the
Covington road. When about two miles from there we came to a
large, white house, a magnificent place, and rode up to the gate. A
man about twenty-five years old, well dressed, wearing a white
starched shirt, the first we had seen in a long time, came out to the
gate. When within twenty feet of us, espying the leather on my
horse’s back, tied to the rear of the saddle, he called out, “I want that
leather.” I said, “If you need it any worse than I do, you are welcome
to it.” He said he did, he wanted to make shoes out of it. I told him
that I wanted to make a saddle out if it, to ride to keep Federals off of
him, when he insisted that he needed it worse. I then told him that
we wanted some breakfast and some feed for our hoses. He said,
“All right, gentlemen; light and come in.” Before getting down I said,
“I had better tell you that we are nearly out of money, not enough to
pay for breakfast and feed, away from our command unexpectedly,
but as soon as we get with them and we have an opportunity, we will
send it to you.” He stated that he couldn’t afford to feed us without
pay, that the armies had been around him for some time and had
nearly eaten him out of house and home. I told him that he needn’t
say anything more, that we didn’t want anything he had, although our
horses were hungry, as well as ourselves. As we rode off he called
after us, “I’ll feed you for that leather,” thus adding insult, but we
decided not to notice him.
About three miles further down the road we came to another
house, a somewhat humble cottage, and stopped to make some
inquiry, when a lady came out to the gate and we asked how far
down the road we could find a house where we could get something
to eat for ourselves and feed for our horses. She asked us if we had
tried at the big, white house we had passed on the road. We told her
that we had and were refused because we had no money. She then
insisted that we come in and partake of such as she had, telling us
that she had very little left, as the commissary from Atlanta had
visited her and taken all the corn she had, except five barrels, which
in Georgia, means twenty-five bushels. This, she and her two
daughters had made with their own hands, her husband being in the
Virginia army. She then told us about this man at the big, white
house, who had never been in the army, but had an exemption on
pretense of working in a saltpetre cave and had never had any
forage taken by the commissary from Atlanta, as he had protection
papers, so she called them, from his general at Atlanta. I merely
mention these cases to show you the condition at that time, of the
State of Georgia, the worthy people submitting patriotically to all
manner of abuse by some of our army officials, while some of the
rich, through nefarious practices, escaped the weight of war.
Thanking this lady for her kind offer, which we could not afford to
accept, we continued on this road and two miles further on struck a
large cornfield with tempting roasting ears and decided to stop, build
a fire, dry our clothes and roast corn for our meal, feeding our horses
on the same, in moderation. We had to build our fire of rails taken off
the fence and very soon were enjoying our roasting ears and the
warm fire, being somewhat chilled by the rain. The proprietor of the
place came up the road and, judging from his manner and looks,
was pretty mad, when he said, “Gentlemen, if you had come to the
house I would have gladly given you a good meal and fed your
horses, rather than to see the destruction of my rails.” I told him that
we didn’t believe it, that we had tried several places up on the road
and were refused because we had no money and he, no doubt,
noting that we were in no mood for argument, decided that he had
better say no more. We then proceeded on our road to Covington.
When on our arrival there we found that Wheeler, with all the cavalry
having horses fit for service, had gone on a raid into Middle
Tennessee, by way of Dalton, tearing up the railroad in Sherman’s
rear for many miles, and finally entering Middle Tennessee, returning
by way of Mussels Shoals, rejoining the army below Atlanta.
After the battle of Jonesboro, Hood started on his fatal Middle
Tennessee campaign, his march to the Tennessee River being
covered by our cavalry, making a feint at Rome, Georgia, to which
point General Sherman had followed, confidently expecting to give
Hood battle at Gadsden and never suspecting his move towards the
Tennessee River. While concentrating his army at Rome, Harrison’s
Brigade, under Colonel Harrison, commanding our regiment, made a
feint on Rome by dismounting, hiding our horses in the rear in the
woods, out of sight, and advanced on the outer works of Rome,
preceded by a line of skirmishers. For this purpose, not having our
battle flag with us, we used a new flag, sent us from Nashville, made
by a couple of young ladies from their silk dresses, with the name of
Terry’s Texas Rangers worked in gold letters and some Latin words
on the other side. After skirmishing with Sherman’s infantry a short
time, we retired down the valley, which at this point was perhaps a
couple of miles wide, from the hills to the bottoms.
Falling back that night some six or eight miles, we struck a
wooded ridge, running from the hills to the bottom, perhaps nearly
three miles long. This ridge overlooked the country in front towards
Rome, several miles. General Sherman coming out in person with a
corps of his infantry, expecting to give Hood battle the next morning,
discovered there was only a handful of cavalry in his front, which
was Harrison’s Brigade, and which he was specially anxious to
capture. For this purpose he sent a heavy cavalry force, perhaps
three times our number, into our rear, flanking our position by moving
through the hills on our left, then occupying nearly every road in our
rear, for eight or ten miles. During the night we received
reinforcements of Pillow’s Brigade, a new command, which had been
in only one engagement, at La Fayette, Georgia, where they were
badly handled, causing the loss of a great many killed and wounded
and in consequence, they were a little demoralized. We also
received a section of artillery, two pieces, under a lieutenant, whose
name I do not remember.
This artillery was stationed on a hill to the left of our position,
under an old gin house.
Immediately after taking position the artillery opened on the
enemy, a heavy line of battle making its appearance in the edge of
the woods, about a mile distant. The Rangers were kept mounted,
drawn up near this old gin house, supporting the battery, when all the
rest of the two brigades had been dismounted with their horses
immediately in the rear, out of sight of the enemy.
Very soon a courier from the right of our line, dashed up to
Colonel Harrison and reported that the enemy were flanking us,
down in the bottom, with a heavy force. Harrison abused him, told
him to go back and tell his colonel if he sent him another such
message he would have him court martialed, but very soon a
lieutenant dashed up from the extreme right of our line, reporting the
enemy advancing in the bottom, and about to outflank us, when
Colonel Harrison decided to ride down in the rear of our line and
ascertain conditions for himself. Immediately the enemy raised a
shout and charged. The lieutenant of the battery, concluding that his
guns were in danger of being captured, limbered up and ran down to
the road, where he met Colonel Harrison returning and was by him
ordered to unlimber and open again on the enemy, when he
succeeded in firing one shot and was sabered right over his guns by
the enemy’s cavalry. In the meantime, through some
misapprehension of orders, the Alabama Brigade broke for their
horses, followed by the balance of our brigade, when our regiment
was ordered to charge their cavalry, which we did, striking them on
their flank, using our six-shooters, to which they paid no attention,
simply calling out, “Clear the road for the Fourth Regulars!” This
Fourth Regulars was commanded by a Captain McIntyre from
Brenham, Texas, who was in the United States Army, a lieutenant,
when the war broke out, having just graduated at West Point.
It is hardly necessary to say that finding the enemy’s cavalry in
our rear for a great many miles, resulted in a general stampede,
everybody trying to make their escape out of it. In recording this
engagement I regret to have to mention the loss of our beautiful flag
which, encased in a rubber cover, slipped off its staff and was found
by a Major Weiler, commanding a battalion of the Seventeenth
Mounted Indiana Infantry, and after many years, returned to us at
Dallas, Texas, by Governor Mount and staff, instructed to do so by a
joint resolution of the Indiana Legislature, in response to a memorial,
drawn up and sent by me.
 In this engagement the Terry Rangers lost no prisoners, had only
a few wounded and none killed, while the Alabamians’ loss was quite
heavy in prisoners and the balance of Harrison’s Brigade had very
few men taken prisoners. I made my escape by crossing the big
road, being joined by about eight or ten Alabamians, one of whom
was shot in the fleshy part of the thigh, which somewhat demoralized
him, when he called on me, “Texas, can you take us out of here?” I
told him, “Yes, follow me; I’ll take you out.” I struck out straight for the
river bottom, the Federal cavalry not following us, and when out of
sight of the main road, in a little branch bottom, I called a halt and
told the men my plan of trying to swim the river, as the road ahead of
us seemed to be occupied for many miles, judging by the scattered
firing a great distance ahead of us. The wounded man straightened
up in the saddle and asked me if I was an officer. I told him, “No,”
and he said that he was a lieutenant and would take command of the
squad. I told him he could take command of his own men, but he
couldn’t command me, and told his men, “Now, all of you boys that
want to go out with me, come on,” when they all followed me,
including the lieutenant.
Reaching the high ground on the other side of the branch, I
discovered a house, with a lone cavalry-man at the front gate, and,
getting a little nearer, I recognized him as one Joe Harris, of our
company, who was well acquainted in that section, having married,
near Cedartown, the daughter of a Doctor Richardson, just on the
other side of the river. He suggested to me that he knew of a batteau
about seven miles this side of Rome; that we go up there, put our
saddles and equipments into the boat, swim our horses across, then
go to Doctor Richardson and get a good dinner; to which I, of course,
readily consented. On our way to this batteau, following the river in
the bottom, we struck hundreds of Alabamians trying to find a
crossing place. These men we took along with us and when we
reached the boat we were the first ones to cross, leaving the
Alabamians there to cross as fast as they were able. Joe and I then
rode to Doctor Richardson’s, about ten or fifteen miles, and by three
o’clock sat down to a sumptuous dinner. Here we stayed all night
and the next morning recrossed the river, finally striking the main
Gadsden road and finding our stampeded forces gathering at some
gap, the name of which I have forgotten. Here we met General
Wheeler, with the balance of his command. We then moved down to
the town of Gadsden, where we recrossed the river and spent
several days resting our horses and ourselves.
General Hood, in the meantime, with his army, crossed the
Tennessee River, and General Sherman returned to Atlanta, leaving
Thomas’ Corps to follow Hood into Middle Tennessee. Wheeler and
his cavalry returned to below Atlanta, where we struck Sherman’s
forces moving in the direction of Macon, Georgia, by way of Augusta
to Savannah. We then had daily engagements with Kilpatrick’s
cavalry, often driving them into their infantry. Sherman used his
cavalry to forage for the army, depending altogether on the country
for his commissary. To enter into detail of the many engagements
had on this trip would occupy too much time and space. Our service
was largely, as stated, to keep his cavalry from foraging, burning and
destroying the country. In connection with this I would mention an
incident at Macon:
I was at a blacksmith’s shop with a comrade by the name of
Freeman, who was about seven years my senior in age. While
waiting to get our horses shod we heard artillery, supported by small
arms, open at our works, about a mile across the river. We
immediately mounted our horses and dashed over there and just as
we got in sight of the roadway through the breastworks we witnessed
a lone trooper of Kilpatrick’s cavalry coming up the road through the
works, having his horse shot just as he reached inside. His horse fell
on his leg, from which position he was trying to extricate himself and
was about to be shot by an excited militia of young and old men, who
had never been under fire before, when Jim put spurs to his horse
and with his pistol raised, dashed up to where this man lay under his
horse, and drove off the excited militia, I, of course, following him. He
called up a lieutenant, asked his name, company and regiment; told
him to take charge of that prisoner and see that he was well treated,
that he would hold him personally responsible for his safety, and
immediately wheeled his horse, I following him, and returned to town
without giving the lieutenant a chance to ask questions. On our
return I asked Jim Freeman his reasons for doing as he did, risking