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EU Environmental Law, International Environmental Law, and
Human Rights Law
International Environmental Law
Volume 11
By
Armelle Gouritin
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
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)
Acknowledgments vii
Executive Summary viii
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
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
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
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).
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.
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
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
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
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
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
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.
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
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
“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
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
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.
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
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
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
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
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
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.
Furthermore,
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
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.
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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.