Environmental Human Rights Series: Judicial Milestones
Foreword
This series of articles provides an analysis of the recent recognition by the UN General Assembly (UNGA) of “the access to a clean, healthy and sustainable environment, as a universal human right” (UNGA, 2022). The recognition of a universal human right to a healthy environment has been a long-awaited accomplishment for environmental law scholars, which brought to a conclusion a long course of preliminary steps that have paved the way to such a result in past decades. This itinerary, made of scholarly contributions, judicial rulings and domestic legislative recognitions, has highlighted the multiplicity of connotations that can be attributed to such a fundamental concept. The different perspectives adopted by different cultures and different fields of study are a feature of the human right to a healthy environment, which deem it necessary for such a right not to be encapsulated in a single, one-dimensional notion. It will be observed that, even after the successful adoption of the above-mentioned Resolution by the UNGA, the debate has been florid on the multiplicity of perspectives which can be taken to interpret the words it contained. There is no doubt that judicial courts will be invested in the very important task of setting precise legal standards. This article, the third of the series, specifically takes into account two of the most important judicial settlements which – in the writer's opinion – have been relevant for the process of recognition of a human right to a healthy environment: the Human Right Committee's decision on the case Ioane Teitota v. New Zealand and the European Court of Human Rights judgment of the case of López Ostra v. Spain.
The Environmental Human Rights series consists of six articles:
Environmental Human Rights Series: Judicial Milestones
Environmental Human Rights Series: Anthropocentrism (and Other Similar Problems)
Judicial Milestones
In the years prior to the ground-breaking Urgenda Foundation v. the Netherlands judgment – which will be covered in the next article of the present series – the phenomenon of judicial claims lamenting violations of the human right to a healthy environment was one that already had manifested itself. The use of an alternative pathway to policy-making, given the complexities that surrounded political consensus on a formal affirmation, cannot be catalogued as a surprise. The two following judgments, however, demonstrate that the recourse to tribunals does not always prove successful, but nonetheless both present fascinating aspects for different reasons, from the attempt to relate to social and ethnic peculiarities to aspects of unexpected innovativeness, which proved important for the construction of the right to a healthy environment.
Ioane Teitota v. New Zealand
Summary of the Case
On 15th September 2015, the Human Rights Committee (hereinafter, “the Committee”, or “HRCtee”) was invested with a communication by Ioane Teitiota, national of Kiribati, requesting a decision on the alleged violation by the State of New Zealand of the Applicant’s right to life under the International Covenant on Civil and Political Rights (hereinafter, “ICCPR”). Teitota, who had attempted to flee to New Zealand from the small island of Kiribati, had been rejected for the status of “refugee“ and forced to return to his home country. He claimed that his removal to Kiribati, after the request to obtain the status of “refugee” was rejected, constitutes a violation of Article 6(1) of the ICCPR, given the threat to which he and his family would be exposed in returning to Kiribati. Interestingly, he put forward that the environmental situation of Kiribati, exacerbated by the climate change process and the sea-level rise, had rendered the land semi-uninhabitable – causing, among other things, grave social tensions – and that, as a consequence of these factors, his replacement in such territory would have posed an unacceptable threat to his life.
The State party, instead, claimed that, despite understanding the credibility of the Applicant, he and his family could not be qualified as “refugees”, or as “protected persons” under the meanings of New Zealand’s 2009 Immigration Act and under the meanings of the relevant international treaties and that, for these reasons only, the Applicant received a deportation order and was removed to Kiribati.
Turning to the outcome of the case, despite acknowledging the difficulties concerning the Applicant and his family, the Committee, considered that the removal implemented by New Zealand could not be considered a violation of Article 6(1) of the ICCPR. The focal point of the decision was the analysis of the threshold adopted. The Committee requested that the Applicant had to demonstrate that the assessment of the State party, regarding the subsistence of the conditions for which the obligation not to extradite, had not entered into effect, was “clearly arbitrary, or amounted to a manifest error, or denial of justice” (Ioane Teitota, para. 9.3), not only loading the burden of proof entirely on the applicant but also setting a surprisingly high threshold. The demonstrations of the Applicant, eventually, fell short of the Committee's requests and the decision by the State of New Zealand could not be overturned.
A too Far-Reaching Burden of Proof?
The first element worthy of observation is the uncharacteristic usage of terms by the Committee: the threshold requested does not amount solely to ‘arbitrariness’ of the decision, a term which in itself denotes an imbalance at best (or unfairness, at worst), but it also demands the demonstration of such arbitrariness to be ‘clear’, a term which should apparently be intended in the sense of ‘easily demonstrable’, or ‘non-debatable’. Alternatively, the applicant would have to demonstrate the subsistence of “a manifest error” in order to overturn the State party’s assessment. In this way, one could already argue that the probative threshold runs fairly close to “unreasonableness”, as described by Committee member Duncan Laki Muhumuza in his dissenting opinion (Muhumuza Dissenting Opinion, para. 3), resembling a probatio diabolica.
As important as it is to preserve the sovereignty of State parties in human rights instruments, in order for these instruments to be as participated and as effective as possible, the margin of discretion conceded to governments should never drain a rule of its significance. This must, of all rights, be true for the right to life, described as “the fountain from which all human rights spring” (Report of the UN Special Rapporteur on summary and arbitrary executions, 1983, para. 22). General Comment No. 36 explicitly indicates that the right to life is one “not to be interpreted narrowly” (General Comment no. 36, para. 3) and State parties are requested positive obligations to removing obstacles that may prevent individuals to enjoy “their right to life with dignity” (General Comment no. 36, para. 26). Given this dimension attributed to the right to life, it could be said that the judgment by the Commission treats with excessive approximation a number of passages.
Primarily, the threshold for the respect of the obligation “not to deport, extradite, or otherwise remove” requests the existence of irreparable harm which refers personally to the Applicant, or, in case the risk derives from the general conditions of the receiving State, the Committee requests the existence of “extreme cases”. This assessment is drawn literally from General Comment No.36, where, in turn, reference is made to the use of this rule in two past jurisprudential cases. In both instances, however, this ‘rule’ was elaborated in reference to episodes of violence, in which an Applicant claimed his right to life being threatened by the instability and the violence present in the receiving country.
Arguably, it is reasonable to require that the threat of life motivated by violence is circumstantiated to the victim, for it to cause a positive obligation not to extradite. The difficult balancing between national interest exigencies and human rights protection exigencies requires that for the second to prevail, something more “imminent” than a generic status of violence is present: for one to benefit from particular protection, one must find itself in a particular position.
On the other hand, though, it is less reasonable to adopt a similar position with reference to a threat to life caused by natural disasters or environmental issues, which are themselves contemplated by General Comment No. 36 as potential causes of violation of the right to life. Natural disasters are, by definition, generalised in their effects and usually involve a larger number of people injured, than an episode of violence.
For this reason, the requirement of demonstrating ‘either a personal risk, either the extremeness of the case’ should be limited to cases of violence, whereas, for the threat caused by environmental phenomena, an assessment of the likeliness of the threat to the life of the individual together with its community, without having to distinguish the singular case, would better operate. Committee member Duncan Laki Muhumuza also translates a similar concept in his dissenting opinion, describing the extradition as “forcing a drowning person back into a sinking vessel, with the “justification” that other passengers are on board” (Muhumuza Dissenting Opinion, para. 6).
Unpreparedness
This critique towards the Committee decision, however, unveils a more profound problem: that of the unpreparedness of human rights instruments to deal specifically with environmental challenges, of which General Comment No.36 is an example. In elaborating on the obligation not to extradite, paragraph 30 seems to momentarily restrict the potential hypotheses of a threat to life to cases of violence, leaving a vacuum legis in regards to whether among the positive obligations requested – in general – to State parties to protect the right to life, there can also be included the obligation not to extradite as a consequence of environmental threats, or really of any other threat which differs from violence.
A logical answer would be, given the importance of the right and given the rules of interpretation expressed in Article 31 VCLT, which envision the possibility of a teleological purpose of the norms, that the rule not to extradite applies, per analogy, also to cases of threats different from those of violence. However, again, we return to the initial problem: would it apply with the limitations of the personality of the threat, or the extremeness of the case? To answer negatively, despite the reasonableness of the argumentation, as was discussed above, would mean stretching the rule of interpretation in different directions, adopting a teleological approach on one side and a restrictive approach on the other, standing by the expressio unius est exclusio alterius principle (Lauterpacht, 1949).
Much preferable, de iure condendo, would be that the Human Rights Committee returned on the matter, given the imminence of the subject, and addressed it with clarity. The “regime friction” (Young, 2021), the interconnectedness between human rights law and environmental law has fully revealed itself in recent episodes, as the facts of the present case demonstrate, and said interconnectedness in the real world should be reciprocated with a recognition in the relevant legal instruments. The threat to life for environmental causes can not be restricted to a single, “self-contained” paragraph, as is paragraph 62 of the General Comment, but shall be unchained to communicate with the others, with special mention to the positive obligations requested to the State parties.
López Ostra v. Spain
Summary of the Case
On 8th December 1993, the European Commission of Human Rights deferred a case concerning an alleged violation of Articles 3 and 8 of the European Convention of Human Rights – respectively the general prohibition on torture and the right to respect for private and family life. The application had been brought forward to the European Commission by Mrs López Ostra, a Spanish resident who lived in Lorca, a small industrial town close to Murcia, placed in a territory wealthy in leather industries. Mrs López Ostra, in particular, turned her complaints against a company named Sacursia Ltd., which had built a plant for waste treatment, located near the applicant‘s house. Briefly after its opening, in 1988, the plant suffered a malfunction, which caused the release of toxic fumes and gases, forcing the municipality of Lorca to displace and rehouse its citizens in an area safe from the exhalations. The applicant - who was rehoused and placed in a flat at distance from the plant only in 1992 – held that the exhalations of fumes “made her family’s living conditions unbearable and caused both her and their serious health problems“. Moreover, she held that the Spanish government had been partially responsible for the event, having maintained a passive attitude and – more specifically – held that the municipality of Lorca‘s failure to intervene immediately in the protection of the citizens of Lorca from the dangerous consequences of the plant exhalations, as well as the failure to have positively acted in the prevention of the acute event, had exacerbated the consequences.
The State party, aside from alleging a number of procedural vices in the applicant‘s submission, maintained, in primis, that the Government could not be held responsible for the toxic emissions which propagated from a private business. Secondly, the Government defended their position by affirming that the duty to protect the citizens had been fulfilled with the interruption of the plant‘s activity and the relocation of the citizens affected by the noxious events.
Figure 5: The plant in the town of Lorca, in Spain, caused severe problems to the surrounding areas (Pixabay, 2020).
The Court eventually found the Spanish Government responsible for the violation of Article 8 of the Convention. It was decided that the balance struck by the State party – between the need to positively act in the prevention of any harm to the community and the right to private business – had exceeded the margin of appreciation left to the parties of the Convention, in consideration of the failure to promptly act following the first perceptions of potentially polluting sources and of the serious doubts concerning the legitimacy of the plant even before its malfunctioning. The judges specifically 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“ (López Ostra, para. 56), considering the recourse to judicial organs by the municipality of Lorca as an indication of a clear imbalance in favour of favouring the right to private business, that the right to a healthy environment.
Legacy and Relevance of the Judgment
Aside from being one of the first judgments delivered by a major international court (Knox, 2020) on the – at the time still hatching – right to a healthy environment, López Ostra v. Spain formally (and judicially) gave recognition to one of the most recurring themes in environmental protection: the conflict between the freedom to conduct a business and the right to environment, declined, in this case, within the canister of Article 8 of the Convention. From an a posteriori perspective, this judgment can be read as “hesitant“, especially considering some of the decisions ruled in the following decades (Leijten, 2019).
Nonetheless, the European tribunal managed to deliver some very significant lines, such as the following passage: “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health“ (López Ostra, para. 51), which entails a clear recognition of the fact that the right to a healthy environment extends larger than the tangible health effects that may derive from pollution. In other words, the threshold of hard needs does not amount to the loss of life or even severe harm to health (Humphreys, 2012).
From a more procedural point of view, as well, the judgment left no discussion in regards to the possibility of circumscribing the right to a healthy environment in the boundaries of Article 8 of the Convention, which has become a norm whose frontiers appear more distant by the year. In any case, López Ostra v. Spain also proved that the responsibility of State parties, in terms of positive obligations regarding the environment, also involves the activities carried out by private businesses, greatly extending their margin of responsibility (Albers, 2017) and representing a huge conquest for environmental rights‘ accountability.
Bibliographical References
Albers, J. H. (2017). Human Rights and Climate Change: Protecting the Right to Life of Individuals of Present and Future Generations. Security and Human Rights 28: 113-144.
European Court of Human Rights. Case of López Ostra v. Spain. (Application no. 16798/90) Judgment of 19 December 1994.
Humphreys, S. (2012). "Climate change and international human rights law". Chapter in: International law in the era of climate change. Edward Elgar Publishing: 29-57.
Knox, J. H. (2020). Constructing the Human Right to a Healthy Environment. Annual Review of Law and Social Science 16: 79-95.
Lauterpacht, H. (1949). Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties. British Year Book of International Law 26: 48-85.
Leijten, I. (2019). Human rights v. Insufficient climate action: The Urgenda case. Netherlands Quarterly of Human Rights, 37(2): 112–118.
United Nations Human Rights Committee. (2019). General comment no. 36, Article 6 (Right to Life) CCPR/C/GC/35.
United Nations Human Rights Committee. Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, 7 January 2020.
United Nations Human Rights Committee. Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, Individual opinion of Committee member Duncan Laki Muhumuza. 7 January 2020.
United Nations. (1983). Report of the UN Special Rapporteur on summary and arbitrary executions, E/CN.4/1983/16 (31 January 1983)
Young, M. (2021) “Introduction: The Productive Friction between Regimes”. Regime Interaction in International Law: 1-20.
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