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The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Published online by Cambridge University Press:  28 June 2013

CHRIS HILSON*
Affiliation:
University of Reading, School of Law, Foxhill House, Reading, RG6 7BA, UK

Abstract

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2013 

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References

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17 Budayeva and Others v Russia, Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008.

18 s 175.

19 (n 12).

20 s 123: ‘However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State’s margin of appreciation.’

21 s 122.

22 s 101.

23 Citing its previous decision in James and Others v UK, No 8793/79, 21 February 1986. Its reading of that case was that the domestic policy-maker’s role should be given special weight in relation to ‘matters of general policy, on which opinions within a democratic society may reasonably differ widely’ (s 97). It also (s 100) cited its previous airport noise decision in Powell and Rayner v UK, 1 February 1990, s 44, Series A No 172, with approval, where it had stated that it was ‘certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere’ and that ‘this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation’.

24 Fadeyeva v Russia, No 55723/00, s 104, ECHR 2005-IV.

25 Art 8 states that ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except as such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

26 ss 129–30.

27 s 103.

28 18 February 1991, Series A No 192.

29 See also Pine Valley Developments Ltd and Others v Ireland, 29 November 1991, Series A No 222, which the Court in Fadeyeva regarded as confirming this approach.

30 [GC], No 48939/99, ECHR 2004-XII.

31 s 107.

32 (n 17).

33 s 134.

34 ss 154–56.

35 E.g. those, as in the case itself, involving a meteorological event (mudslide caused by excessive rainfall) – s 135.

36 s 135. E.g. López Ostra v Spain, 9 December 1994, Series A No 303-C; and Guerra and Others v Italy, 19 February 1998, Reports of Judgments and Decisions 1998-I.

37 In the event, the Court ruled that Russia was in breach, inter alia, of its art 2 substantive obligation, due to its failure to provide information to the public about the risks from mudslides, which it identified as one of the ‘essential practical measures needed to ensure effective protection of the citizens concerned’ (s 152).

38 s 99.

39 s 100.

40 No 59909/00, ECHR 2006-XII; see also Fadeyeva (n 24) s 128.

41 s 80.

42 s 84.

43 s 94.

44 s 93.

45 s 97.

46 Mileva and Others v Bulgaria, Nos 43449/02 and 21475/04, s 98, 25 November 2010; and Connors (n 15), a non-environmental art 8 case, at s 83. See also Grimkovskaya v Ukraine, No 38182/03, s 66, 21 July 2011, where the Court states: ‘[w]hile the Court finds no reason to reassess the substance of the Government’s decision to allow the use of K. Street as a through road, in examining the procedural aspect of relevant policymaking, the Court is not convinced that minimal safeguards to ensure a fair balance between the applicant’s and the community’s interests were put in place’.

47 See Giacomelli, main text above at n 44. See also Dubetska and Others v Ukraine, No 30499/03, s 141, 10 February 2011; and Mileva (n 46): ‘in view of the margin of appreciation enjoyed by the national authorities … it is not in the Court’s remit to determine what exactly should have been done to stop or reduce the disturbance. However, the Court can assess whether the authorities approached the matter with due diligence and gave consideration to all competing interests … In carrying out that assessment, it will have regard to, among other things, whether the national authorities acted in conformity with domestic law’ [98].

48 (n 36).

49 (n 36).

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54 Ibid, s 94.

55 Ibid, s 95.

56 Ibid, s 96.

57 Ibid.

58 Ibid, s 97.

59 No 13728/88, Commission decision of 17 May 1990, DR 65, 250.

60 s 98.

61 s 132.

62 Ibid.

63 s 133.

64 s 134.

65 Ashworth and Others v the United Kingdom (dec), No 39561/98, 20 January 2004. Cited by Shelton, D, ‘Developing Substantive Environmental Rights’ (2010) 1 Journal of Human Rights and the Environment 89, 110.

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66 Ashworth (n 65). As a decision, there are no para numbers.

67 No 4143/02, ECHR 2004-X. Also cited by Shelton (n 65). See also White, R and Ovey, C, Jacobs, White and Ovey: The European Convention on Human Rights (5th edn, OUP, Oxford, 2010) 397.

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69 s 60.

70 ss 61–2.

71 ss 109–110. See also ss 97–8 and 102.

72 s 69.

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74 Furlepa v Poland (dec), No 62101/00, 18 March 2008.

75 Darkowska and Darkowski v Poland (dec), No 31339/04, 15 November 2011.

76 (n 46).

77 E.g. Furlepa: ‘the mere fact that the construction works had been conducted illegally is not enough to justify the applicant’s assertion that she is the victim of a violation of the Convention … The Court accepts that the applicant could have been affected by the pollution and noise emitted by the garage. However, the Court must determine whether the nuisance attained the minimum level of severity required for it to constitute a violation of Article 8.’ Similar wording can be found in Galev, Darkowska and Darkowski, and Mileva.

78 ss 95–7.

79 Ivan Atanasov v Bulgaria, No 12853/03, 2 December 2010.

80 s 51.

81 s 76.

82 ss 75–6.

83 No 71146/01, 1 October 2008.

84 ss 51–3.

85 No 12605/03, 21 July 2009.

86 ss 101–4.

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88 Ibid. As an admissibility case, there are no para numbers.

89 No 61260/08, 20 May 2010.

90 As well as international WHO standards and those operated in most other European countries (s 60).

91 See ss 49, 52–62.

92 No 30499/03, 10 February 2011.

93 ss 118–19.

94 (n 46).

95 ss 58–62.

96 No 6854/07, 3 May 2011. See ss 95–102.

97 It also mentioned the large-scale breaches of planning permission by the operator. The scale of the permit breach here seems to mark this aspect of the case apart from the earlier, ‘technical’ permit breach cases considered above.

98 Though as we shall see, the S v France case illustrates that an applicant may also bring proceedings in Strasbourg because they are dissatisfied with a domestic ruling which has found in their favour (which they believe does not go far enough).

99 Demir and Baykara v Turkey [GC], No 34503/97, s 160, 12 November 2008.

100 [GC], No 25579/05, s 258, ECHR 2010.

101 ss 263–4.

102 ss 267–8.

103 Taşkin and Others v Turkey No 46117/99, ECHR 2004-X.

104 s 128.

105 s 133.

106 Ibid.

107 ss 135–38.

108 See (n 4).

109 s 115. Hilson, C, ‘Risk and the European Convention on Human Rights: Towards a New Approach’ (2008–2009) 11 Cambridge Yearbook of European Legal Studies 353, has described this development of a procedural side to art 8 in terms of a ‘proceduralisation’ or procedural turn, which may be linked to the influence of the Aarhus Convention on the Court’s environmental case law. On the influence of Aarhus, see also Boyle, A, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471.

110 s 117.

111 ss 124–25.

112 Okyay and Others v Turkey, No 36220/97, ECHR 2005-VII.

113 s 61.

114 s 66.

115 Ibid.

116 ss 67–75.

117 (n 92) ss 116–17.

118 s 149.

119 (n 74).

120 (n 83).

121 (n 96) ss 96–8.

122 (n 79).

123 Ibid s 93.

124 Ruano Morcuende v Spain (dec), No 75287/01, 6 September 2005.

125 Ibid. As an admissibility decision, there are no para numbers.

126 No 67021/01, 27 January 2009.

127 The inter alia here including also domestic administrative decisions finding the activities in breach of standards, or publicly available reports indicating a certain level of pollution – both of which were also absent.

128 ss 93–7.

129 And presumably also art 1 of protocol 1.

130 (n 24) s 98. See also Dubetska (n 92) s 141.

131 See e.g. Sadeghi, KC, ‘The European Court of Human Rights: The Problematic Nature of the Court’s Reliance on Secondary Sources for Factfinding’ (2009) 25 Connecticut Journal of International Law 127.

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132 See e.g. López Ostra (n 36) s 55.

133 See e.g. Craig, P, ‘Judicial Review of Questions of Law: A Comparative Perspective’ in Rose-Ackerman, S and Lindseth, PL (eds), Comparative Administrative Law (Edward Elgar, Cheltenham, 2010) 449.

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