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The chapter introduces the doctrinal data analysis to explore the compatibility of the ECHR with the specific risk principle of the environmental minimum. The specific risk principle is the trigger of the environmental minimum framework, determining whether the minimum standards of review apply to a given environmental harm. The principle requires that an environmental harm is successfully linked to a threat to a specific human right recognised under the invoked protection regime. Compatibility with the ECHR can be determined through the extent the doctrine of the Court subscribes to two key claims: (1) in principle, any environmental harm can give rise to infringements of Convention rights; and (2) environmental harm has been successfully linked to the Convention rights and led to findings of violations in the past. The chapter concludes that, notwithstanding some inconsistencies in earlier cases, the prevailing ECHR doctrine is compatible with the environmental minimum to a significant extent.
The chapter explores the ECHR approach to the minimum standards of the environmental minimum. These standards apply once a specific risk has been established and are derived either from domestic and international legal norms, or in lieu of these, established and emerging scientific evidence. Notably, unclear or contradictory scientific evidence grants states a wide margin of appreciation in formulating a regulatory response. Should a violation of minimum standards be established, individuals have a claim based on the right invoked at the specific risk stage. The question for the ECHR case law is whether it requires the enforcement of legal norms, and mandates subsidiary recourse to established and emerging scientific evidence in their absence. The ECHR generally meets these requirements: a clear majority of cases where domestic environmental regulations were ignored by authorities also resulted in a violation of the ECHR. However, the chapter acknowledges some enduring concerns, notably the failure of the Court to invariabley find violations where states fail to consistently enforce domestic law and its deferential approach in some cases where a state had no legal norms to enforce.
Part I introduces and defends the environmental minimum as a framework for conceptualising the relationship between environmental harm and human rights. The framework distinguishes between human rights, understood as an expression of idealised values and norms derived from considerations of political morality, and human rights law, the domestic and international protection regimes that entail practical limitations and trade-offs. There are no bright red lines between human rights and human rights law, as they frequently interact and influence one another, but the distinction is useful to explain some of the compromises the environmental minimum proposes.
The chapter introduces some key terms used throughout the book before offering an outline of the overall argument in favour of the environmental minimum: it is intended to serve both as a primer and a convenient reference point for the following chapters. The core contribution of the environmental minimum is that it translates general and abstract committments to human rights and environmental protection into specific and practical measures to protect the environment. The normative argument for the environmental minimum framework centres on its consistency and compatibility with the normative claims of environmental human rights, and its alignment with fundamental legal principles. What renders the environmental minimum preferable to other conceivable incarnations of environmental human rights is its practical and incremental approach. Crucially, the framework only becomes operational if rightsholders succeed in establishing a specific risk to a human right under an existing protection regime. Thus, the environmental minimum is in principle compatible with the doctrinal position adopted under the examined international and domestic protection regimes, most notably the ECHR.
The chapter investigates the claim of the environmental minimum that environmental interests must be balanced with competing considerations, and that neither can be presumed to have priority in the abstract. This becomes particularly relevant when considering cases where states justify infringements of human rights by invoking their duty to prevent environmental harms. Not every conceivable measure in furtherance of environmental protection is porportionate in light of its impact on other rights. The question specifically for the ECHR case law is whether justificaitons for environmental regulations challenged by applicants are balanced with and can be outweighed by competing interests. In principle, the ECtHR accepts that environmental regulations can give rise to infringements of Convention rights and acknowledges that regulations must be proportional to the established threat of environmental harm. The chapter then turns to discusses an enduring area of concern, namely the acceptance of vague economic justifications for environmental harm and the unprincipled application of the margin of appreciation doctrine.
Part III expands our perspective beyond the European Convention on Human Rights. It explores the doctrinal position in the other examined international human rights protection regimes, as well as in the domestic jurisdictions of South Africa and Germany.
The chapter turns to consider two key implications of the environmental minimum for international environmental law. For one, there is considerable difficulty in applying the human rights-based framework of the book to issues surrounding transboundary environmental harm, particularly the overarching global issue of man-made climate change. Due to enduring difficulties establishing causality, as well as temporal, geographic concerns, and the at most lacklustre commitment of most states to upholding them as practical safeguards, human rights are unlikely to contribute decisively to the current policy debate. The environmental minimum and its human rights framework presuppose a robust commitment to human rights, environmental protection and the rule of law that is questionable at best with respect to many of the most notorious global polluters. The environmental minimum is more suited to specifying the scope, context, and relationship of competing environmental obligations, notably among the sustainable development goals, as well as provide a viable framework to enforce otherwise non-binding or underenforced treaty obligations under international environmental law.
The chapter argues that a commitment to human rights necessarily entails basic environmental protection duties as a matter of political morality. This is because egregious forms of environmental harm critically undermine the fundamental values that underpin human rights, chiefly human dignity and autonomy. Human rights must therefore contain a sub-category of protections which we can conceptualise as environmental human rights. The human interests that environmental human rights protect are the environmental conditions necessary for the preservation and flourishing of human life, namely clean water, food, air, and soil within a functioning ecosystem that includes diverse species of plants and wildlife. Those who challenge these rights as vague overlook the significant room for agreement in the pursuit of a comprehensive and universal notion of a ‘sound’ environment. Meanwhile, converns over potential conflicts with other rights are overstated, because balancing of competing interests is a pervasive and well-established feature of human rights law and contemporary environmental regulations are already being challenged on the basis of competing rights, for instance to property.
The chapter focuses on domestic and international efforts to regulate environmental harm and suggests that three pathologies have historically hampered their success: political lag, which describes the gap between the best available scientific evidence and regulatory efforts to address environmental harm; Industry resistance, which arises from the fruitful ground of political lag, permitting vested interests to entrench harmful, but profitable business models and practices; and finally, regulatory inertia, which means that regulators are less likely to burden vested economic interests with effective regulations or enforce them consistently. Historic atmospheric ozone and asbestos regulation provide contrasting examples of regulatory success, and the pervasive contemporary failures in addressing air pollution demonstrates that the pathologies remain salient concerns. The chapter demonstrates that conventional regulatory approaches can be an effective tool to address environmental harm, provided that there is a close relationship between scientific evidence and regulatory action, and explores the improvements the environmental minimum can achieve.
The chapter examines the crucial question whether the ECtHR recognizes that a reasonable hypothesis of harm is sufficient to establish the link between environmental harm and a specific risk to a Convention right required under the specific risk principle. The crucial ECHR rules on this point relate to evidence and the requirements for victim status under Article 34 ECHR. The chapter first sets out the general principles developed with respect to the rules of evidence and victim status before exploring some encouraging developments in more recent cases under Articles 2 and 8 ECHR. The chapter recognises the difficulties and limitations that arise for applicants who seek to obtain relevant evidence and records from reluctant states. Nonetheless, the ECHR case law generally comports well with the requirements of the environmental minimum. The ECtHR does not require applicants to demonstrate an irrefutable scientific link between the environmental harm and an impact on their rights: in many recent decisions the ECtHR is content with evidence of a general population level risk arising from the environmental harm expierienced by the applicant.
The chapter discusses the constitutional protections of the environment in two comparatively sophisticated domestic protection regimes. South Africa and Germany represent two broad trends that go beyond the greener interpreation of existing rights through courts. Both have adopted express environmental provisions into their constitutional frameworks: South Africa codified an enforceable, individual right to an environment of a certain quality and Germany introduced a general constitutional mission statement requiring environmental protection and sustainable development. However, as the case studies demonstrate, both approaches have been limited in their practical impact: key conceptual and doctrinal questions remain unresolved and failed to significantly impact environmental regulations. In South Africa, the environmental minimum could contribute towards the development of a principled doctrine on section 24 and clarify its relationship to environmental framework legislation. With respect to Germany, the chief contribution lies in limiting the deference granted to regulators and stimulating the development of clearer positive obligations under fundamental rights.
The final chapter offers a brief summary of the core arguments of the book, specifically explaining that the environmental minimum constitutes a normatively attractive and practically viable framework that translates general and abstract committments into specific and practical measures to protect the environment. The chapter then explores the overarching incremental theme of the environmental minimum, highlighting its preference for continuity with established legal categories and principles. It closes with an outlook and situates the framework in the broader legal and socio-political landscape.
The chapter introduces and defends the environmental minimum as a framework for the protections (and correlative duties) that environmental human rights require. It develops the guiding principles of the framework, modelled on the characteristics of human rights identified by James Nickel and as specified through the lens of environmental protection following Joseph Raz's interest theory of rights. The core prinicples of the environmental minimum that allow courts to make sense of environmental harm in the context of human rights protection regimes are: the specific risk principle, which acts as the trigger for the environmental minimum, requiring a specific risk to a recognised right arising from environmental harm; the minimum standards, which specify the baseline standard of review that courts ought to employ and are based on domestic and international legal norms, as well as established and emerging evidence that is generally accepted in the relevant scientific community; and finally the high priority characteristic, which guides the balancing of environmental protection with competing interests based on human rights.