European Committee of Social Rights: The right to a healthy environment

European Social Charter—right to health—right to a healthy environment—United Nations Framework Convention on Climate Change—Kyoto Protocol—Marangopoulos Foundation for Human Rights (MFHR) v. Greece1 The European regional system for the protection of human rights has focused, traditionally, on civil and political rights, with less emphasis on social, economic, and cultural rights. The collective complaint mechanism of the European Social Charter2 may have the potential to change this. Inaugurated in 1998, the procedure has produced a number of decisions with far-reaching implications for law and policy in the Charter's member states. In the case under review, the European Committee of Social Rights dealt with the right to health guaranteed in article 11 of the Charter.3 It held that Greece had failed to comply with its positive obligations under this provision because, in the main areas of the country where lignite is mined, no appropriate measures had been taken and no appropriate strategy had been developed to combat public health risks. What is particularly remarkable in the committee's reasoning is the explicit recognition of the “right to a healthy environment” as embodied in the right to health and linked to the right to life under the European Convention on Human Rights (ECHR).4 In finding that Greece violated this right by failing to fight air pollution, the committee relied on a wide range of internationally recognized environmental standards, such as the United Nations Framework Convention on Climate Change,5 the Kyoto Protocol,6 and various provisions and directives of the European Union. Given that EU air pollution levels are regularly exceeded in the urban centers of the EU member states7 (all of which are also bound by the Council of Europe's Social Charter), and that many states are lagging far behind their Kyoto commitments,8 this decision should be considered a wake-up call for European governments. It may be that the committee's endorsement of the right to a healthy environment will even find its way into national constitutional rights interpretation. Greece is the second-largest lignite producer in the European Union and the fifth in the world. The charter challenge initiated by the complainant organization9 relied on the fact that lignite mining causes air pollution in the form of fine particles and gas emissions. Since the respondent government readily acknowledged the polluting effects of lignite production, the questions before the committee were (a) whether the pollution was attributable to Greece, and (b) whether it led to a violation of the charter—specifically, of the right to health10 or of the right to just conditions of work11 and the right to safe and healthy working conditions.12 On the first of these two issues (the second will be dealt with in the next section), the respondent government claimed that the mining operations were undertaken by a private entity for whose actions the state could not be held accountable. The committee did not accept this argument; it pointed out that, regardless of the company's legal status, Greece was required to ensure compliance with its positive undertakings under the charter.13 As a consequence of this line of reasoning, the committee's jurisdiction ratione temporis had to be considered. The protocol establishing the collective complaint procedure14 only came into force in Greece on August 1, 1998. Therefore, the Greek government maintained, acts or omissions that had occurred prior to that date could not be taken into consideration. This objection had already been touched on in the decision on the complaint's admissibility,15 in which the committee acknowledged the principle of nonretroactivity of treaties but overcame this hurdle by relying on the notion of a “continuing violation” developed by the European Court of Human Rights (ECtHR),16 meaning that an event occurring before the entry into force of a treaty continues to produce effects after this date. In the decision on the merits, however, the committee shifted its ground and opted to hold Greece accountable in light of international norms on state responsibility, notably article 14 of the 2001 draft articles on State Responsibility for Internationally Wrongful Acts produced by the International Law Commission (ILC),17 which provides that when a state is under an international obligation to take preventive action against a certain event, and this event occurs, the state remains in breach over the entire period during which the event continues. The committee found that there might be a breach of the obligation to prevent damage arising from air pollution for as long as the pollution continues, and that the breach might even be compounded, progressively, if sufficient measures were not taken to put an end to it.18 Before turning to an assessment of the Charter rights involved, the committee reaffirmed that the charter “is a living instrument, whose purpose is to protect rights, not merely theoretically but also in fact,” and that the rights and freedoms set out in it are to be interpreted “in the light of current conditions.”19 The committee proceeded to take into account the growing link made by states and other international bodies between the protection of health and a healthy environment, and it went on to state that it interpreted article 11 (on the right to protection of health) as including the right to a healthy environment.20 Furthermore, the committee noted the complementarity between the right to health under the charter and the right to life as provided for in article 2 of the European Convention on Human Rights. As a consequence, measures required under article 11 should be designed to remove the causes of ill health resulting from environmental threats.21 In the opinion of the committee, there was ample and unambiguous scientific evidence that the air pollution caused by lignite mining and lignite combustion (man-made particles, sulphur dioxide [SO2] and nitrogen oxide [NOx]) has a harmful effect on human health and life, contributing, notably, to respiratory and cardiovascular disease as well as some types of cancer.22 While acknowledging that the use of lignite and, by extension, its mining serve legitimate objectives under the Charter (such as energy independence, access to electricity at a reasonable cost, and economic growth), the committee, nonetheless, identified several areas in which the state's efforts fell short of Greece's national and international undertakings to overcome pollution, which, in turn, had resulted in a failure to protect the health of the population. It found that, although the Greek Constitution makes protection of the environment an obligation of the state and, at the same time, an individual right,23 national environmental protection legislation and regulations were not applied and enforced in an effective manner, and that the environmental inspectorates were not sufficiently equipped.24 The committee assessed Greece's overall efforts to overcome pollution in the light of its international undertakings for emission control and found that the National Allocation Plan for greenhouse gas emissions drawn up by Greece in accordance with EU law25 (providing for an increase of 39.2 percent by 2010) was in stark contradiction of the binding targets for Greece under the Kyoto Protocol (allowing for an increase of only 25 percent by 2010).26 Based on these and other facts before it, the committee, therefore, found no real evidence of Greece's commitment to improving the situation within a reasonable time.27 Noting also the lack of a valid education policy or effective monitoring of health risks, the committee also concluded that, notwithstanding the margin of discretion granted to national authorities in such matters, Greece had not managed “to strike a reasonable balance between the interests of persons living in the lignite mining areas and the general interest,” and thus that there has been a violation of Greece's obligations with respect to the right to protection of health28 under the Charter.29 Regarding the working and employment conditions in the lignite mines, the committee ascertained that legislation and regulations on screening for and recording occupational diseases are currently in force in Greece. Thus, the state has complied with its primary obligation under article 3 of the charter to ensure the right to safe and healthy working standards.30 However, since the regulations on health and safety at work are not efficiently enforced, due to a lack of inspectors or available data, the committee found Greece to be in violation of its obligation to provide for the enforcement of safety and health regulations ensuring the right to safe and healthy working conditions.31 Finally, it also held that Greek law did not comport with the obligation to grant compensatory measures to workers exposed to occupational health risks.32 Marangopoulos v. Greece is, undoubtedly, one of the most important decisions the European Committee of Social Rights has taken so far. Not only does it provide some much-needed input on the social right to health, it also clarifies the committee's jurisdiction ratione temporis when dealing with positive obligations under the Charter. Most importantly, however, it places the right to a healthy environment in the mainstream of human rights. To start with, given the fact that most collective complaints had hitherto been concerned with economic rights, the case presented a relatively rare occasion for the committee to develop its case law on one of the social rights guaranteed by the Charter. In fact, it constitutes the first collective complaint decision ever to find a violation of the right to the protection of health.33 The committee clearly seized the opportunity to advance its dynamic interpretation of the right in question and of the Charter, in general. As outlined by the committee in Marangopoulos v. Greece,34 environmental protection had already been identified as one of the key elements of the right to health by means of the Charter's reporting procedure. Several of the committee's conclusions on state reports regarding the right to health specifically indicated that the measures required under article 11 should be designed to remove the causes of ill health resulting from environmental threats such as pollution.35 However, it was important that the committee's interpretation also be raised in the quasi-judicial context of the complaints procedure in order to show how it can be applied in a particular situation. Moreover, once it has reached a decision on a collective complaint, the committee then examines, systematically, in each of the states parties to the Charter, the issues raised by the complaint, when it next considers their periodic reports on the relevant provision.36 In Marangopoulos v. Greece, the committee set a precedent for examining a member state's compliance with its environmental obligations under the Kyoto Protocol; it then used the results in finding that the state is similarly violating its obligations under the Charter. The same line of argument can now be found in the committee's conclusions on state reports with regard to the right to protection of health. As a result, Italy has been among the member states that recently have come to see its commitments under the Kyoto Protocol, and its efforts of implementation, scrutinized by a rather unlikely monitoring body, namely, the European Committee of Social Rights.37 According to the committee, Greece violated its obligation under the European Social Charter “to prevent damage arising from air pollution,” regardless of whether the pollution was caused before or after August 1, 1998. The shift in the committee's reasoning on the question of jurisdiction ratione temporis, from the concept of “continuing violation” to the use of the ILC draft articles on State Responsibility, may seem confusing at first but can be explained with regard to the type of obligation at issue. A continuing violation is one where an act committed before the critical date produces effects that continue thereafter.38 This concept was developed by the ECtHR in the context of a violation of a negative obligation of the state (the obligation to abstain). What was at stake in Marangopoulos v. Greece, however, was a positive obligation under the Charter that Greece violated by failing to act. This situation is more appropriately addressed by article 14 (3) of the ILC draft articles, which deals specifically with the extension in time of a breach of the positive obligation to prevent a given event—in this case, air pollution. Finding that the breach of the obligation to prevent damage arising from air pollution exists for as long as the pollution continues, the committee made it clear that Greece had been as much obliged, under the charter's right to health, to fight air pollution before the Additional Protocol establishing the collective complaints procedure entered into force as it was after. Thus, it can be said that the violation itself was ongoing after the critical date. Still, the most important aspect of the decision is its impact on the material content of the rights involved. The committee essentially removes the right to a healthy environment from the constrained realm of so-called third-generation rights and introduces it into the mainstream of human rights. This is done by linking it not only to the social right to health but also to the “classical” human right to life. On a theoretical level, the decision henceforth may be understood as a strong affirmation of the indivisibility and interdependence of all human rights.39 The committee's frequent reference to the case law of the ECtHR further underscores the linkages developing between the two pillars of European human rights protection, that is, the charter and the ECHR.40 In fact, the impact of environmental pollution on the enjoyment of human rights had previously been examined by the court in the case of Lopez-Ostra v. Spain,41 in which it found the right to respect for one's private and family life to be violated. However, the court did not expressly rely on the right to a healthy environment as such. Therefore, the committee's decision can be understood as further advancing the progressive endorsement of environmental issues by the European human rights institutions. One may go a step further and look at the ramifications this approach may have, ultimately, on member states’ national law. First, the committee's approach may inform domestic rights interpretation. It is quite common in national decision making to interpret rights in light of a state's international human rights obligations. While few European constitutions expressly provide for the right to a healthy environment—Greece being one of the exceptions—a substantial number guarantee the right to the protection of health,42 and many more expressly protect the right to life and integrity of the person.43 When interpreted in accordance with the committee's approach, these constitutional guarantees could come to include the right to a healthy environment. However, given that states are much more inclined to draw upon the jurisprudence of the ECtHR than the decisions of the committee, this outcome would become more likely if the court were to adopt the committee's approach in its own case law on the right to life under the European Convention on Human Rights. Second, given that the ECHR is directly applicable in some of its signatory states, the latter scenario would permit an immediate recognition of the right to a healthy environment in domestic law without the need to resort to an interpretative recourse. The case suggests, therefore, that a state's environmental performance could eventually be challenged under domestic human rights law. Insofar as the committee's reasoning in Marangopoulos v. Greece is based on a lack of monitoring and the enforcement of procedural protections, certain parallels to domestic constitutional decision making may already be drawn. For example, one may point to the case law of the German Constitutional Court on what is commonly called the “procedural dimension of rights.”44 Under this approach, the state is required to put in place the procedural safeguards that are necessary for the effective protection of rights. Failure to implement or enforce these safeguards may then give rise to a violation of the constitutional right in question, much as in Marangopoulos v. Greece, where it gave rise to a violation of a charter right. Meanwhile, the signatories of the Charter are, of course, under no obligation to incorporate the committee's interpretation of the Charter rights into their own rights protection regimes. Doing so may, however, help states to meet their international obligations not only under the Charter but also under related international treaties. The Charter was not the only international treaty at stake in Marangopoulos v. Greece; the committee placed it in a more general context of European and international law by considering a wide range of international instruments. Within this framework, a state's performance under one treaty may be used as an indicator of its willingness and ability (or lack thereof) to live up to its international obligations under other, thematically related treaties. The synergistic effect created by the committee's approach may have the potential, moreover, to strengthen these other instruments. Under the Kyoto Protocol, for example, states that fail to reach their emission targets may face penalties.45 Yet, noncompliance with emission targets is not an issue that can come before the Kyoto Compliance Committee's enforcement branch before the end of the commitment period in 2012. Meanwhile, therefore, the decision in Marangopoulos v. Greece makes it possible to denounce a state's failure to fight air pollution—as demonstrated by the fact that no substantive emission cuts have been made—as a human rights violation under the Charter. In other words, the obligation of result under the Kyoto Protocol is being supported by an obligation of conduct under the Charter.

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