Human Rights and Environmental Protection

Human rights and environmental protection – Prof. Gyula Bándi

The aim of the course is to provide the foundations for the emerging human right to a (healthy) environment, beginning with some ethical consideration and a general survey of the general vision of human rights’ law on this particular human right, following with examples from the UN, European, American and some national legislation.

The lecturers:

• Prof. Gyula Bándi, scientific director of the course, Jean Monnet Professor and head of a Jean Monnet Centre of Excellence inthe Catholic University
• Prof. Ricardo Crespo Plaza, Universidad San Francisco de Quito, Ecuador

( and Oxford graduate (

The division of lectures:

• human right concepts in general and the place of right to (a healthy, etc.) environment within the different generations (Gy.B.)
• environmental rights within the international agreements, conventions (R.C.P.)
• the example of the Americas (R.C.P.)
• the European example and the practice of the European Court of Human Rights (Gy.B.)
• national examples (Gy.B.) and (R.C.P.)

Reading materials:

• PPT presentation by Gyula Bándi (attached)
• Environment and the European Convention on Human Rights – European Court of Human Rights, November 2015

(

• Human Rights and Environment: Past, Present and Future Linkages and the Value of a Declaration by Prof. Dinah Shelton

(

• Human Rights and the Environment by Alan Boyle and Ben Boer, 2013

, Chapter I and II.

• the Hungarian example (attached below)

Grading

Students will write an open book test at the last lecture which will take about 30-40 minutes and will include some basic facts related questions and a problem/case solving exercise. (60%)

Presence, activity in class room, including responses to assignments before the lecture day will also be taken into account. (40%)

Hungary

Introduction to the concept of rights in Hungary

Right to environment as a human right has been a part of the Hungarian Constitution since 1989, but the first direct reference was introduced in 1976 into the environmental act (Act. II of 1976). While the earlier provisions did not receive any merits, the constitutional rights proved to be successful. The Constitution included two appropriate articles:

• Art. 18 on the right to ’healthy’ environment as such, and
• Art. 70/D the protection of public health, within which environmental protection has been taken as a perfect tool or guarantee of such right.

The Constitutional Court in its several decisions examined the details of the right to environment, affirming this right as a fundamental right, the actual content of which should be provided by the state and the state should also formulate the necessary institutional and regulatory guarantees, taking prevention in the centre. The minimum is the non retrogression principle – the details of which we do not discuss here.

A characteristic example of the case-law of the Court, from the point of view of environmental vis-á-vis other constitutional rights is the decision (106/2007. (XII. 20.) AB határozat) on the constitutionality of the act on national physical planning, using the necessity/proportionality test. The Court concluded that any limitation of the right to healthy environment may exceptionally be restrictedby the necessity to protect an equally important constitutional right – such as national defence or public health, etc. Thus any such limitation must be well founded, considering all possible aspects and concluding that there are no other means available for the protection for an equally important other fundamental right. Although environmental protection may in theory be limited under extraordinary conditions, the case law of the Court did not mention any example, which may support the supremacy of other rights – inter alia, property rights - over the environmental right.

The same necessity/proportionality conditions are also applicable for the possible limitations of the right to property. TheConstitutional Court in several decisions agreed with the limitation of property rights due to overriding public interests (such as in the decision 64/1993. (XII. 22.) AB határozat). This judgment and other decisions emphasize that different public and private law limitations may exist in connection with the right to property and public authorities also have the right to interfereif needed.

Several decisions of the Courtdiscuss the ‘unequal equilibrium’ of environmental and property rights.As a result, environmental interests may serve as grounds for limitations of property rights, but – as is it generally understood by interpreters - environmental rights practically may not be limited in order to protect property rights (e.g. decision 50/2007. (VII. 10.) AB határozat). In this case and in some similar cases, the Court discusses the proportionality and necessity test in connection with any limitation of fundamental rights. The Court always refers to the possible limitations of property rights, but does not really mention the limitation of environmental rights, while environmental interests are always taken as major grounds for restricting property rights[1]. Environmental obligations are relatively broad constitutional requirements and may be taken as sources of necessary restrictions over property rights (e.g. decision 33/2006. (VII. 13.) AB határozat).

The former Constitution has been replaced by the Fundamental Law in 2011. Many of the provisions of this Law (in fact a constitution) refer to both environmental rights and property rights. We may mention the preamble (‘Credo’) as a good examplewith references to the interests of future generations, national heritage and human dignity together. AlsoArt. P) refers to the same component and furthermore contains the general duty of the state and everybody to safeguard these interests. From the chapter on human rights of the Fundamental Law the following elements shall be stressed:

• Art. XIII. on the right to property, together with the general social responsibility of property[2];
• Art. XX. is mostly similar to former Art. 70/D, thus environmental protection is taken as a tool for protecting public health[3], while
• Art. XXI resembles to the former Art. 18, so it is a stand-alone environmental right[4].

the right to health or right to a healthy environment both serve the health of future generations. The right to a healthy environment defines the duty of the state as a constitutional right.

Since the adoption of Fundamental Law in 2011, the interpretation of the new and extended vision of this Law in terms of the right to environment has not taken place. Now, the Constitutional Court could issue its first decision in the merits of the right to environment (decision No. 16/2015), proving on the one hand the continuity of the interpretation of the previous constitutional setting and the current Fundamental Law, and emphasizing the added value of the latter as compared with the previous one. Two additional conceptual elements shall be underlined: once the question of sustainable development which did not appear in the previous version of the constitutional right and as a second element – according to the Court - is the widening of the extension of those subjects, bound by the obligation to protect the environment. This means here that the Fundamental Law does not limit its scope to the state as the major obligor, but stipulates that the protection of the environment is the general obligation of everybody. The non-retrogression principle – being probably the most well-know element of the previous interpretation of the Constitutional Court, between 1994 and 2011 - has not been changed.

Interestingly enough, the current case is very similar to that of the first Constitutional Court decision (decision No 28/1994. (V. 20.)), focusing also on the protection of nature conservation areas, in connection with ownership rights of land and forests. The major question here is also connected with the likely lack of effective protection of nature conservation interests, if the property is managed only from the point of view of economic efficiency. Thus, there is a certain likelihood that those land and forests areas, having a protected status, managed up till now by the nature conservation directorates, which shall be managed by the state asset management afterwards, might have a lower level protection, as the additional guarantees, which might serve the nature conservation interests are missing. The Constitutional Court emphasizes in this respect the special role of proper administration in safeguarding the different environmental interests.

According to the Court (point 110): „The chance that the nature conservation interests are not sufficiently implemented, or even might be regarded as secondary aspects might generate long lasting negative externalities, social costs or even damages, which shall be taken as contrary to the obligation of Par. (1) of Art. P) of the Fundamental law, referring to the need to protect biological diversity, also to the safeguarding of endemic flora and fauna for future generations, but also contrary to the right to healthy environment as stipulated on Par (1) of Art XXI. If the legislator still wishes to grant nature conservation duties on organs having a business orientation, this may only be handled if special material and procedural guarantees are also available, in order to avoid that nature conservation objectives are subordinated to economic interests, mostly having a focus on profit. Knowing that these guarantees are missing from the current regulation, there is a risk of having a precedence of efficiency of business activities over nature conservation aspects.”

Unfortunately, we could not come closer to the context of the two above mentioned novelties of Fundamental Law, which means consequently that we are still waiting for the Constitutional Court to find the means of appropriate interpretation.

[1] The given decision in this respect is characterized by the point III.3.2.: “The content of property as a fundamental right shall always be understood together with the effective (constitutional) public and private law limitations.” On the other hand, similar conditions or references of limiting environmental rights has not been mentioned by the Court.

[2](1) Every person shall have the right to property and inheritance. Property shall entail social responsibility.

[3](1) Every person shall have the right to physical and mental health.

(2) Hungary shall promote the exercise of the right set out in Paragraph (1) by ensuring that its agriculture remains free from any genetically modified organism, by providing access to healthy food and drinking water, by managing industrial safety and healthcare, by supporting sports and regular physical exercise, and by ensuring environmental protection.

[4] (1) Hungary shall recognise and enforce the right of every person to a healthy environment.