A Human Rights Based Approach to Tackling Air Pollution

A Human Rights Based Approach to Tackling Air Pollution Presented by: Dr. Misiedjan Date: 4 March 2023 Program - Introduction - Air pollution and its effects - Current state of air pollution legislation - Added value of a human rights-based approach - Discussion - Conclusion Current state of air pollution regulations - - - Fragmented international law on (transboundary) air pollution • Geographical gaps • CLRTAP Fragmented international law on (transboundary) air pollution • Geographical gaps • CLRTAP • ASEAN Agreement on Transboundary Haze Pollution International law principles which could apply to air quality • No-harm principle: Trail Smelter Arbitration of 1937/1941 > Long distance air pollution? - • CBDR • Directive 2008/50/EC on ambient air quality and cleaner air for Europe • National Emission Ceilings Directive • Source-specific legislation • Case law EU Directive 2008/50/EC on ambient air quality and cleaner air for Europe - Requires member states to achieve a particular result without dictating the means. - Sets pollutant concentrations thresholds that shall not be exceeded in a given period of time (article 13). - Procedural requirement: monitoring, reporting and implementing plans Case C-237/07 Janecek v Freistaat Bayern - German citizen's legal action concerning breaches of limit values PM10 • Citizens have standing to enforce limit values  Right to a legal remedy (request air quality plan)  Judicial scrutiny of plan • - Also NGOs have standing (Darmstadt case) Broadened standing requirements and scope of judicial review Case C-404/13, The Queen, on the Application of ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs - UK Government's failure to produce an air quality plan - 2011> High Court: a mandatory order 'would raise serious political and economic questions which are not for this court' (2011) - 2013> UK Supreme Court ruled that the UK was in breach of the Air Quality Directive - Primary ruling ECJ • NGOs have standing • Enforcement of the Air Quality Directive is the responsibility of the national courts. Added Value Of A Human Rights- Based Approach? The Environment as an Human Rights Issue... - (Traditional) human rights instruments (often) do not include explicit references to environmental issues however they protect interests affected by environmental degradation - Human rights assume a supportive natural environment - The environment is a pre-requisite for the enjoyment of human rights - Human rights instruments as 'living instruments' - Dignity - Minimum standard - Struggles and competition between interests - Environmental degradation will continue to be a major challenge > relevance of HR Three approaches to HR & E - - Expanding interpretation of established rights • Examples: Right to life & (draft) GC no. 36 • ECHR: art. 2 (right to life) art. 8 (private, family life) • ICESR: art. 11 (right to housing) Developing new (independent) 'environmental' human rights • - Examples: The human right to water The right to an healthy environment Procedural entitlements • Examples: Aarhus Convention, the right to environmental information, administrative and judicial recourse ECHR Jug Heli and others vs. Georgia 38342/05, 2017 - Complaint about a thermal power station, which was in the immediate vicinity of applicants homes, and had a negative impact on their health and well-being - Everyone has the right to respect for his private and family life, his home and his correspondence (Art. 8 ECHR) - Lack of regulation of thermal power plant operating in close vicinity to residential flats Expanding interpretation of established rights: right to life - The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may eventually give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity such as pollution of the environment.... (par. 30) - Environmental degradation, climate change and non-sustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. Obligations of States parties under international environmental law should thus inform the contents of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life must reinforce their relevant obligations under international environmental law. (par. 65) The right to an healthy environment - Derived from the right to life and the right to an adequate standard of health - Independent right - • 1972 Stockholm Declaration on the Human Environment • 1992 Rio Declaration on Environment and Development Framework principles on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment Procedural entitlements - Right to access to information (air quality) - Right to participate - Right to go to court to enforce pollution laws against governments and companies Benefits of a human rights based approach - Complementary to regulations - Direct recourse for inhabitants - Looks harmful effects can push beyond value limits • - Equity National/local measures vs effects on the individual