Procedural aspects of article 8 of the ECHR in environmental cases: The greening of human rights law

Abstract

This paper analyzes the legal basis for 'proceduralization' of Article 8 of the European Convention on Human Rights in environmental cases. Procedural aspect of Article 8 has been interpreted as giving rise to a positive duty for States, under certain circumstances, to protect individuals from environmental factors that seriously affect their private and family life. The paper shows that the Court's reliance on the concept of positive obligations with regard to Article 8 has expanded significantly over time, abandoning the link between the State and the harmful activity, as well as reflecting strong preventive nature of duties contained in Article 8. It is shown that the proceduralization of Article 8 represents an influence by a number of well established rules and principles of international law relating to the environment. Another aspect that is analysed in this paper is the scope of procedural dimension of Article 8, which is compared with other environmental law sources, as well as with other procedural rights that derive from the European Convention. Finally, it has been argued that the European Court has an environmentally expansionist interpretation of the right to private and family life, and that the Court set very important standards in relation to the content of procedural rights to participate in environmental decision-making and to access justice in environmental matters. However, the authors conclude that the Court's approach in dealing with certain matters could be criticized as well, such as the failure to provide clear standards in relation to the scope and definition of environmental information.