The Widening Scope of Article 8 ECtHR in Challenging Industrial Pollution

had not undergone gender reassignment surgery. This reflects how much the focus has shifted from state convenience to individual identity. Early case law gave much scrutiny to the notion of transgender identity itself and justified its deference to member states based on a lack of medical or scientific evidence of the validity of transgender identity. The law has progressed to afford both transgender and transsexual people equal protection, through holding their personal identification as the primary consideration.

Problems

Despite these positive developments, certain legal issues remain. It is unclear whether the ECHR’s pre-Goodwin decision in X, Y and Z v UK will be departed from in light of subsequent reforms. In this case, X sought recognition as the father of Z, who had been conceived by his partner Y through artificial insemination. The Court held no violation of Article 8 had occurred. As there was a lack of European consensus on granting parental rights to transsexuals, the state must be afforded a wide margin of appreciation. This return to a reliance on European consensus and strict adherence to biological determinations of gender seems to conflate with Goodwin and subsequent jurisprudence. As transgender couples are likely to want to use artificial insemination, clarity is needed on this matter. Another issue emerging from state gender recognition is that the gender identity of people who had married prior to transitioning and who remained with their spouse was conditional on their marriage being terminated through annulment or divorce. Under Article 12 of the Convention, marriage is between a man and a woman according and governed by each state’s national laws. The Court has repeatedly declined to grant exceptions to transgender people in this scenario. In Parry v UK and R and F v UK, the Court held in both cases that while the applicants “must invidiously sabotage their gender or their marriage” their cases were declared inadmissible for being “manifestly ill-founded”. This position was reaffirmed in Hämäläinen v Finland, despite the applicants’ strong religious convictions against the dissolution of marriage. The Court argued the balance is struck through civil partnership offering virtually identical legal protections to applicants as marriage does. The Court may be satisfied with their reasoning, but the tension in this verdict demonstrates that while much progress has been made in furthering transgender rights, there is still more work to be done.

The Widening Scope of Article 8 ECtHR in Challenging Industrial Pollution

AMANDA CLIFFE

SS LAW

The degradation of the environment has become a pressing issue, as demonstrated by the latest Intergovernmental Panel on Climate Change (IPCC) report. A major underlying cause of this is industrial pollution, such as water contamination from mining, toxic fumes released from factories and diesel emissions from air traffic. Though there is currently no provision for an environmental right in the European Convention of Human Rights, Article 8 is progressively being used to challenge industrial pollution where it has interfered with an applicant’s rights to home, private or family life. The European Court of Human Rights (ECtHR) has traditionally afforded a wide margin of appreciation to states in environmental cases due to the competing interests involved, as well as the lack of explicit enumeration of an environmental right in the Convention. However, this has not impeded the development of environmental case law under Article 8. This piece will demonstrate the ECtHR’s increasingly progressive approach to industrial pollution challenges under Article 8 despite the wide margin of appreciation given to states. This will be done by analysing successful and unsuccessful cases from ECtHR case law, as well as a parallel case in Irish law. López Ostra v. Spain (1994) is one of the first successful cases invoking Article 8 to challenge industrial pollution. The applicant claimed that the fumes emanating from a liquid waste treatment plant near her home affected her right to home, family and private life. The ECtHR found a violation

of Article 8 as the plant was operating without an adequate permit. This is a noteworthy case as the court established that the state had a ‘certain’ margin of appreciation, due to the competing rights of the town’s economic well-being and the plaintiff ’s enjoyment of her home, but nonetheless found for the plaintiff. The use of Article 8 in challenging industrial pollution reached a high water-mark in Tatar v Romania (2009). The applicants in this case were subjected to contamination from chemicals used in gold mining in the vicinity of their home. The ECtHR found a violation of Article 8 as the state had failed to investigate the risks involved in the operation of the mine and to protect the surrounding population from these risks. This case is important as the court found that states have a positive duty to regulate industrial activities, even where there is mere risk of pollution and none has occurred yet. This is a significant legal development for a right which is not explicitly enumerated in Article 8. These cases show a promising development of jurisprudence in the area of environmental rights and an enlargement of the scope of Article 8. However, it must be noted that the majority of cases which challenged industrial pollution were successful because there was a breach of a domestic obligation by the state, such as the lack of the operating permit in Lopez Ostra or the duty to disseminate information in Tatar v Romania. This highlights the court’s deference to the member states and the wide margin of appreciation afforded to them in environmental matters. The ECtHR has at times retreated from its usual progressive position-- perhaps due to this emphasis on procedural requirements and wide margin of appreciation afforded to states. Hatton v United Kindgom (2003), albeit concerning a challenge to night flights over a residential area and not industrial pollution per se, is a seminal case on the use of the margin of appreciation in rejecting an environmental claim under Article 8. The ECtHR in this case accordingly found that the economic well-being of the country superseded the Article 8 rights of those disturbed by night flights from Heathrow airport. Hardy and Maile v The United Kingdom (2012) followed this restrictive position. It concerned individuals living in the locality of liquefied natural gas tankers. The individuals argued that they were not properly informed as to the risks concerned with the operation of this machinery and that it was poorly regulated. The court found that the UK had not violated its obligations under Article 8 as it had implemented multiple regulations in this area. This decision shows the court relying on the margin of appreciation afforded to the United Kingdom. However, the Hatton and Hardy judgments can be seen as exceptions to a generally more progressive approach. A return to this position was seen in the recent judgment of Jughegli v Georgia (2017), in which the applicants complained of health problems caused by pollution released from a thermal power plant near their homes. The ECtHR accordingly found a violation of Article 8 arising from the insufficient regulation of the plant operations and the failure of the authorities to enforce the pollutionreducing measures imposed on the plant. There was no fair balance here between the town’s use of the power plant and the applicant’s rights under Article 8. An interesting parallel to this positive development of environmental claims can be seen in the Irish case of Friends of the Irish Environment v Fingal County Council (2017), in which the applicants challenged the construction of a new runway at Dublin Airport. Though the challenge ultimately failed, the High Court found an unenumerated right to environmental protection in the Irish Constitution. Interestingly, Barrett J noted that this right was ‘an essential condition for the fulfilment of all human rights.’ This recognition of the environment in the context of human rights could give more legitimacy to environmental cases in Irish courts. The European Court of Human Rights has thus shown an overall increasing willingness to extend the scope of Article 8 in challenging industrial pollution, despite a few blips such as Hatton and Hardy. This is a promising legal development as it is likely that the ECtHR will see a substantial increase in environmental claims in light of worsening climate change. However, one could question the court’s reliance on procedural mistakes in finding state authorities guilty in matters of industrial pollution. A narrower margin of appreciation could potentially lead to better outcomes for applicants in cases like Hatton and Hardy. Perhaps the optimum solution for industrial pollution cases and environmental claims in general would be to recognise a right to a clean environment in the Convention. This would lead to greater certainty in ECtHR judgments on environmental matters and would lessen the scope of the margin of appreciation afforded to states. Analysis of the effects of a right to environmental protection in Irish law may provide an interesting insight into the potential impact such an enumeration would have on European Law.