The Chartering of Environmental Protection: Exploring the Boundaries of Environmental Protection as Human Right

Abstract

An overlap is growing between human rights instruments and environmental protection. In the European Union the connection between those areas of law has become undeniable. The European Court of Human Rights has connected nuisances to environmental protection in Art. 8 ECHR jurisprudence, but has at the same time limited its role in Hatton and subsequent judgments. Procedural aspects of environmental protection are strictly reviewed, but the Court is reluctant to shape the substantial dimensions of environmental protection. The recently renewed Charter of Fundamental Rights, linked to the Lisbon Treaty, adds a new dimension to the debate. The Charter certainly refreshes the discussion about the meaning of environmental protection in relation to human rights.Also, the future binding character of the Charter could strengthen the evolution towards enforceability, but this remains to be seen. The question is whether the ECJ will interpret the Charter progressively, in order to give Art. 37 (environmental protection) a procedural, as well as a substantive meaning. Also relevant, is whether the ECtHR will interpret the Charter as a signal to recontextualize its Art. 8 jurisprudence. This tension, the questions that arise,and the possible answers to it, are further explored in this article.