The right to a healthy environment is recognised in both international and regional conventions. Article 12(2)(b) ICESCR requires states parties to improve ‘all aspects of environmental and industrial hygiene’. At the regional level, Article 11 Protocol of San Salvador to the American Convention on Human Rights recognises the right to a healthy environment and Article 24 African Charter on Human and Peoples’ Rights states that ‘all peoples shall have the right to a general satisfactory environment favourable to their development.’ The ESCR Committee has stated in General Comment 14 that the right to a healthy environment includes, inter alia, preventive measures in respect of occupational accidents and diseases; the requirement to ensure an adequate supply of safe and potable water and basic sanitation; and the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health. Furthermore, industrial hygiene refers to the minimization, as far as is reasonably practicable, of the causes of health hazards inherent in the working environment. Article 12 (2) (b) of the Covenant also embraces adequate housing and safe and hygienic working conditions, and an adequate supply of food and proper nutrition.
In the following case the state-owned Nigerian National Company and the Shell Petroleum Development Corporation (in which the former had a majority of shares) had been exploiting oil reserves with no regard for the environment or health of the local communities in Ogoniland, Nigeria. Toxic wastes were deposited into the local environment and waterways but no facilities were put in place to prevent the wastes from spilling into villages. As a result, water, soil and air contamination brought about serious short-term and long-term health problems such as skin infections, gastrointestinal and respiratory ailments, increased cancer rates, and neurological and reproductive complications. The issue before the African Commission was whether the military government of Nigeria was guilty of, inter alia, violations of the right to health and the right to a clean environment by contaminating water, soil and air, which harmed the health of the Ogoni people, and by failing to protect the community from the harm caused by the oil companies. This case is also discussed in the right to life,The duty to provide minimum conditions for a dignified life .
The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria
African Commission on Human Rights
Communication No. 155/96 Fifteenth Activity Report 1999-2000, Annex V.
Keywords: life – health – environment - right to dispose of one’s wealth and natural resources – property – housing – food - obligation to respect - obligation to protect - obligation to fulfil - transnational corporations
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52. [T]he right to enjoy the best attainable state of physical and mental health enunciated in Article 16(1) of the African Charter and the right to a general satisfactory environment favourable to development (Article 16(3)) already noted obligate governments to desist from directly threatening the health and environment of their citizens. The State is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the State for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual.
53. Government compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.
54. We now examine the conduct of the government of Nigeria in relation to Articles 16 and 24 of the African Charter. Undoubtedly and admittedly, the government of Nigeria, through NNPC has the right to produce oil, the income from which will be used to fulfil the economic and social rights of Nigerians. But the care that should have been taken as outlined in the preceding paragraph and which would have protected the rights of the victims of the violations complained of was not taken. To exacerbate the situation, the security forces of the government engaged in conduct in violation of the rights of the Ogonis by attacking, burning and destroying several Ogoni villages and homes.
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For the above reasons, the Commission,
Finds the Federal Republic of Nigeria in violation of Articles [?] 16 [?] of the African Charter on Human and Peoples’ Rights;
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Comment
This case is significant in the development of jurisprudence on economic, social and cultural rights in Africa and elsewhere. It effectively and unequivocally rejects all arguments against the recognition of economic, social and cultural rights and the so-called third generation rights.
The Commission has convincingly shown that arguments that these rights are vague and incapable of judicial enforcement are often overstated. It has also illustrated how the Charter can be interpreted generously to ensure the effective enjoyment of rights.
In the following case, Guerra et al. v. Italy , the applicants lived approximately one kilometre from an agricultural chemical factory. The factory was classified as high risk according to criteria set out in a presidential decree which transposed into Italian law a European Union Directive concerning hazardous industrial activities. The applicants claimed that the factory had released large quantities of inflammable gases that could have led to explosions. The government did not dispute this. The relevant European Union Directive required local authorities to inform local inhabitants of the hazards of the industrial activity concerned, the safety measures taken, the plans made for emergencies, and the procedure to be followed in the event of an accident. The applicants complained that the Italian state had failed to provide this information. The European Court was asked to determine, inter alia, whether the exposure of a community to harmful chemicals and severe pollution violated their right to respect for their private and family life under the European Convention on Human Rights.
Guerra et al. v. Italy
European Court on Human Rights
Application No. 14967/89, Judgement of 19 February 1998
Keywords: expression - private life - family life
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FINAL SUBMISSIONS TO THE COURT
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III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
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57. The Court’s task is to determine whether Article 8 is applicable and, if so, whether it has been infringed.
The Court notes, firstly, that all the applicants live at Manfredonia, approximately a kilometre away from the factory, which, owing to its production of fertilisers and caprolactam, was classified as being high-risk in 1988[?].
In the course of its production cycle the factory released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. Moreover, in 1976, following the explosion of the scrubbing tower for the ammonia synthesis gases, several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, escaped and 150 people had to be hospitalised on account of acute arsenic poisoning.
In addition, in its report of 8 December 1988, a committee of technical experts appointed by the Manfredonia District Council said in particular that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia [?].
The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable.
58. The Court considers that Italy cannot be said to have “interfered” with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17,§ 32).
In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right to respect for their private and family life as guaranteed by Article 8 [?].
59. On 14 September 1993 [?] the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the safety report submitted by the factory in July 1989. Those conclusions prescribed improvements to be made to the installations, both in relation to current fertiliser production and in the event of resumed caprolactam production, and provided the prefect with instructions as to the emergency plan – that he had drawn up in 1992 – and the measures required for informing the local population [?].
In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available [?].
60. The Court reiterates that severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely [?]. In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.
The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention.
There has consequently been a violation of that provision.
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for these reasons, the court
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3. Holds unanimously that Article 8 of the Convention is applicable and has been violated;
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Comment
The European Court recalled that Article 8 may impose positive obligations on the state, which means that the state had to take steps to ensure protection of the applicants’ right to respect for private and family life; such steps included providing information. In this case, the applicants had had to wait several years for essential information that would have enabled them to assess the risk they and their families might run if they continued to live near the factory. Therefore, the respondent state had not fulfilled its obligation to secure the applicants’ right to respect for their private and family life, in violation of Article 8 of the Convention.
The European Court of Human Rights has also examined whether Article 3 of the ECHR may be applied when a state’s neglect of environmental issues leads to degrading socio-economic conditions. In López Ostra v. Spain (Application No. 16798/90, Judgement of 9 December 1994), a case involving health problems and nuisance arising from a waste-treatment plant, the European Court found that the Spanish authorities had neglegted to take necessary measures to ensure the right protected under Article 8, but that the conditions in which the applicant had been obliged to live did not attain such a level of severity as to result in degrading treatment contrary to Article 3.