Many people harp on about their human rights but I am always amazed that most people do not know of the extent of their rights or where they come from.
If you are an Irish citizen then a lot of your human rights should come from our Constitution, the so-called ‘fundamental rights’:
Right to a fair trial (Article 38.1)
Equality before the law (Article 40.1)
Right to life (Article 40.3)
Right to liberty (Article 40.4)
Right to freedom of expression, assembly and association (Article 40.6.1)
Protection of the family (Article 41),
In addition, the Irish Courts have interpreted the Constitution as including certain human rights. These are referred to as ‘unenumerated rights’, which means that although they are not specifically set out in so many words, it is possible to find them ‘between the lines’ of the Constitution. These include:
Right to bodily integrity
Right to freedom from torture, inhuman or degrading treatment or punishment
Right to work and earn a livelihood
Right to privacy
These rights are directly enforceable before the Irish Courts. It is not a huge leap of logic to see that planning permission laws which allow wind turbines to be built near a family home, not only attack the sanctity of the family, but also invade your bodily integrity, amount to torture in terms of the mental anguish and physical discomfort caused by infrasound and flicker, and undermine your right to private property and the family home.
However, as this blog is read by many non-Irish citizens, it is important to know about the source of human rights in the EU as well.
The European system for human rights protection consists primarily of two structures:
The Council of Europe, which is bound by the European Convention on Human Rights, which in turn is enforced by the European Court of Human Rights.
The European Union, which is bound by the European Union Charter of Fundamental Rights, which in turn is enforced by the Court of Justice of the European Union.
Ireland joined the Council of Europe in 1949 and the European Economic Community, the forerunner of the European Union, in 1973.
The Council of Europe focuses on human rights, democratisation and the rule of law and covers almost the entire continent of Europe.
The European Union, comprised of its Member States, has its roots in regional economic integration and the creation of a common European market, and is more limited in its scope as it does not cover a large portion of Europe (i.e. Russia).
It is important to note that while the Council of Europe co-operates with the European Union in a number of joint projects, the two organisations are entirely separate in structure and function. However, every member of the European Union has first been a member of the Council of Europe, and negotiations have commenced to allow the European Union to become a party to the European Convention on Human Rights (ECHR).
The European Convention on Human Rights
European countries signed the first regional agreement for the protection of human rights – the European Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR) – in 1950. It was followed by the establishment of a permanent European Court of Human Rights to handle individual cases.
The ECHR is the basis of the European human rights system and is legally binding in Ireland through the European Convention on Human Rights Act 2003.
Among the rights guaranteed in the ECHR are:
Right to life
Prohibition of torture and ill-treatment
Prohibition of slavery, servitude or forced or compulsory labour
Right to liberty and security
Right to a fair trial
Right to respect for private and family life
Freedom of thought, conscience and religion
Freedom of expression
Freedom of assembly and association
Right to marry
Right to an effective remedy
Prohibition of discrimination in the enjoyment of Convention rights
Protection of property
Right to education
Right to free elections
The Revised European Social Charter
The Revised European Social Charter (1996) updated the earlier European Social Charter (1961). The Revised European Social Charter guarantees social and economic human rights, whereas the ECHR primarily focuses on civil and political rights.
Among the rights guaranteed are:
Right to housing
Right to health
Right to education
Right to work.
The European Court of Human Rights
The ECHR is enforced through the European Court of Human Rights which was established with legal powers to hold states accountable for their failure to uphold the Convention rights. The ECHR and Court system are significant because individuals can make a complaint if they feel their rights have been breached.
States have a duty to enforce judgements from the European Court of Human Rights.
European Convention on Human Rights Act 2003
Under the European Convention on Human Rights Act 2003, Irish Courts must interpret and apply law in Ireland in line with the ECHR insofar as possible (“in parallel” with the Irish Constitution, but in cases of uncertainty or ambiguity the Constitution rules). If the Court finds that Irish legislation or practice is not in line with the ECHR, it can either find that the State has breached its statutory duty or it can make a ‘Declaration of Incompatibility’ which must be considered by the Oireachtas.
Whenever a Declaration of Incompatibility is sought in legal proceedings the Attorney General and the Irish Human Rights Commission are formally notified.
The 2003 Act requires that each organ of the State “perform[s] its functions in a manner compatible with the State’s obligations under the Convention”.
In 2005 the Council of Europe adopted a “Manual on Human Rights and the Environment” in which it said that although there is no express right to a clean environment, certain Articles of the European Convention of Human Rights gave rise to environmental claims, like the right to life, the right to family and private life, the right to information, the right to peaceful enjoyment of property, and the right to a fair hearing.
To take just one of these: Article 8 of the European Convention on Human Rights protects family life:
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
This is clearly compatible with the Irish Constitution’s protection of family under Article 41: Article 41.1.1° of the Irish Constitution recognises the family as “the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. Article 41.2 states that “[t]he State guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State”. Article 41.3.1° pledges to “guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack”.
In other words, Irish courts should have no difficulty enforcing European judgments that protect the sanctity of the family (although in Ireland this is restricted to the family based on marriage, which will now includes same sex marriages).
Well, this is all grand you might say, but what’s it got to do with wind turbines?
It is a matter of some debate whether environmental protection can be promoted to the level of a human right. The debate centres on the fact that the right to a clean environment is more of a socio-economic right than a traditional human right. This means that it lays an obligation on the government to actually protect the environment rather than granting subjective rights to the citizen. A similar debate revolves around the right to education.
However, there have been a number of interesting cases where citizens have used traditional human rights to argue that in some cases environmental pollution constitutes a violation of traditional human rights.
In the case of Lopez Ostra v Spain 20 EHRR (1994) 277, the European Court of Human Rights held that there was a violation of Article 8 of the European Convention because of the pollution caused by a waste treatment plant.
Experts showed an unacceptable emission of toxic fumes and damage to the health of the people living in the immediate vicinity of a waste treatment plant. Physicians had testified that the health of Mrs Lopez Ostra’s daughter had been seriously damaged and recommended that she should move. The Court held that there was a violation of article 8. The town had allowed the plant to be built on its land and the state of Spain had subsidised the plant’s construction. The Court considered in this case that the state had not succeeded in striking a fair balance between the interests of the town’s economic well-being – that of having a waste treatment plant – and the applicant’s effective enjoyment of her right to respect for her home and her private and family life. Accordingly the Court held that there had been a violation of article 8.
This case also shows that there is apparently less of a distinction between traditional human rights, which are clearly able to justify a court action, and social/economic rights, which are a lot more complex and usually don’t form the basis of a case that can be taken to court but are generally pursued through the political process (bugging your local TD, petitions, protests etc.).
It might be argued that this judgment fused human rights and social rights, and paved the way for the argument that serious cases of environmental pollution constituted a violation of human rights. However, it might also be argued that what the applicant / citizen is enforcing is not so much the right to a clean environment, but the right to protection from that environment when it takes away other fundamental rights, like the right to family and to bodily integrity.
In subsequent cases the European Court of Human Rights has clarified the position where a citizen claims that environmental pollution is breaching his or her rights. The Court has confirmed that there is no fundamental right to natural preservation (a clean environment) contained in the European Convention but in order to bring a legal action under Article 8 (Right to Family Life) the applicant has to show that two conditions are satisfied:
1. The environmental interference had directly affected the applicant’s home, family or private life; and
2. The adverse effects of environmental pollution had to reach a certain minimum level before they contravened Article 8.
What is this minimum level? Well, this is where we welcome back our old friend the Principle of Proportionality. This comes down to the Court asking whether the State could have taken reasonable measures to prevent or at least put an end to the infringement of the applicant’s rights under Article 8.
Could the State have taken reasonable measures to stop citizens having their Article 8 rights violated by industrial wind farms? Of course it could have – it needed to create and implement Regulations concerning the setback distances of industrial wind farms from domestic dwellings, something the Irish government and most governments in the EU have failed (miserably) to do.