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THE FUNDAMENTAL RIGHT TO A HEALTHY AND ECOLOGICALLY BALANCED ENVIRONMENT: ROMANIAN PARTICULARITIES OF R ECOGNITION

AND GUARANTEE

GHEORGHE-IULIAN IONI łĂ∗)

Abstract

In the study hereby, the author emphasizes the Romanian specifics of the recognition and guarantee of the right to a healthy environment. In Romania, before 1990s, there was no discussion of a right to a healthy environment. Romania’s Constitution of 1991 did not specifically provide a fundamental right to a healthy environment, but stipulated duties of the state regarding environmental protection and recovery. In 1995, another framework regulation on environment protection was adopted (Law no. 137) which expressly stipulated (in article 5) that “the State recognizes every person’s right to a healthy environment […]”. However, by corroborating the above-mentioned texts, author draws the conclusion that, in the Romanian legal system, there was only a subjective, and not a fundamental right to a healthy environment. Finally, for the adhesion to the European Union, the Romanian law giver stipulates at article 35 of the current Constitution (revised in 2003), as a fundamental right, “the right to a healthy environment”.

Keywords: environmental law, fundamental right, healthy environment, recognition, guarantee,

Romanian particularities. Introduction As stipulated in the doctrine1) “the law may be a bad solution to saving the environment, but it

is the only one”. Although law in general and environmental law in particular “places Man at its centre”, it “[…]

aims at preserving nature, sustaining ecological balances, safeguarding genetic heritages, protecting natural resources and fighting against pollution”2) and ensures environment protection.

For this very reason, “Human rights in the context of environment and sustainable development recognize that for human communities to survive, they must have an adequate and secure standard of living; they must be protected from harmful substances and unsafe products; they must learn to conserve and equitably share natural resources”3).

Under the circumstances, it is desirable and necessary that law become not only an instrument of protection, but also a guarantee that fundamental human rights are observed.

∗) Lecturer, Department of Law, Romanian-American University of Bucharest; Attorney, „IoniŃă Gheorghe-Iulian”

Law Office, Bucharest Bar Association; e-mail: ionita.gheorghe.iulian@profesor.rau.ro 1) M. Serres, 2008. Le droit peut sauver la nature [The Law Can Save the Nature]. Pouvoirs 127: 5-12. 2) S. Borges Coelho, 2001. Environmental protection and the Right to Health. Available from internet:

<http://www.iadllaw.org/files/Environmental%20protection%20and%20the%20right%20to%20health%20by%20Sonia%20Borges%20Coelho_0.pdf>.

3) A. Karim Ahmed, 2003, Environmental Protection, Public Health and Human Right - An Integrated Assesment. Available from internet: <http://www.centerforabetterlife.com/ eng/reports_studies/pdf/ EnvProtection_PubHealth.pdf?-session=user_pref:42F947591175503936jkol161962>.

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We may speak of generations of human rights4), which are nothing else but stages of their historical and successive development.

The appearance of rights in the third generation, which are associated with notions such as “solidarity” and “joint responsibility”, among which the right to a healthy environment, triggered the need of interstate collaboration.

States have to understand that only together (not individually), through their joint efforts (not isolated) can they achieve this desire of man to have and enjoy his right to a healthy and ecologically balanced environment and to give this opportunity to future generations as well.

1. Notion At international/regional/national level, there is no consensus as regards the name and meaning

of this fundamental right5). Thus, there are differences both as regards the meaning of the notion of environment, and the

marginal name of the fundamental right. 1.1. The environment as a protected asset The analysis of international/regional documents, the domestic legislation, the doctrine, the

field literature and legal practice demonstrates that almost anything can be included in the concept of environment6).

A. The term “environment” in dictionaries Dictionary definitions present a double meaning of the term7), namely “the set of

conditions/elements […] and/or the individual’s life framework”: - “surrounding nature made of all the external factors, where all beings and things exist”8); - “all the natural and man made elements which surround a human individual, an animal, a plant

or species/all the objective and subjective elements which make an individual’s life framework”9); - “all the elements which create the environment of living beings/all the elements of the man

made landscape”10 ). B. The term “environment” in international documents and instruments The meaning of the term “environment” in international documents and instruments is not

unitary, being too vast and (for this reason) ambiguous: - “the physical surroundings of man, including a-biotic (non-living) elements such as rocks,

water and the atmosphere and biotic (living) elements embracing natural and semi-natural biocenoses including plants and animals in the wild states”11);

4) I.G. Sion, (1990). Ecologie şi drept internaŃional [Ecology and International Law]. Bucureşti: Editura ŞtiinŃifică

şi Enciclopedică. p. 188-190; I. Muraru, 1998. Drept constituŃional şi instituŃii politice [Constitutional Law and Political Institution]. ediŃia a VIII-a., Bucureşti: Editura Actami, p. 199-200.

5) G.-I. IoniŃă (2004). ProtecŃia şi dreptul mediului [Protection and Environmental Law]. Bucureşti: Editura Universul Juridic, p. 44.

6) G.-I. IoniŃă, (2010). Dreptul protecŃiei mediului [Environmental Protection Law]. Bucureşti: Universul Juridic, p. 29.

7) M. DuŃu, 1998. Dreptul mediului. Tratat [Environmental Law. Treaty]. Bucureşti: Editura Economică, p. 49. 8) DicŃionarul explicativ al limbii române [Explanatory Dictionary of Romanian Language]. 1998. Bucureşti:

Universul Enciclopedic, p. 617. 9) Le Petit Larousse Ilustré [Little Larousse Illustrated]. 1990. Paris: Cedex, p. 377. 10) Dictionnaire Hachette Encyclopedique [Hachette Enciclopedic Dictionary]. 2001. Paris: Hachette Livre, p. 547. 11) Government of the Kingdom of Belgium, Government of the Grand Duchy of Luxembourg, Government of the

Kingdom of the Netherlands. 1982. Benelux Convention on Nature Conservation and Landscape Protection (Article 1). Available from internet: <http://www.ecolex.org/server2.php/libcat/docs/TRE/Multilateral/En/TRE000757.txt>.

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- “[…] natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors; property which forms part of the cultural heritage; and the characteristic aspects of the landscape”12).

C. The term “environment” in the Romanian national legislation In the Romanian legislation, the environment was/is defined as: - “all the natural and man made factors which, in close interaction, influence the environmental

balance, determine living conditions for man and society development”13); - “all the natural elements and conditions of the Earth: air, ground, water and underground,

aspects particular to the landscape, all the atmospheric strata, all organic and inorganic matters as well as living beings, interacting natural systems which contain all the above-mentioned elements, including material and spiritual values, the quality of life and the conditions that may influence man’s welfare and health”14);

- “all the natural elements and conditions of the Earth: air, ground, water and underground, aspects particular to the landscape, all the atmospheric strata, all organic and inorganic matters as well as living beings, interacting natural systems which contain all the above-mentioned elements, including some material and spiritual values, the quality of life and the conditions that may influence man’s welfare and health”15).

We can note (after analysing the three definitions formulated by the Romanian lawgiver) that the definition formulated in Law no. 137/199516) makes an express extension to “conditions and elements” as compared to the definition formulated in Law no. 9/197317) which refers to “natural factors”, and “man made factors” in the former law are replaced with “material and spiritual values, the quality of life and conditions that may influence man’s welfare and health” (all of which are man made to a certain extent). As regards the definition in Government Emergency Ordinance no. 195/200518), it takes over the definition formulated in Law no. 137/1995, the only difference being the treatment of spiritual and material values, since it refers to only “some” of them.

It is obvious that, since this concept (the environment) has numerous meanings (which are not unitary), it is absolutely necessary to formulate a unanimously accepted definition.

It is worth noticing that legal and doctrine consensus is visible with respect to environmental factors (natural and man made), which sketch the dimension of the concept of environment, thus setting the object of protection, preservation and development, since, as stipulated in the doctrine19),

12) Council of Europe. 1993. Lugano Convention on Civil Liability for Damage Resulting from Activities

Dangerous to the Environment (Article 2.10). Available from internet: <http://conventions.coe. int/treaty/en/treaties/html/150.htm>.

13) Marea Adunare NaŃională a României. 1973. Legea nr. 9 din 20 iunie 1973 privind protecŃia mediului înconjurător [Romanian Law no. 9 of 20 June 1973 on Environmental Protection] (Article 3). publicată în „Buletinul Oficial” nr. 91 din 23 iunie 1973. Available from internet: <http://www.cdep.ro/pls/legis/legis_ pck.htp_act?ida=15651>..

14) Parlamentul României. 1995. Legea protecŃiei mediului nr. 137 din 29 decembrie 1995 [Romanian Law on Environmental Protection no. 137 of 29 December 1995] (Annex I). republicată în „Monitorul Oficial al Romîniei”, partea I, nr. 10 din 17 februarie 2000. Available from internet: <http://www.cdep.ro/pls/legis/legis_ pck.htp_act?ida=6749>.

15) Guvernul României. 2005. OrdonanŃa de urgenŃă a Guvernului nr. 195 din 22 decembrie 2005 privind protecŃia mediului [Romanian Emergency Ordinance no. 195 of 22 December 2005 on Environmental Protection] (Article 1 paragraph 2). publicată în „Monitorul Oficial al Romîniei”, partea I, nr. 1196 din 30 decembrie 2005. Available from internet: <http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=61631>.

16) See supra note 14. 17) See supra note 13. 18) See supra note 15. 19) Marinescu, D. 1996. Dreptul mediului înconjurător [Environmental Law], ediŃia a III-a. Bucureşti: Casa de

editură şi presă “Şansa” SRL, p. 10.

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“the current concept of environment has a dynamic nature, which seeks to know and monitor the operation of protected systems in all their complexity”.

1.2. The right to the environment - as a fundamental right International/regional instruments and national legislations use various elements to differentiate

this fundamental right, such as “healthy”, “clean”, “ecologically balanced”, “appropriate”, “preserved”, “safe”, “decent”, “of high quality”, “adequate”.

These are only content elements which are to be found in all international/regional/national regulations.

In fact, how can there be a healthy, clean, ecologically balanced, appropriate, preserved, safe, decent, of high quality and adequate environment if it is not protected?

As indicated in the field literature20), “protection” is the essential content and terminological element of this fundamental right.

However, in the current Constitution21), the Romanian lawgiver uses the term “healthy and ecologically balanced environment”, considering that it reflects the social, economic and political reality of Romania; therefore, we will abide by the “letter and spirit of the fundamental law” and we will use the term it imposes.

However, we have to mention the pertinent observations regarding the notion of “healthy environment” made in the Joint reply22) adopted by the Committee of Ministers on 16 June 2010 at the 1088th meeting of the Ministers’ Deputies to the Parliamentary Assembly Recommendation 1883 (2009) – “The challenges posed by climate change” – and to the Parliamentary Assembly Recommendation 1885 (2009) – “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment” –.

In the Appendix23), it was specified that “the notion of a healthy environment could be clarified” since it requires observations which, in our perspective, are grounded and lead to what we have mentioned above, namely “protected” environment. Thus, consideration is given to the following:

„i. it seems to be clearly recognised that the environment in question must not be polluted or harmed, and that this benefits both humans and animal and plant species, and thus habitats in general. But what is the recognised, authorised or tolerated pollution level or threshold, and the scale that should be used to measure the phenomenon? The climate change issue, for example, shows us that although individuals are not individually and immediately affected, the major ecological balances and eventually "organic life" could be at risk;

ii. does the term "healthy" imply that the environment should simply be "hygienic" or something more, namely rich in biological diversity, with due regard for the natural heritage? Should our approach to the environment be essentially anthropocentric or more holistic and "ecocentric". Human beings, anthropoid in Greek, are a part of their general habitat, and this needs to be taken into account in its entirety, including all forms of life irrespective of their utility to man.

20) G. Iancu, 1998. Drepturile fundamentale şi protecŃia mediului [Fundamental Rights and Environment

Protection]. Bucureşti: R.A. Monitorul Oficial., p. 165-170. 21) Romanian Legislative Council. 2003. Romanian Constitution (revised 2003). published in the Official Gazette

of Romania no. 767 of 31 november 2003. Available from internet: <http://www.cdep.ro/pls/dic/site.page?id=371>. 22) Council of Europe, Committee of Ministers, Ministers’ Deputies. 2010. CM/AS (2010)Rec1883-1885, “The

challenges posed by climate change” - Parliamentary Assembly Recommendation 1883 (2009) and “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment” - Parliamentary Assembly Recommendation 1885 (2009), Joint reply adopted by the Committee of Ministers on 16 June 2010 at the 1088th meeting of the Ministers’ Deputies. Available from internet: <https://wcd.coe.int/wcd/ ViewDoc.jsp?Ref=CM/AS(2010)Rec1883-1885&Language=lanEnglish&Ver=final&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864>.

23 Ibidem.

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So without a comprehensive view of human beings and an all-embracing understanding of nature, the concept of "health" cannot be grasped in all its aspects;

iii. finally, the World Health Organisation's definition of health as "not only the absence of infirmity and disease but also a state of physical, mental and social well-being" means that a healthy environment must also be one that is sufficiently rich in cultural and landscape diversity to provide human beings with a state of individual and social well-being in which they can achieve self-fulfilment. Together, therefore the notions of life and quality of life point us towards the concept of sustainable development”

Finally, specified that: „If there is a human right to a healthy environment does this mean that human beings can only

invoke rights if they themselves are affected or that they can also complain about decisions that are harmful to nature as a whole? Should they not also feel responsible for animal and plant species and, more generally, for the major balancing forces that govern changes to our planet, even if they are not individually and immediately concerned? The human right to the environment is more than a human right in the strict sense. It must also be a right of species that protects human being and the environment in which they live. It therefore also constitutes a right to heritage, whether this be natural, cultural or landscape. Namely, human beings have the responsibility towards all living beings”.

This provides enough food for thought … 2. Recognition In what concerns the need to recognize the fundamental right to a healthy environment, there is

no consensus24). Nevertheless, with all the problems raised by express recognition (as in the case of first and

second generation human rights), the concerns and efforts made at international/regional level taken over in domestic legislations, sketch the recognition of this fundamental right, which cannot be a superficial preoccupation, scientifically ungrounded, given the deepening of the environmental crisis, which imposes joint actions.

2.1. Stipulation at international and regional level A. Stipulation at international level The first text which sketches the fundamental right to a healthy environment, linking

fundamental rights and environment protection, is the Declaration of the United Nations Conference on the Human Environment25), whose main principle is that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations […]”.

Given this urge, regional regulations proved to be highly receptive; moreover, the mainly declarative nature of international texts was completed, at least partially, with the obligations assumed by means of regional documents.

Rio Declaration on Environment and Development26) also proclaim as the main principle „Human beings […] are entitled to a healthy and productive life in harmony with nature”.

24) G.-I. IoniŃă, Dreptul protecŃiei mediului, op. cit., p. 54-55. 25 United Nation. 1972. Stockholm Declaration of the United Nations Conference on the Human Environment.

Available from internet: <http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503>. 26) United Nation. 1992. A/CONF.151/26 (Vol. I). Report of the United Nation Conference on Environment and

Development (Rio de Janeiro, 3-14 June 1992), Rio Declaration on Environment and Development. Available from internet: <http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm>.

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Unfortunately, the United Nations Millennium Declaration27), although (point 6) referring to fundamental values as essential to international relations in the twenty-first century including “Respect for nature” (in this meaning ”[…] Prudence must be shown in the management of all living species and natural resources, in accordance with the precepts of sustainable development. Only in this way can the immeasurable riches provided to us by nature be preserved and passed on to our descendants. The current unsustainable patterns of production and consumption must be changed in the interest of our future welfare and that of our descendants”), does not expressly dedicate itself to this right.

The World Summit on Sustainable Development28), as specified in the field literature29), was not marked by significant developments, but rather by a dead end in environment-related ideas. Only the Plan of Implementation of the World Summit on Sustainable Development30) mentions (point 169) “Acknowledge the consideration being given to the possible relationship between environment and human rights, including the right to development, with full and transparent participation of Member States of the United Nations and observer States”. In fact, the relationship between environment and human rights is already a reality, even if internationally, there are still some reserves in accepting it.

The news brought about by United Nations Conference on Sustainable Development31), who will take place in Brazil on 4-6 June 2012, are worth kept under scrutiny.

B. Stipulation at regional level The first regional instrument that expressly mentions this right is African Charter on Human

and People’s Right32), which stipulates (in article 24) “all peoples should be entitled to a satisfactory general environment favourable to their development”.

United Nation Economic Comision for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters33) relates these procedural rights to the fundamental right to a healthy environment, in the Preamble “Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations …” and imposing states (in article 1) ”In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention”.

27) United Nation. 2000. A/RES/55/2. New York United Nation Millenium Declaration. Available from internet:

<http://www.un.org/millennium/declaration/ares552e.pdf>. 28) United Nation. 2002. A/CONF.199/20. Report of the World Summit on Sustainable Development

(Johannesburg, 26 August - 4 September 2002). Available from internet: <http://www.unctad.org/en/docs/aconf199d20&c1_en.pdf>.

29) M. Prieur, 2004. Droit de l’homme à l’environnement et développement durable. Available from internet: <http://www.francophonie-durable.org/documents/colloque-ouaga-a5-prieur.pdf>.

30) UN, A/CONF.199/20, op. cit., p. 72. 31) United Nation (2012). RIO+20, United Nations Conference on Sustainable Development. Available from

internet: <http://www.uncsd2012.org/rio20/index.php?menu=14>. 32) Organization of African Unity. 1981, Nairobi African Charter on Human and People’s Right, Available from

internet: <http://treaties.un.org/untc//Pages//doc/Publication/UNTS/Volume%201520/volume-1520-I-26363-English. pdf>.

33) United Nation Economic Comision for Europe. 1998. Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. Available from internet: <http://live.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf>.

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Council of Europe Convention for the Protection of Human Right and Fundamental Freedoms34 does not expressly mention the fundamental right to a healthy environment because, upon its implementation, the anthropogenic activities on the environment were not the focus of public attention, since the environmental crisis had not begun yet.

European Court of Human Right resorted to the “protection by rebound” strategy35), extending the protection of rights guaranteed by European Convention onto the rights which are not stipulated therein.

Thus, the Court case-law has already identified issues related to the environment which could affect some of the rights presented by it, such as the right to life (article 2), the right to a fair trial and to have access to a court (article 6), the right to respect for private and family life as well as the home (article 8), the right to receive and impart information and ideas (article 10), the right to an effective remedy (art. 13), the right to the peaceful possession of one`s belongings (article 1 of Protocol no. 1).

However, since it is not expressly stipulated in the European Convention, the breach of this right may only be invoked before the European Court indirectly, through the breach of some of the rights stipulated by the European Convention.

Consideration has to be given to the fact that, as indicated in the field literature36), the social consequences of the decisions made by European Court in the field, together with the development and establishment of this right in the legal systems of the member states, will create an increasingly high pressure for the development and strengthening at European level of man’s fundamental right to live “in an environment with a higher protection level” which guarantees a decent quality of life, “in balance with the fragile ecosystems of our damaged planet”.

In fact, in the Council of Europe, the Parliamentary Assembly formulated several proposals to the Committee of Ministers as regards the stipulation, as a fundamental right within the European Convention, of the right to a healthy environment. Thus, it was proposed:

- The Parliamentary Assembly Recommendation 1431 “Future action to be taken by the Council of Europe in the field of environment protection”37) to “drafting an amendment or an additional protocol to the European Convention on Human Rights concerning the right of individuals to a healthy and viable environment” (par 11.b.);

- The Parliamentary Assembly Recommendation 1614 “Environment and human rights”38) to “draw up an additional protocol to the European Convention on Human Rights concerning the recognition of individual procedural rights intended to enhance environmental protection, as set out in the Aarhus Convention” (par .10.i.);

34) Council of Europe. 1950. CETS no. 005, Roma Convention for the Protection of Human Right and Fundamental

Freedoms, as amended by Protocols no. 11 and 14. Available from internet: <http://conventions.coe.int/treaty/en/Treaties/Word/005.doc>.

35) See P. Truşcă, A. Truşcă Trandafir, 2009. Dreptul fundamental al omului la un mediu sănătos în jurisprudenŃa CEDO [The Right to a Halthy Environment in the ECHR jurisprudence], Revista Transilvană de ŞtiinŃe Administrative 1 (23)/2009: 97-120. Available from internet: <http://www.rtsa.ro/files/RTSA%201(23)%202009%20-%207Trusca.pdf >; S. de Abreu Ferreira, 2007. Fundamental Environmental Rights in EU Law. Available from internet: <http://www.inter-disciplinary.net/ptb/ejgc/ejgc6/Ferreira%20paper.pdf>.

36) J. Verdú Baeza, 2009. Toward a right to the environment in Europe: Noise and jurisprudence of the European Court of Human Rights. Bulletin of Transilvania University of Braşov, vol. 2 (51)-2009, Series VII: 219-226. Available from internet: <http://but.unitbv.ro/BU2009/BULETIN2009/Series%20VII/BULETIN%20VII%20PDF/219%20jesus%20verdu%20%20BUT%202009.pdf>.

37) Council of Europe, Parliamentary Assembly. 1999, Recommendation 1431 “Future action to be taken by the Council of Europe in the field of environment protection”. Available from internet: <http://assembly.coe.int//Main.asp?link=http://assembly.coe.int/Documents/AdoptedText/ta99/erec1431.htm#1>.

38) Council of Europe, Parliamentary Assembly. 2003. Recommendation 1614 “Environment and human rights”. Available from internet: <http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1614.htm>.

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- The Parliamentary Assembly Recommendation 1862 “Environmentally induced migration and displacement: a 21st-century challenge”39) to “consider adding a new protocol to the European Convention on Human Rights (ETS No. 5), concerning the right to a healthy and safe environment; such a protocol would introduce the precautionary principle into the Convention and would reflect the way the concept of “human rights” has evolved since the Convention was drafted” (par. 6.3.);

- The Parliamentary Assembly Recommendation 1883 “Challenges posed by climate change”40) to “[…] reiterate its request to the Committee of Ministers to instruct the relevant expert committee to draft a new protocol to the European Convention on Human Rights enshrining the right to a healthy and viable environment as a human right” (par. 5.);

- The Parliamentary Assembly Recommendation 1885 “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”41) to “draw up an additional protocol to the European Convention on Human Rights, recognising the right to a healthy and viable environment” (par. 10.1.).

The Joint reply adopted by the Committee of Ministers on 16 June 2010 at the 1088th meeting of the Ministers’ Deputies to the Parliamentary Assembly Recommendation 1883 (2009) – “The challenges posed by climate change” – and to the Parliamentary Assembly Recommendation 1885 (2009) – “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”42), indicated above, claims “The Committee of Ministers would recall its replies to Recommendations 1614 (2003) on “Environment and human rights” and 1862 (2009) on “Environmentally induced migration and displacement: a 21st century challenge” in which it noted, inter alia, that although the European Convention on Human Rights does not expressly recognise a right to the protection of the environment, the convention system already indirectly contributes to the protection of the environment through existing convention rights and their interpretation in the evolving case law of the European Court of Human Rights. On both occasions, the Committee of Ministers did not consider it advisable to draw up an additional protocol to the convention in the environmental domain. At present, the position of the Committee of Ministers on this issue remains unchanged”.

It also specifies43) “The Committee of Ministers would however recall that Parliamentary Assembly Recommendation 1614 (2003) led to the preparation by the Steering Committee for Human Rights (CDDH) of a Manual on Human Rights and the Environment – Principles emerging from the case law of the European Court of Human Rights in 2006. The aim of the manual was to increase the understanding of the relationship between the protection of human rights under the European Convention on Human Rights and the environment and thereby to contribute to strengthening environmental protection at the national level. In response to the proposal made by the Assembly (paragraph 6), the Committee of Ministers has taken note of the agreement within the CDDH, within the framework of the DH-DEV, to update and extend the manual, in the light of notably the case law of the Court and of the European Committee of Social Rights, of relevant standards set out by other international organisations, and of good practices adopted at national level in order to give effect to the principles emerging from the Court’s case law”.

39) Council of Europe, Parliamentary Assembly. 2009. Recommendation 1862 “Environmentally induced migration

and displacement: a 21st-century challenge”. Available from internet: <http://assembly.coe.int/ Main.asp?link=/ Documents/AdoptedText/ta09/EREC1862.htm>.

40) Council of Europe, Parliamentary Assembly. 2009. Recommendation 1883 “Challenges posed by climate change”. Available from internet: <http://assembly.coe.int/Main.asp? link=/Documents/AdoptedText/ ta09/EREC1883.htm>.

41) Council of Europe, Parliamentary Assembly. 2009c. Recommendation 1885 “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”. Available from internet: <http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta09/EREC1885.htm>.

42) EC, Committee of Ministers, Ministers’ Deputies, CM/AS(2010)Rec1883-1885 final 18 June 2010, op. cit. 43) Ibidem.

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It is interesting that this manual44), due to its structure, is a valuable support in solving issues related to the protection of the right to a healthy environment.

2.2. Stipulation at national level The Declaration of the United Nations Conference on the Human Environment (1072) has had a

significant impact, since almost all the legislations implemented afterwards contain provisions referring to environment protection in general.

Subsequently, considering the regional developments, Rio Declaration on Environment and Development (1992) clarifies and strengthens the idea of the right to a healthy environment.

According to a study45), “More than 100 constitutions throughout the world guarantee a right to a clean and healthy environment and impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources. Over half of these constitutions explicitly recognize the right to a clean and healthy environment, including nearly all constitutions adopted since 1992. Ninety-two constitutions impose a duty on the government to prevent harm to the environment”.

A. Stipulation in the national legislations of other countries The stipulation of the right to a healthy environment in national legislations was made either at

constitutional level, as a fundamental right, or at legislative level, as a subjective right. Constitutional stipulation as a fundamental right was made explicitly or implicitly; as an

example, we mention a few constitutional provisions of certain states. The Constitution of the Portuguese46) stipulates (in article 66 “Environment and quality of

life”): “1. Everyone has the right to a healthy and ecologically balanced human living environment and the duty to defend it. 2. In order to ensure the right to the environment within an overall framework of sustainable development, the state, acting via appropriate bodies and with the involvement and participation of citizens, is charged with: a) Preventing and controlling pollution and its effects and the harmful forms of erosion; b) Conducting and promoting town and country planning with a view to a correct location of activities, balanced social and economic development and the enhancement of the landscape; c) Creating and developing natural and recreational reserves and parks and classifying and protecting landscapes and places, in such a way as to guarantee the conservation of nature and the preservation of cultural values and assets that are of historic or artistic interest; d) Promoting the rational use of natural resources, while safeguarding their ability to renew themselves and ecological stability, with respect for the principle of inter-generational solidarity; e) In cooperation with local authorities, promoting the environmental quality of rural settlements and urban life, particularly on the architectural level and as regards the protection of historic zones; f) Promoting the integration of environmental objectives into the various policies with a sectoral scope; g) Promoting environmental education and respect for environmental values and assets; h) Ensuring that the fiscal policy renders development compatible with the protection of the environment and the quality of life”.

The Spanish Constitution47) stipulates (in article 45): “(1) Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it. (2) The

44) Council of Europe. 2006. Manual on human rights and the environment: principles emerging from the case-law

of the European Court of Human Rights. Strasbourg: Council of Europe Publishing. 45) D. Shelton, 2002. Human Rights, Health & Environmental Protection: Linkages In Law & Practice. A

Background Paper for the World Health Organization, Health and Human Rights. Working Paper Series No 1. Available from internet: <http://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdf>.

46) Portuguese Constituent Assembly. 1976. Constitution of the Portugueze Republic (revised 2005). Available from internet: <http://www.parlamento.pt/Legislacao/Documents/Constitution7thRev2010EN.pdf>.

47) Spanish Cortes Generales. 1978. Spanish Constitution (revised 1992), Available from internet: <http://www.senado.es/constitu_i/indices/consti_ing.pdf>.

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public authorities shall watch over a rational use of all natural resources with a view to protecting and improving the quality of life and preserving and restoring the environment, by relying on an indispensable collective solidarity. (3) For those who break the provisions contained in the foregoing paragraph, criminal or, where applicable, administrative sanctions shall be imposed, under the terms established by the law, and they shall be obliged to repair the damage caused”.

The Turkish Constitution48) stipulates that “Everyone has the right to live in a healthy, balanced environment. (2) It is the duty of the state and citizens to improve the natural environment, and to prevent environmental pollution. (3) To ensure that everyone leads their lives in conditions of physical and mental health and to secure cooperation in terms of human and material resources through economy and increased productivity, the state shall regulate central planning and functioning of the health services. (4) The state shall fulfil this task by utilizing and supervising the health and social assistance institutions, in both the public and private sectors. (5) In order to establish widespread health services general health insurance may be introduced by law”.

The Constitution of the Republic of Bulgaria49) stipulates (in article 55): “Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They shall protect the environment”.

The Constitution of the Republic of Hungary50) stipulates (in paragraph 18): “The Republic of Hungary shall recognize and implement everyone’s right to a healthy environment”.

The Constitution of the Russian Federation51) stipulates (in article 42): “Everyone shall have the right to favourable environment, reliable information about its state and for a restitution of damage inflicted on his health and property by ecological transgressions”.

The Constitution of the Republic of Moldova52) stipulates (in article 37 “The Right to Live in a Healthy Environment”): “(1) Every human being has the right to live in an environment that is ecologically safe for life and health, to obtain healthy food products and harmless household appliances. (2) The State guarantees every citizen the right of free access to truthful information regarding the state of the natural environment, the living and working conditions, and the quality of food products and household appliances. (3) Non-disclosure or falsification of information regarding factors detrimental to human health constitutes offences punishable by law. (4) Private individuals and legal entities shall be held responsible before the law for any damages that they may cause to personal health and property due to an ecological offence”.

The Swedish Constitution53) stipulates (in article 2): “Public power shall be exercised with respect for the equal worth of all and the liberty and dignity of the individual. The personal, economic and cultural welfare of the individual shall be fundamental aims of public activity. In particular, the public institutions shall secure the right to employment, housing and education, and shall promote social care and social security, as well as favourable conditions for good health”.

Legislative stipulation, as a subjective right, refers to the situations when it is imposed solely under an ordinary law.

48) Turkish Grand National Assembly. 1982. Turkey Constitution (revised 2007). Available from internet:

<http://www.servat.unibe.ch/icl/tu00000_.html>. 49) Bulgarian Grand National Assembly. 1991. Republic of Bulgaria Constitution (revised 2007). Available from

internet: < http://www.online.bg/law/const/const2.htm>. 50) Hungarian National Assembly. 1949. The Constitution of the Republic of Hungary (revised 2011). Available

from internet: <http://www.mkab.hu/index.php?id=constitution>. 51) Russian State Duma 1993. The Constitution of the Russian Federation. Available from internet:

<http://www.constitution.ru/en/10003000-01.htm>. 52) Moldovan Parliament. 1994. The Constitution of Republic of Moldova. Available from internet:

<http://www.parlament.md/CadrulLegal/Constitution/tabid/151/Default.aspx>. 53) Swedish Risksdag. 1977. Instrument of Government (amended in 2010). Available from internet:

<http://www.riksdagen.se/templates/R_PageExtended____6309.aspx>.

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As an example, The Danish Environmental Protection Act54) stipulates (in article 1): “(1) The purpose of this Act is to contribute to safeguarding nature and environment, thus enabling a sustainable social development in respect for human conditions of life and for the conservation of flora and fauna. (2) The objectives of this Act are in particular: 1) to prevent and combat pollution of air, water, soil and subsoil, and nuisances caused by vibration and noise, 2) to provide for regulations based on hygienic considerations which are significant to Man and the environment, 3) to reduce the use and wastage of raw materials and other resources, 4) to promote the use of cleaner technology, and 5) to promote recycling and reduce problems in connection with waste disposal”.

B. Stipulation in the Romanian legislation In 1973, the Romanian legislation also adopted the Environment Protection Law (Law no. 9)55),

as an all-encompassing framework regulation (which placed Romania among the first countries in the world with such a regulation) which set, on the one hand, the general legal regime of environment protection (including the creation of an appropriate institutional framework) and, on the other hand, established a number of rules applying to the main natural or man made factors.

Not even in the 1990s, did Romania’s Constitution56 )specifically provide a fundamental right to a healthy environment, but stipulated duties of the state “[…] regarding environmental protection and recovery, as well as preservation of the ecological balance” (article 134 paragraph 2 letters e) and “[…] creation of all necessary conditions so as to increase the quality of life” (article 134 paragraph 2 letter f).

However, considering the existence of these fundamental duties of the State (article 134 paragraph 2 letters e, f) and the seriousness of the environmental crisis, we may claim that an implicit recognition of this right was necessary (as was the case of Greece, Sweden etc).

This implicit recognition is favored by the former framework regulation on environment protection (law no. 137/1995)57 ) which expressly mentioned (in article 5) that “the State recognizes the right to a healthy environment to all persons, guaranteeing to this end: a) access to environment-related information, with the observance of confidentiality terms stipulated in the applying legislation; b) the right to associate in organizations for environment protection; c) the right of consultancy as regards decision making for the development of policies, legislation and environmental norms, the issuance of environment agreements and permits including for territory organization and urban planning; d) the right to address, directly or through associations, administrative or legal authorities for prevention purposes or in case of a direct or indirect damage; e) the right to compensation for the incurred damage” and stipulated (in article 6 paragraph 1) the obligations and responsibilities on environment protection of the “authorities of the public central and local administration, as well as all natural persons and legal entities”.

However, since the Constitution (1991)58 ) does not expressly recognize a fundamental right to a healthy and ecologically balanced environment and by corroborating the provisions of article 134 paragraph 2 letters e)-f) of the Constitution (1991)59 ) with the provisions of article 5 of the former framework regulation on environment protection60), this only leads to the conclusion that our legal system recognizes a subjective right to a healthy environment which originated in the Constitution.

54) Danish Parliament. 1997. Danish Environmental Protection Act no. 625 of July 15 (amended 1998). Available

from internet: <http://www.lexadin.nl/wlg/legis/nofr/eur/arch/den/epa.doc>. 55) supra note 13. 56) Romanian Constituent Assembly. 1991. Constitution of Romania. published in the Official Gazette of Romania,

no. 233 of 21 November 1991. Available from internet: <http://www.cdep.ro/pdfs/constitutie_en.pdf>. 57) See supra note 14. 58) See supra note 56. 59)Ibidem. 60) See supra note 14.

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It is desirable and necessary to impose the express stipulation in the Constitution, but first of all, economic conditions have to be created for its recognition.

As specified in the field literature61), “the constitutional recognition and guarantee of the right to a healthy environment in our country extends the obligations of public authorities to the protection of the environment, allows for a better harmonization between the various levels of recognition and guarantee of the fundamental right to the environment […]”.

Unfortunately, the Romanian lawgiver, under the pressure of harmonizing domestic regulations with Community ones for the adhesion to the European Union, hurried and set in article 35 of the current Constitution (2003)62 ), as a fundamental right, “the right to a healthy environment” with the following content “(1) The State shall acknowledge right of every person to a healthy, well preserved and balanced environment. (2) The State shall provide the legislative framework for the exercise of such right. (3) Natural and legal entities shall be bound to protect and improve the environment”

the This “rush” generated at least two quite delicate problems63). One of them refers to the ambiguous formulation of the text in the Constitution (2003). The wording of paragraph (1) of article 35 “The State shall acknowledge the right of every

person to a healthy, well preserved and balanced environment” leaves room for interpretation. It may be interpreted that the holders of this right are all the natural persons on Romania’s territory (Romanian citizens, foreign citizens, or stateless persons), since it fails to stipulate whether it refers only to Romanian citizens or not. One may deem that this right is not circumstantiated by the principle of the territory where the law is to be enforced (since its holder can be any person residing on Romania’s territory, temporarily or permanently). We may also draw the conclusion that it is a special dimension, which expresses the universality of the right to a healthy environment as a fundamental right. However, the limits and features of a “healthy and ecologically balanced environment” (the notion preferred and used by the lawgiver) are difficult to set. It was also the lawgiver, by regulating the maximum acceptable levels of pollution in the receiving environments (the norms of environment quality) and by setting the amount and concentrations of pollutants that may be released by a given source (emission norms), that sketches the dimension of “healthy” and “ecologically balanced”, since it is believed that as long as these norms are observed (???) the environment is “healthy” and “ecologically balanced”.

The wording of paragraph (2) of article 35 “The State shall provide the legislative framework for the exercise of such right” is faulty. Thus, the provision by the state of the legal framework for exerting this right appears to be an obligation. Ensuring a legal framework does not only involve the law enforcement process, but also the harmonization of national regulations with international ones and the establishment of the processual framework in case of breaching this right (both by the State and by natural persons and legal entities).

The wording of paragraph (3) of article 35 “Natural and legal entities shall be bound to protect and improve the environment” raises certain issues. Thus, the duty of natural persons and legal entities is a joint obligation to protect and improve the environment. Practically, all persons are holders both of the right to a healthy environment and of obligations to protect and improve the environment.

Another delicate issue refers to the fact that current internal regulations are not able to provide satisfactory solutions to the situation in which the State should be liable for failures to fulfill the obligations stipulated in this article.

61) Mocanu, L. and Mastacan, O. 2009. ConstituŃionalizarea dreptului la un mediu sănătos în România

[Constitutionalisation the Right to a Healthy Environment in Romania]. Studii de drept românesc no. 3 (iulie-septembrie 2009): 219-225. Available from internet: <http://www.rsdr.ro/Art-2-3-2009.pdf>.

62) See supra note 21. 63) G.-I. IoniŃă, Dreptul protecŃiei mediului, op. cit., p. 59.

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Thus, since it is impossible for national courts to settle potential disputes, which have already appeared and most certainly will proliferate, being just a matter of time until persons living in “grey” areas will realize they are entitled to a healthy and ecologically balanced environment, the procedures stipulated in international/regional instruments for the protection of a recognized and unobserved fundamental right would have to be used.

Nevertheless, as claimed by the field literature64), we do not deny the fact that guaranteeing the right to a protected environment, as a fundamental right, is “a step forward and a positive endeavor” which may result in making its beneficiaries aware of the need to protect the environment in general.

3. Relationship with the other fundamental rights Stating and stipulating third generation rights (among which the right to a healthy environment)

raise the issue of the correlation with the other fundamental rights in the first two generations, which are already known and expressly guaranteed. Although there is a classification of fundamental rights, its aim is not to divide rights, but, on the contrary, to explain the inner structure of the unitary system of human rights, freedoms and duties. The classification should not be interpreted as a hierarchy, because all rights have the same significance and, although some of them depend on others or also fulfill also the function of guarantee for others, they make a unitary whole65).

At first sight, there seems to be a conflict between “generations of rights”, and which is also what has triggered the reserves regarding recognition and guarantee.

It was (erroneously) estimated that the rights in the first generations are “affected” (more or less) by the rights in the last generation, and consideration was (concretely) given to the “negative impact” of the right to a healthy environment on other fundamental rights and freedoms.

Thus, as regards the ownership right, it might be “affected” by the creation of duties regarding the environment protection, which are stipulated in Romania’s Constitution as well (article 44 paragraph 7) “The right of property compels to the observance of duties relating to environmental protection [...]”.

The right to work might also be “affected” by forcing polluting legal entities either to cease their activity, or to remodernize their production process.

Last, but not least, free movement might “suffer” due to the limitation or interdiction of access to protected areas.

Above, we mentioned that “there seems” to be a conflict, because, in reality, as also indicated in the field literature66), “the occurrence of the current environmental crisis set up the conditions for a new approach to fundamental rights, from the perspective and in the context of environment protection [...] The cause that led to the need of this new approach stems from the conservationism of law as a system, but also from the perspective of its components, which makes that, many times, the legal system is left behind by social, economic, political transformations, and by those made by nature as well. This situation has determined at present certain incongruence between the content of regulated fundamental rights (de lege lata) and the environmental reality, an incongruence that was not that visible when the fundamental rights were first established [...] the content of certain fundamental rights has to be completed or correctly interpreted. Without these operations, the extension of the citizens’ obligation to abide by them is not set (sketched) or compliant with the current reality even if it meets the incomplete content. The indicated incongruence cannot lead to the breach of fundamental rights, and its immediate effect is only the deepening of the

64) M. Diaconu, 2006, Dreptul la mediu sănătos în constituŃiile unor Ńări ale Uniunii Europene [The Right to a Healthy Environment in the Constitutions of some European Union Countries]. Revista de ŞtiinŃe Juridice, nr. 4. Available from internet: <http://drept.ucv.ro/RSJ/Articole/2006/RSJ4/B02DiaconuMatei.pdf>.

65) I. Muraru, Drept constituŃional…, op. cit., p. 206-207. 66) G. Iancu, Drepturile fundamentale…, op. cit., p. 117, 118, 126, 128-162.

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environmental crisis and, obviously, it leads to a feedback effect for man, since, in the future, damage to the environment will be detrimental to the human being”.

Under the circumstances, there is no contradiction or conflict between the fundamental rights of the first two generations and the fundamental right to a healthy environment, because fundamental rights can only be explained if considered in their interdependence with the other phenomena and particularly with the economic, social and political realities of each country.

4. Content As regards the content of the right to a healthy environment, the doctrine67) claims the existence

of two dimensions: an individual one, which involves “[...] the right of every individual to: a) pollution prevention, b) the cessation of activities resulting in harmful pollution (over the limits set in the said states), c) repairs of the damage incurred following such pollution, and a collective one, which “[...] involves the obligation (of peoples) of the said states to cooperate in order to prevent and fight pollution, to protect the (natural) environment at regional and international level, just as they have the obligation to take the necessary measures domestically [...]”.

It was also mentioned68) that “the right to a healthy environment involves more than an environment adequate for human health” (even through most of its formulations refer to this) and that “a healthy environment is to be seen [...] also as an environment that is itself “healthy”, in the sense of being ecologically sound and balanced”.

Indeed, this fundamental right involves both a human dimension (individual), which concerns the protection of the human being by ensuring its integrity and material and spiritual development in a (healthy and ecologically balanced) environment which does not endanger its life, health and development, as well as a natural (collective) dimension, which envisages environment protection (by the human being) by ensuring a natural environment which favors the quality of life in general (not only of the human being).

As can be noticed, this right has a complex content which may be individualized by relating it to the object of the protection and the guarantees of the observance thereof.

Because above we made the necessary observations related to the object of the protection, in what follows we will present a few aspects concerning the guarantees of the observance of this fundamental right.

4.1. Rights – guarantees of the right to a healthy environment In Romania, the rights-guarantees of the right to a healthy environment and the duties for

environment protection are stipulated (most of them) in the current framework regulation on environment protection69).

Thus, according to article 5 of this regulation, “the State recognizes every person’s right to a healthy environment, guaranteeing to this end: a) the access to environment-related information, with observance of the confidentiality terms stipulated in the applying legislation; b) the right to associate in organizations for environment protection; c) the right to be consulted in the process of decision making on the development of the environment policy and legislation, the issuance of regulating documents in the field, the draw up of plans and programs; d) the right to address, directly or through organizations for environment protection, the administrative and/or legal authorities, as applicable, on environmental issues, regardless of whether damage was caused or not; e) the right to compensations for the incurred damage”.

67) I. G. Sion, Ecologie…, op. cit., p. 190. 68) M. Dejeant Ponce M. Pallemaerts, 2002. Human rights and the environment. Strasbourg: Council of Europe

Publishing, p. 19-21. Available from internet: <http://www.coe.int/t/dg4/cultureheritage/ heritage/landscape/ Publications/Droitsdelhomme_en.pdf>.

69) See supra note 15.

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As indicated above, article 5 of the current framework regulation on environment protection70) stipulates five rights-guarantees of the right to a healthy and ecologically balanced environment which basically are embodiments of other fundamental rights.

A. Access to environment-related information The access to environment-related information stipulated in the current framework regulation

on environment protection71), at article 5 letter a), specifies the “access to environment-related information, with observance of the confidentiality terms stipulated in the applying legislation”; this is an embodiment of the fundamental right to information stipulated in the current Constitution (article 31 paragraph 1), under which “a person’s right to have access to any public interest information may not be limited”.

This current framework regulation also stipulates, as an enforcement of this right (the access to environment-related information):

- “The central authority for environment protection has the following attributes and duties [...] e) it creates its own information system and sets the terms and conditions which regulate free access to environment-related information; [...] o) it makes available to the public data on the environment condition, the programs and the policy for environment protection [...]” (article 75);

- “The activity holder has the obligation to inform the competent territorial authorities in charge with environment protection on the results of its self-monitoring of the emissions of regulated pollutants, as well as in what concerns accidents or dangers of accidents” (article 13 paragraph 4);

- “The competent authority [...] ensures the information [...] of the public on specific activities [...] The information of the public under procedures which regulate plans, programs, projects and activities is done according to the specific applying legislation” (article 20 paragraphs 1 and 2).

B. The right to associate in organizations for environment protection The right to associate in organizations for environment protection is stipulated in the current

framework regulation on environment protection72)at article 5 letter b); it is an embodiment of the fundamental association right guaranteed by the current Constitution (article 40 paragraph 1), under which “citizens may associate freely in political parties, trade unions, employers’ organizations and other association forms”.

A series of associations, organizations and parties were set up m nationally, which manifested, more or less, an interest in the field of environment protection.

From among such associations which carry out their activity in the field, we can mention: - the Romanian Ecologist Party, which, in January 1978, was set up as a form of political

resistance against complete ignorance of the political, moral and material liability of Communist governments to the damage caused to human life, soil, flora and fauna, by the chemical, physical, biologic, political and moral pollution of Romania’ territory and the entire Romanian society73); it was (duly) set up as a political party on 16.01.1990.

- the Green Party, which was set up in November 2005. It is a political party whose goal is to set up the framework necessary to unite all the environmental trends in the country (movements, parties, alliances, companies and associations) in order to provide the society with an environmental governing alternative for development and progress, fighting for parliamentary democracy and an environmental administration of the country74).

70) Ibidem. 71) Ibidem. 72) Ibidem. 73) P. Metanie, 2007. Manifestul Partidului Ecologist Român [Romanian Ecologist Party Manifesto]. Available

from internet: <http://peroman.wordpress.com/manifestul-partidului-ecologist-roman/>. 74) Statutul Partidului Verde [Green Party Statute]. 2009. Available from internet: <http://www.partidulverde.ro/

index.php?option=com_content&task=view&id=20&Itemid=26>.

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C. The right to be consulted in the process of decision making on environmental issues The right to be consulted in the process of decision making on environmental issues is

stipulated in the current framework regulation on environment protection75) at article 5 letter c) as “the right to be consulted in the process of decision making on the development of the environment policy and legislation, the issuance of regulating documents in the field, the draw up of plans and programs”; it is an embodiment of the “strategic elements” stipulated at article 3 letter h), “public’s participation in decision making” and “means to implement” it as stipulated at article 4 letter p), “the education and awareness of the public, as well as its participation in the decision making and implementation process”.

This current framework regulation76) stipulates the following as a means to apply the right to be consulted in the decision making process on environmental issues:

- “The central authority for environment protection has the following attributes and duties [...] e) it creates its own information system and sets the terms and conditions that allow [...] the public’s participation in decision on the environment” (article 75);

- “The competent authority [...] ensures [...] the public’s participation in decisions on specific activities [...] The public’s consultancy is compulsory in the case of procedures to issue regulating acts, under the applying legislation. The procedure for the public’s participation in decision making is set through specific normative acts” (article 20 paragraphs 1 and 3).

D. The right to address administrative and legal authorities on environmental issues The right to address administrative and legal authorities on environmental issues is stipulated in

the current framework regulation on environment protection77) at article 5 letter d) as “the right to address, directly or through organizations for environment protection, the administrative and/or legal authorities, as applicable, on environmental issues, regardless of whether damage was caused or not”; it is an embodiment of the fundamental right to petition and the principle of free access to justice as stipulated in the Constitution.

Thus, according to article 51 paragraphs 1-2 of the current Constitution, “citizens have the right to address public authorities through petitions [...] Legally set up organizations have the right to address petitions [...]”, and according to article 21 paragraph 1 of the Constitution, any person may address the justice to defend its legitimate rights, freedoms and interests”.

E. The right to compensations for the incurred damage The right to compensations for the incurred damage is stipulated in the current framework

regulation on environment protection78) at article 5 letter e) as the right to address, directly or through organizations for environment protection, the administrative and/or legal authorities, as applicable, on environmental issues, regardless of whether damage was caused or not; it is an embodiment of the principle of “the polluter pays” stipulated in this regulation, at article 3 letter e) and is applied in article 95 paragraph 1 of the same regulation, according to which “The liability for the damage caused to the environment is objective [...] In case of several authors, the liability is joint [...]”.

4.2. Duties of the State, of natural persons and legal entities for environment protection The duties of the State, of natural persons and legal entities consider environment protection as

a major public interest objective and aim to achieve the two dimensions – human (individual) and natural (collective) - of the right to a healthy and ecologically balanced environment.

75) See supra note 15. 76) Ibidem. 77) Ibidem. 78) Ibidem.

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Thus, the current Constitution (article 135 paragraph 2) stipulates the duty of the State to ensure “[...] d) the exploitation of natural resources in compliance with the national interest; e) the reconstruction and protection of the environment, as well as the preservation of environmental balance; f) the creation of the conditions necessary to increase the quality o life”.

Article 6 paragraph 1 of the current framework regulation on environment protection79) also stipulates that “environment protection is the obligation and responsibility of the authorities of the public central and local administrations, as well as of all natural persons and legal entities”, and chapter XIV of the same regulation, “Attributes and duties”, outlines the attributes and duties of the authorities for environment protection (article 75-79), or other central and local authorities (article 80-93), as well as the obligations of legal entities and natural persons (article 94) “[...] to which end: a) they request and obtain the regulation acts, according to the provisions of this emergency order and the subsequent legislation; b) abide by the terms of the obtained regulating acts; c) do not operate installations whose emissions exceed the limits set under the regulating acts; d) the legal entities carrying out activities with a significant impact on the environment organize their own specialized structures for environment protection; e) assist authorized persons with activities of check up, inspection and control, making available to them the evidence of their own measurements and all the other relevant documents and facilitate the control of the activities whose owners they are, as well as sampling; f) provide the access of authorized persons to check, inspect and control the technological installations with an impact on the environment, the equipment and installations of environment cleaning, as well as the spaces or the areas where they are located; g) implement, in full and in due time, the measures imposed under the reports drafted by the persons authorized to carry out activities of check, inspection and control; h) comply with the written decision to cease activity; i) incur the cost implied by the repair of damage and remove the consequences caused by it, restoring the conditions prior to the damage, according to the principle “the polluter pays”; j) provide their own systems of supervision of technological installations and processes and for the self-monitoring of polluting emissions; k) provide the results and report to the competent authority for environment protection the results of the self-monitoring of polluting emissions, according to the provisions of the regulating acts; l) inform the competent authorities, in case of accidental releases of pollutants in the environment or of major accident; m) store waste of any type only in the areas authorized in this respect; n) do not burn stubble, reed, bushes or herbal vegetation without the consent of the competent authority for environment protection and without informing first the public community services for emergency situations; o) apply the preservation measures set by the public central authority for environment protection on the land and water areas envisaged as conversation sites under the form of natural habitats which they manage and for their environmental reconstruction; p) do not use dangerous baits during fishing and hunting activities, except for the specially authorized cases; q) ensure the best living conditions, in compliance with the legal provisions, for wild animals kept legally in captivity, under various forms; r) ensure the implementation of measures to sanitize plots of land owned under any title, which are not productively or functionally occupied, especially those located alongside road, rail and sea communication channels; s) present their identity upon the express request of the inspection and control staff stipulated in this emergency order”.

5. CEDO decisions which sanction Romania for the breach of certain Convention articles

referring to failure to observe the right to a healthy environment As we specified above, the current domestic regulations are not able to provide satisfactory

solutions to the situation in which the State should be liable in case of failure to fulfill the constitutional obligation to guarantee this fundamental right.

79) Ibidem.

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Thus, given the impossibility of national courts to solve disputes in the field, there are (and there will be) situations in which Romania was (and will be) sanctioned by CEDO for the breach of articles in the European Convention referring to the provision of a healthy environment.

Below we present such causes as examples. A. The case Tătar v. Romania In the case Tătar v. Romania (application 67021/01), the Court held unanimously that there had

been a violation of Article 8 of the European Convention on Human Rights (the right to respect for private and family life and one’s home) on account of Romanian authorities’ failure to protect the right of the applicants, who lived in the vicinity of a gold mine, to enjoy a healthy and protected environment80).

B. The case Băcilă v. Romania In the case Băcilă v. Romania (application 19234/04), the Court held unanimously that there

had been a violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life and one’s home) on account of Romanian authorities’ failure to protect victims of industrial pollution81).

C. The case Brânduşe v. Romania In the case Brânduşe v. Romania (application 6586/03) the Court held unanimously that there

had been82): - a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman

or degrading treatment) on account of Mr Brânduşe’s conditions of detention; and, - a violation of Article 8 of the Convention (right to respect for private and family life and one’s

home) on account of the Romanian authorities’ failure to take the necessary measures to deal with the problem of offensive smells coming from the tip.

Conclusions As we mentioned above, it is desirable and necessary to expressly stipulate the right to a

healthy and ecologically balanced environment in the Constitution, but first there is need to create the economic conditions to guarantee it.

Unfortunately, as in other situations, the Romanian lawgiver, under the pressure of harmonizing national regulations with community ones (for the adhesion to the European Union) and considering that a large part of the EU member states already have this right (in terms which are more or less similar), hurried to stipulate this fundamental right in article 35 of the current Constitution.

No consideration was given to the potential consequences, which are quite delicate and which have been generated by such recognition and express stipulation in the Constitution.

Therefore, in our opinion, the current domestic regulations cannot provide satisfactory solutions to the situation in which the State should be liable in case of failure to fulfill the obligations stipulated in this article.

80) European Court of Human Right. 2009. Press release issued by the Registrar on 27.01.2009, Chamber

judgment, Tătar v. Romania (application 67021/01). Available from internet: <http://cmiskp.echr.coe.int/ tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=67021/01&sessionid=76409276&skin=hudoc-pr-en>.

81) European Court of Human Right. 2010. Press release issued by the Registrar on 30.03.2010, Chamber judgment, Băcilă v. Romania (application 19234/04). Available from internet: <http://cmiskp.echr.coe.int/tkp197/view.asp? item=4&portal=hbkm&action=html&highlight=19234/04&sessionid=76409548&skin=hudoc-pr-en>.

82) European Court of Human Right. 2009. Press release issued by the Registrar on 07.04.2009, Chamber judgment, Brânduşe v. Romania (application 6586/03). Available from internet: <http://cmiskp.echr. coe.int/tkp197/view.asp? item=1&portal=hbkm&action=html&highlight=6586/03&sessionid=76409823&skin=hudoc-pr-en>.

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But, since it is impossible for the national courts to solve potential disputes, the procedures stipulated in international instruments to protect a recognized but unobserved fundamental right will apply.

However, the recognition and constitutional provision of this right increase the obligations of public institutions, but also of the other natural persons and legal entities, to protect the environment and, at the same time, make available new means to repair environmental damage and to sanction negative impacts on the environment.

References

Abreu Ferreira, de S. (2007). Fundamental Environmental Rights in EU Law. http://www.inter-disciplinary.net/ptb/ejgc/ejgc6/Ferreira%20paper.pdf.

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