After first establishing the need for a human right to the environment, both in terms of the prior discussion and the analyses of the present situation of human right, the report summarized previous attempts to introduce such a right. In a further step it then defined the characteristics of a potential human right to the environment. To correspond to the environmental need which has manifested itself, a new human right would need to be both an individual and a collective right, and would need to incorporate the element of solidarity with future generations. It must permit not only resistance against the state but also the assertion of claims against the lack of action and against third parties where necessary.

Implementation of such a right i s clearly only possible through several steps. No single measure or internatio- nal instrument can provide all the ele- ments required for effective implemen- tation. The discussion relative to this topic centered on possible means of introducing such a human right. The report had identified five possible ap- proaches:

At the national level: (1) Further development of constitu- tional law

At the international level:

(2) Insertion in an international con- venant, primarily the International Co- venant on Economic, Social and Cultural Rights.

(3) Insertion in the European human rights instruments, particularly the Eu- ropean Convention of Human Rights. In this regard two possibilities may be envisage d: - inclusion of environmental concern as a limitation upon the exercise of other rights, for example in Arts. 8, 9, 10 or 11 of the Convention. The Social Char- ter presents possibilities which are roughly equivalent to those of the co- venants.

(4) Injection into other international texts, that is, action to assure that refer- ence is made to the human right to the environment in all international treaties and texts. The inclusion in the preamble of these texts certainly only has a declar- atory value, but nevertheless testifies to the rank of environmental problems in international relations.

(5) Preparation of a special text, either as a new human rights covenant or as a declaration of the European states, adopted in the framework of existing European institutions.

The discussion focused on possibilities 2, 3 and 5 listed above. In concluding the discussion the organizers indicated that they felt careful consideration of environmental concerns by the Council of Europe in the course ot its discussions concerning a 5th additional protocol to the European Convention on Human Rights and the preparation of a European Declaration presented the best prospects for further development of the issues raised.

In the three reports and in the discus- sions, the issue of citizens' participation played a major and surprising role. In analysing existing provisions, in consider- ing the potential conflicts between envi- ronmental policy and human rights as well as in any attempt to circumscribe a human right to the environment, the need to assure effective participation of all affected citizens became very clear. Although there was some debate about the level, the form and the extent of such participation, a surprisingly clear conclusion to be drawn from the discus- sions was that it is almost impossible to assure satisfactory protection of the environmental needs of man without assuring substantial mechanisms of parti- cipation in public decision-making.

KvM []

EUROPEAN COMMUNITY

The Council and Environment

The Council meeting of ministers with responsibility for the environ- ment, which took place on 18/19 December 1978, was preceded by weeks of massive criticism regarding the inactivity of the Council in adopt- ing the Commission's proposals for environmental directives.

A month before the meeting, several members of the European Parliament bitterly questioned the Council's good- will in trying to adopt those proposals submitted by the Commission with a view to implementing the first and second environment programmes. It was stated that a third of those pro- posals worked out and voted on in the European Parliament and submitted to the Council overcame the barrier of the Council, leaving two-thirds undealt with; and of the third approved, all were amended by the Council, although the members received no notification of

18

these amendments. The Council's un- processed proposals, as one member put it, were virtually threatening to clog up the Council's shelves and are steadily growing in number - even though the Commission is way behind schedule in submitting its proposals for directives under the 1973 and 1977 programmes.

As an example, the adoption of pro- posals for directives on ceramic food containers and on the reduction of water pollution by the cellulose industry, quality standards for drinking water and for the lead content of air have been overdue since 1975. A decision on proposals for directives on the use of fuel oil to reduce sulphur emis- sions, the sinking of waste in the sea, health protection standards for sulphur dioxide and particles in the atmosphere, subsonic aircraft noise, and water qual- ity in mussel farms have been waiting for a decision since 1976. In 1977 the

Council should have taken a decision on the protection of birds and the per- missible noise level of pneumatic drills, compressed air-hammers, tower cranes, welding current and high-power gener- ators. It has been particularly slow in dealing with the Commission's pro- posal for a first regulation fixing maxi- mum levels for insecticide deposits on and in fruit and vegetables. (This pro- posal has been before the Council since 28 November 1968).

With this background, the Council announced some time before the De- cember meeting that it intended to achieve a great deal in a short time and take a number of long-awaited decisions. No-one really believed this, disillusion- ment being complete, so it was a pleas- ant, if somewhat unexpected surprise, to learn that the Council had actually taken action in some cases.

On the 19 December, the Council concentrated on several major propos- als. These included not only earlier pro- posals - e.g., the proposal for a direc-

Environmental Policy and Law, 5 (1979)

Recent Council Decisions The European Council has recently

published several proposals for regula- tions and directives in the field of the environment. - A proposal for a Council directive

on minimum conditions required of certain tankers entering or leav- ing Community seaports. (See Selected Documents at page 49.)

- A proposal for a Council decision rendering mandatory the procedures for ship inspection forming the sub- ject of resolutions of the Inter- Governmental Maritime Consulta- tive Organization (IMCO). (See Selected Documents at page 49.)

- A proposal for a Council directive regarding the piloting of vessels by

deep-sea pilots in the North Sea and English Channel. (See Selected Doc- uments at page 50.)

- A Council regulation on agreement on fisheries between the Govern- ment of Canada and the Commu- nity. (See Selected Documents at page 50.)

- A preliminary draft directive con- cerning the assessment of effect on the environment of public and pri- vate development projects. (See Selected Documents at page 44.)

- A proposal for a Council regulation laying down certain technical mea- sures for conservation of fishery re- sources. (See Selected Documents at page 46.) []

tive on the pollution of water by the cellulose industry, mentioned above, the quality of drinking water and the protection of birds - but also more recent proposals such as the proposal for a directive on the protection of ground water and the recommendation on the costing of industrial anti-pollu- tion measures.

Bird Protec t ion

It was not possible to reach an agree- ment on this directive at the Council meetings in December 1977 and May 1978.

On the basis of a compromise pro- posal, a directive was passed by the Council on 19 December 1978.

The main points are as follows: prohibition of certain methods of

catching or killing birds, and a reduction in the number of species which may be hunted in the Member states from 120 to 72. - an obligation on each member state to preserve the habitat of those species threatened with extinction; - a ban on hunting during nesting and breeding periods, and in the case of migratory species, during their return to their nesting places.

Drinking Water

This directive had appeared three times on the agenda of the Council in '76 and '77. Its approval was hindered by trying to fix permissible limits for Natrium and discussion never went beyond this point.

Following a series of difficult negotia- tions, a directive was approved by the Council which lays down both manda-

tory and standard values, thus bringing into accord the different quality values existing in the Member states for drink- ing water. This directive also applies to bottled water.

The Problem o f Cel lulose

The main difficulty here has been the fundamental question whether, with regard to the pollution of the water by the cellulose industry, community emis- sion norms or community quality goals should be set. On the basis of a com- promise proposal by the Chairman, fol- lowing detailed discussion, the Council charged the Committee of the Perma-

nent Representatives with the task of working out a joint approach: a choice between community emission norms and community quality goals, whereby new industries should be subject to the "best available technology" criterion. It is hoped that this will achieve a break- through in this question. The main problem will now be to establish realis- tic and adequate quality goals with an effective control.

Ground Water

It was not possible to approve the dffrective, as foreseen, due to a number of unexpected problems not previously considered, and these were referred to the experts for opinion.

Environmenta l Costs to Industry

The Council approved a recommen- dation on the procedure for estimating the environmental costs to industry.

Following the recommended proce- dure, the cost estimates should be com- parable with one another, in order to calculate the burden which would result from planned community environmen- tal decisions.

Fluorocarbons

The delegation of the Federal Re- public of Germany reported on the results of the International Conference on the Damage Caused by Fluorocar- bons to the Ozone Layer, held in Munich from 6 - 8 December. On the basis of this report, the Council charged the Commission with the preparation

Billows of black smoke belch from the sinking French oil tanker Betelgeuse at Whiddy Island terminal, Bantry Bay. Courtesy: dpa/UPI

Environmental Policv and Law, 5 (1979) 19

of proposals for Community action in this field. A proposal made by the Federal Republic of Germany is to serve as a starting point for deliberations.

This calls for, by 1 January 1981, a 30% reduction is the amount of fluoro- carbons in aerosols, compared with the stand of 1975; and during the first half of 1981, further review of the difficul- ties at Community level, taking into ac- count the latest scientific information then available.

D i r e c t i v e o n n o i s e

A directive on the procedures to be followed when measuring the level of noise caused by construction machinery and building vehicles operating in the open air was approved-by the Council.

The information gathered on the basis of these procedures will be used as

a starting point in the planning of future noise prevention standards.

On the 18 December, a more informal political discussion took place on the whole aspect of environmental policy (the result of an initiative made by Michel d'Ornano in 1977).

In conclusion, the Council requested the Commission to concentrate its ef- forts in the following spheres: - environmental compatability as a cen- tral pole in environmental policy. Envi- ronmental impact assessments must en- able negative effects to the environment to be identified at the earliest possible moment and common basic norms should be worked out for the Member States; - problems of waste; and - development of cleaner technologies.

[]

Policy Developments b y P E T E R M A L A N C Z U K *

This report links up with the survey on EEC-environmental policy given in 4 Environmental Policy and Law, (1) (1978) and outlines the developments from April to the end o f 1978. It is restricted to main features and to some questions o f perhaps more general interest.

G e n e r a l

Environmental policy and unemployment

In public discussions the economic problems have led to the question if any connection between environmental policy with its financial burden and un- employment in western industrial soci- eties exists. Referring to special research, the Commission argues that environ- mental law and obligations did not cause the loss of places of employment in the EEC-states to a larger extentJ On the contrary, analyses maintain that environ- mental policy secures and increases pos- sibilities of employment. The Commis- sion announced a study on a precise programme of regional based measures to fight unemployment with environ- mental projects. This may be a way to

*Presently, visiting lecturer, University of Exeter, Faculty of Law, Centre for European Legal Studies.

achieve additional workshop places when the programme comes into practice, but surely it will have hardly any impact on the situation of competition of those in- d ustries which fear an increase of environ- mental costs. Under these aspects it seems more reasonable not to discuss environmental policy and unemployment in general terms, but rather in relation to the different branches of employ- ment and their specific problems.

Environmental costs

Costs are of course only one aspect of the entire environmental problem. It is certain that - as the Economic and Social Committee states in its endorse- ment of the Commission's draft Recom- mendation to the Member States regard- ing methods of evaluating the cost of pollution control to industry 2 - anti- pollution measures also entail advantages because they improve the environment. Anyhow, cost burdens, one might add, have to be compared with the social and financial loads to human society if con- trol of pollution should be seriously neglected. This has to be considered in face of the Committee's concern about the competitive position of industrial production in the Community should it

be adversely effected by decisions to im- pose further cost burdens.

20

The Commission refers to studies which estimate that environmental costs in future will basically not be higher than in the past few years. 3 No branch of industry is said to have had diffi- culties worth mentioning because of environmental duties. On the other hand, in the opinion of the Commission the present economic situation will have no influence on the development and realisation of anti-pollution policy. It is of some interest that the Commission further declares the increasing impor- tance of the liability for the cause of pollution, a principle the Council had endorsed on 3 March 1975, in a period of economic crisis. The total amounts of environmental costs would be higher if they were to be substituted completely or partly with the help of public finance, because resources would be used less rationally. 4 This argument has some truth but only the future will show if it convinces companies and labour unions to overthink their attitude towards anti- pollution costs and their effect on com- petition and employment. The interests of the society as a whole do not always conform with particular interests of a part of the society.

Realisation o f the EEC-environmental action programme and the tardiness of legislative procedure

The realisation of the environmental action programme of the Communities in EEC legislative procedure up to the application in the law of the Member States does not satisfy the needs of a quick moving prevention. This had been one of the virulent criticisms of the European Parliament on the report of the Commission concerning the devel- opment of EEC environmental policy at the beginning of 1978.

The dispute between the Parliament and the Council continues over the inter- pretation of the self-imposed obligation of the Council from 22 November 1973 to decide on proposals of the Commis- sion within a space of 9 months. In the opinion of the Parliament the Council has been unable to deal with very many proposals in spite of the conference of the ministers from 12 December 1977 which is generally regarded to have been very successful in the field of environ- mental legislation. The Council, on the contrary, restricts the number of pro- posals undealt with during the 9-months- period to 9. The Council only believe itself to be obliged to examine and to take a position on the proposals of the Commission within this period. On

Environmental Policy and Law, 5 (1979)