Human Rights and Environmental Protection: The Pressure of the Charter for the Environment on the French Administrative Courts

Author:David Marrani
Position:Lecturer in Public and Comparative Law, School of Law, University of Essex, Wivenhoe Park, Colchester
Pages:52-57
 
CONTENT
52FALL 2009
human rightS anD environmental protection:
the preSSure of the charter for the environment on the
french aDminiStrative courtS
by David Marrani*
InTroducTIon
The French National Assembly adopted the Charter for
the Environment (“Cha rter”) in 2004 and integrated it
into the Constitution of the French Fifth Republic by the
amendment of March 1, 200 5. On June 19, 2008, the French
constitutiona l council, Conseil constitutionnel, in a landmark
decision on the constitutionality of the statute on Genetically
Modified Organisms (“law on genetically modified organisms”),
reaffirm ed t he c onstitutional valu e o f ev ery right and duty
defined in the 2004 Charter for the Environment .1 On October
3, 2008, the Conseil d ’Etat (“French Administrative Sup reme
Court”), for the first time quashed a g overnment regulation
on the grounds that it d id not respect the Charter for the Envi-
ronment. While constituti onal control based on the Charter is
typical, judicial review on the g rounds of the Cons titution is
exceptional. In fact, the French Administrative Supreme Cour t
has always been opposed to considering the Constitution, treat-
ing it almost as taboo. However, this position is evolving. O n
the one hand, the Constitution has changed to incorporate dec-
larations of rights, and o n the other t he French Administrativ e
Supreme Court has always been enthusiastic about environmen-
tal protection. There fore, the French Adminis trative Supreme
Court looked to the terms of the Charter, even though it had been
incorporated into the Constitution. The main problem in the rea-
soning of the French A dministrative Supreme Court, even in
cases involving the issue of environmental protection, is that the
Conseil d’Etat artic ulated a “classic” judicial review of admin-
istrative acts. For instance, the French Administrative Supreme
Court a pplied judicial review to c entral and loc al government
regulations, but never to constitutional control. The 2008 French
Administrative Supreme Court ruling is therefore a major step
towards constitutional control and should be analyzed.
Since it is only recently th at the Constitution has dev el-
oped as a corpus of “higher” norms that consider directly or
indirectly envir onmental protection,2 it is interesting to look at
how the operation of the French Administrative Supreme Court
has changed and will, for environmental reasons, go against the
taboo of touching the Constitution. In this paper, I will start by
looking at the link between human rights and the environment
before considering the move from “transnational” and “interna-
tional” rights to domestic ones through “constitutionalisation.”
I will then present the recent evolution of the jurisprudence of
the French Administrative Supreme Court and consider a recent
2008 case.
human rIGhTs and The envIronmenT,
aTransnaTIonalandInTernaTIonalaFFaIr
This section will analyze the relationships between human
rights and the envir onment. In attemptin g to classify human
rights,3 first generation rights refer to traditional civil and politi-
cal liberties of the we stern liberal democracies. Expressed in
constitutional texts,4 or in separate declarations,5 first generation
rights aim to p rotect rights such as the freedom of speech, of
religion, and of expression. Those rights presuppose a dut y of
non-interference on the part of governments towards the individ-
uals. Second generation rights have generally been considered as
“collective rights,” in that they influence the whole society. Sec-
ond generation rights require affirmative government action for
their realization: the right to education, to work, to social secu-
rity, to food, to self-determination, and to an adequate standard
of living .6 Third generatio n or “solidarity” rights are the most
recently recognized catego ry of hum an rights and include the
right to health, to peace, and to a hea lthy environment, among
others. The right t o health, wh ich also fal ls under the right to
an adequate standard of living, is now linked with mai ntaining
environmental quality.
Until recently, the instruments of international human rights
have typically accorde d mini mal att ention to env ironmental
issues. The Universal Declaration of Human Righ ts7 mentions
in article 25 (1), “the rig ht to a standard of living adequate for
the health and well-being of himself and of his family,” while
the Inte rnational Covenant on Civil and Political Rights men-
tions “public hea lth.”8 The I nternational Covena nt on Eco-
nomic, Social and Cultural Rights9 recognizes in article 1 2,
“[t]he improvem ent of all aspects of environmental and indus-
trial hygiene” in relation to “the right of everyone to the enjoy-
ment of the highest attaina ble standard of physical and mental
health.” In fact, the thr ee primary general international human
rights instruments barely mention the relationship between envi-
ronment and human rights.
The 1972 Stockholm Dec laration acted as one of the first
major international law instrument s to link human rights an d
environmenta l protection objectives. Specifically, Principle 1
states that:
Man has the fundamenta l right to f reedom, eq uality
and adequate conditions of life, in an environment of a
quality that permits a life of dignity and well-being, and
* Lecturer in Public and Comparative Law, School of Law, University of Essex,
Wivenhoe Park, Colchester, CO4 3SW, UK. dmarrani@essex.ac.uk.
53 SUSTAINABLE DEVELOPMENT LAW & POLICY
he bears solemn responsibility to protect and improve
the environment, for present and future generations.10
This proto-declaration of environmental rights stated every
idea that is now topical in environmental law. But the Declara-
tion does not stop there. In fact, Principle 15 refers more specifi-
cally to environmental protection, while indirectly referring to
the precautionary principle:
In order to protect the environm ent, the precautionary
approach shall be widely applied by states according
to their capabilities. Where there are threats of serious
or irreversible damage, lack of full s cientific certainty
shall not be used as a reason for postponing cost-effec-
tive measures to prevent environmental degradation.11
The 1994 Draft Principles on Human Rights and the Envi-
ronment e xpressly links h uman
righ ts an d th e env ironmen t,
particular ly Princip le 7, which
states that “[a]ll perso ns ha ve
the right to th e highes t attain -
able standard of health free from
environmental harm.”12 Further-
more, Article 12 of the Interna -
tional Union for Conservati on
of Nat ure Draft I nternation al
Covenant on Environment and
Devel opment a lso arti culates
states’ responsibility as facilitat-
ing agents by asserting that, “[p]
arties undertake to achieve pro-
gressively the full realization of
the right of everyone to an envi-
ronment a nd a level of development adequate for thei r health,
well-being and dignity.”13
The third generation rights, as exemplified by the Charter
for the Environment, are those rights primarily connected to the
environment. Naturally, the first two categories of rights some-
times ensur e the protection of third genera tion rights, as high-
lighted by state practice. In Europe, the precautionary principle
could be added to this trend, as part of the wave of new develop-
ments to protect the environment.14 Article 6 of the Treaty on
European Union expresses the necessity for the EU to respect the
rights guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms (“ECPHRFF” or
“Convention”).15 Within the rights protected by the Convention,
the European Court for Human Rights (“ECHR”) has considered
environmenta l protection , as well as threats that ma y impact
people’s right to life (G uerra & Others v. Italy),16 property
(Chasagnou & Others v. France),17 privacy (Guerra & Others
v. Italy),18 access to court (Athannossoplan & Others v. Switzer-
land),19 and freedom of expression (Guerra & Others v. Italy).20
The concerns for health and the welfare of the environment are
human rights that require protection and evaluation.
Even though there is no direct refer ence to the environ-
ment in the ECPHRFF, the Court aims to protect human rights
and fundamental libert ies based on recent developments. The
Convention became a charter of rights in Europe, with human
dignity at its heart.21 In 1976 the commission in X v. Iceland22
held th at Article 8 of the Convention did not extend so far a s
to protect an individual’s relationship with his immediate sur-
roundings so l ong as the rel ationship di d not involve human
relationships. The Court of Strasbourg reminded us that no gen-
eral right to protection of the environment exists in the Conven-
tion (Ky rtatos v. Greece ).23 However, in today’s society there
has alway s been the necessity for a certain level of protection
(Fredin v. Sweden [No. 1]).24 The Court of Strasbourg has often
considered questions pertaining to environmental protection and
highlighted their impo rtance (as seen in Takın and Others v.
Turkey;25 Moreno Gómez v. Spain;26 Fadeïeva v. Russia;27 Gia-
comelli v. Italy).28 Protection of the environment is therefore:
. . . a value, t he defence
of w hich aro uses a con-
stant and stea dy int erest
of pub lic opinion, and as a
consequence public authori-
ties. Economic imperatives
and even some fun damen-
tal rights, like th e right of
propert y, s hould not been
gra nted pri macy ahe ad
of cons iderations relating
to envi ronmenta l prot ec-
tion, in particular when the
state has legislated on the
subject.29
In the light of the case law
of the Court of Strasbourg, any-
thing may be used in order to counter solu tions that may not
bring about the right objectives (Chassagnou and Others v.
France).30 In fact, in areas like envir onmental protectio n, the
Court respects the assessment of t he national legislator, exce pt
when the result is manifestly unreasonable (Immobiliare Saffi v.
Italy).31 The confrontation between state law and the law of the
acephalous s ociety32 shows how under the guidance of human
rights, the levels of law have evolved over time.
“consITuTIonalIsaTIonoF envIronmenTal
human rIGhTs as a domesTIc soluTIon
In this respect, th e case of the Constitutio n of the French
Fifth Repu blic is extremely inter esting. As mentioned , t he
French National Assembly incorporated the 2004 Charter for the
Environment into the declaration of rights. The Charter can be
classified as a third generation declaration of rights. The National
Assembly’s procedure in cluded amending the first line of the
Preamble of the Constitution of the French Fifth Republic.33 The
Preamble of the Constitution refers to the first and second gener-
ation of rights, through the Declaration of the Rights of Man and
Citizens of 1789 (the first generation of rights) and the Preamble
of the Constitution of the French Fourt h Republic (the second
generation o f rights). In 2005, the National Assembly updated
the Constitution and inserted a reference to the third generation
Until recently,
the instruments of
international human
rights have typically
accorded minimal
attention to environmental
issues.
54FALL 2009
of r ights by applying the Charter. In the comment made dur-
ing t he preparation of the Charter, legis lators made clear that
third generation rights were a continuation of the earlier genera-
tions.34 The first and second generations of rights created a veil
of protecti on for the e nvironment prior to the enshrinement of
third generation rights into law.35 Thus, the constitutionalisation
of rights has become an important process.
The “constit utionalisation” of envi ronmental protectio n
through the “constitutionalisation” of human rights saw an expo-
nential increase since the 1972 Stockholm conference,36 and
environmental protection is now a component of many constitu-
tions in Western Europe.37 Then again, the environment itself is
characterized by an absence of limit and it seems logical to think
about international ru les rather than a patchwork of domestic
solutions. Howe ver, “constitutionalisation” could be perceived
as a more effic ient way o f protecting the environment . “Con-
stitutional isation” re places inte rnational l aw in Rodolfo Sac-
co’s ter ms the law of the “g rande Société a cephalique,”38 and
is supposed to make the protection effective. After 1972, mo re
nation-states “constitutionalised” environmental law, initially by
enshrining it more or less explicitly within their constitutions.39
This enshrinement came via secon d generation rights such as
the right to a healthy environme nt, which derived more or less
from the right to health and the duty of the state, and sometimes
the citizen, to protect the environment, and natural resources.40
The righ t to a healthy environment, considered here as a gen -
eral human right of environm ental protection, established the
idea of enviro nmental prote ction based on human rights that
evolve around the protection of the human both now and in the
future. The Charter, as a sort of pure third generation declara-
tion, went further in defining the link between human rights and
the environment.
In 1958, the Constitution of the French Fifth Republic cre-
ated the French Constitutional Council to control the constitu-
tionality of statutes.41 A s a consequence, France assumed that
the French Admi nistrative Sup reme Court would not operate
any kind of constitutional control. In this res pect, the French
Administrative Supr eme Court considers a statute as a specific
set of norms operating as a “screen” between the Constitution
and the administrative acts of central and local governments that
the administrative courts examine. Therefore, the administrative
judges reviewing an administrative act’s conformity to a stat-
ute that manifestly did not conform to the C onstitution would
always refuse to declare the administrative act void, because the
judges would not want to consider the non-consti tutionality of
the statute. One could argue that because of the way that consti-
tutional control and judicial review operate under the imperium
of th e Constitution of the French Fifth Republic, decla rations
of rights are the basis for constitutional control rather than for
judicial re view. It is important to note that the Co nstitution of
the French Fifth Republic never intended to incorporate any dec-
larations of rights. The 1958 Constitution conformed to French
tradition by creating a formal constitution composed only of an
institutional architecture and v ery few substantive rules. Due
to the rulings of the const itutional council, the legislators built
a formal constitution around the core of the formal one. Thus,
this movement to enlarge the notion of the Constitution included
the 2004 Charter for the Environment. As such, this movement
acknowl edged certain chang es. Specifically, t he movement
acknowledged that human rights are re cognized as par t of the
most authoritative norm on French territory. At the same time,
however, the rationale b ehind the 1958 novelty of having one
institution for constitutional justice and one for administrative
justice, made it fairly certain that the Charter, like the other dec-
larations of rights, would remain a text presenting rights to be
protected by the French C onstitutional Council r ather than the
French Administrative Supreme Court. Thus, o nly under the
specific procedure of constitutional control would the extended
Constitution be used to protect human rights. The use of the text
of the Charter by French courts and particularly by administra-
tive justice shocked many observers.
The 2004 charTer For The envIronmenT and
The French CONSEIL D’ETAT
The is sue becomes more complex when considering how
the French Administrative Supreme Court applies the Charter.
Major deve lopments highlight the environmental p rotection at
different levels, f rom the “simple” acti on of declaring rights ,
to more c omplex and more operational system of protection o f
these declared rights.
The French Administrative Supreme Court was not a novice
in terms of environmental protection. It has shown an openness
towards environmental protection in various judgements, such as
quashing the authorization for a high-voltage power line to cross
the Verdon park in the south of France;42 stopping the construc-
tion of a dam because it would endanger species;43 ordering the
dismantling of a nuclear power plant by Electricité de France
because of a failure to respect the public right to information;44
or in the matter of exporting th e aircraft carrier Clemenceau to
be dismantled in India because of risks to environmental protec-
tion a nd public health.45 The work of the French Administra-
tive Supreme Court on environmental protection seems to have
been steady. More specifically, the precautionary principle in its
legislative version has long been a reference po int for operat -
ing judicial review. Since the transposition of the principle into
French law, the administrative courts have enforced the respect
of the precautionary principle in central and local governments’
decision -making.46 The precaution ary principle acted as an
embryo of en vironmental protection, until the administrat ive
courts ex tended the scope of control to general envi ronmental
protection and public health. Following the “constitutionalisa-
tion” of the Charter, and particularly the precautionary principle,
an administrative court may now analyze the nature of the uncer-
tainty of risk to health as a fundamental ground for the court’s
ruling. The recognition of environmental protection as a human
right, therefore, developed and went even further than expected.
The Charter became a usable document so that the “layman-citi-
zen” reified the declaration of rights and used it as an instrument
of protection.
55 SUSTAINABLE DEVELOPMENT LAW & POLICY
During the first years of the Charter (2005-06), the lower
courts’ rulings were clearly going in that direction. However, at
that time, a discrepancy existed in the appreciation of the Char-
ter’s v alue within th e administrative courts and between local
lower courts and the French Administrative Supreme Court. On
the one hand, local administrative courts ruled using th e basis
of the Charter, esta blishing it as containing f undamental free-
doms con sidered to be of constitutional value.47 On the other,
the French Administrative Supreme Court’s reticence to change
showed in the way it applied the Charter, as demonstrated in two
2006 rul ings.48 That sai d, the French Administrative Supreme
Court merely respected i ts function of control of legality and
avoided operating a control of constitutionality. In Dece mber
2006, the Conseil d’Etat rejected the Charter’s legal authority
because it believed it would be too vague to solely mention the
breach of the Charter.49
In 2007 and 2008, a series of cases referred to the Charter
in various ways. In each case, the parties, mainly environmental
associations, acted consistently in considering the Charter as one
of their legal bases for seekin g judicial review. In January, the
French Administrative Sup reme Court considered the Charter
together with the Kyoto Protocol and the political context of an
area in northeast of France as the legal basis for its decision. In
this ca se, however, t he French Admi nistrative Supreme Court
rejected the review of a decision to build the A 52 motorway.50
In February, the French Administrative Supreme Court referred
to the Charter, and particularly to the precautionary principle, to
reject the review of a regulation concerning the closing dates of
hunting on the application of four environmental associations.51
In May and June, the Fr ench Admini strative Su preme Court
used similar reasoning to that used in the December 2006 case,
considering t hat it was too vague to solely mention the breach
of the Charter.52 In three cases from June and October 2007, the
French Administrative Supreme Court cited the Charter as a legal
basis (the highest one), but did not consider it in its ruling.53 In
October 2007, in the case M. F, M. E, M. C, M et Mme B., M. et
Mme A, the French Administrative Supreme Court developed an
interesting point of view.54 The French Administrative Supreme
Court argued that when the French Parliam ent acted to apply
the principles enshrined in article 7 of the Charter (the right to
information and public participation), the legality of regulations
would be co nsidered in light of the statutes.55 The judges went
on to explain that statutes en acted prior to the Chart er should
respect the Cha rter.56 Consequently, the French Administrative
Supreme Court followed tradition and t he judges rule d on the
basis of the French Environmental Code and not on the Char-
ter.57 This decis ion marked progress on the path tow ards the
2008 landmark case analyzed in the next section. However, the
French Administrative Supreme Court did not confirm this posi-
tion and, in two separate cases on the same day, acted according
to its previous position of December 2006,58 as it did in cases in
December 2007 and August 2008.59 Though the Charter became
valued as a legal in strument and is now taken into account by
claimants in the administrative courts, the way the cou rts have
considered and used this instru ment remains variable. This is
perhaps because of the lack of clarity in the preparation of the
Charter in defining the real aims of the text. The administrative
judges have mentioned in many instances, such as in the Decem-
ber 2006 case, that the use of the Charter as a legal basis is not
legitimate because of its lack of precision. In fact, the changes
affecting the administrative judges may be seen as an evolution
and passage fr om one phase of modernity to another from “the
land does not lie” to “human rights do not lie.”
a raDical change? the 2008 caSe
In the 2008 case, Commune d’An necy, the French Admin -
istrative Su preme Court went a step further. The Commissaire
du gouvernement Aguila, charged with presenting a final report
to t he French Administrative Supreme Court before the deci-
sion of its plenary assembly, concluded in eight po ints. These
eight points will be examined here as an introduction to this sec-
tion. First, Aguila considered that the context needed cl arifica-
tion, for the following three reasons: the case law of the French
Administrative Supreme Court in the matter was not yet clearly
fixed; the wo rk of the com mittee revi ewing the fundamental
rights that contributed to a general reflection on the necessity for
clarifying the value of the principles enshrined in the Preamble
of the Co nstitution of the French Fifth Republic (together wit h
the principles included in the Charter );61 and the constitutional
amendment of July 2008, i ntroducing the possibility to bring
a statute before the constitutional council afte r its promulga-
tion. In the second point the Commissaire noted that the Char-
ter ser ved as an autonomous cons titutional text, unique in the
world although the unfinished preparatory work created uncer-
tainty making judicial use difficult.62 The third point served as
a reminder that administrative justice has always been involved
in the development and the application of environmental law.63
The fourth and fifth po ints concern the case itself, and will be
developed later. The Commissaire created point six in the form
of a question: is the Charter for the Environment a text that may
be invoked before an administrative court directly by the parties
concerned and does it have “f ull” constitutional value?64 Point
seven concerned the increase of parliamentary power over envi-
ronmental issues as a result of the charter.65 On this last point,
Aguila concluded by listing t he expect ed results of the c ase
thereby quashin g the government re gulation on the gro unds of
a violation of the charter; reinforcing the rol e of Parliament i n
the area of environmental law, as sought by the authors of the
Charter; and renewing the traditional mission of the administra-
tive judge to look after the respect of the common good, and the
fundamental rights of citizens.66 The repo rt of Aguila reflected
the materialization of deep change.
The 2008 ca se relates to the spec ific protec tion of large
mountain lakes (larger th an 1,000 hectares ).67 These lakes are
currently protected by both the “mountain law”68 and th e “lit-
toral la w.”69 Some town s and cities are very happy about t his
double protection, while other towns and cities tried to relax the
laws to allow for new developments (principally real estate proj-
ects). Th e case concerns article 187 of the statute of February
23, 2005.70 This covers the development of rural territories,71
56FALL 2009
which introduced a new paragraph to arti cle L. 145-1 o f the
town planning code:
However, concerning mountain lakes having an area
greater than 1,000 hectares, a government regulation
after advice of the Conseil d’Etat delimi ts the s ector
within which the measures specific to littoral (as stated
in C hapter VI of the present title) apply solely, hav-
ing taken into account the topology of the area and the
advice of waterside municipalities. This sector cannot
reduce the littoral strip of 100 metres defined by article
L. 164-4, part III. In other areas of waterside munici-
palities , and loca ted w ithin the areas of m ountains
mentioned in the first paragraph, the dispositions spe-
cific to mountains of the present chapter apply solely.72
The Commune d’Annecy contested the government regula-
tion of August 1, 2006,73 adopted as part of the application of the
new article of the town planning code, to complete and introduce
new measures into the “regulations” section of the code.74 In the
local a uthority’s opinion, the new measures would reduce the
protection of mountain lakes, by reducing the perimeter of appli-
cation of the littoral law around
mountain lakes. Accor ding to
the gove rnment regulation, the
perimeter should be delimited
by loc al authorities’ decisions,
made on a cas e-by-case basis
for each lake. The 2006 decr ee
introduce d a series of regula-
tions, codified under articles R.
145-11 to -14, which outline a
detailed decisio n-making pro-
cess. Article R. 145-11 s tated
that either the state or the water-
side munic ipalities (town or
city) had the authority to delimit
the perimet er around mountain
lakes of more than a 1,000 hect-
ares. Article R. 145-12 stated in section I that when the respon-
sibility for delimiting the perimeter falls to the state, then the
prefect (representing the state in the département75) should for-
ward a file to the waterside municipalities comprising: a) a map
of the perimeter; and b) a note present ing the rationale behind
the limits of the perimeter (considering places, built or unbuilt;
visibility from the lake; waterside preservation of economic
and ecologic equilibrium; and sites and landscape quality). The
municipalities had two months from the transmission of the file
to the local mayors to decide on the project before their approval
was assumed. Section II st ated that when the municipalities
were responsible for the process, they should send a similar file
to the prefect with each administrative decision (i.e. namely a
déliberation from each local council). Article R. 145-13 stated
that the file had to be sent with the advice or proposal from each
municipality to be submitted to a public inquiry by the prefect
(as stated by articles R. 123-7 to -23 of the Environmental code).
The prefe ct had to communicate the file and the results of th e
inquiry to the government minister in charge of town planning.
Finally, article R. 145-14 stated that the central government had
to approve the perimeter by decree upon receiving advice of the
French Administrative Supreme Court, which the Journal Offi-
ciel de la République Française published.76
The Commune d ’Annecy criticized the government regula-
tion specifically because it would breach the right to information
and parti cipation of the public in the decision mak ing process
which would impact the environment. Th e government regula-
tion did not allow for public cons ultation before th e decisions
required by the public inquiry of article R. 145-13 and -14 and
therefore viol ated article 7 of the Charter. Ag uila’s sixth point
concerned this issue : can t he Charter for the Environment be
invoked before an administrative c ourt directly by the parties
concerned? Or in other words, can human rights influ ence the
way administrative courts operate?
The Cons titution of t he French Fif th Republic in troduced
a m ini revolution in 195 8. The French Parlia ment is not free
to e nact everything it des ires but can only act on the matter s
listed, which became the “domain of statute law,” as stipulated
in article 34 of the Constitution.
The responsi bility of the 2005
consti tutional am endment tha t
const itutiona lised t he Cha rter
for th e Environmen t and also
added to article 34’s list that the
express ion of the fundament al
princi ples on the p reservatio n
of the e nvironment fell to Par-
liamen t. In conseque nce, only
a statu te could be adopte d to
determine those princi ples, not
a regulatio n.77 In the 2008 case,
the a dministrative judg es of th e
French Administrative Sup reme
Court considered that the scop e
of action of the French parliament
had been altered by the 200 5 amend ment. F urthermore, the
judges declared in article 7 of the Charter that, “[e]veryone has
a right, within the conditions and limits of Law, to access infor-
mation rela ting to the environment in the possession of public
authorities and to participate in the public decision making pro-
cess which have an inciden ce on the envi ronment.”78 The col-
lection of rights and duties defined in t he Charter (indeed, all
rights and duties that proceed from the Preamble o f the 195 8
Constitution), therefore had constitutional value.79 These rights
and duties a re imposed on public p owers and administrat ive
authorities in their respective domains of responsibility.
In addition, the French Administrative Supreme Court con-
sidered that und er the constitutional amendment of March 1,
2005, the French Parliament had sole legislative competence for
fixing conditions and limiting the exercise of the right to infor-
mation rel ative to the environment. This competence included
the right to access all information held by public authorities
and to par ticipate i n the elaboration of public d ecisions t hat
For some, and
France in particular,
environmental protection
is best accomplished
by declaring it a
constitutionally protected
human right
57 SUSTAINABLE DEVELOPMENT LAW & POLICY
may have a n effect on the en vironment. As a consequence, the
government had no g eneral competence in this area, although
it could exceptionally make complementary legislation. There-
fore, since 2005, a regulation could be taken as a complement to
a statute, within the scope of article 7 of the Charter, posterior
or anterior to 2005, so long as the regulation conformed with the
substantive rights included in the Charter.
The French Administrative Supreme Court went on to com-
ment on the importance of article L. 110-1 of the Environmental
code. T he French Ad ministrative Supreme Court decided that
the article should proclaim principles and not determine the con-
ditions and limits required by article 7 of the Charter. Further-
more, as explained above, according to article L. 145-1 of the
town planni ng code, which protects mountain lak es of an are a
greater than 1,000 hectares, a decree following the advice of the
French Administrative Supreme Court should not determine the
conditions and limits of the right to information and participa-
tion of the public or competence of the French parliament. Since
no statute has been enacted to determine these conditions or lim-
its, the French Administrative Supreme Court properly used the
2004 Charter as a reference. In consequence, the 2006 gover n-
mental regulation became illegal because it fixed measures that
were wi thin the scop e of article 7 of the 2004 C harter for th e
Environment. This is a great evolution for many reasons, but
especially because huma n rights and environmental consider-
ations finally came together in the same legal culture.
conclusIon
This p aper described the links between human rights and
environmental protection, and the modification in the operation
of French administrative courts under the pressure of the consti-
tutionalisation of environmental human rights. The paper noted
the evolution from the adoption of the Charter for the Environ-
ment and its incorporation into the (material) Constitution of
the F rench Fifth Republic. The Charter repr esents a domestic
development in terms of human rights, as it expresses the third
generation of human rights. The weight and pressure of environ-
mental issues forced the French Administrative Supreme Court
to modify its way of operating. This is a profound modification,
as t he French Administrative Supreme Court is not separated
from the administration of the Repub lic. Inde ed, the French
Administrative Supreme Co urt is not only the highest ad min-
istrative court; it is also a government advisor and the organ in
charge of preparing the bills and regulations for both the French
parliament and the government. We now see the increased con-
sideration for human rights and their dissemination in the legal
culture to such an extent that we may have entered a new spatio-
temporal dimension. Mankind fears the reality of its mor tality,
and has realized that its area of “play” must be protected. For
some, and France in particular, environmental protection is best
accomplished by declaring it a constitutionally protected human
right. The Charter is aligned with this new trend. The evolution
of the jurisprudence of the highest French administrative court is
a witness of the changes as is illustrated in the recent case law of
the French Administrative Supreme Court.
Endnotes: Human Rights and Environmental Protection: the
preSSure of the charter for the environment on the
french aDminiStrative courtS
Endnotes: Human Rights and Environmental Protection: The Pres-
sure of the Charter for the Environment on the French Administrative
Courts continued on page 88
1 CC decision no. 2008-564DC, June 19, 2008, J.O. 8 available at http://
www.conseil-constitutionnel.fr/conseilconstitutionnel/root/bank_mm/
anglais/2008_564dc.pdf (“These provisions, like all the other rights and duties
set out in the Charter for the Environment, have constitutional status.”).
2 1958 conSt. The Constitution of the Fourth Republic incorporated in its
Preamble a socio-economic rights declaration that has now been added to the
Constitution of the Fifth Republic and has implicit reference to the environment
in paragraphs 10 and 12. Id. The next step was, of course, the adoption of the
2004 Charter.
3 See antonio caSSeSe, i Diritti umani oggi, 9-27 (2007) (developing classifi-
cations of human rights).
4 See, e.g., Ir. conSt., 1937, arts. 40-4, available at http://www.taoiseach.gov.
ie/eng/Publications/Publications_Archive/Publications_2006/Publications_
for_2002/Bunreacht_na_hÉireann_-_Constitution_of_Ireland.html.
5 Declaration of the Rights of Man and of the Citizen of August 26, 1789, Duv.
& Boc. (Fr.).
6 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948).
7 Id. at art. 25(1).
8 International Covenant on Civil and Political Rights, G.A. Res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999
U.N.T.S. 171 (Mar. 23, 1976), available at http://www2.ohchr.org/english/law/
pdf/ccpr.pdf.
9 International Covenant on Economic, Social, and Cultural Rights, art. 12,
G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.
A/6316 (1966), available at http://www1.umn.edu/humanrts/instree/b2esc.htm
(last visited Nov. 7, 2009).
10 Declaration of the United Nations Conference on the Human Environment,
Stockholm, June 16, 1972, 11 intl leg. mat. 1416 (1972).
11 Rio Declaration on Environment and Development, June 14, 1992, U.N.
Doc. A/CONF.151/26 (Vol. I); 31 ILM 874 (1992) (emphasis added).
12 1994 Draft Principles on Human Rights and the Environment, art. 7, E/CN.4/
Sub.2/1994/9, Annex I (1994), available at http://www1.umn.edu/humanrts/
instree/1994-dec.htm.
13 International Union for Conservation of Nature Commission on Environ-
mental Law, Draft International Covenant on Environment and Development,
Third Edition: Updated Text (2004), available at http://data.iucn.org/dbtw-wpd/
edocs/EPLP-031_rev2.pdf.
14 Committee of the Regions, 10 Oct. 2003, 2003 JO C 244; CDR-02/DEVE;
BOCKLET, at 26–30.
15 Treaty of the European Union, art. 6, Feb. 2, 1992, 1992 O.J. (C340) 3.
16 Guerra & Others v. Italy, App. No. 14967/89, 26 Eur. H.R. Rep. 357 (1998).
17 Chassagnou & Others v. France, App. nos. 25088/94, 28331/95, & 28443/95,
1999-III Eur. Ct. H.R. 112.