Regional Overview: Western Europe

(continued)

Constitutional Rights

As shown in Table 1, a generic right to a sound environment is recognized in the constitutions of Austria, Germany, Greece, Portugal, Spain and Switzerland. The Austrian Constitution includes a regulation stating that the Republic of Austria declares itself to be generally committed to environmental protection, and it subsequently gives a comprehensive definition of environmental protection. Nevertheless, no individual right is set out, only a declaration of public interest. The German Constitutional reform identifies environmental protection as an objective of the state, especially the protection of nature as a basis of human life. However, the constitution does not set out any specific individual right, thus individuals cannot take legal action based on this constitutional provision.

TABLE 1: Constitutional Rights Regarding the Environment
General	Austria, Germany, Greece, Portugal, Spain, Switzerland
Access to Information	Greece, the Netherlands, Norway, Spain
Public Participation	Portugal, Spain
Access to Justice	Germany, Greece, Portugal, Spain

The Portuguese Constitution of 1976 establishes a fundamental right to a healthy and ecologically balanced environment, and it gives this right similar protection to that given to the right to life and to freedom.

The Spanish Constitution of 1978 gives any person the right to enjoy an adequate environment for his or her development, and it adds the duty to conserve this adequate environment. Public authorities are constitutionally obliged to protect and improve the state of the environment through the rational use of all natural resources and to defend and restore the environment when necessary. Penal or administrative sanctions are legally provided for those who do not obey, and anyone who damages the environment must repair the damages caused. However, this right is not considered a fundamental right but a guiding principle for economic and social policy. This is why the environmental right merits a lesser degree of protection, and further legislation is necessary to make this right usable and applicable.

In Denmark, environmental rights are set forth by specific laws. Nevertheless, the constitution recognizes that the main purpose of Danish environmental regulations is to ensure a healthy environment for all. This constitutional provision is developed by specific legislation, thus the rights recognized under this specific legislation have been seen as equivalent to constitutional rights.

In other countries such as Ireland and Norway, whose constitution does not explicitly mention a right concerning the environment, such a right is sometimes interpreted through the right to bodily integrity or the right to health. Finally, the Norwegian Constitution recognizes the environmental right to health, reproduction and diversity with consideration for future generations.

Implementation of International Legal Instruments

The countries of Western Europe have endorsed and/or implemented several international legal instruments concerning the environment. The most important of these are listed in Table 2.

TABLE 2: International Instruments Related to the Environment
International Conventions	Signed	Ratified

Universal Declaration of Human Rights. Adopted by the U.N. General Assembly at New York, U.S.A., on December 10, 1948	Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, United Kingdom	Norway, Spain
Convention on the Conservation of European Wildlife and Natural Habitats. Adopted by the Council of Europe at Bern, Switzerland, on September 19, 1979	Austria, Greece, Norway, Spain, Switzerland	Greece, Norway, Spain
Convention on Environmental Impact Assessment in a Transboundary Context. Adopted at Espoo, Finland, on February 25, 1991	Austria, Greece, Norway, Spain	Austria, Greece, Norway, Spain
Convention on the Transboundary Effects of Industrial Accidents. Adopted at Helsinki, Finland, on March 17, 1992	Greece, Norway, Spain	Greece, Norway, Spain
Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Adopted at Helsinki on March 17, 1992	Austria, Norway, Spain, Greece	Norway, Spain
Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment. Adopted at Lugano, Switzerland, on June 21, 1993	Greece, Norway, Spain

EC Directives	Implemented

90/313 EEC on the Freedom of Access to Information on the Environment. Adopted on June 7, 1990	Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway*, Portugal, Spain, United Kingdom
85/337 EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment. Adopted on June 27, 1985	Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway*, Portugal, Spain, United Kingdom

Nonbinding Instruments	Signed

Sofia Guidelines	Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, United Kingdom
Agenda 21. Adopted by the U.N. Conference on Environment and Development at Rio de Janeiro, June 14, 1992	Austria, Denmark, Germany, Norway, the Netherlands, Spain
Rio Declaration on Environment and Development. Adopted by the U.N. Conference on Environment and Development at Rio de Janeiro, June 14, 1992	Austria, Denmark, Germany, Norway, the Netherlands, Spain
* Norway implemented Directive 90/313/EEC and Directive 85/337/EEC as part of the European Economic Area (EEA) Agreement

Implementation of International Nonbinding Instruments: Sofia Guidelines

Although the Sofia Guidelines have been endorsed by all the countries in this survey, the existence of this instrument has not received adequate dissemination within the 11 countries covered by this survey. In several of them (e.g. Spain), the Guidelines were not even translated into the local language and therefore remain unknown. No governmental activities have being reported in relation with the implementation of the Sofia Guidelines, and there have also been no NGO activities apart from the publication and distribution of the booklet "Access to Environmental Information and Public Participation in Environmental Decisionmaking — UN ECE Guidelines: From Theory to Practice" by J. Wates (EEB, Brussels). This booklet was published in April 1996 in English with a French translation of the guidelines and was distributed to EEB member NGOs throughout Europe.

None of the 11 countries has adopted a strategy for the implementation of the Sofia Guidelines, which should be developed as a result of a broad consultative process3. In Norway, they were assessed as limited in their effectiveness due to a number of factors including excessive time limits for responding to requests, exclusion of human health and legislative bodies, a broad range of exempt categories of information, and lack of clarity on minimum requirements for public participation. When looking at the explanation for this situation, the following might be taken into account:

The Sofia Guidelines were often seen as an instrument useful in the hands of the CEE and NIS countries but whose application was not as needed in Western countries, where systems more in accordance with the provisions of the guidelines are already in place. This is especially true in EU member states, which already must comply with several EU directives that in many cases include provisions similar to those set forth by the guidelines;
The nonbinding Sofia instrument was followed by negotiations aimed at the adoption of a Convention on Public Participation; therefore, interest has been focused more on these negotiations than on the implementation of the guidelines themselves.

The lack of attention paid to the Sofia Guidelines does not mean access to environmental information; public participation in environmental decisionmaking and access to administrative and judicial proceedings is not granted. The situation is far from this, especially with regard to access to environmental information, and the Western countries surveyed already follow many of the provisions set out in the guidelines. Nevertheless, there is still a lot of progress to be made to comply with all the recommendations of the guidelines.

REC * PUBLICATIONS * DOORS TO DEMOCRACY - WESTERN EUROPE * REGIONAL OVERVIEW