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Integrating Environmental Values into the European Convention on Human Rights

Published online by Cambridge University Press:  27 February 2017

Richard Desgagné
Richard Desgagné*
Affiliation:
Graduate Institute of International Studies in Geneva.
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Extract

Over the last two decades, the protection of the environment has become a necessity so widely recognized that environmental concerns have pervaded most fields of international law, including the international law of human rights. In 1976 the European Commission of Human Rights dismissed an application on the ground that “no right to nature conservation [was] as such included among the rights and freedoms guaranteed by the Convention and in particular by Arts 2, 3, or 5.” In 1993, however, the Commission found that the erection and operation of a waste and water treatment station near the domicile of the applicant was such a nuisance as to amount to a violation of her right to a private life. This development in the case law of the European Commission reflects a growing awareness of the links between protection of human rights and protection of the environment.

Type
Research Article
Information
American Journal of International Law , Volume 89 , Issue 2 , April 1995 , pp. 263 - 294
Copyright
Copyright © American Society of International Law 1995

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References

1 X. and Y. v. Federal Republic of Germany, App. No. 7407/76, 5 Eur. Comm'n H.R. Dec. & Rep. 161, 161 (1976). The applicant objected, for environmental reasons, to military uses of marshland.

2 Lopez Ostra v. Spain, App. No. 16798/90 (report of Aug. 31, 1993, unpublished).

3 Declaration on the Human Environment (June 16, 1972), in Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev.1, sec. I (1972), reprinted in 11 ILM 1416 (1972) [hereinafter Stockholm Declaration].

4 Id., Principle 1 reads: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of 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.”

5 Convention on the Rights of the Child, Nov. 20, 1989, GA Res. 44/25, Art. 24, para. 2(c), UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), reprinted in 28 ILM 1448 (1989). See also Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, ILO Convention No. 169, Art. 4, reprinted in 28 ILM 1382 (1989).

6 African Charter on Human and Peoples' Rights, June 27, 1981, Art. 24, OAU Doc. CAB/LEG/67/3/ Rev.5 (1981), reprinted in 21 ILM 58 (1982).

7 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), Nov. 14, 1988, Art. 11, OAS TS No. 69, reprinted in 28 ILM 156 (1989). The Protocol has received only two ratifications.

Additionally, nearly 50 national constitutions include provisions related to environmental protection, formulated as a right to environment or as a duty of the state. For the most part, these provisions are intended to emphasize the importance of environmental preservation as a social value. There is often no implementation mechanism. However, a decision of the Philippine Supreme Court derived a right to a balanced and healthful ecology and a cause of action from section 16, Article II of the 1987 Constitution of the Philippines, which provides: “The State shall protect and advance the right of the people to a balanced ecology in accord with the rhythm and harmony of nature.” Oposa v. Secretary of the Dep't of Env't & Natural Resources (July 30, 1993), reprinted in 33 ILM 173 (1994).

For the texts of constitutional and legislative provisions on environmental rights and duties, see Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity 297–327 (1989); Environnement et Droits de l'homme 152 (Pascale Kro-mareked., 1987).

8 See generally Gudmundur Alfredsson & Alexander Ovsiouk, Human Rights and the Environment, 60 Nordic J. Intl L. 19 (1991); Günther Handl, Human Rights and Protection of the Environment: A Mildly “Revisionist View” (1992) (on file with author); Alexandre Kiss, An Introductory Note on a Right to Environment, in Environmental Change and International Law 199 (Edith Brown Weiss ed., 1992); Dinah Shelton, Human Rights, Environmental Rights, and the Rights to Environment, 28 Stan. J. Int'l L. 103 (1991); Melissa Thorme, Establishing Environment as a Human Right, 19 Denv. J. Int'l L. & Pol'y 310 (1991).

9 Rio Declaration on Environment and Development (June 14, 1992), UN Doc. A/CONF. 151/5/Rev.1, Principle 1 (1992), reprinted in 31 ILM 874, 876 (1992) [hereinafter Rio Declaration]. See Dinah Shelton, What Happened in Rio toHuman Rights?, 3 Y.B. Int'l Envtl. L. 75, 89–90 (1992).

10 Shelton, supra note 9, at 81.

11 Alexandre Kiss, Le Droit à la conservation de l'environnement, 2 Revue Universelle des Droits de L'homme [RUDH] 445, 446(1990).

12 Shelton, supra note 8, at 106–11.

13 Michelle Leighton Schwartz, International Legal Protection for Victims of Environmental Abuse, 18 Yale J. Int'l L. 355, 359–68(1993).

14 World Charter for Nature, GA Res. 37/7, Annex, para. 24, UN GAOR, 37th Sess., Supp. No. 51, at 17, UN Doc. A/37/51 (1982). See also Rio Declaration, supra note 9, Principle 10, quoted in text at note 173 infra.

15 Kiss, supra note 11, at 448; Shelton, supra note 8, at 117.

16 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, Eur. TS No. 5, 213 UNTS 221 [hereinafter European Convention].

17 European Social Charter, Oct. 18, 1961, Eur. TS No. 35, 529 UNTS 89 [hereinafter Social Charter]. Proposals for the insertion of a right to environment in the Social Charter have been made without success since the early 1970s. In 1990 the Parliamentary Assembly of the Council of Europe recommended the drafting of a European charter and convention on environmental protection and sustainable development that would provide for a right to environment. This recommendation has not been accepted by the Committee of Ministers. Recommendation on the Formulation of a Draft European Charter and a European Convention on Environmental Protection and Sustainable Development, Eur. Pari. Ass., 42d Sess., Recommendation 1130 (1990), reprinted in 1 Y.B. Int'l Envtl. L. 484 (1990).

18 The European system of human rights protection operates in the framework of the Council of Europe. Under Article 25 of the Convention, individuals, nongovernmental organizations and groups of individuals may submit petitions to the European Commission of Human Rights. Only the Commission and the contracting states subject to the Court's compulsory jurisdiction have access to the European Court of Human Rights.

On receiving a petition, the Commission first examines its admissibility in regard to conditions set by Article 26 (exhaustion of local remedies) and Article 27 (reasons for nonadmissibility are anonymous petitions, petitions submitted to another international procedure, no apparent violation of a protected right and abuse of right of petition). If the application is accepted, the Commission places itself at the disposal of the parties concerned with a view to securing a friendly settlement. If the matter is not resolved, the Commission draws up a report on the facts and states its opinion. The report is transmitted to the Committee of Ministers. If the question is not referred to the Court by the Commission or a contracting state, the Committee decides whether the Convention has been violated.

When Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, May 11, 1994, reprinted in 33 ILM 943 (1994), enters into force, the Commission and the Court will be replaced by a single permanent court.

19 See generally Mohamed Ali Mekouar, Le Droit à l'environnement dans ses rapports avec les autres droits de l'homme, in Environnement et droits de l'homme, supra note 7, at 91, 91–101.

20 See generally W. Paul Gormley, The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights, 3 Geo. Intl & Envtl. L. Rev. 85 (1990).

21 Kumar v. State of Bihar, cited in Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment: Second Progress Report Prepared by Mrs Fatma Zhora Ksentini, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1993/7, at 18 [hereinafter Second Progress Report].

22 Pan American Union, Final Act of Ninth Conference, Res. XXX, at 38 (1948), reprinted in 43 AJIL 133 (Supp. 1963).

23 Case 7615 (Brazil), Inter-Am. C.H.R., 1984–1985 Annual Report 24, OEA/Ser.L/V/II.66, doc. 10, rev.1 (1985), reprinted in 1985 Inter-Am. Y.B. on H.R. 264, 279. The Commission declared:

[B]y reason of the failure of the Government of Brazil to take timely and effective measures in behalf of the Yanomani Indians, a situation has been produced that has resulted in the violation, injury to them, of the following rights recognized in the American Declaration of the Rights and Duties of Man: the right to life, liberty, personal security (Article I); the right of residence and movement (Article VIII); and the right to the preservation of health and to well-being (Article XI).

24 R. S. Pathak, The Human Rights System as a Conceptual Framework for Environmental Law, in Environmental Change and International Law, supra note 8, at 205, 218.

25 B. G. Ramcharan, The Concept and Dimensions of the Right to Life, in The Right to Life in International Law 1, 6 (B. G. Ramcharan ed., 1985). See also Rein Müllerson, Right to Survival as Right to Life of Humanity, 19 Denv. J. Int'l L. & Poly 47 (1991).

26 Dec. 19, 1966,999 UNTS 171, reprinted in 6 ILM 368(1967) [hereinafter Political Covenant].

27 UN Doc. CCPR/C/SR.222, para. 59 (1980), mentioned in Thomas Desch, The Concept and Dimensions of the Right to Life (as Defined in International Standards and in International and Comparative furisprudence), 36 Osterreichische Zeitschrift für Öffentliches Recht und VÖlkerrecht 77, 101 (1985).

28 Article 2 of the European Convention reads:

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following its conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to prevent a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

29 See generally Patricia Lefeuvre, La Protection du droit à la vie dans la Convention européenne des droits de l'homme, in Le Droit à la vie quarante ans après la Déclaration universelle des droits de l'homme 51, 55 (Daniel Premont & Francoise Montant eds., 1992).

30 Thus, the Belgian Court of Cassation decided that “le droit à la vie au sens de l'article 2 de la Convention de sauvegarde des droits de l'homme n'est que le droit à la vie physique au sens usuel du terme et non le droit à une vie que l'individu concerné peut subjectivement qualifier de ‘décente’.” Judgment of Feb. 5, 1985, Cass., Pasicrisie Beige, pt. I at 670, 680 (1985), cited in Jacques Velu & rusen Ergec, La Convention européenne des droits de l'homme 174(1990).

31 Franciszek Przetacznik, The Right to Life as a Basic Human Right, 9 Hum. Rts. J. 585, 591 (1976).

32 J. E. S. Fawcett, The Application of the European Convention on Human Rights 30–31 (1969).

33 Anna Michalska, La Protection internationale du droit à la vie (Problèmes choisis), 17 Polish Y.B. Int'l L. 85, 91 (1988).

34 Id. at 92; Velu & Ergec, supra note 30, at 179–80. In contrast to Article 6 of the Political Covenant, supra note 26, and Article 4 of the American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 UNTS 123, reprinted in 9 ILM 99 (1970) [hereinafter American Convention], which prohibits arbitrary deprivation of life in general, Article 2 exhaustively enumerates the conditions under which life may be taken.

35 Fawcett, supra note 32, at 31; Leighton Schwartz, supra note 13, at 362; Michalska, supra note 33, at 92; Velu & Ergec, supra note 30, at 180. The Inter-American-Court of Human Rights stated that the obligation to protect and ensure the guaranteed rights implies the duty

to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. … States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.

Velásquez Rodríguez Case, 4 Inter-Am. Ct. H.R. (ser. C), para. 166 (1988).

36 Yoram Dinstein, The Right to Life, Physical Liberty and Liberty, in The International Bill of Human Rights: The Covenant on Civil and Political Rights 114, 115 (Louis Henkined., 1981).

37 Lefeuvre, supra note 29, at 54. In X. v. Ireland, App. No. 6839/74, 7 Eur. Comm'n H.R. Dec. & Rep. 78 (1977), the applicant alleged that the authorities' refusal to give free medical services to her daughter constituted a breach of her daughter's right to life. The Commission, while leaving the question of the positive duties that might flow from Article 2 unanswered, noted that “[t]he applicant's daughter appear[ed] … to have received assistance from the local health authorities and her life ha[d] not been endangered.” Id. at 79. In X. v. Ireland, App. No. 6040/73, 17 Y.B. Eur. Conv. on H.R. 388 (1973), the Commission found that Article 2 could not be interpreted as imposing a duty on the state to provide a personal bodyguard, at least for an indefinite period of time. In Mrs W. v. United Kingdom, App. No. 9348/81, 32 Eur. Comm'n H.R. Dec. & Rep. 190, para. 12 (1983), the applicant alleged a violation of Article 2 after her husband was killed by the Provisional IRA. The Commission stated that Article 2 “may … indeed give rise to positive obligations on the part of the State. That, however, does not mean that a positive obligation to exclude any possible violence could be deduced from this article.”

38 Velu & Ergec, supra note 30, at 182.

39 In X. v. Austria, App. No. 8278/78, 18 Eur. Comm'n H.R. Dec. & Rep. 154, 156 (1980), the Commission wrote that Article 2 “does, however, primarily provide protection against deprivation of life only. Even assuming that physical integrity may be seen as protected by this Article an insignificant intervention such as a blood test does not amount to an interference prohibited by it.”

40 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), para. 90 (1989). The Court wrote:

It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article.

41 In the Beldjoudi Case, 234-A Eur. Ct. H.R. (ser. A), paras. 66–67 (1992), the Court considered that a future, but certain, interference came under the scope of Article 8 (enforcement of a deportation order).

42 App. No. 7154/75, 14 Eur. Comm'n H.R. Dec. & Rep. 31, 32 (1979).

43 In X. v. Belgium, App. No. 2758/66, 12 Y.B. Eur. Conv. on H.R. 174, 193 (1969), the Commission had interpreted the word “intentionally” strictly, but it later stated that the taking of life as a result of negligence might also pose an issue under Article 2. Stewart v. United Kingdom, App. No. 10044/82, 39 Eur. Comm'n H.R. Dec. & Rep. 162, para. 15(1984).

44 Leighton Schwartz, supra note 13, at 362; Ramcharan, supra note 25, at 13; Stefan Weber, Environmental Information and the European Convention on Human Rights, 12 Hum. Rts. L J. 177, 181 (1991); Second Progress Report, supra note 21, at 22.

45 Weber, supra note 44, at 181.

46 Michalska, supra note 33, at 98.

47 Dr S. v. Federal Republic of Germany, App. No. 715/60 (Aug. 5, 1960, unpublished); see Maguelonne Déjeant-Pons, L'Insertion du droit de l'homme à l'environnement dans les systèmes régionaux de protection des droits de l'homme, 2 RUDH 461, 464 (1991).

48 Maguelonne Déjeant-Pons, Le Droit de l'homme à l'environnement, droitfondamental au niveau européen dans le cadre du Conseil de l'Europe, et la Convention européenne de sauvegarde des droits de l'homme et des liberiés fondamentales, 4 Revue Juridique de l'Environnement (forthcoming 1994) (manuscript at 6, on file with author).

49 Port Hope Envtl. Group v. Canada, Communication No. 67/1980, 2 Selected decisions of the Human Rights Committee under the Optional Protocol 20, UN Doc. CCPR/C/OP/2, UN Sales No. E.89.XIV.1(1990).

50 On Article 3, see generally Louise Doswald-Beck, What does the Prohibition of “Torture or Inhuman or Degrading Treatment or Punishment” mean? The Interpretation of the European Commission and Court of Human Rights, 25 Neth. Int'l L. Rev. 24 (1978); P.J. Duffy, Article 3 of the European Convention on Human Rights, 32 Int'l & Comp. L.Q. 316 (1983); Frédéric. Sudre, La Notion de “peines et traitements inhumains ou dégradants” dans la jurisprudence de la Commission et la Cour européenne des droits de l'homme, 88 Revue Générale de Droit International Public 825 (1984).

51 Sudre, supra note 50, at 839. In the Greek Case, 12 Y.B. Eur. Conv. on H.R. 1, 186 (1969), the Commission gave the following definitions of “torture” and “inhuman or degrading treatment”:

It is plain that there may be treatment to which all these descriptions apply, for all torture must be inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable.

The word “torture” is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.

52 Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A), para. 30 (1978).

53 Duffy, supra note 50, at 320.

54 Tyrer, supra note 52, para. 30; Sudre, supra note 50, at 844.

55 Doswald-Beck, supra note 50, at 33.

56 Duffy, supra note 50, at 345.

57 Supra note 2.

58 See text at note 80 infra. The case is now before the Court.

59 Article 11 is found in part II of the Social Charter, which contains the undertakings that are binding if accepted by states. Part I declares the aims of the contracting parties. From the 19 articles of part II, a state must select 15 by which it considers itself bound. Of these, it must select at least five from the following: Articles 1 (right to work), 5 (right to organize), 6 (right to bargain collectively), 12 (right to social security), 13 (right to social and medical assistance), 16 (right of the family to social, legal and economic protection), and 19 (right of migrant workers and their families to protection and assistance). European Social Charter, supra note 17, Art. 20.

60 Déjeant-Pons, supra note 47, at 463; Jean-Paul Jacqué, La Protection du droit à l'environnement au niveau européen ou régional, in Environnement et droits de l'homme, supra note 7, at 65, 68.

61 The Social Charter does not provide for an individual complaint procedure. Its application is supervised through the submission by states of reports to the Secretary General of the Council of Europe. The reports are then examined by the Committee of Experts and the Committee's report is transmitted to the Committee of Ministers, which, by a two-thirds majority, may make recommendations to the contracting parties. European Social Charter, supra note 17, Arts. 21, 22, 24, 28. The reporting procedure was amended by the Torino Protocol Amending the European Charter, Oct. 21, 1991, Eur. TS No. 142 (not yet in force).

62 Handl, supra note 8, at 12. The Committee of Experts has stated that, to meet their obligations under Article 11 of the Social Charter, supra note 17, states must provide information on the existence of a health system, including, inter alia, “general measures aimed in particular at the prevention of pollution from radioactive substances, noise abatement, food control, environmental hygiene and the control of alcoholism and drugs.” Thus, the Committee has noted the intention of some national authorities to reduce sulfur dioxide and nitrogen oxide emissions. Council of Europe, Case Law on the European Social Charter 104 (1982). See Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment: Progress Report by Mrs Fatma Zhora Ksentini, Special Rapporteur, 44th Sess., UN Doc. E/CN.4/Sub.2/1992/7, at 22.

63 Article 8 reads:

1. Everyone has the right to respect for his private life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.

64 Alpha M. Connelly, Problems of Interpretation of Article 8 of the European Convention on Human Rights, 35 Intl & Comp. L.Q. 567, 570–75 (1986).

65 Certain Aspects of the Laws on the Use of Languages in Education in Belgium, 6 Eur. Ct. H.R. (ser. A) at 32–33, para. 7(1968).

66 Connelly, supra note 64, at 570. As the second paragraph of Article 8 involves exceptions to the protected rights, it must be interpreted strictly. Andrew Drzemczewski, Le Droit au Respect de la vie privée et familiale, du domicile et de la correspondance tel que le garantit l'article 8 de la Convention européenne des droits de l'homme 17 (1985); Dimitrios Evrigenis, Recent Case-law of the European Court of Human Rights on Articles 8 and 10 of the European Convention on Human Rights, 3 Hum. Rts. L.J. 121, 131 (1982).

67 See Silver v. United Kingdom, 61 Eur. Ct. H.R. (ser. A), paras. 58–59 (1983). Also Mireille Delmas-Marty, The Richness of Underlying Legal Reasoning, in The European Convention for the Protection of Human Rights: International Protection versus National Protection 319, 324 (Mireille Delmas-Marty ed., 1992).

68 Powell and Rayner v. United Kingdom, 172 Eur. Ct. H.R. (ser. A), para. 41 (1990).

69 In Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A), para. 48 (1976), the Court observed:

By reason of their direct and continuous contact with the vital forces of their countries, State authorities [were] in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them.

70 Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A), para. 31 (1979). See also Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A), para. 33(1979).

71 In X. and Y. v. Netherlands, 91 Eur. Ct. H.R. (ser. A), para. 23 (1985), the Court stated that the duties under Article 8 “may involve the adoption of measures to secure respect for private life even in the sphere of the relations of individuals between themselves.” The obligation was to provide penal protection for a mentally handicapped person who was a victim of sexual violence.

72 Connelly, supra note 64, at 572.

73 Rees v. United Kingdom, 106 Eur. Ct. H.R. (ser. A) (1986).

74 Id., paras. 37, 60.

75 Drzemczewski, supra note 66, at 8; Connelly, supra note 64, at 568.

76 Deklerck v. Belgium, App. No. 8307/78, 21 Eur. Comm'n H.R. Dec. & Rep. 116, 124 (1981).

77 Louise Doswald-Beck, The Meaning of the Right to Respect for Private Life under the European Convention on Human Rights, 4 Hum. Rts. L.J. 283, 289 (1983). See X. and Y. v. Netherlands, supra note 71, para. 22.

78 Arrondelle v. United Kingdom, App. No. 7889/77, 23 Y.B. Eur. Conv. on H.R. 166 (1980).

79 Arrondelle v. United Kingdom, Report of the Commission of 13 May 1982, 25 Y.B. Eur. Conv. on H.R. 235 (1982). Friendly settlements usually consist of monetary compensation on an ex gratia basis. See generally Torkel Opsahl, Règlement amiable des litiges dans le respect des droits définis dans la Convention européenne des droits de l'homme, in 6 International Colloquy about the European Convention on Human Rights, Proc. 972 (1988) [hereinafter 6 Proc.]. In Baggs v. United Kingdom, App. No. 9310/81, 44 Eur. Comm'n H.R. Dec. & Rep. 13 (1985), the applicant also complained about noise and vibration caused by air traffic. The Commission found that the annoyances were worse than in the Arrondelle case. The application was declared admissible and a friendly settlement was also reached.

80 Supra note 2.

81 Powell and Rayner, supra note 68, para. 40.

82 App. No. 13728/88 (May 17, 1990), reprinted in 3 RUDH 236(1991).

88 Id. at 237.

84 X. v. Iceland, App. No. 6825/74, 5 Eur. Comm'n H.R. Dec. & Rep. 86, 87 (1976).

85 G. and E. v. Norway, App. Nos. 9278/81 and 9415/81, 35 Eur. Comm'n H.R. Dec. & Rep. 30, 35é36 (1984).

86 Connelly, supra note 64, at 579; Drzemczewski, supra note 66, at 8–9; Frédéric Sudre, Droit international et européen des droits de l'homme 152 (1989). In Brüggemann and Scheuten v. Federal Republic of Germany, App. No. 6959/75, 10. Eur. Comm'n H.R. Dec. & Rep. 100, para. 56 (1978), the Commission also stated: “In fact, as the earlier jurisprudence of the Commission has already shown, the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests.”

87 In X. v. Iceland, supra note 84, at 87, the Commission wrote:

For numerous anglo-saxon and French authors the right to respect for “private life” is the right to privacy, the right to live, as far as one wishes, protected from publicity [references omitted].

In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality.

88 Connelly, supra note 64, at 580–82.

89 X. v. Austria, supra note 39, at 156, para. 3. A compulsory blood test and a soldier's obligation to have a haircut have also been considered interference with private life. X. v. Netherlands, App. No. 8239/78, 16 Eur. Comm'n H.R. Dec. & Rep. 184 (1979); Sutter v. Switzerland, App. No. 8209/78, id. at 166.

90 App. No. 12816/87, 59 Eur. Comm'n H.R. Dec. & Rep. 186(1989).

91 Id. at 196. The relevant circumstances noted by the Commission were that the applicants lived at different distances from the shooting range and no exact figures as to the actual noise levels at these different places had been submitted; that the expert opinion did not clearly state at which distance noise measurements had been taken and did not reflect an existing situation but estimated a future development; that no firing was permitted on weekends or on public holidays, in the evening or at night; and that there were contradictory submissions by the parties.

92 Powell and Rayner, supra note 68, paras. 38–40.

93 Rayner v. United Kingdom, App. No. 9310/81, 47 Eur. Comm'n H.R. Dec. & Rep. 5 (1986).

94 S. v. France, supra note 82, at 238.

95 Delmas-Marty, supra note 67, at 325.

96 Powell and Rayner, supra note 68, para. 42.

97 S. v. France, supra note 82.

98 G. and E. v. Norway, supra note 85, at 36.

99 Powell and Rayner, supra note 68, para. 44. In G. and E. v. Norway, supra note 85, at 36, the Commission, after carefully considering the need for the national authorities to construct a hydroelectric plant, found that “the interference could reasonably be considered as justified under Article 8, para. 2, as being in accordance with law, and necessary in a democratic society in the interests of the economic well-being of the country.”

100 Powell and Rayner, supra note 68, paras. 44–45.

101 Velu & Ergec, supra note 30, at 535.

102 Abdulaziz, Cabales and Balkandali v. United Kingdom, 94 Eur. Ct. H.R. (ser. A), para. 67 (1985). See also Rees, supra note 73, para. 37.

103 First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, Eur. TS No. 9, 213 UNTS 262. Article 1 reads:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

104 Marckx, supra note 70, para. 63. In the case law, ownership is defined in the extensive sense of general international law, that is, as “an acquired/vested right.” The Commission has considered as “possessions” within the meaning of Article 1 not only rights in rem, but also intangible rights, corporation shares, commercial good will, etc. Wolfgang Peukert, Protection of Ownership under Article 1 of First Protocol to the European Convention on Human Rights, 3 Hum. Rts. L.J. 37, 43 (1981); Velu & Ergec, supra note 30, at 676–77.

105 Sporrongand Lönnroth v. Sweden, 52 Eur. Ct. H.R. (ser. A), para. 61 (1982).

106 In Sporrong and Lönnroth, id., paras. 60–63, the Court recognized that a confiscation de facto, where the effects of the measures taken are similar to a formal expropriation, could come under the scope of Article 1. However, there have been no such cases before the Court.

107 Supra note 82 (operation of a nuclear power station). Also Vearncombe, Herbst, Clemens and Speilhagen, supra note 90 (noise nuisance from a military shooting range).

108 S.v. France, supra note 82, at 237.

109 Weber, supra note 44, at 181.

110 Rayner, supra note 93, at 14; see also S. v. France, supra note 82, at 237.

111 In most cases, the interference is directly attributable to a public authority. An act by a private person could also be considered as interference, but it is essential that the interference not stem exclusively from the private person. In Bramelid and Malmström v. Sweden, App. Nos. 8588/79 & 8589/89, 29 Eur. Comm'n H.R. Dec. & Rep. 64, 82 (1982), the Commission decided that the legal provisions governing private law relationships between individuals do not interfere with the right to the enjoyment of one's possessions, as long as they do not arbitrarily deprive one individual of such enjoyment to the benefit of another. Laurent Sermet, La Convention européenne des droits de l'homme et le droit de propriété 23 (1991).

112 This last category of interference has been criticized. It is argued that interference should only be analyzed as a deprivation of property or as a measure of control because it is difficult to draw a distinction between a measure controlling the use of property and a measure that “affects the substance.” See Sermet, supra note 111, at 30–31. The creation of this last category seems to derive from the Court's wish to impose less stringent requirements than for a deprivation of property, but more stringent ones than for a measure to regulate its use. See Michel Fromont, La Garantie du droit de propriété selon la Cour européenne des droits de l'homme, in Verfassungsrecht und Völkerrecht. Gedächtnisschrift für Wilhelm Karl Geck 213, 221 (Wilfried Fiedler & Georg Ress eds., 1989).

113 Supra note 105.

114 Id., para. 60.

115 Poiss v. Austria, 117 Eur. Ct. H.R. (ser. A), para. 64 (1987).

116 See James v. United Kingdom, 98 Eur. Ct. H.R. (ser. A), para. 67 (1986).

117 Under the second paragraph, a measure to control the use of property must be in the “general interest.” For some authors, the notion of “public interest” is linked to benefits for a relatively small part of the population, while the notion of “general interest” is linked to benefits for the large part of the population. The Commission and the Court do not, however, clearly distinguish between the two concepts. Peukert, supra note 104,at 61; Sermet, supra note 111, at 33–34.

118 Fromont, supra note 112, at 216. In Sporrong and Lönnroth, supra note 105, para. 69, the Court introduced a criterion of proportionality, which, it said, was built into the whole structure of Article 1:

[T]he Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1. (citation omitted)

119 In S. v. France, supra note 82, the erection of the nuclear power station and, in Powell and Rayner, supra note 68, the operation of an international airport in an urban zone were found to be legitimate aims in the general interest. For some of the legitimate aims that have been invoked through the case law, see Peukert, supra note 104, at 71–74.

120 Delmas-Marty, supra note 67, at 335.

121 James, supra note 116, para. 46.

122 Fromont, supra note 112, at 223; Peukert, supra note 104, at 70–71.

123 James, supra note 116, para. 47.

124 Gillow v. United Kingdom, 109 Eur. Ct. H.R. (ser. A) at 42, para. 148 (1986) (Commission opinion).

125 James, supra note 116, para. 54.

126 Id.

127 Id.; Lithgow v. United Kingdom, 102 Eur. Ct. H.R. (ser. A), para. 121 (1986).

128 S. v. France, supra note 82, at 238.

129 Braunerheilm v. Sweden, App. No. 11764/85 (Mar. 9, 1989, unpublished); see Déjeant-Pons, supra note 48, at 18.

130 Fromont, supra note 112, at 226.

131 Michele de Salvia, Tutela dell'ambiente e la Convenzione europea dei diritti dell'uomo: Verso una ecologia del diritto?, 3 Rivista Internazionale dei Diritti dell'Uomo 432 (1989).

132 The Stockholm Declaration, supra note 3, in Principle 1 makes clear that environmental protection imposes duties: “[man] bears a solemn responsibility to protect and improve the environment for present and future generations.” See Kiss, supra note 11, at 445.

133 App. No. 11185/84, 42 Eur. Comm'n H.R. Dec. & Rep. 275 (1985).

134 The use was described by the court of appeal as an occasional shelter, not amounting to a residence. The bunker could be used in the summer as a place of rest or recreation during the day and, occasionally, as a place to sleep, but for no more than two consecutive nights.

135 Herrick v. United Kingdom, supra note 133, at 280.

136 App. No. 14459/88 (Feb. 19, 1992, unpublished).

137 App. No. 10395/83, 48 Eur. Comm'n H.R. Dec. & Rep. 65 (1986).

138 Id. at 71.

139 See cases cited in Déjeant-Pons, supra note 48, at 6.

140 Herrick v. United Kingdom, supra note 133; Simili v. Belgium, App. No. 11965/86 (Dec. 12, 1988, unpublished) (Commission decision); see Déjeant-Pons, supra note 48, at 31.

141 Denev v. Sweden, App. No. 12570/86, 59 Eur. Comm'n H.R. Dec. & Rep. 127 (1989).

142 H.J. v. Sweden, supra note 136.

143 Lundqist v. Sweden, App. No. 10911/84, 48 Eur. Comm'n H.R. Dec. & Rep. 191 (1986).

144 Judgment of Dec. 16, 1983, Verfassungsgerichtshof (Austria), reprinted in Europäische Grund-rechte Zeitschrift 324 (1984), mentioned in Velu & Ergec, supra note 30, at 684.

145 Fredin v. Sweden, 192 Eur. Ct. H.R. (ser. A) (1991).

146 Id., para. 48. See also Pine Valley Developments Ltd v. Ireland, 222 Eur. Ct. H.R. (ser. A), para. 57 (1992).

147 Fredin, supra note 145, para. 51. The Court concluded that revocation of the permit was not disproportionate to the object of the law since the applicants must have known, when they made their investment and began to work the pit, that their permit could be revoked; that the authorities never gave them assurances that they would be authorized to work the pit beyond the time limit; and that they had a period of four years in which to close down.

148 Sermet, supra note 111, at 38.

149 Sporrong and Lönnroth, supra note 105; Poiss, supra note 115; Erkner and Hofauer v. Austria, 117 Eur. Ct. H.R.(ser.A)(1987).

150 Déjeant-Pons, supra note 47, at 463.

151 Doswald-Beck, supra note 77, at 308. The state may intervene as well in the sphere of private life if public health is endangered. Jacqué, supra note 60, at 67.

152 Shelton, supra note 8, at 116.

153 Handl, supra note 8.

154 App. No. 9465/81, 39 Eur. Comm'n H.R. Dec. & Rep. 85 (1984).

155 Id. at 87.

156 Id. In G. and E. v. Norway, supra note 85, the applicants also invoked Article 1 of the First Protocol. The Commission considered that the traditional use of territories for grazing, hunting and fishing was not a property right within the meaning of Article 1.

157 Opsahl, supra note 79, at 972.

158 Déjeant-Pons, supra note 48, at 16.

159 Interstate applications have been rare; only a dozen have been submitted to the Commission. The great majority of the cases brought before the European Convention institutions have been individual applications. See generally Opsahl, supra note 79, at 966.

160 Velu & Ergec, supra note 30, at 797–98. See Nineteen Chilean Nationals & the S. Association v. Sweden, App. Nos. 9959/82 & 10357/83, 37 Eur. Comm'n H.R. Dec. & Rep. 87 (1984); Asociación de Aviadores de la República, Mata v. Spain, App. No. 10733/84, 41 Eur. Comm'n H.R. Dec. & Rep. 211 (1985); Association X. and 165 Liquidators and Court Appointed Administrators v. France, App. No. 9939/82, 34 Eur. Comm'n H.R. Dec. & Rep. 213 (1983).

161 Klass v. Federal Republic of Germany, 28 Eur. Ct. H.R. (ser. A), para. 34 (1978); Marckx, supra note 70, para. 27. See Kersten Rogge, The ‘Victim’ Requirement in Article 25 of the European Convention on Human Rights, in Protecting Human Rights: The European Dimension. Studies in Honor of G. Wiarda 539, 540 (Franz Matscher & Herbert Petzold eds., 1988).

162 Klass, supra note 161, para. 33.

163 Sudre, supra note 86, at 206.

164 Henri Delvaux, La Notion de victime au sens de l'article 25 de la Convention europeenne des droits de l'homme, in Actes du Cinquième Colloque sur la Convention Européenne des droits de l'homme 35, 64 (1982); Velu & Ergec, supra note 30, at 800. See, e.g., Marckx, supra note 70, para. 27.

165 In Open Door and Dublin Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A), para. 44 (1992), two women were considered to be “victims” of a judicial injunction prohibiting family-counseling agencies from providing information on abortion facilities abroad.

166 Delvaux, supra note 164, at 62–63; Rogge, supra note 161, at 540–41. It has mostly been applied where the personal status of the applicant was determined by legislation or where the applicant faced risks of criminal prosecution. Access has also been enlarged by resorting to the notion of “indirect” victim, where a violation of a person's rights injures a third party who has a specific and personal link to the direct victim.

167 Delvaux, supra note 164, at 73.

168 Déjeant-Pons, supra note 47, at 470.

169 The preventive approach in international environmental law is illustrated, inter alia, by the precautionary principle. The principle aims at ensuring that activities posing a threat to the environment will be prevented, even if there is no conclusive scientific proof linking them to environmental damage. See generally James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 B.C. Int'l & Comp. L. Rev. 1 (1991).

170 Kiss, supra note 11, at 201.

171 Shelton, supra note 8, at 117.

172 Id.

173 Rio Declaration, supra note 9, Principle 10, 31 ILM at 878.

174 See generally Henri Smets, The Right to Information on the Risks Created by Hazardous Installations at the National and International Levels, in International Responsibility for Environmental Harm 449 (Francesco Francioni & Tullio Scovazzi eds., 1991). At the global level, the United Nations Environment Programme (UNEP) has promoted information for the public with the APELL program, whose objective, inter alia, is to provide information on the hazards involved in industrial operations and the measures taken to reduce them. See UNEP, APELL: Awareness and Preparedness for Emergencies at the Local Level: A Process for Responding to Technological Accidents, UN Sales No. 88.III.D.3 (1988).

175 Council Directive 82/501 of 24 June 1982 on the Major-Accident Hazards of Certain Industrial Activities, Art. 9, 1982 O.J. (L 230) 1, amended by 1987 O.J. (L 85) 36, 1988 O.J. (L 336) 14, 1990 O.J. (L 353) 59, 1991 O.J. (L 377) 48. See also Council of Europe Convention on Civil Liability for Damages Resulting from Activities Dangerous to the Environment, June 21, 1993, Arts. 13–16, reprinted in 97 Revue Générale de Droit International Public 1118 (1993) (French).

176 Decision-Recommendation of the OECD Council Concerning Provision of Information to the Public and Public Participation in Decision-Making Processes Related to the Prevention of, and Response to, Accidents Involving Hazardous Substances, OECD Doc. C(88)85 (Final) (1988), reprinted in 28 ILM 278 (1989). The instrument provides that member countries should ensure that the potentially affected public is provided with general information on the nature, extent and potential off-site effects on human health or the environment of possible major accidents at hazardous installations. See Smets, supra note 174, at 452–56.

177 Council Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, 1985 O.J. (L 175) 40. The directive calls for states to make public all requests for authorization of a public or private project that will significantly affect the environment.

178 Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, UN Doc. E/ECE/1250 (1991), reprinted in 30 ILM 800 (1991) [hereinafter ECE Convention]. For policies concerning public participation and disclosure of information on projects likely to affect the environment financed by the World Bank and other international lending institutions, see Günther Handl, Controlling Implementation of and Compliance with International Environmental Commitments: The Rocky Road from Rio, 5 Colo. J. Int'l envtl. L. & Poly 305, 319–27 (1994).

179 ECE Convention, supra note 178, Art. 3, para. 8, and Art. 4, para. 2.

180 Council Directive 90/313 on the Freedom of Access to Information on the Environment, 1990 O.J. (L 158) 56. See generally Dietrich Gorny, The European Environment Agency and the Freedom of Environmental Information Directive: Potential Cornerstones of EC Environmental Law, 14 B.C. Int'l & Comp. L. Rev. 279 (1991); Ludwig Krämer, La Directive 90/3T3/ CEE sur l'Accès à l'information en matière d'environnement: Genèse et perspectives d'application, 353 Revue du Marché Commun 866(1991).

181 According to Article 3 of the directive, supra note 180, at 57, access can be denied for the following reasons: national defense or public security; or the information concerns confidential deliberations of authorities, cases pending in court, business secrets, or confidential personal data or files; or the information would magnify the probability of environmental harm.

182 Article 3 of the First Protocol, supra note 103, reads: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballots, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

183 Political Covenant, supra note 26, Art. 25(a).

184 For a comparison between the EU Council Directive 90/313, supra note 180, and the right to information under the European Convention, see Weber, supra note 44, at 183–84.

185 On the right to political participation, see generally Henry J. Steiner, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77 (1988).

186 G. and E. v. Norway, supra note 85, at 35.

187 See text at note 215 infra.

188 Zander v. Sweden, 279-B Eur. Ct. H.R. (ser. A) (1993).

189 Id., para. 24.

190 Article 10 reads:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

191 Giorgio Malinverni, Freedom of Information in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, 4 Hum. Rts. L.J. 443, 447 (1983).

192 Martin Bullinger, Report on “Freedom of Expression and Information: An Essential Element of Democracy,” in 6 Proc, supra note 79, at 45, 56.

193 It is specifically provided for in Article 13 of the American Convention, supra note 34, and in Article 19 of the Political Covenant, supra note 26.

194 Bullinger, supra note 192, at 66; Malinverni, supra note 191, at 448–49. The latter cites two judgments of the Swiss Federal Tribunal on Article 10 of the European Convention: Judgment of Mar. 8, 1978, Arrêts du Tribunal fédéral suisse [ATF] 104 la 88 (1978); and Judgment of Sept. 17, 1982, ATF 108 la 275 (1982).

195 Bullinger, supra note 192, at 70. See also Sudre, supra note 86, at 162; Velu & Ergec, supra note 30, at 608.

196 Bullinger, supra note 192, at 71; Malinverni, supra note 191, at 450.

197 X. v. Federal Republic of Germany, App. No. 8383/78, 17 Eur. Comm'n H.R. Dec. & Rep. 227, 228–29 (1980). The applicant claimed that the postal service had delivered important documents to his old address, so that they had reached him after substantial delay.

198 Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) (1979). The House of Lords had granted an injunction to prohibit the publication of articles on the thalidomide affair. The European Court held this restriction on the freedom of expression to be in violation of the Convention.

199 Id., para. 66.

200 Id., para. 65.

201 In Sixteen Austrian Communes and Some of their Councillors v. Austria, App. Nos. 5767/72, 5922/ 72 & others, 17 Y.B. Eur. Conv. on H.R. 338, 355, para. 4 (1974), on the claim that in their capacity as councilors, the applicants had a right of access to information that was not normally available to the general public, the Commission stated that “Article 10 does not accord to public officials a special right of information which is wider than that of other persons.”

202 Bullinger, supra note 192, at 70.

203 Leander v. Sweden, 116 Eur. Ct. H.R. (ser. A) (1987).

204 Id., para. 74.

205 Gaskin v. United Kingdom, 160 Eur. Ct. H.R. (ser. A) (1989).

206 Id., para. 52.

207 Malinverni, supra note 191, at 450; Velu & Ergec, supra note 30, at 608; Weber, supra note 44, at 180.

208 Déjeant-Pons, supra note 47, at 468.

209 Leander, supra note 203, paras. 48–68.

210 Gaskin, supra note 205, para. 49.

211 Id.

212 Weber, supra note 44, at 179; Leighton Schwartz, supra note 13, at 370–71 n.82.

213 Association X. v. United Kingdom, supra note 42, at 35.

214 Id.

215 Article 6, paragraph 1 states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

216 Pieter van Dijk, The Interpretation of “Civil Rights and Obligations” by the European Court of Human Rights—One More Step to Take, in Protecting Human Rights, supra note 161, at 131, 139.

217 This was first established in Golder v. United Kingdom, 18 Eur. Ct. H.R. (ser. A) (1975).

218 Klass, supra note 161, para. 55.

219 Sporrongand Lönnroth, supra note 105, para. 150 (Commission report).

220 Benthem v. Netherlands, 97 Eur. Ct. H.R. (ser. A) (1985).

221 Id., para. 36. In Fredin, supra note 145, para. 63, the Court also found that “the applicants' right to develop their property in accordance with the applicable laws and regulations was ‘civil’ within the meaning of Article 6, para. 1.”

222 See generally Francoise J. Hampson, Restrictions on Rights of Action and the European Convention on Human Rights: The Case of Powell and Rayner, 61 Brit. Y.B. Int'l L. 279 (1990).

223 Baggs v. United Kingdom, supra note 79.

224 Id. at 18, 21. The same provision was at stake in Powell and Rayner. As the Commission had dismissed the complaint under Article 6 as ill-founded, the Court did not formally rule on the point, although it seems to have approved the interpretation of the Commission. Powell and Rayner, supra note 68, para. 36.

225 Hampson, supra note 222, at 288.

226 Gérard Cohen-Jonathan & Jean-Paul Jacqué, Activité de la Commission européenne des droits de l'homme, 38 Annuaire Français de Droit International 663, 666 (1992).

227 Zander, supra note 188, para. 38.

228 Oerlemans v. Netherlands, 219 Eur. Ct. H.R. (ser. A) (1991).

229 Id., para. 47. No violation of Article 6 was found since, according to Dutch case law, the order could be challenged.

230 Zander, supra note 188, para. 45 (Commission opinion).

231 Zimmerman and Steiner v. Switzerland, 66 Eur. Ct. H.R. (ser. A) (1983).

232 De Geouffre de la Pradelle v. France, 253-B Eur. Ct. H.R. (ser. A) (1992).

233 Id., para. 35.

234 Vincent Coussirat-Coustère, Jurisprudence de la Cour européenne des droits de l'homme en 1992, 38 Annuaire Français de Droit International 629, 643 (1992).

235 Supra note 141.

236 Skärby v. Sweden, 180-B Eur. Ct. H.R. (ser. A) (1990).

237 Supra note 145.

238 Supra note 129, at 18.

239 The applicant also alleged a violation of his right not to be deprived of property under Article 1 of the First Protocol. The Commission considered that there had been interference with the enjoyment of his possessions but, in the circumstances, the margin of appreciation of the state had not been exceeded, even though no monetary compensation had been offered.

240 Handl, supra note 8, at 20.

241 See, e.g., Powell and Rayner, supra note 68, para. 44.