Keywords: Environmental rights, risk, European Court of Human Rights, black swans
While it by now is well-established that certain environmental risks may trigger human rights responsibilities upon governments, a close examination of the exact perimeters of this assessment, as developed by human rights tribunals, alerts us to the explanatory utility of Taleb's work on Black Swans. Following a period of drift in the attempt to gain international legal support, the support for developing the linkage between human rights and the environment is once again gaining momentum. We can see this in, for example, the work of the UN's Human Rights Council which at its 19th session decided to appoint an independent expert on Human Rights and the Environment.1 In the context of the European Convention on Human Rights, the link between environmental pollution and human rights is somewhat better developed. The European Court of Human Rights (ECtHR) has on several occasions ruled that poor environmental conditions constitute a potential basis for establishing a violation of Articles 2 and 8 of the Convention. In order for this to be the case, the environmental pollution must, however, 'attain a certain minimum level of severity'.2 In establishing whether this is the case, the Court usually applies a two-tiered review of the facts and relevant laws before it. First, the Court carries out a substantive review by assessing the merits of the national decision and, secondly, it carries out a procedural examination of whether the interests of the individuals concerned have been given due weight in the national proceedings.3 In doing so, the Court has established that, where environmental hazards give rise to serious risks, state authorities are under an obligation to develop an administrative and legislative framework which regulates the licensing, start-up, operation and control of the hazardous activity. This framework must, moreover, include appropriate public surveys and studies allowing the public to assess the risks and effects arising from the relevant activities.4 Importantly this applies to risks arising out of industrial activities as well as those arising as a result of natural disasters.5
In order to gain analytical purchase on this jurisprudence two issues merit closer scrutiny. First, we ought to consider what type of risks give rise to this obligation and what level of knowledge is required to trigger Convention responsibility. A second consideration relates to what specific requirements must the regulatory and administrative system in place fulfil to comply with the Convention? Two recent decisions by the Court shed light on these questions. Kolyadenko and Others v Russia6 relates to the foreseeability of the risk which potentially triggers a Convention violation and Hardy and Maile v United Kingdom1 is of importance in the attempt to ascertain what is required of the domestic regulatory framework, where such risks have been identified. This article questions the Courts reasoning and approach to risk by relying on the concept of Black Swans as developed by Taleb.