Constitutional right to live in a healthy environment; Belgian Constitution; Article 8 ECHR; private nuisnace.
Since 1994, the right to a healthy environment has been recognized under Article 23 of the Belgian Constitution. It contains a standstill clause, which precludes the authorities from reducing substantially the level of environmental protection without reasons of public interest. The effectiveness of Article 23 of the Constitution has remained unclear for a long period. Therefore, the legal protection of the environment has more often been achieved through reliance on the right to respect for private and family life, guaranteed by Article 22 of the Belgian Constitution and by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), both of which have provisions with direct effect. The scope of protection of Article 23 of the Constitution is broader than the one provided by Article 22 of the Constitution and Article 8 of the ECHR, which is limited to nuisances with an effect on the person’s private or family sphere, excluding a more general protection of the environment. However, the standstill provision in Article 23 only precludes the State from decreasing the level of protection of a healthy environment where this protection is provided for by law. It does not preclude retrogressions regarding ‘factual’ situations. In this regard, claims founded on Article 8 of the ECHR and Article 22 of the Constitution still have their utility. As a result, Article 23 and Article 22 of the Constitution and Article 8 of the ECHR are complementary to a certain degree.
(2007) 16(3) Review of European Community & International Environmental Law, 287-297.