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Author: Ip Tsz Yan Natalie, BBA (Law) IV; HKU

Date: 7/8/10


The 40 applicants all lived in Manfredonia, a town situated a kilometre away from a chemical factory. The factory's operation involved the release of large quantities of inflammable gas which, it was claimed, had the potential to cause explosive chemical reactions polluting the air with highly toxic substances. In 1976, following an explosion there, 150 people were hospitalised with acute arsenic poisoning and in 1985 residents of the town brought an action before the magistrates' court that the air had been polluted by unidentified emissions from the factory. In 1988 the factory was classified as 'high risk' and a committee of technical experts found that the geographical location of the factory rendered Manfredonia particularly susceptible to its emissions. The applicants contended that the failure to provide information had infringed their right to respect for their private and family life and their right to life respectively.


The applicability of the right to private life was established by the direct effect of toxic emissions on the applicants' right to respect for their private and family life. The essential object of the right was to protect the individual against arbitrary interference by public authorities which constituted, primarily, a negative undertaking on the part of the state. However, a state's duty also included positive obligations where positive steps were necessary to ensure effective respect for private and family life. In the instant case severe environmental pollution affected individuals' well-being and prevented them from enjoying their homes in such a way as to affect their private and family life adversely. The state had not therefore fulfilled its obligation to secure the applicant's right to respect for their private and family life and it followed that there had been a violation of that right.


The protection of health and physical integrity was closely associated with the 'right to life' as with the 'respect for private and family life'. An analogy may be made with cases concerning the existence of 'foreseeable consequences' where-mutatis mutandis-substantial grounds can be shown for believing that the person(s) concerned face a real risk of being subjected to circumstances which endanger their health and physical integrity, and thereby put at serious risk their right to life, protected by law. If information is withheld by a government about circumstances which foreseeably, and on substantial grounds, present a real risk of danger to health and physical integrity, then such a situation may also be protected by the right to life: 'No one shall be deprived of his life intentionally.' [1]

Footnotes

  1. http://www.hrcr.org/safrica/environmental/guerra_italy.html - last accessed 7/8/10

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