January 20, 2014
This guest post was written by Lieselot Verdonck. Lieselot is a Ph.D. Candidate at the Human Rights Centre, Faculty of Law of Ghent University. More information on the author can be found here.
Over the years, the ECtHR has gradually built its jurisprudence according to which Article 8 grants a right to access to information for individuals exposed to health risks caused by polluting industrial activities. The judgment in Vilnes & Others v. Norway has extended this settled case law in three ways. Firstly, the Court deepened the substance of this right to information by holding that in certain circumstances the State’s obligation to provide access to information encompasses a duty to actually provide such information (i.e. even if the individuals exposed to health risks have not been refused access to information). Secondly, the Court broadened the scope of application of this right to occupational health risks. Thirdly, the Court held that information essential to assess health risks has to be provided even if there is scientific uncertainty about the precise nature and extent of these risks.
The applicants in Vilnes & Others v. Norway were former deep sea divers who had been engaged in diving operations in the petroleum industry during the pioneer period (1965-1990). These diving operations had allegedly caused them serious health problems, as a consequence of which they were partly disabled. They declared not having consented to the risks connected with the diving operations of which they did not have full knowledge at that time.
Though they were employees of private diving companies, the seven applicants argued that the Norwegian government should be held responsible, inter alia because the authorities had widely granted dispensations from safety regulations, the diving companies had been able to use tables involving shorter decompression time[*] to lower labour costs and there had been insufficient supervision by the Labour Inspectorate.
Without acknowledging any legal liability on their part, the Norwegian authorities have decided to compensate the health problems caused by the diving operations during the pioneer period. Under this scheme, all the applicants received a disability pension and some of them had been granted additional compensation. They nevertheless instituted proceedings, but in its final judgment the Norwegian Supreme Court found in favour of the State.
Judgment and comments
The applicants invoked three provisions of the Convention: Articles 2, 3 and 8. The Court only dealt with their concerns under the latter provision. The appropriateness of dealing with the claims under the right to life was questioned by the Court because of the fact that the applicants had not personally been exposed to life-threatening experiences (§234). The Court also held that the nature of the State’s omission and the limited knowledge about the long-term effects of decompression sickness did not allow to find a violation of Article 3 (§253).
In assessing the risks to which the divers had been exposed, the Court identified one problematic fact: the use of rapid decompression tables by diving companies for as long as they did without interference by the Norwegian authorities notwithstanding uncertainty about the long-term effects of decompression sickness (§233). Since decompression tables constitute a relevant source of information allowing divers to assess the risks to which they could be exposed, the Court applied its established case law on the right to information about health risks under Article 8 (Guerra & Others v. Italy, Öneryildiz v. Turkey and Budayeva & Others v. Russia) (§236). The main question was whether the divers received the essential information needed to be able to assess the possible health risks and (accordingly) whether they had given informed consent to the taking of such risks (§236). Three important holdings can be discerned in the reasoning of the Court.
First of all, the positive obligation of States under Article 8 to provide access to essential information enabling individuals to assess risks to their health and lives could in certain circumstances also encompass a duty to provide such information (§235) even if the individuals exposed to these risks have not been refused access to information. Under this duty, the government should guarantee the provision of information either by compelling the private companies to ensure full transparency or by providing the necessary information itself.
In other words, contrary to the facts underlying its previous case law on the right to access to information about health risks, in the present case the individuals had not been refused access to the decompression tables. What the Court ruled in Vilnes & Others v. Norway instead is that the government has the obligation to ensure that the essential health-related information is actually provided to individuals exposed to health hazards caused by industrial activities. In the present case, the Norwegian government had not taken such initiative (§242).
This ruling is an innovation in the field of positive obligations of States under human rights law. After all, in the private sphere—in relations between private actors (such as in casu the applicants and their employer, a private diving company)—human rights apply via an intermediary, namely the State. The latter actor bears the responsibility to adopt adequate laws and regulations that prevent, prohibit and punish human rights violations between private actors. In relation to the right to information the State must ensure access to information on health risks, whenever individuals take the initiative to consult such information. The State must thus act against private actors refusing such access and must allow individuals to consult information which the government itself has at its disposal. The judgment in Vilnes & Others v. Norway requires the State, in addition, to actually provide all relevant information to the persons whose life or health might be endangered (which was uncertain in the present case, see infra), even if it does not have particular information about these risks at its disposal and the individuals exposed do not seek access to information but need to give their informed consent to the potentially risky activities.
It is too early to assess the precise impact of this ruling on the positive obligations of States under Article 8. After all, the Court ruled that these obligations could in certain circumstances encompass a duty to actually provide the information on possible health risks. The particular circumstance which the Court took into consideration in the present case was the authorities’ role in authorising diving operations and in protecting their safety: they could have ensured that the diving companies provided the essential information to their divers when granting authorisation of diving operations or upon carrying out inspections (§244). Imposing such requirement upon the Norwegian government seemed to be reasonable and not too burdensome given the circumstances.
Secondly, the Court summarily rejected the view of the Norwegian government that Article 8, the right to respect for private and family life, could not cover occupational risks (§235). This holding might be surprising, as the Court’s case law on the obligation of States to provide access to information has been established in relation to complaints by people living in the vicinity of polluting industrial activities. These risks thus constituted a direct interference in their home, whereas in the present case the divers were only exposed to the risks while at work. Accordingly, the Court’s ruling entails a broadening of the scope of application of the right to information under Article 8 to any risk at work endangering a person’s physical or mental integrity.
Thirdly, one of the main reasons why the Norwegian courts had come to the conclusion that the government could not be held responsible for the long-term effects of decompression sickness was the fact that at the material time there was a lot of uncertainty about the nature of these effects. Although the Court agreed that the assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question, it also held that it had been widely acknowledged that decompression tables contained essential information on the risks to which divers were exposed (§239-240). In other words, even if the precise nature of risks is only known with hindsight, States can be held responsible if they did not allow the persons exposed to those risks to decide for themselves whether they were willing to accept them in light of the information that was available at that time. A lack of scientific consensus on health risks is thus sufficient to trigger a precautionary obligation on the part of the State to enable the persons at risks to consult the information that is available and to ensure their informed consent.
The first and third holding of the Court prompted two judges to write a dissenting opinion—another judge dissented because of the principle of subsidiarity. Firstly, they could not agree that the Court’s previous judgments supported the reasoning in Vilnes & Others v. Norway precisely because the applicants were not denied access to information. Secondly, the Norwegian authorities were not aware of the adverse health effects, so that no unrealistic burden should be imposed upon them with the wisdom of hindsight. Especially because they had actively contributed to the investigation as soon as the long-term effects of decompression sickness were known.
While this dissenting opinion definitely deserves credit as it rightly points to the innovative nature of the Court’s decision, the precise burden imposed upon States will largely depend upon which “circumstances” will trigger the duty to provide information. This will at least be the case when authorities are closely involved in the operations of companies that expose their employers to occupational risks (through granting authorisations and carrying out inspections, for instance).
Let’s conclude with a point of justified criticism, namely the judgment does not provide sufficient guidance on the fundamental question when the State’s duty to provide information will be triggered. In the present case, it had only become clear over the years that decompression sickness had long-term effects on health. The Court did not clarify when exactly the government should ensure that information about possible risks is fully available to the persons exposed. When will a scientific concern be sufficient to trigger the State’s positive obligation to provide the information? Since this obligation is necessarily a precautionary obligation, States should better act swiftly.
[*] Such diving tables determine how much time should elapse for a diver to reach the surface again so as to reduce the pressure built up by descending into the water and to eliminate inert gases from the divers’ tissues.