STATES’ POSITIVE OBLIGATIONS IN SAFEGUARDING A HEALTHY ENVIRONMENT IN THE OPERATIONS OF MIXED PRIVATE-PUBLIC COMPANIES (“EMPRESA MIXTA”)

THE EXAMPLE OF THE TRANS-ADRIATIC PIPELINE IN SOUTH-EASTERN ITALY AND THE NO-TAP MOVEMENT

Resumo

A degraded environment, whether it is through air pollution, oil spills, dumped waste, biodiversity loss, destruction of forests, or the effects of climate change, can have far-reaching implications for a range of human rights. A degraded environment impacts on the right to life, health, property, human dignity, equality, food, an adequate standard of living, and family and private life. Certain vulnerable populations or groups are at greater risk of suffering human rights violations due to environmental degradation. States, being the principal duty bearers under international human rights law, have the main duty to ensure that the human rights are protected from the impacts of environmental degradation. Under human rights law, states have negative obligations – not to interfere with, or to refrain from acts which would impact on the enjoyment of human rights. In relation to the environment, this means that states have a duty not to cause human rights violations through environmental pollution and destruction. States also have positive obligations to take proactive steps and adopt measures to protect and safeguard human rights. Positive obligations arise where the state must act as guarantor of the right – where the right cannot be realised without the assistance of the state. The Trans-Adriatic pipeline (TAP) is one of the examples of activities by private-public companies directly affecting local communities and finding States guilty of non-compliance with their primary duties of protecting citizens’ rights. The TAP project is the western extension of the Southern Gas Corridor (SGC). SGC is planned to export natural gas from the Shah Deniz II field in the Caspian Sea to western markets via the South Caucasus Pipeline extension (Azerbaijan to Georgia), on through the Trans-Anatolian pipeline (TANAP) stretching across Turkey, before joining up with TAP at the border of Turkey and Greece. The TAP pipeline has been found not in compliance with the Equator principles. Further, the construction works have put private interests have prevailed upon public ones. Although classified as run by private companies, the construction of the pipeline would have not been possible without the support of the State. Moreover, demonstrations against the construction of the pipeline have been countered by aggressive behaviours from police officers and State actors. The protest movement (NO-TAP), is a spontaneous citizen’s initiative organizing peaceful marches since 2011, aimed at raising awareness about the environmental impacts of the project. In March 2021, the local court of fist instance found 67 environmental civil society activists guilty of unauthorized protest, damage to private property, resistance to and contempt toward public officials of public services. With a close look on the current legal proceedings, the presentation aims to shed a light on State’s positive obligations and to protect citizen’s right to protest and their right to health, as enshrined in international covenants. Further, the presentation aims to highlight how States are purposedly hiding behind private-public companies in order to foster their economic interests and affecting citizen’s fundamental rights.