Retour au Port pour 'Le Clemenceau' : Conseil d'Etat Decision on French Aircraftcarier

The French Conseil d'Etat has given its Decision in a case brought by French anti-asbestos associations against the government for its decision to send the former aircraftcarier 'Le Clemenceau' to India to be scrapped on a beach. As the carrier's hull still contained massive quantities of toxic substances, scrapping it on a beach would have caused important environmental and public health damage in India.

The basis for the actual decision to suspend the governmental licence for the export of military apparel was the Conseil's view that there was a real chance that export of the carrier could be prohibited under the EC Regulation on the Import and Export of Waste from the European Communities (Regulation EC 295/93).

The wider significance of the decision may lie in its implications for the treatment of 'foreign' interests in local procedures for judicial review. The issue is only addressed in passing, when the Conseil discusses the 'urgency' requirement for intervention. This requirement of French administrative law would be met whenever the execution of an administrative act would cause damage, in a sufficiently serious and immediate way, to "a public interest, to the situation of the applicant, or to the interests that the applicant seeks to defend". The Conseil holds that the danger to "public health and the environment" (unqualified) that could materialize once the ship would be within Indian sovereign territory and irreversible demolition work would have started, is of such a nature as to pose a serious and immediate threat "to the interests defended by the applicants". This shows, it would seem, that the interests of Indian workers and people living close to the scrapping-beaches, are brought within reach of the Conseil only through the statutary mission of the associations and not through the general public interest ground. On the other hand, it seems clear that the Conseil has not demanded that these associations specifically include overseas asbestos issues in their mission.

There is an ever clearer human rights dimension to this sort of serious environmental damage (see for a recent paper discussing relevant issues within the American constitutional context this paper by Robin Kundis Craig: "Should there be a constitutional right to a clean an healthy environment?"). In the European context, there is the important Lopez Ostra ruling of the European Court of Human Rights, affirming the inclusion of serious damage to an individual's living environment under the article 8 right to respect for private life. The question of whether damage to Indian citizens in India caused by a French military vessel sent there by the French government would fall within the jurisdictional scope of the European Convention is, I would submit, not one with an obvious answer. Recent statements by the Court in the Issa case (here) would, however, seem to suggest that this is not unimmaginable. For now, the only clue the Conseil d'Etat may have given as to its view on the human rights dimension of the issue might be gleaned from its decision that the International Federation of Human Rights Leagues did not have standing to intervene because the object of the proceedings was not covered by its statutes.