C Explanatory memorandum by Sir Alan
Meale, rapporteur for opinion
1 Introduction
1. On behalf of the Committee on the Environment, Agriculture
and Local and Regional Affairs, the rapporteur for opinion welcomes
the opportunity to contribute to the report of the Social, Health
and Family Affairs Committee and particularly wishes to develop
the notion of the right to a healthy, clean and safe environment
under chapter 3 of the report, which focuses on the role of parliaments
in the development of social rights in Europe.
2. The effects of the degrading environment on human development
and health are of increasing concern globally and to each of us
individually. Nearly every day we are confronted with news articles
on the issue, whether connected to the economic crisis, the oil
crisis, climate change, natural hazards, nuclear catastrophes or
food safety. There are many examples. The recent nuclear catastrophe
at Fukushima in Japan was a wake-up call to many European governments
and parliaments to reconsider nuclear safety and energy policies,
in response to a strong public concern over risks to human health
and contamination of the surrounding life-supporting environment
(soil, water, sea and air). The recent life-threatening E. coli
outbreak is an example of a food security alert in Europe requiring
quick action and co-ordination among member states.
3. According to the European Environmental Agency, the interactions
between the environment and human health are highly complex and
difficult to assess. This makes the use of the precautionary principle particularly
important. The best-known health impacts are related to ambient
air pollution, poor water quality and insufficient sanitation. Much
less is known about the health impacts of hazardous chemicals, which
are found in the tissue of nearly every human being and exposure
to them has been linked to several cancers and to a range of reproductive
problems, including birth defects.
Note Noise
is another emerging environmental and health issue.
4. Moreover, human health has always been threatened by natural
hazards such as storms, floods, fires, landslides and droughts.
Their consequences are being worsened by a lack of preparedness
and also by intensified human activities such as deforestation,
land degradation, degradation of natural habitats, biodiversity
loss and greenhouse gas emissions which lead to the depletion of
the stratospheric ozone layer and to climate change.
5. According to the World Health Organization (WHO), environmental
hazards are responsible for as much as one quarter of the total
burden of disease worldwide, and more than one third of the burden
among children. Health impacts of environmental hazards run across
more than 80 diseases and types of injuries. Worldwide, as many
as 13 million deaths could be prevented every year by making the
environment healthier, cleaner and safer.
2 Affirming the right to a healthy, clean and safe
environment
6. The fact that degradation of the environment and
climate change will have implications for the enjoyment of universally
recognised fundamental rights has become more and more evident.
Recently, the United Nations Human Rights Council, in its Resolution
10/4 (25 March 2009),
Note recognised
that “climate change-related impacts have a range of implications,
both direct and indirect, for the effective enjoyment of human rights”.
The degradation of the environment and climate change will have
a direct impact on fundamental rights such as the right to life,
the right to food and drinking water, the right to adequate housing,
the right to property and, of course, the right to health. It will
also indirectly raise questions of equality, non-discrimination,
access to information, access to justice, and so on.
7. A study prepared by the Office of the United Nations High
Commissioner for Human Rights (OHCHR) on the relationship between
climate change and human rights was made available at the United
Nations Climate Change Conference in Copenhagen in December 2009.
The OHCHR study concluded that a great majority of stakeholders
agree that the international community should continue studying
the inter-linkages between human rights, the environment and climate
change, including the eventual legal, political and economic impacts
that this link may have at international and national level.
8. The time is therefore ripe to build on the work of the Human
Rights Council and the international community’s achievements in
the environmental field in order to deepen understanding of the
direct and indirect links between the protection of the environment
and the enjoyment of human rights, bearing in mind obligations and
responsibilities of states and other actors under human rights treaties
and multilateral environmental agreements.
9. In a pan-European context, the Council of Europe has an important
role to play to follow up the Human Rights Council initiative and
to advance the development of a third generation of human rights
which relate to the degradation of the environment and climate change.
10. The Parliamentary Assembly initiated this political and legal
debate with its
Recommendation
1614 (2003) on the environment and human rights and later
reiterated its position in
Recommendation
1885 (2009) on drafting an additional protocol to the
European Convention on Human Rights concerning the right to a healthy
environment.
11. When preparing these two important texts, the Committee on
the Environment, Agriculture and Local and Regional Affairs examined
the existing corpus of international environmental law and its enforcement,
the Council of Europe’s own environmental policies, and made a legal
analysis of various implications for the recognition of a human
right to the environment.
12. The introduction of a human right to the environment has been
the subject of intense legal, philosophical and ethical discussion
since the 1970s. Since then, the recognition of this human right
has been incorporated in “soft law” such as the first principle
of the Stockholm Declaration (1972) and the Rio Declaration (1992). Forty-four
national constitutions now contain provisions on environmental protection,
either as individual rights or state obligations, or both.
13. Different terminology is used in provisions recognising this
new human right as binding or non-binding. There are references,
for example, to a salubrious (or humane, adequate, clean, habitable)
environment, to the right to protect the public from unreasonable
environmental degradation or simply to government bodies’ legal obligations
to protect the environment or “natural life support systems”. The
variations are partly due to differences in legal policy objectives,
and they also reflect the way in which this right has developed
over the past decades.
14. As outlined in the explanatory memorandum to Assembly
Recommendation 1614 (2003),
two models are conceivable for the recognition of the right to the
environment: the first model combines specific individual rights
with the state’s objective duty to protect them; and the second
one ascribes this duty to the state, but does not provide for individual
rights. In this second model, only the state’s objective duty would
be laid down, and individual rights could be added later. The advantage
of this second model is that – unlike the one which involves the
inclusion of individual rights – it is more feasible for consensus
among negotiating parties. This would help to establish the idea
that the state has a duty to protect its citizens by warding off
specific environmental dangers as a precondition for the exercise
of individual rights, a duty to protect the environment against
private individuals and, even more importantly, a duty to repair
any damage and restore environmental assets.
15. To date, individual rights to the environment essentially
involve three points: the individual’s right to participate in public
decision making on matters relevant to the environment; the right
to access to a court; and the right to information on the environment
as outlined in the Aarhus Convention.
Note However,
those procedural rights must be expanded to include the individual’s
right to active protection of the environment by the state, which
matches the state’s objective duty to protect. Such individual right
would require the state either to refrain from causing environmental
strain itself or, as the licensing and supervisory authority, to
prevent this from being done by third parties.
16. The Committee on the Environment, Agriculture and Local and
Regional Affairs also considered two implementation alternatives:
through a Protocol to the European Convention on Human Rights or
through inclusion of the right to the environment in a revised Article
11 (the right to the protection of health) of the revised European
Social Charter. After a critical assessment of the alternatives,
the committee was in favour of an additional Protocol to the European
Convention on Human Rights, as it grants to individuals procedural and
substantive rights of a legally binding nature and it offers an
effective legal protection granted by the European Court of Human
Rights. Moreover, the Convention exerts great influence on national
case law, since it takes legal priority over all levels of domestic
law. Comparable legal protection would not be possible under the
current system of the revised European Social Charter. On the substantive
level, the provision of the right to the environment should have
a much wider legal definition than that seen only as an extension
to the “right to the protection of health”, as described in paragraph
6 of this chapter.
3 Council of Europe: multidisciplinary approach
to environment, climate change and human rights
17. In its reply to Assembly
Recommendation 1883 (2009) on the
challenges posed by climate change and to
Recommendation 1885 (2009) on drafting
an additional protocol to the European Convention on Human Rights
concerning the right to a healthy environment, the Committee of
Ministers
Note recognised
the importance of a healthy, clean and safe environment and considered
that it is relevant to the protection of human rights. Although
the European Convention on Human Rights does not expressly recognise
a right to the protection of the environment, the convention system
already indirectly contributes to the protection of the environment through
existing convention rights and their interpretation in the evolving
case law of the European Court of Human Rights.
18. Since the earlier Assembly
Recommendation 1614 (2003) led to
the preparation of a Manual on Human Rights and the Environment,
the Committee of Ministers agreed to the proposal of the Steering
Committee for Human Rights (CDDH) to update the Manual in the light
of the recent case law of the Court and of the European Committee
of Social Rights.
19. Moreover, the Committee of Ministers pursued the Assembly's
proposal to “explore the linkages between climate change and human
rights in Europe, including the implications of climate change-related impacts
on the effective enjoyment of human rights, and the role that human
rights obligations can play in strengthening international policy
making in the field of climate change” and took note of the suggestion
of the CDDH that this issue be analysed in greater detail, with
particular attention being given to the specificities with respect
to the enjoyment of human rights in Europe, as a contribution to
a possible wider and multidisciplinary Council of Europe approach
to climate change.
20. Following the reply of the Committee of Ministers and with
a view to initiating such a multidisciplinary approach to the environment,
climate change and human rights, the Committee on the Environment, Agriculture
and Local and Regional Affairs has set up an intersecretarial working
group in partnership with: the Directorate General of Human Rights
and Legal Affairs; the Office of the Commissioner for Human Rights;
the European Court of Human Rights; the Congress of Local and Regional
Authorities; the Secretariat of the European Social Charter; the
Secretariat of the Bern Convention; the Directorate on Education
and Language; the Directorate of Youth and Sport; the Directorate
of Culture and Natural Heritage; and the Secretariat of the European
and Mediterranean Major Hazards Agreement (EUR-OPA).
21. Over the past year, the multidisciplinary working group reviewed
respective activities of relevance to the environment, climate change
and human rights and established a common web page to increase the
visibility of this issue within the Council of Europe and for the
member states.
Note The
working group is currently preparing a joint Conference on the environment,
climate change and human rights to be held in October 2012 aiming
to explore the issue from various angles: human rights, social rights
and social cohesion, rights of migrants, minorities and vulnerable
groups, rights of future generations (involving youth organisations),
protection of the environment and biodiversity, cultural and natural
heritage, education and awareness raising.
22. The aim of the Conference is to build synergy between different
sectors of the Council of Europe, to exchange good practice and
to achieve progress towards a third generation of human rights with
respect to the environment and climate change, in close co-operation
with the Council of Europe member states, national parliaments,
local and regional authorities and relevant international partner
organisations. On behalf of the Assembly, the committee will therefore
seek to actively involve national parliamentary delegations as key players
in this process.
4 Role of national parliaments
23. The rapporteur for opinion fully agrees with Ms Carina
Ohlsson when she states that parliaments, in the exercise of their
many functions – namely policy making, legislation, constituency
representation, oversight and scrutiny of the executive – can act
to make a difference in the development and consolidation of human
rights, including social and environmental rights.
24. Thanks to the progressive role of parliaments, the right to
the environment is today enshrined in many national constitutions
of Council of Europe member states. For example, an individual right
to environmental protection has been recognised in the constitutions
of Belgium (Article 23-4), Hungary, Norway (Article 110.b), Poland (Article 71), Portugal
(Article 66-2), Slovakia (Article 44 and 45), Slovenia (Article
72 and 73), Spain (Article 45-1) and Turkey (Article 56). Protection
of the environment is included as a “state objective” in the constitutions
of Austria (Article 10-12), Finland (Article 20), Germany (Article
20.a), Greece (Article 24),
the Netherlands (Article 21), Sweden (Article 2-2) and Switzerland
(Article 24-7).
25. Moreover, parliaments play an important role in inciting governments
towards more progressive environmental policies, in particular to
develop and enforce national legislation, to abide by the international treaties,
to affirm precautionary and sustainability principles, to seek regular
use of environmental risk assessments; to invest in research and
to develop environmental accounting as a means of reflecting environmental
costs in the calculation of national budgets and Gross Domestic
Product (GDP).
26. In the follow-up to the Earth Summit in Rio in 1992 and the
World Summit on Sustainable Development in Johannesburg in 2002,
most countries in Europe have committed to formulating and developing
national sustainable development strategies, seeking, inter alia, to improve coherence
of sustainable development policies across different sectors and
levels of governance. Parliaments therefore have an important role
in overseeing and contributing to this process.
27. Nationally, parliaments need to be forerunners in developing
such a transversal approach to link many sectors namely, territorial
and urban planning, economic development, industrial development,
energy and use of resources, transport, agriculture and food safety,
trade, forestry, social cohesion, healthcare, housing, technical
and health standards, waste management, education and awareness
raising, communication and so on.
28. Internationally, parliaments are increasingly involved in
global initiatives such as the “Parliaments for Water” initiative
within the World Water Forum, aiming to push for the recognition
of the right to water and sanitation, and government negotiations
of post-Kyoto targets for the reduction of greenhouse gas emissions and
redefinition of national commitments under the United Nations Framework
Convention on Climate Change (UNFCCC). Parliaments also played an
important role in setting the biodiversity targets for 2020 at the Conference
of the Parties to the Convention on Biological Diversity (Nagoya,
Japan, October 2010) and they will have to closely monitor national
delivery of those targets.
29. In view of the above considerations, the rapporteur for opinion
proposes that national parliaments, where this is not yet the case,
create an all-party group on the development of human rights, with
a view to involving parliamentarians and parliamentary research
staff in discussions on the development of a third generation of human
rights with respect to a healthy, clean and safe environment.
5 Conclusion
30. The rapporteur for opinion wishes to underline the
link between the right to health and the importance of affirming
the right to a healthy, clean and safe environment, which can be
considered in the context of this report as an enabling factor to
the right to health. However, the right to a healthy, clean and
safe environment has a much wider scope and cannot be seen simply
as an extension of the right to health.
31. As outlined earlier, degradation of the environment and climate
change have a direct impact on fundamental rights such as the right
to life, the right to food and drinking water, the right to adequate
housing, the right to property and gainful living, and, of course,
the right to health. They also indirectly raise questions of equality,
non-discrimination, access to information, access to justice and
so on. Additionally, the universal value of natural resources and
assets will require the development of a system of intergenerational
rights.
32. With this in mind and in line with
Recommendation 1614 (2003) on the
environment and human rights and
Recommendation 1885 (2009), the
Committee on the Environment, Agriculture and Local and Regional Affairs
considers that the right to a healthy, clean and safe environment
ought to be defined as an additional protocol to the European Convention
on Human Rights.
