Appendix 6 to the reply
Comments by the Steering Committee for
Cultural Heritage and Landscape (CDPATEP) on Parliamentary Assembly Recommendation 1885 (2009) on “Drafting an additional protocol to the European
Convention on Human Rights concerning the right to a healthy environment”
1. The Steering Committee for Cultural
Heritage and Landscape (CDPATEP) thanks the Committee of Ministers
for consulting it on Parliamentary Assembly
Recommendation 1885 (2009) on “Drafting an additional protocol to the European
Convention on Human Rights concerning the right to a healthy environment”.
The CDPATEP is responsible for monitoring the Council of Europe's
conventions on cultural heritage (Convention for the Protection
of the Architectural Heritage of Europe – Granada, 3 October 1985,
European Convention on the Protection of the Archaeological Heritage
(Revised) – Valetta, 16 January 1992, and Framework Convention on
the Value of Cultural Heritage for Society – Faro, 27 October 2005)
and the landscape (European Landscape Convention – Florence, 20
October 2000). It considers that the right to a healthy environment
is a fundamental aspect of this.
2. The CDPATEP notes that under the auspices of the Council of
Europe, both judicial and non-judicial oversight of environmental
rights has been developed on the basis of two fundamental human
rights instruments: the Convention for the Protection of Human Rights
and Fundamental Freedoms (the European Convention on Human Rights)
and the European Social Charter.
3. Although neither the European Convention on Human Rights,
adopted in Rome on 4 November 1950, nor its additional protocols
recognise environmental human rights as such, or make any allusion
to the notion of environment, safeguarding our surroundings is indirectly
taken into account, either when harm to the environment simultaneously
infringes one of the protected rights or via limitations on certain
protected rights. The environment has been taken into account in
connection with a number of rights embodied in the convention. Some
of the relevant cases are concerned with substantive aspects of
the right to the environment – ones involving the rights to life,
physical and moral integrity, freedom and safety, and respect for
private life, the home, property and possessions – while others
– involving the rights to a fair trial and an effective remedy –
are linked to procedural aspects. However, since the environment
is not recognised as such in the convention, numerous cases have
been declared inadmissible.
4. The European Social Charter was adopted under Council of Europe
aegis in Turin on 18 October 1961, then revised in Strasbourg on
3 May 1996. According to the Charter, the rights and principles
embodied in it may not be subject to any unspecified restrictions
or limitations "except such as are prescribed by law and are necessary
in a democratic society for the protection of... public health...".
One of the articles, entitled "right to protection of health", states
that with a view to ensuring its effective exercise, the Contracting
Parties must take appropriate measures "to remove as far as possible
the causes of ill-health". Damage to the environment likely to have
an adverse effect on the health of persons covered by the Charter
is taken into account in the regular assessments of the application
of its provisions. Governments supply the Council of Europe's Secretary General
with information on measures to protect the environment, particularly
with regard to water and air pollution. There is also a system of
collective complaints.
5. The preamble to the European Landscape Convention states that
landscape protection, management and planning entail "rights and
responsibilities for everyone". The human being, who is mainly responsible
for the degradation of the environment, has therefore a major responsibility
for its preservation. The convention’s aim is to promote the protection,
management and planning of European landscapes and to foster European co-operation
in this area. It can thus be considered to be the first sustainable
development convention and makes a major contribution to implementing
one of the Council of Europe's objectives, namely to protect European
citizens' quality of life and well-being by taking full account
of landscape, cultural and natural values. The Council of Europe
member states that have signed the convention have declared themselves
"concerned to achieve sustainable development based on a balanced
and harmonious relationship between social needs, economic activity
and the environment". A central role is also ascribed to the cultural
dimension. The parties are invited to take account of the landscape
in their legislation and to adopt measures to enhance it at local, regional,
national and international levels.
6. The CDPATEP notes that in its broadest sense, the environment
concerns both human beings and their surrounding natural features,
to the extent that they form a single whole that is ecologically
balanced or is conducive to personal development. According to the
Lugano Convention on civil liability for damage to the environment,
the environment includes both abiotic and biotic natural resources,
such as air, water, soil, fauna and flora, and the interaction between
them, property which forms part of the cultural heritage and the characteristic
aspects of the landscape. So there is more at stake here than just
a human right in the strict sense, but rather a right of species,
which protects both human beings and the environment in which they
live (on all the territory – urban, peri-urban, rural and natural
areas). It therefore also constitutes a right to heritage, whether
this be natural, cultural or landscape, which includes cultural
habits and customs.
7. The recommendations of various Council of Europe bodies have
always supported recognition of a human right to a healthy environment
rich in biological and landscape diversity, and even to the emergence
of a right to sustainable development. Bearing in mind also the
appended document and conceptual analysis, the CDPATEP therefore
sees only benefits in an additional protocol to the European Convention
on Human Rights concerning the right to a healthy environment.
Appendix
The notion of a healthy environment could be clarified and
calls for a number of comments:
i it
seems to be clearly recognised that the environment in question
must not be polluted or harmed, and that this benefits both humans
and animal and plant species, and thus habitats in general. But
what is the recognised, authorised or tolerated pollution level
or threshold, and the scale that should be used to measure the phenomenon?
The climate change issue, for example, shows us that although individuals are
not individually and immediately affected, the major ecological
balances and eventually "organic life" could be at risk;
ii does the term "healthy" imply that the environment should
simply be "hygienic" or something more, namely rich in biological
diversity, with due regard for the natural heritage? Should our
approach to the environment be essentially anthropocentric or more
holistic and "ecocentric". Human beings, anthropoi in Greek, are
a part of their general habitat, and this needs to be taken into
account in its entirety, including all forms of life irrespective
of their utility to man. So without a comprehensive view of human beings
and an all-embracing understanding of nature, the concept of "health"
cannot be grasped in all its aspects;
iii finally, the World Health Organisation's definition of
health as "not only the absence of infirmity and disease but also
a state of physical, mental and social well-being" means that a
healthy environment must also be one that is sufficiently rich in
cultural and landscape diversity to provide human beings with a
state of individual and social well-being in which they can achieve
self-fulfilment. Together, therefore the notions of life and quality
of life point us towards the concept of sustainable development;
If there is a human right to a healthy environment does this
mean that human beings can only invoke rights if they themselves
are affected or that they can also complain about decisions that
are harmful to nature as a whole? Should they not also feel responsible
for animal and plant species and, more generally, for the major balancing
forces that govern changes to our planet, even if they are not individually
and immediately concerned? The human right to the environment is
more than a human right in the strict sense. It must also be a right
of species that protects human being and the environment in which
they live. It therefore also constitutes a right to heritage, whether
this be natural, cultural or landscape. Namely, human beings have
the responsibility towards all living beings.