Logo Assembly Logo Hemicycle

Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment

Reply to Recommendation | Doc. 12298 | 19 June 2010

Author(s):
Committee of Ministers
Origin
Joint reply to Recommendations 1883 (2009) and 1885 (2009), adopted at the 1088th meeting of the Ministers’ Deputies (16 June 2010). 2010 - Third part-session
Reply to Recommendation
: Recommendation 1885 (2009)
1 The Committee of Ministers has closely examined Parliamentary Assembly Recommendations 1883 (2009) on “The challenges posed by climate change” and 1885 (2009) on “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”. It has drawn both recommendations to the attention of the governments of member states to bear them in mind where appropriate. It has also forwarded them to the relevant committees, the comments of which are appended for information. In view of the link between these two recommendations, the Committee of Ministers has chosen to give a joint reply to them.
With regard to Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change”
2 Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change” invites the Committee of Ministers 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”.
3 The Committee of Ministers notes that climate change may have implications on the enjoyment of universally recognised fundamental rights. It would draw the Assembly’s attention to the comments of the Steering Committee for Human Rights (CDDH) on this issue (cf. Appendix 1).
4 The Committee of Ministers would underline that the challenges posed by climate change are global ones. In this respect it has noted the resolutions adopted by the Human Rights Council, and has followed with interest the work carried out by the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the relationship between climate change and human rights. It is aware of the increasing consensus within the international community on the need to study the links between human rights and climate change, and would urge member states to support and actively participate in the work of the United Nations or other international bodies, which are active in this field.
5 At the same time, the Committee of Ministers takes note of the suggestion of the CDDH that this issue be analysed in greater detail, with particular account 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. Indeed, at present there have been few, if any, studies and discussions at the European level on the expected human rights effects of climate change. The Committee of Ministers has noted that the issue of the relationship between human rights and climate change in Europe has been discussed at the last meeting of the Committee of Experts for the Development of Human Rights (DH-DEV) as a possible future area of activity, with a view to making proposals to the CDDH. The Committee of Ministers will bear in mind, should the priorities and the resources of the Organisation so permit, the possibility of holding a conference to examine the issue from various angles (e.g. human rights and legal affairs, environment, social cohesion).
6 Finally, the Committee of Ministers would refer to the appended comments of the Committee of Senior Officials of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT), the Committee of Permanent Correspondents of the European and Mediterranean Major Hazards Agreement (EUR-OPA) and the Standing Committee of the Bern Convention which outline aspects of their work relevant to this issue.
With regard to Parliamentary Assembly Recommendation 1885 (2009) on “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”
7 As has been stated in the past, the Committee of Ministers recognises the importance of a healthy, viable and decent environment and considers that it is relevant to the protection of human rights. It therefore shares the concerns expressed by the Parliamentary Assembly.
8 In both Recommendations 1883 (2009) and 1885 (2009), the Parliamentary Assembly appeals to the Committee of Ministers to draw up an additional protocol to the convention which would recognise the right to a healthy and viable environment.
9 The Committee of Ministers would recall its replies to Recommendations 1614 (2003) on “Environment and human rights” and 1862 (2009) on “Environmentally induced migration and displacement: a 21st century challenge” in which it noted, inter alia, that 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. On both occasions, the Committee of Ministers did not consider it advisable to draw up an additional protocol to the convention in the environmental domain. At present, the position of the Committee of Ministers on this issue remains unchanged.
10 The Committee of Ministers would however recall that Parliamentary Assembly Recommendation 1614 (2003) led to the preparation by the Steering Committee for Human Rights (CDDH) of a Manual on Human Rights and the Environment – Principles emerging from the case law of the European Court of Human Rights in 2006. The aim of the manual was to increase the understanding of the relationship between the protection of human rights under the European Convention on Human Rights and the environment and thereby to contribute to strengthening environmental protection at the national level. In response to the proposal made by the Assembly (paragraph 6), the Committee of Ministers has taken note of the agreement within the CDDH, within the framework of the DH‑DEV, to update and extend the manual, in the light of notably the case law of the Court and of the European Committee of Social Rights, of relevant standards set out by other international organisations, and of good practices adopted at national level in order to give effect to the principles emerging from the Court’s case law.

Finally, the Committee of Ministers would refer to the substantial work already carried out by the Council of Europe in the field of the environment, which has led to the adoption of important legal instruments such as the Convention on the conservation of European wildlife and natural habitats (ETS No. 104), the Convention on civil liability for damage resulting from activities dangerous to the environment (ETS No. 150) and the Convention on the protection of the environment through criminal law (ETS No. 172). It would also draw the Assembly’s attention to the comments of relevant committees on this recommendation which appear in the appendix and, in particular, the observations of the Steering Committee for Cultural Heritage and Landscape (CDPATEP). It notes that these could usefully be considered by the DH-DEV in its work in this field.

Appendix 1 to the reply

Comments by the Steering Committee for Human Rights (CDDH) on Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change” and 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 Human Rights (CDDH) notes with interest Parliamentary Assembly Recommendation 1883 (2009) relating to “The challenges posed by climate change” and 1885 (2009) on “Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”. In these texts, the Parliamentary Assembly appeals to the Committee of Ministers to draw up an additional protocol to the Convention which would recognise the right to a healthy and viable environment.
2 The CDDH shares the concerns of the Parliamentary Assembly and refers to the substantial work already carried out by the Council of Europe in the field of the environment, which has led to the adoption of important legal instruments such as the Convention on the Conservation of European Wildlife and Natural Habitats (ETS No. 104), the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS No. 150) and the Convention on the Protection of the Environment through Criminal Law (ETS No. 172).
3 In its comments on Recommendation 1614 (2003) on “Environment and human rights”, the CDDH recognised that neither the convention nor its additional protocols expressly recognise a right to the protection of the environment, but also noted that the convention system already indirectly contributes to the protection of the environment through existing convention rights and their interpretation in the case law of the European Court of Human Rights which shows that the convention already offers a certain degree of protection in relation to environmental issues.Note That being so, the CDDH considered that it would not be advisable to draft an additional protocol on this subject. However, it recognised the merit in the idea of drafting an appropriate instrument and consequently, in 2006, this led to the adoption of a Manual on human rights and the environment.Note
4 The CDDH reiterates this approach and joins in on the response by the Committee of Ministers, adopted on 8 July 2009, relating to Parliamentary Assembly Recommendation 1862 (2009) on “Environmentally induced migration and displacement: a 21st century challenge”. In this response, the Committee of Ministers shares the concerns of the Assembly but recalls that it is not appropriate to draw up an additional protocol to the convention in the environmental domain.Note According to the CDDH, it would at this point be suitable to pursue studies at the intergovernmental level on the subject by means of regular exchanges of views within the framework of the Committee of Experts for the Development of Human Rights (DH-DEV) and by updating and extending the manual from 2006, in the light of notably the jurisprudence of the Court, of the European Committee of Social Rights and of relevant standards set out by other international organisations, and of good practices adopted at national level in order to give effect to the principles emerging from the Court’s case law.
5 Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change” invites the Committee of Ministers 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”.
6 The fact that climate change will have implications on 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) recognised that “climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights”. Climate change will have a direct impact on basic rights such as life, food, property, adequate housing, health and water, but it will also indirectly raise questions of equality, non-discrimination, access to information, access to justice, etc.
7 A study prepared by Office of the United Nations High Commissioner for Human Rights (OHCHR) on the relationship between climate change and human rights will be made available at the UN Climate Change Conference in Copenhagen from 7 to 18 December 2009. The OHCHR study concludes that a great majority of stakeholders agree that the international community should continue studying the inter-linkages between human rights and climate change, including the eventual legal, political and economic impacts that this link may have at the international as well as the national level.
8 Even bearing in mind the global nature of this topic and the uncertainties as to the possible results of a study by the Council of Europe on this relationship, the CDDH welcomes the suggestion to analyse this issue – and its specificities with respect to Europe – in greater detail, as a contribution to a possible wider and multidisciplinary Council of Europe approach to climate change. The CDDH notes the possibility, subject to available funding, of holding a conference to examine the issue from various angles (e.g. human rights and legal affairs, environment, social cohesion). If so, it expresses its availability to contribute to this work through the Committee of Experts for the Development of Human Rights (DH-DEV).

Appendix 2 to the reply

Comments by the Committee of Senior Officials of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT) on Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change”

The Committee of Senior Officials of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT):

1 Thanks the Committee of Ministers for consulting it on Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change”;
2 Stresses that Recommendation Rec(2002)1 of the Committee of Ministers to member states on the CEMAT Guiding principles for sustainable spatial development of the European Continent has a section on “Reducing environmental damage”, according to which “Environmental problems that may result from inadequate co-ordination of sectoral policies or local decisions have to be prevented. To this end, spatial planning policy must give support to […] encouraging more environment-friendly forms of transport and energy systems […]” (Paragraph 37);
3 Notes that another section on “Developing energy resources while maintaining safety” mentions: “Spatial development policy supports the promotion of renewable energy sources as coherent, environment-friendly systems […]. In view of the high levels of energy consumption in some economies, priority must be given to more efficient use of the energy and facilities already available. The energy efficiency of conventional power stations should be improved and air pollution reduced. This also contributes to reducing global warming. The security of older nuclear power plants should be increased. In addition, there are on the European continent numerous nuclear power plants whose service life will come to an end in the coming decades. The sites where they are located will have to be rehabilitated.” (Paragraphs 43-45);
4 Recalls that the Ljubljana Declaration on “The territorial dimension of sustainable development” adopted by the Ministers responsible for Regional Planning at the 13th Session of the European Conference of the CEMAT (Ljubljana, 17 September 2003), points out that “The Territory is a complex system, comprising not only urbanised, rural and other spaces, e.g. industrial land, but nature as a whole and the environment surrounding mankind. It is the bearing ground and indispensable framework of human dwelling and activity, and therefore the basis of sustainable development”;
5 Notes that the CEMAT’s work programme for 2006-2010, aimed at preparing the 15th Session of the CEMAT, draws attention to the role of spatial development policies for sustainable environment;
6 Proposes that the draft Moscow Declaration on “Future challenges: sustainable development of the European continent in a changing world”, which will be put forward at the 15th Session of the CEMAT (Moscow, Russian Federation, 8-9 July 2010), should recognise the need to take into consideration the challenges posed by climate change.

Appendix 3 to the reply

Comments by the Committee of Permanent Correspondents of the European and Mediterranean Major Hazards Agreement (EUR-OPA) on Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change”

The Bureau of the European and Mediterranean Major Hazards Agreement (EUR-OPA):

1 Takes note with satisfaction of the sustained interest of the Parliamentary Assembly in addressing the causes and effects of climate change and its leadership in promoting Council of Europe activities on climate change;
2 Notes that climate change will make European and Mediterranean societies more vulnerable to a number of hazards, particularly those linked to extreme climate events, marine risks and other water-related hazards. A non exhaustive list include drought and shortages in food production, heat waves, increased wild fires, desertification and aridification of natural systems, environmental stress, floods and flush floods, landslides, storms, and coastal and marine risks;
3 Believes that climate change is a powerful supplementary reason to further and deepen the disaster risk reduction agenda, paying particular attention to integrate climate change and disaster risk reduction concerns, thus improving governance and creating the appropriate partnerships with a varied range of stakeholders (authorities at all levels, industry, rescuers, scientist and technicians, volunteers, insurers, environmentalists, etc.) so that the issue of protecting lives, property, livelihoods and the environment becomes a common concern of the whole society;
4 Notes that governments need to identify the areas and sectors where climate change may produce an increase in vulnerability and set up appropriate prevention policies and early warning and rapid response mechanisms;
5 Informs the Parliamentary Assembly that the title of the next Ministerial session of the Agreement will be “Addressing Disaster Risk Reduction in a context of climate change” and that a special part of the session will be devoted to addressing climate change and disaster risk reduction.
6 Notes that, in preparation of the Ministerial session, the EUR-OPA held a workshop in Murcia (Spain) on 26-27 October 2009 entitled “Climate Change impact on water-related and marine risks” which made specific proposals to address the issues of increased vulnerability of populations due to climate change.

Appendix 4 to the reply

Comments by the Standing Committee of the Bern Convention on Parliamentary Assembly Recommendation 1883 (2009) on “The challenges posed by climate change”

The Bern Convention’s Standing Committee:

1 Welcomes Parliamentary Assembly Recommendation 1883 (2009) and its invitation to adopt climate change as one of the core priorities of the Council of Europe, instructing the relevant bodies of the Council of Europe to consider addressing this vital issue in their respective activities;
2 Values the good ongoing co-ordination with the Parliamentary Assembly on this issue;
3 Welcomes the specific reference made in the second paragraph of Recommendation 1883 (2009) of Recommendation No. 135 (2008) of the Standing Committee of the Bern Convention on “Addressing the impacts of climate change on biodiversity”, adopted in November 2008;
4 Shares the views of the Parliamentary Assembly as to the need to strengthen co-ordination of existing activities related to climate change across different bodies and through the different managing structures of the Council of Europe intergovernmental programmes;
5 Agrees with the Parliamentary Assembly about the need to explore the linkages between climate change and human rights in Europe, and recalls the report on “‘Human rights and climate change” (T-PVS/Inf(2009)4) submitted for information to the meeting of the Group of Experts on Biodiversity and Climate Change held in July 2009;
6 Stresses the importance to communicate widely ongoing activities related to climate change carried out at the Council of Europe;
7 Informs the Parliamentary Assembly of the new Recommendation No. 143 (2009) of the Standing Committee of the Bern Convention on “Further guidance for Parties on biodiversity and climate change”, adopted on 26 November 2009, and which complements Recommendation No. 135 (2008);
8 Invites the Parliamentary Assembly to continue collaborating with the Bern Convention on matters of common interest, including the preparation of two forthcoming reports at the Assembly: one on “Biodiversity and climate change”, and another on “The need to assess progress in the implementation of the Bern Convention”.

Appendix 5 to the reply

Comments by the Committee of Senior Officials of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT) 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 Committee of Senior Officials of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT):

1 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”;
2 Stresses that Recommendation Rec(2002)1 of the Committee of Ministers to member states on the CEMAT Guiding principles for sustainable spatial development of the European Continent has a section on “Reducing environmental damage”, according to which “Environmental problems that may result from inadequate co-ordination of sectoral policies or local decisions have to be prevented. To this end, spatial planning policy must give support to […] encouraging more environment-friendly forms of transport and energy systems […]” (Paragraph 37);
3 Notes that another section on “Broadly-based participation of society in the spatial planning process” mentions: “As early as 1983 the European Regional/Spatial Planning Charter drew attention to the need for active public participation in the spatial planning process. The intervening years have confirmed this need. Apart from such participation in local, regional and supraregional projects, the involvement of European society and socio-economic actors, for example through non-governmental organisations, has become necessary. Their involvement at an early stage of the process makes a significant contribution not only to increasing the planning process’s chances of success but also to avoiding unproductive investments. Societal consensus is very important, not only for the success of local and regional initiatives; it also creates a dynamic environment for outside investors and economic actors. The involvement of the younger generation in the planning process increases the chances of interesting the public in the long-term planning of their home region and in efficient and innovative participation. This is essential in gaining wider acceptance of the ‘European idea’” (Paragraph 82);
4 Recalls that the Ljubljana Declaration on “The territorial dimension of sustainable development” adopted by the Ministers responsible for Regional Planning at the 13th Session of the European Conference of the CEMAT (Ljubljana, 17 September 2003), points out that “The Territory is a complex system, comprising not only urbanised, rural and other spaces, e.g. industrial land, but nature as a whole and the environment surrounding mankind. It is the bearing ground and indispensable framework of human dwelling and activity, and therefore the basis of sustainable development”;
5 Recommends to the Committee of Ministers to draw up an additional protocol to the European Convention on Human Rights, recognising the right to a healthy and viable environment.

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.

;