C Explanatory memorandum
by Mr Simon Moutquin, rapporteur
1 Introduction
1. In May 2020, the Committee
on Social Affairs, Health and Sustainable Development tabled a motion
for a resolution on “Anchoring the right to a healthy environment:
need for enhanced action by the Council of Europe.”
Note Whilst environmental degradation
escalates, the scientific evidence is mounting of its detrimental effects
on the health of Europeans, but the explicit recognition of the
right to a healthy environment is lacking as a basis for more resolute
action at both European and national levels. To address this concern,
the motion stresses the importance of building the case for more
ambitious action by the Council of Europe in this field. The motion
was subsequently referred to our Committee for report, and I was
appointed rapporteur on 6 July 2020 (another motion for a resolution
on “Artificial intelligence and climate change”
Note was thereafter transmitted to our
Committee so as to be taken into account in this context).
2. In response to the threats to climate and biodiversity, the
Georgian Presidency of the Committee of Ministers of the Council
of Europe (27 November 2019 i 15 May 2020) made human rights and
environmental protection its overriding priority. This objective
has stayed prominent during the Presidencies of Greece and Germany.
The President of the Parliamentary Assembly, Mr Rik Daems, has made
this a priority of the Assembly since his election in January 2020.
The strong political will in the field thus offers unique momentum for
launching preparatory work on a legally binding instrument to protect
the human right to a healthy environment. This European initiative
could pave the way to building a global consensus on the need for enhanced
international co-operation on the protection of the environment
and “green” human rights. Europe should keep its leadership in championing
fundamental rights with a “green perspective.”
3. In February 2020, the Georgian Presidency organised a high-level
conference in Strasbourg on the protection of the environment from
a human rights perspective.
Note The
conference examined the potential of the Council of Europe to work
in the human rights field to tackle the environmental emergency
and identify ways of helping European governments to address the
challenge. The introductory report of the conference
Note called for the Council of Europe
to act as a leader in the field of fundamental rights protection.
Failing to do so, piecemeal initiatives would eventually be taken
at national level, and the legitimacy of the Council of Europe would
be seriously affected as a result.
Note
4. The European vision of contemporary human rights protection
could become a benchmark for ecological human rights in the 21st century.
In this context, we are greatly encouraged by a landmark ruling
of the Dutch Supreme Court that upheld an earlier ruling in the
Urgenda Climate Case against the country’s government asking it
to do much more to cut greenhouse gas emissions. The Supreme Court
notably referred to individual nations’ direct obligations under
articles 2 and 8 of the European Convention on Human Rights (ETS
No. 5, hereafter “the Convention”), covering the right to life and
the right to private and family life.
Note
5. During the past decades, the Assembly has issued numerous
recommendations on matters related to the right to a healthy environment.
It notably stressed that every person has the fundamental right
to an environment and living conditions conducive to their good
health, well-being and full development of the human personality.
It stated, already in 2003, that in view of developments in international
law on both the environment and human rights, as well as in European
case law (especially that of the European Court of Human Rights, “the
Court” henceforth), the time had come to consider legal ways in
which the human rights protection system could contribute to the
protection of the environment.
Note
6. In 2009, the Assembly recommended that the Committee of Ministers
draw up an additional protocol to the Convention, explicitly recognising
“the right to a healthy and viable environment,”
Note based
on similar initiatives that had already occurred in the past. In
the recommendation, the Assembly reaffirmed its commitment to issues
regarding the environment and considered “it not only a fundamental
right of citizens to live in a healthy environment but [also] a
duty of society as a whole and each individual in particular to
pass on a healthy and viable environment to future generations”.
To this end, the Assembly has relentlessly demanded enhanced action
by member States to address the challenges of climate change, environment-related
health hazards and environmentally-induced migration.
Note
7. However, despite the political and legal initiatives taken
both nationally and internationally, environmental protection is
still very inadequately guaranteed to this day. The most commonly
adduced counterargument at the time was the uncertainty as to the
actual existence of a right conferred on individuals, or, at the
very least, a right that was not adequately defined. That does not
make environmental threats to the full enjoyment of human rights
any less severe for individuals; rather, it is a matter of defining
the terms in question and carefully preparing a legal instrument
granting the rights.
8. A “healthy” environment can be described as a “good-quality”
one. The right to a “good-quality” environment is to be understood
as embracing, amongst other things, the right to live in a pollution-free environment
which addresses directly the alarming fact that poor air quality
leads to over half a million deaths in Europe alone every year.
Note In the light of this, the right
to clean air could be seen just as legitimate as the right to clean
water, since both are essential to life, health, dignity and well-being.
Note In her study, professor Élisabeth
Lambert insists on the need to recognise an individualised right,
both personal and collective, to a “decent” or “ecologically viable”
environment – a broader concept than that of the right to a “healthy environment”
and one that embraces an eco-centric view and an intergenerational
approach. According to her, the term “right to a healthy environment”
is restrictive and covers only environmental damage affecting human health
or well-being. The right to a “decent” environment, however, as
recognised also by the Committee of Ministers in 2004,
Note means understanding the link between
fundamental rights, our environment and sustainable development,
and it also covers protection of the natural environment in line
with today’s ecological outlook.
9. The extent to which environmental human rights are recognised
has a whole range of practical consequences. Whether it is a “good-quality”
one, “viable” or “healthy”, at least, the explicit inclusion of
this right has had the positive effect of strengthening the legislative
and judicial arsenal at national level in about half the countries
of the world that recognise the right to a healthy environment in
their constitutions; those countries include 32 Council of Europe
member States.
Note As
it were, the right to a healthy environment is recognised through
a series of regional agreements and arrangements worldwide.
Note
10. We should note that the United Nations, in its studies and
resolutions on human rights and the environment, mainly refers to
the human rights obligations linked to the enjoyment of “a safe,
clean, healthy and sustainable environment”. This Assembly’s committees
will therefore seek to use this terminology. In the context of the
preparation of this report, on 1 December 2020, the Committee also
held an online hearing with the UN Special Rapporteur on human rights
and the environment, David R. Boyd, as well as with Catherine Le Bris,
Researcher on international law of human rights and the environment
at the CNRS (National Centre for Scientific Research) of France,
and with child and youth activists from France and Azerbaijan.
Note
11. This report examines the different options for adopting new
Council of Europe legal instruments granting the right to a healthy
environment. The urgency of the problem cannot be overstated anymore:
various types of environmental degradation are resulting in violations
of substantive, first generation human rights, such as the right
to life, to private and family life, the prohibition of inhuman
and degrading treatment, and the peaceful enjoyment of the home,
as clearly established by the Convention, and the violation of the
second generation right to health, as enshrined in the European
Social Charter (ETS Nos. 35 and 163, the Charter). The Council of
Europe as the European continent’s leading human rights and rule
of law organisation should stay proactive in the evolution of human
rights and adapt its legal framework accordingly. A legally binding
and enforceable instrument, such as an additional protocol to the
Convention, would finally give the Court a fundamental base for
rulings concerning these issues.
12. Moreover, considering proposals contained in the motion for
a resolution on “Artificial intelligence and climate change,”
Note this report also addresses the threat
of climate change as the biggest challenge facing humanity, with
new technologies such as artificial intelligence representing both
a significant part of the aggravation of the problem and a possible
solution. The report explores these questions and contributes proposals
for solutions arising from the national and European context, notably
by proposing the preparation of a “5P” type of convention.
Note The
issue of “criminal and civil liability in the context of climate
change” and a possibility of the Council of Europe adopting a new
criminal law convention on harms to environment and human health
is examined in a separate report by the Assembly’s Committee on
Legal Affairs and Human Rights.
Note
2 Evolving understanding of human rights
13. The European Convention on
Human Rights was drafted in 1950 and entered into force in 1953.
It was created after the Second World War, as the world united to
agree on minimum standards of dignity to be afforded to all human
beings, and thus granted protection of individual civil liberties
against violations by the State. The Convention sets out in detail
civil and political rights, such as the prohibition of torture,
or the right to a fair trial. In the most established way of classifying
human rights, these rights based mostly on political concerns are
categorised as first-generation human rights. Economic, social and
cultural rights were frequently mislabelled as “benefits”, meaning
individuals had no basic claims to essentials like food and shelter.
14. During the Cold War, however, the European and global (through
the UN Covenants) human rights standards developed in accordance
with the spirit of their time. Socio-economic rights became increasingly
a subject of international recognition. New demands and ideas about
the meaning of a life of dignity evolved, as people realised that
human dignity required more than the minimal lack of interference
from the State (as guaranteed by civil and political rights). The
European Social Charter was opened for signature in 1961 and took
effect in 1965. It was established to support the Convention and
to broaden the scope of protected fundamental rights to include
social and economic rights, the so-called second-generation human
rights.
15. The state of the world when the Convention was drafted was
very different from what it is now. Conditions such as extreme poverty,
war, ecological and natural disasters have meant that there has
been only very limited progress in respect of human rights in many
parts of the world. The idea at the basis of the third generation
of human rights is that of solidarity, and the rights embrace also
collective rights of society or peoples. The right to a healthy
environment is one of them and is for the benefit of present and
future generations.
16. Besides the intergenerational aspects of such rights, currently
living generations already face serious environmental and social
crises at this very moment, making the threats the environmental
issues are causing to the enjoyment of human rights very real. According
to the World Health Organization (WHO), 24% of all global deaths
are linked to the environment, which means roughly 13.7 million
deaths a year.
Note The UN special rapporteurs and independent
experts warn that global climate warming “will adversely affect
a wide range of human rights, including the rights to life, health,
food, and water, among many others”;
Note it will render many places uninhabitable,
multiply violent conflicts and could result in, by 2050, up to 200
million climate refugees. Across Europe, air pollution “alone” causes
at least 753 000 premature deaths annually and massively aggravates
public health, including that of next generations.
Note Children
face the highest risks from environmental hazards such as pollution,
because even small exposures to chemicals
in
utero and in early childhood can result in lifelong disease,
disability, premature death, as well as reduced learning and earning potential.
Note Moreover, a massive destruction of
natural habitats induces ever greater proximity of wild species with
human beings, with a growing risk of emergence of new zoonoses and
pandemics. The recognition of this new generation of human rights
is necessary and urgent – since without ensuring the appropriate
conditions for societies, different types of obstacles will continue
to stand in the way of realising the already fully recognised first-
and second-generation human rights.
17. A pivotal aspect for the legal recognition of the interaction
between human rights and the environment is in the 1972 Stockholm
Declaration and Conference on the Human Environment, as well as
1992 Rio Declaration on Environment and Development.
Note In addition to linking the quality
of the environment with first generation human rights, the 1972
declaration also indirectly refers to the right to a healthy environment:
“Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits
a life of dignity and well-being, and he bears a solemn responsibility
to protect and improve the environment for present and future generations”;
“both aspects of man’s environment, the natural and the man-made,
are essential to his well-being and to the enjoyment of basic human
rights – even the right to life itself.”
18. Although there is a clearly acknowledged link between human
dignity and the protection of the environment, neither the Convention
nor the Charter are designed to provide a general protection of
the environment as such, and they do not expressly guarantee a right
to a healthy environment. The Convention and the Charter indirectly
offer a certain degree of protection with regard to environmental
matters through the case law developed by the Court, and the recognition
of the right to health in the Charter.
Note
19. However, as the Convention does not make any specific reference
to the protection of the environment, the Court cannot deal effectively
with several so-called new generation human rights, including the
right to a healthy environment. The Court should have a clearer
basis on which to work when ruling on the basis of connecting human
rights to environmental issues. As highlighted in the previous chapter,
the right to a healthy environment is already explicitly recognised
in both international and regional conventions, and over 100 countries
worldwide now have a constitutional right to a healthy environment,
including the majority of Council of Europe member States. The incorporation
of the right to a healthy environment in their laws and constitutions expresses
these countries’ desire to give greater legal recognition to environmental
rights.
3 Embracing the new generation of human
rights: lessons to be drawn from environmental litigation
20. As was pointed out during the
committee’s hearing “For stronger action on climate change”, held
on 1 December 2020,
Note environmental degradation increasingly
gives rise to both violations of fundamental rights and legal disputes,
including on climate change whose direct effects are already being
felt by many people (especially farmers and climate refugees). The
emblematic case of the Urgenda climate lawsuit (2015-2019) by civil
society in the Netherlands “was the first in the world in which
citizens established that their government has a legal duty to prevent
dangerous climate change”.
Note UN High Commissioner for Human Rights
Michelle Bachelet hailed the decision and stressed that “the Government
of the Netherlands and, by implication, other governments have binding
legal obligations, based on international human rights law, to undertake
strong reductions in emissions of greenhouse gases”. The Urgenda
ruling establishes “a clear path forward for concerned individuals
in Europe – and around the world – to undertake climate litigation
in order to protect human rights”.
21. Inspired by the success of the Urgenda Climate Case, citizens
of Ireland, Belgium, Canada, France, Columbia, Germany, India, Mexico,
New Zealand, Pakistan, Peru, the Republic of Korea, Switzerland,
the United Kingdom, the United States of America, and the European
Union (EU)
Note have launched similar lawsuits
Note.
In many of these cases, young people and children proclaim their
constitutional rights to life, health, a healthy environment, equality
and non-discrimination, drawing on the principle of intergenerational
justice. Some of these cases evoke the national government’s obligations
towards the Convention (Articles 2 and 8) and international climate
agreements. In November 2020, the Court accepted the complaint by
youth activists against 33 governments (EU countries plus Norway,
the Russian Federation, Switzerland, the United Kingdom, Turkey
and Ukraine).
22. The pressure on European governments to act on the climate
crisis and continuous environmental degradation is thus ever-growing,
and so does the pressure on the Council of Europe and its member
States to explicitly recognise the new generation of human rights,
notably the right to “a safe, clean, healthy and sustainable environment”,
not only through the case law of the Court, but also within the
body of the treaty itself, via an additional protocol. Novel threats
to human life, well-being and health no longer stem only from national governments’
failure to uphold civil and political rights, but also their lack
of action to prevent cumulative harm to individuals from environmental
degradation due to the commercial exploitation of nature.
23. We have to call a spade a spade: environmental pollution,
loss of biodiversity and the climate crisis are making the people
and the planet sick, relentlessly leading to premature deaths in
the present generation and stealing viable living space from future
generations. As David R. Boyd pointed out during the hearing on 1 December
2020, Europe is now lagging behind all other regions, since it is
the last not to afford the protection of the right to a healthy
environment directly in supranational law such as the European Convention
on Human Rights.
24. However, as Catherine Le Bris noted at the same hearing, merely
extending the protection of individual rights would not be enough
to rise to the collective and intergenerational challenges of the
climate crisis. Indeed, many lawyers agree that certain principles
are essential to enshrining the right to a healthy environment through
new legal instruments: eco-centrism, subjectivism, collective and
transgenerational rights, as well as the precautionary principle,
non-regressiveness and the inversion of the burden of proof. A brief
overview of the international legal path towards the recognition
of the link between human rights and the environmental protection
is set out in the appendix.
4 Towards new legal instruments: recognising
the right to a safe, clean, healthy and sustainable environment
25. If it was undisputable already
in 2009 that a clean and healthy environment is integral to the
enjoyment of human rights, such as the right to life, health, food
and an adequate standard of living, such a claim is even more valid
at present. Climate change is having a profound effect on the enjoyment
of human rights by individuals and communities across the planet.
Because neither the Charter nor the Convention explicitly recognise
the right to a healthy environment, this makes the European human
rights instruments less satisfactory than all the other regional
instruments.
Note An explicit recognition of a right
to a healthy environment would be an incentive for stronger domestic
environmental laws and a more protection-focused approach by the
Court. It would make it easier for victims to lodge applications
for remedies, and would act as a preventive mechanism (whereas the
case law is rather reactive). Recognising an autonomous right to
a healthy environment would have the benefit of allowing a violation
to be found irrespective of whether another right had been breached
and would therefore raise the profile of this right.
4.1 Liability of corporate actors for
environmental harm
26. Environmental harms by large,
multinational corporations have become major issues of concern and have
broad negative implications. Such corporations may, due to their
huge monetary assets, even defeat the monetary capacities of some
countries.
Note There
is a need to prepare a mandatory instrument binding on States and
businesses with a European compliance or monitoring mechanism and
legally enforceable rights for individuals. Many governments and
corporations are now providing strategies for environmental protection
and economic growth in joint attempts. Public-private partnerships
for sustainable development that have been in operation for several
decades from the local to the international level are gaining importance
with the implementation of the 2030 Agenda for Sustainable Development
and the Sustainable Development Goals. Yet, there is still too much
“greenwashing” around us – without genuine co-responsibility towards
the prevention and alleviation of environmental damage.
27. To make the right to a healthy environment effective, the
rules of the game should not be set by free markets, corporations’
self-regulation, soft recommendations or general guidelines. Such
rights should be granted to be binding and justiciable. Expert studies
have questioned the effectiveness of environmental self-regulation
by suggesting that its adopters might not necessarily perform better
than non-adopters.
Note As
self-regulation alone does not always serve the common interest,
State regulation has a key role to play. States therefore need to
strengthen corporate environmental responsibility, not least through
the revision of Committee of Ministers Recommendation CM/Rec(2016)3
on Human Rights and Business and engagement in the work of the UN
“open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights on a
legally binding instrument on business activities and human rights”.
Note
28. In recent years, we have witnessed several legal cases of
climate justice involving corporate actors. For instance, more than
ten cities, counties and states in the United States have taken
Exxon, Chevron, BP, Royal Dutch Shell and similar energy giants
to court, seeking reimbursements for taxpayers of the costs of adaptation measures
related to climate change (including building sea walls, repairing
damages from storms, or plans to phase out fossil fuels and move
some vulnerable communities more inland). But claims by New York
City and San Francisco have been rejected in appeal courts.
Note In Europe, oil giant Total, deemed
responsible for 1% of global CO2 emissions,
was sued by 14 cities and civil society organisations for climate
inaction in the first climate case in France; moreover, the company
is sued also in Uganda over environmental destruction.
Note At the same time, big energy companies
have also sued States (including Germany, Italy, the Netherlands)
under the international agreement – the Energy Charter Treaty –
claiming compensations for investments made or planned against the
States’ push of pro-climate action that impacts energy companies.
Note
29. With the expansion of the digital economy, high-tech enterprises
face criticism for the massive and growing consumption of energy
used to power their computing infrastructure. Although some such
enterprises have made data centres more efficient and worked to
ensure they are powered at least in part by renewable energy, the
computing power required for artificial intelligence has increased
about 300 000 times between 2012 and 2018. As more enterprises and
institutions begin to use artificial intelligence, it is becoming
obvious that technology will deepen the climate crisis. Policymakers
need to take this trend into account through regulatory tools at
national, European and international levels.
4.2 Additional Protocol to the European
Convention on Human Rights
30. Drafting an additional protocol
to the Convention is probably the strongest option for building
the case for more ambitious action by the Council of Europe in the
field of environmental human rights. Embracing this option would
be in line with the Assembly’s earlier recommendations, as well
as recent proposals by the Commissioner for Human Rights and the
current President of the Assembly. The additional protocol could
build on the principles of what is seen as a “healthy”, “good-quality”,
“decent” and/or “viable” environment, with a view to protecting
human rights, health and dignity in the face of different threats
environmental challenges are causing. An additional protocol would
complete the terms on the right to a “safe, clean, healthy and sustainable environment”
and draw inspiration, for instance, from the UN Framework Principles
on Human Rights and environment.
Note It would make the right to
a healthy environment binding on States and justiciable, including
for individuals.
31. As already pointed out by the Assembly in 2009,
Note the
Convention does not mention the environment, nor the right to a
healthy environment. The case law of the Court, based on the interpretation
of Articles 2, 5 and 8 (most frequently evoked), can offer only
indirect and incomplete environmental protection when the violation
of another right expressly set out in the Convention is found. Such
indirect protection via the case law is difficult to access and
fully comprehend; it depends on the receptiveness and inclinations
of judges and lawyers of the Court. At the same time, the case law
of the Court proves that environmental harms have directly affected
human rights already enshrined in the Convention.
32. Rather reactive and implicit norms do not provide adequate
solutions or protection to individuals or the environment. Adopting
an explicit, proactive human right to a healthy environment in Europe
is, quite frankly, long overdue, and would allow a preventive approach
that would focus on eliminating problems before they have a chance
to appear. A proactive approach to the right to a healthy environment
would effectively promote what is desirable and would encourage
good behaviour – in terms of positive obligations by States under
the Convention, while having a preventive dimension of keeping legal
risks from materialising.
33. As the President of the European Court of Human Rights, Robert
Spano, said at the “Human Rights for the Planet” Conference (held on 5 October
2020), the Convention cannot be interpreted in a vacuum but in an organic
process together with other instruments and developments in member
States, with the case law being a good starting point. We now have
to go in the direction that the European society wants and catch
up with the other regions of the world. We now have a strong political
momentum, as well as increasing support in the various parts of
the Council of Europe and its member States, for moving to recognise
a safe, clean, healthy and sustainable environment as a human right.
We owe this right to European citizens, and by granting it explicitly
we would make their governments more accountable.
34. I trust that the time has come to seriously reconsider the
need to have an additional protocol to the Convention in order to
explicitly state the link between the environment and human rights.
As the Assembly, we can propose to build on the past initiatives
of this kind. Notably, a model additional protocol as set out in
the Assembly
Recommendation
1201 (1993) “Additional protocol on the rights of minorities to
the European Convention on Human Rights” could serve as a reference
to detail the Assembly’s proposal.
35. In the model additional protocol proposed, I have attempted
to cover the more progressive legal principles recognised in many
of our countries’ constitutions in a separate section entitled “general
principles” (Articles 2-4), following the design of the draft protocol
in
Recommendation 1201
(1993): the principles of transgenerational responsibility,
equity and solidarity, the principle of non-discrimination linked
to the environment, and the preventive and precautionary principles,
the principle of non-regression and
in
dubio pro natura. The model I am proposing foresees the
consecration of only a single material right: the right of every person
to a safe, clean, healthy and sustainable environment (Article 6),
flanked by four rights of a procedural nature (Article 7), only
one of which – the right to consultation – would be open to reservations
or derogations.
36. I am aware of the excellent academic proposals of what such
an Additional Protocol to the Convention might contain
Note, however, I have only included
those in my proposed model which fit within the framework of the
Convention and the Court as it currently stands. This is because
I believe that we need a panoply of legal instruments (see below),
not just one, which complement each other – rather than trying to
press everything into one Additional Protocol to the Convention
where it does not really fit.
4.3 Additional Protocol to the European
Social Charter
37. The Charter provides extensive
protection of social rights and even serves as a reference for EU
law. It does not include or recognise, however, humanity’s right
to a safe, clean, healthy and sustainable environment, even though
it is deeply connected to social rights. The Assembly has already
called on the Committee of Ministers to prepare a new protocol to
the revised Charter on the right to health, including the right
to a healthy environment, in its
Recommendation 1976 (2011) “The role of parliaments in the consolidation and development
of social rights in Europe”.
38. The deep-seated connection between social rights and environmental
protection needs to be recognised in the Charter. Up to now, the
European Committee of Social Rights’ dynamic interpretation of Article
11 of the Charter, on the right to health, has made it possible
to provide a degree of protection in environmental matters. Moreover,
the Committee is also to be commended on its dynamic interpretation
of Articles 2 (the right to just conditions of work), 3 (the right
to safe and healthy working conditions) and 31 (the right to housing).
It is this interpretation that has led to indirect recognition of
a right to a healthy environment.
39. In the current environmental crisis, however, this alone will
not suffice. Embedding a human right to a healthy environment in
the Charter would contribute to better environmental protection,
because it would allow some non-governmental organisations specialising
in environmental protection to lodge collective complaints with
regard to 16 States that have accepted the system of collective
complaints provided for under the Additional Protocol to the European
Social Charter (ETS No. 158). This collective complaints procedure
partly complements the judicial protection provided under the European
Convention on Human Rights.
4.4 The option of a “5P” convention on
environmental threats and technological hazards threatening human
health, dignity and life
40. Some lawyers consider that
“green” rights do not obey the same logic as civil and political
rights on the one hand, and social and economic rights on the other.
Thus, the recognition of ecological/environmental rights ought to
take the form of a specific instrument. Recognition of this right
from the ecocentric standpoint explained above should therefore
be accompanied by inclusion of principles specific to this field,
such as the principle of prevention, the precautionary approach
(Principle 15 of the Rio Declaration) and the “polluter pays” principle,
all of which are closely linked with the concept of environmental
justice.
Note The principle 15 is that “where
there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation”, which
works against arguments demanding overly waterproof evidence and
causality for environmental harm when there has been a breach of
the right to a healthy environment.
41. Given the complex and interconnected nature of the threats
to human rights caused by environmental harm, the legal instrument
addressing these issues should have a holistic approach. In addition
to drafting an Additional Protocol to the Convention and an Additional
Protocol to the Charter, therefore, a “5P” convention should be
considered. By preventing
and prosecuting violations
of the right to a safe, clean, healthy and sustainable environment,
and protecting the victims,
the contracting States would adopt and implement state-wide “integrated policies” that are effective and
offer a comprehensive response to environmental threats and technological
hazards, involving parliaments
in holding governments to account on the effective implementation
of environment-friendly pro-human rights policies.
42. Adopting a “5P” convention would provide a relevant international
legal instrument broad in scope that would complement the Additional
Protocols, including by fostering international co-operation in
the environmental field and establishing a specific monitoring mechanism
such as a group of independent experts. With a holistic approach,
the “5P” convention could look not only at a healthy environment
but also at other issues that are beyond the control of an individual;
it essentially comes down to the right to life and human dignity.
These issues could include, for instance, threats stemming from
artificial intelligence, genetic manipulation and nano technology.
5 Conclusions:
the proposed roadmap for action
43. Worldwide, scientific evidence
is accumulating on the massive detrimental effects of environmental degradation
on the health, dignity and well-being of humans and the stability
of ecosystems. This is a boomerang effect of human economic activities
with an excessive and toxic environmental footprint. The Council
of Europe has played a pioneering role in strengthening the protection
of human rights in a number of areas, such as in the field of bioethics.
It is now time for it to face a major transformative challenge for
human rights by securing their enhanced protection in the era of
systemic environmental threats to the current and future generations.
This calls for the explicit recognition of a human right to a safe,
clean, healthy and sustainable environment – through policies and
legal instruments, including legally binding and justiciable ones at
Council of Europe level.
Note
44. Harmful environmental impacts are increasingly affecting the
enjoyment of first- and second-generation human rights by individuals
and society at large, hurting the shared values that the Council
of Europe has a duty to defend. Those impacts are increasingly recognised
through environmental litigation at national level across Europe
and beyond; they constitute a compelling case for consolidating
and updating the Council of Europe legal arsenal and linking up
national action with commitments under the international treaties,
such as the United Nations Framework Convention on Climate Change
(UNFCCC) and the Paris Agreement. This is also necessary so as to
give clear signals to non-State actors (such as enterprises) about
the direction of public policies at national, European and international
levels.
45. To this end, I would recommend that the Assembly reiterate
the need for the Council of Europe to elaborate an additional protocol
to the Convention without further delay, so as to give clear recognition
of the human right to a “safe, clean, healthy and sustainable environment”
based on the terminology adopted at the UN level. I also wish to
propose the drafting of an additional protocol to the Charter, in
order to establish the deep-seated connection between social rights
and humanity’s right to a healthy environment. Last but not least, I
would encourage launching preparations for a “5P” convention on
environmental threats and technological hazards threatening human
health, dignity and life, alongside work aimed at revising the Committee
of Ministers Recommendation CM/Rec(2016)3 on Human Rights and Business
with regard to the responsibility of non-State actors for preventing
environmental degradation and violation of a human right to a “safe,
clean, healthy and sustainable environment.”
46. To conclude, I would like to emphasise the need for these
three legal instruments, which are essential to enshrine humanity’s
right to a safe, clean, healthy and sustainable environment, to
be developed in parallel. The nature of the instruments varies,
so they will have specific implementation methods and different
effects. Mutually complementary, they have distinctive protection
and monitoring systems that could help address today’s environmental
challenges, by guaranteeing a human right to a safe, clean, healthy
and sustainable environment.
