Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 29 September 2021 (27th sitting) (see Doc. 15367, report of the Committee on Social Affairs, Health and
Sustainable Development, rapporteur: Mr Simon Moutquin). Text adopted by the Assembly on
29 September 2021 (27th sitting).See also Recommendation 2211 (2021).
1. The global vision of contemporary
human rights protection has evolved significantly in the last decade. While
the notion of sustainable development has slowly made its way into
policy making worldwide, our understanding of the environment as
a crucial factor for human development and human rights has brought new
legal challenges into focus for the member States of the Council
of Europe. Environmental pollution, loss of biodiversity and the
climate crisis are making people and the planet sick, leading to
premature deaths among the current generation and stealing viable
living space from future generations.
2. These 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 from their lack of action to prevent
cumulative harm to individuals from environmental degradation caused
by the commercial exploitation of nature. The current situation
increasingly gives rise to both violations of fundamental rights
and legal disputes.
3. The Parliamentary Assembly notes that as early as 1972, the
Stockholm Declaration of the United Nations Conference on the Human
Environment explicitly linked environmental protection and first-generation human
rights, indirectly referring to the right to a healthy environment.
Since then, about half the countries of the world have recognised
the right to a healthy environment in their constitutions, including
32 Council of Europe member States. The right to a healthy environment
is also recognised worldwide through a series of regional agreements
and arrangements – with the exception of the European region.
4. The Assembly believes that the European vision of contemporary
human rights protection could nevertheless become a benchmark for
ecological human rights in the 21st century, if action is taken
now. So far, this vision has been limited to civil and political
rights enshrined in the European Convention on Human Rights (ETS
No. 5, hereafter “the Convention”) and its protocols and socio-economic
rights recognised in the European Social Charter (ETS Nos. 35 and
163, hereafter “the Charter”).
5. The Assembly notes that the Convention does not make any specific
reference to the protection of the environment, and the European
Court of Human Rights (hereafter “the Court”) can thus not deal
effectively enough with this new-generation human right. The Assembly’s
call for action, in particular in
Recommendation 1885 (2009) “Drafting
an additional protocol to the European Convention on Human Rights
concerning the right to a healthy environment”, was unfortunately
not followed by the Committee of Ministers.
6. The Court’s case law provides for indirect protection of the
right to a healthy environment by sanctioning only environmental
violations that simultaneously result in an infringement of other
human rights already recognised in the Convention. The Court thus
favours an anthropocentric and utilitarian approach to the environment
which prevents natural elements from being afforded any protection
per se. The Assembly encourages the Council of Europe to recognise,
in time, the intrinsic value of nature and ecosystems in the light of
the interrelationship between human societies and nature.
7. The Assembly is convinced that 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 non-disputable basis for rulings concerning
human rights violations arising from adverse environment-related
impacts on human health, dignity and life.
8. The Assembly considers that an explicit recognition of a right
to a healthy and viable 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 also act as a preventive mechanism to supplement
the currently rather reactive case law of the Court.
9. 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. In this context, the Assembly notes that
the United Nations (UN), 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”. The Council of Europe should be encouraged to use
this terminology for its own legal instruments – though it may want
to go even further and guarantee the right to a “decent” or “ecologically
viable” environment.
10. The Assembly also supports drafting an additional protocol
to the Charter on the right to a safe, clean, healthy and sustainable
environment. The Charter and the Convention are two complementary
and interdependent systems, each of which has its own specific features,
hence the need for separate additional protocols.
11. The Assembly moreover believes that there is a growing need
to ensure genuine co-responsibility for the prevention and alleviation
of environmental harm by both States and non-state actors, including
corporate actors. As private-sector self-regulation alone does not
always serve the common interest, State regulation has a major role
to play. States should therefore 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”.
12. The Assembly also recognises the particular responsibility
that current generations bear towards future generations. The irreversible
damage to nature and the short- and long-term effects of the climate
crisis will adversely affect future generations, which must be protected
accordingly. In order to entrench the principle of transgenerational
responsibility, equity and solidarity, new rights and duties are
needed. The Assembly thus supports recognising the right of future
generations to a healthy environment and humanity’s duties towards living
beings. Among these, the duty of non-regression meets the requirement
for transgenerational equity by helping to counter growing environmental
degradation and by ensuring a degree of legal certainty with respect to
environmental law.
13. While the threats of environmental degradation and climate
change are among the biggest challenges facing humanity today, the
Assembly views the unfettered use of certain new, man-made technologies
(such as artificial intelligence, nanotechnology and genetic engineering)
as a human rights challenge. It therefore considers that the Council
of Europe should prepare a “Five Ps” convention on environmental
threats and technological hazards threatening human health, dignity
and life – in the spirit of the Stockholm Declaration. 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 for the effective implementation
of environment-friendly pro-human rights policies.
14. In the light of the above considerations, the Assembly recommends
that the member States of the Council of Europe:
14.1 build and consolidate a legal
framework – domestically and at European level – to anchor the right to
a safe, clean, healthy and sustainable environment, based on the
UN guidance on this matter;
14.2 support multilateral efforts concerning the explicit recognition
and protection of the right to a safe, clean, healthy and sustainable
environment through international and European law;
14.3 participate in a political process under Council of Europe
auspices aimed at preparing legally binding and enforceable instruments
– an additional protocol to the Convention and an additional protocol
to the Charter in order to protect more effectively the right to
a safe, clean, healthy and sustainable environment – as well as
a “Five Ps” convention on environmental threats and technological hazards
threatening human health, dignity and life;
14.4 strengthen the corporate environmental responsibility
of enterprises operating under their jurisdiction by setting up
a dedicated binding legal framework that defines corporate responsibility
for safeguarding human health, the right to a safe, clean, healthy
and sustainable environment, and environmental integrity, and by
making them reduce the harmful environmental footprint of their commercial
activities;
14.5 contribute to the revision of the Committee of Ministers
Recommendation CM/Rec(2016)3 on human rights and business in order
to determine and incorporate the requirements of corporate environmental
responsibility.
15. The Assembly urges national parliaments to advocate adequate
protection of the right to a safe, clean, healthy and sustainable
environment at the national, European and global levels. It invites
them to hold extensive public consultations on this matter and to
proceed with the adoption of laws and the initiation of the legal
instruments necessary for the completion of the comprehensive coverage
of this right, and to monitor their effective implementation.
