Addressing issues of criminal and civil liability in the context of climate change
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 29 September 2021 (27th sitting) (see Doc. 15362, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Ziya Altunyaldiz). Text
adopted by the Assembly on 29 September 2021 (27th sitting).See
also Recommendation 2213
(2021).
1. The Parliamentary Assembly is convinced
of the importance of a healthy and sustainable environment. It notes
that climate change has now become a global concern of humankind:
it puts at risk the integrity of all ecosystems and biodiversity
and poses serious threats to the enjoyment of people’s human rights
and fundamental freedoms, including the right to life and the right
to respect for private and family life enshrined in Articles 2 and
8 of the European Convention on Human Rights (ETS No. 5). Such urgent
challenges to humankind need to be addressed by Council of Europe
bodies without delay.
2. The Assembly recalls that by acceding to the 1992 United Nations
Framework Convention on Climate Change, member States of the Council
of Europe committed themselves to achieve stabilisation of greenhouse gas
(GHG) concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system. Moreover,
member States that ratified the 2015 Paris Agreement have committed
themselves to limit global warming to well below 2°C, preferably
to 1.5°C, compared to pre-industrial levels.
3. Therefore, by acceding to these two treaties, member States
of the Council of Europe have recognised their legal responsibility
for climate change at national, European and international levels
and thus, indirectly, the concept of “climate justice”. While human
rights law may prove useful for ensuring the protection of the environment
and for countering climate change, other areas of law, including
criminal and civil law, play an increasingly important role in “climate
litigation”. The Dutch case Urgenda Foundation
v. the Netherlands, in which the domestic courts confirmed
the State’s duty to prevent dangerous climate change and further
cut its GHG emissions, clearly shows that this type of litigation
can be successful.
4. The Assembly has always endeavoured to promote environmental
protection and to promote the role of the Council of Europe, which
was responsible, inter alia,
for drawing up the Convention on the Protection of the Environment
through Criminal Law (ETS No. 172) and the Convention on Civil Liability
for Damage Resulting from Activities Dangerous to the Environment
(ETS No. 150). Therefore, it is disappointed that these two conventions
have not attracted the number of ratifications necessary to enter
into force.
5. Therefore, the Assembly calls on Council of Europe member
States to give renewed attention to these two treaties without delay.
In light of the current circumstances, member States should reflect
as a matter of urgency on whether there is a need to revise or replace
these treaties, in order to adapt them to the current challenges
related to climate change.
6. Moreover, recalling the United Nations “Guiding Principles
on Business and Human Rights – Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework” (“United Nations Guiding Principles”),
the Committee of Ministers Recommendation CM/Rec(2016)3 on human
rights and business, and its own
Resolution 2311 (2019) and
Recommendation 2166 (2019) “Human
rights and business – what follow-up to Committee of Ministers Recommendation
CM/Rec (2016)3?”, the Assembly stresses that it is now widely recognised
that businesses have responsibility for human rights abuses, including
in the environmental field, and that the victims of such abuses
shall have access to an effective remedy.
7. Therefore, the Assembly calls on member States of the Council
of Europe to:
7.1 ensure that relevant
legal instruments are available to respond to environmental and
other harm caused by climate change; in this context, access to
judicial remedies (civil, criminal and administrative), to both
prevent and compensate for harm caused by climate change in relation
to actions or omissions by the State, natural and/or legal persons,
is essential;
7.2 implement national courts’ judgments delivered in climate
litigation cases;
7.3 ensure that non-governmental organisations working for
environmental protection and human rights protection are entitled
to launch proceedings against States and private entities for conduct
that might have an impact on climate change;
7.4 ensure an enabling environment for environmental human
rights defenders and refrain from any acts of intimidation or reprisal against
them;
7.5 strengthen corporate liability by establishing companies’
duty of vigilance, requiring them to detail their activities affecting
the environment, and therefore climate change;
7.6 ensure that corporate social responsibility for preventing
and remedying environmental harm is taken into account in procurement
contracts and the allocation of public funds;
7.7 ensure that any person with an interest in climate litigation
has effective access to appropriate information on environmental
matters and the risks related to climate change;
7.8 provide training and workshops on the specificities of
environmental law and aspects of climate change for judges and legal
practitioners.
8. As regards reinforcing criminal liability for acts and omissions
that might have an impact on climate change or cause other severe
environmental damage, the Assembly calls on member States of the
Council of Europe to:
8.1 strengthen
their co-operation as regards pursuing a common criminal policy
aimed at the protection of the environment;
8.2 give priority to the harmonisation of laws on liability
for environmental damage, with special focus on the definition of
environmental crimes and sanctions related thereto;
8.3 revise or replace, as soon as possible, Convention ETS
No. 172 in order to have a legal instrument better adapted to the
current challenges;
8.4 ensure that the most serious environmental crimes are
punished with appropriate severity, by introducing relevant sanctions
in their criminal legislation and by effectively prosecuting the
perpetrators of such crimes;
8.5 consider introducing the crime of ecocide into their national
criminal legislation, if they have not yet done so;
8.6 consider recognising universal jurisdiction for ecocide
and the most serious environmental crimes, including in the 1998
Rome Statute of the International Criminal Court.
9. As regards reinforcing civil liability for acts and omissions
that might have an impact on climate change or cause other severe
environmental damage, the Assembly calls on member States to:
9.1 ratify Convention ETS No. 150
and take the necessary measures to adapt it to the current challenges;
9.2 strengthen civil liability for environmental damage by
amending national civil law legislation, if need be, in particular
by alleviating the burden of proof, notably by establishing factual
presumptions regarding causation, for persons requesting compensation
for damage, adding specific provisions on responsibility for ecological
harm, and/or by expanding the scope of strict liability in relevant
situations relating to environmental damage.
10. The Assembly also invites Council of Europe member States
that are also member States of the European Union to promote the
revision of the relevant European Union legal instruments concerning
liability for environmental damage, including Directive 2008/99/EC
of the European Parliament and of the Council on the protection
of the environment through criminal law and Directive 2004/35/EC
of the European Parliament and of the Council on environmental liability
with regard to the prevention and remedying of environmental damage,
in order to adapt them to current challenges, including climate
change, in line with relevant international and Council of Europe
standards.
11. The Assembly also calls on member States of the Council of
Europe to fulfil all their commitments stemming from the United
Nations Framework Convention on Climate Change and the Paris Agreement.
12. It also calls on them to enhance their co-operation with other
international organisations, in particular the United Nations, the
World Bank, the Organisation for Economic Co-operation and Development
(OECD) and the European Union, in order to consolidate coherent
standards on legal responsibility for conduct that might have an
impact on climate change and promote implementation of the United
Nations Guiding Principles. In particular, member States of the
Council of Europe should support the adoption of a legally binding
instrument on business activities and human rights, which is now
being examined by the United Nations’ Open-ended intergovernmental
working group on transnational corporations and other business enterprises
with respect to human rights.
