Draft Council of Europe convention on the Protection of the Environment through Criminal Law
Opinion 305
(2025)
| Provisional version
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 10 April 2025
(16th sitting) (see Doc.
16120 and Doc.
16150, report of the Committee on Social Affairs, Health and
Sustainable Development, rapporteur: Ms Yuliia Ovchynnykova). Text adopted by the Assembly on 10 April
2025 (16th sitting).
1. Protecting
the environment against harm from human activity has become one
of the international community’s major concerns, triggered by the
understanding that the health of the planet and the well-being of humans
are closely tied together. European nations have joined the global
action by supporting the United Nations Sustainable Development
Agenda, the Paris Agreement on Climate Change and the European Green Deal.
Through the 2023 Reykjavik Declaration, the Council of Europe member
States recognised the urgency of action on the triple planetary
crisis by committing to work “on the human rights aspects of the
environment … in line with United Nations General Assembly Resolution
76/300 ‘The human right to a clean, healthy and sustainable environment’”.
2. Together with the draft Council of Europe Strategy on the
Environment and a related action plan, the new draft Council of
Europe Convention on the Protection of the Environment through Criminal
Law (“the draft Convention”) will be part of the environmental package
submitted for adoption by the Committee of Ministers on 14 May 2025.
3. The Parliamentary Assembly welcomes the conclusion of work
by the European Committee on Crime Problems on this new draft Convention
which is set to replace and supersede the 1998 convention on the
same matter (ETS No. 172). The new Convention, when adopted and
implemented, will be the first international legally binding instrument
to address environmental crime, covering a wide range of offences,
including a particularly serious offence which encompasses conduct
that many term “ecocide”. The draft Convention builds on international
treaties and legal standards relating to environmental protection,
human rights and transnational crime, including a series of Council
of Europe legal instruments.
4. The Assembly recalls that its Recommendation 2213 (2021) “Addressing
issues of criminal and civil liability in the context of climate
change” asked the Committee of Ministers to “conduct a study on
the notion of ‘ecocide’, its introduction into domestic legislation
and its possible universal recognition” and to draft a new legal
instrument to replace the Convention No. 172 which remains unimplemented.
The Assembly reiterated this call through its Recommendation 2246
(2023) “Environmental impact of armed conflicts” by requesting that the
new Convention would also apply in the context of armed conflicts,
wars or occupation, and that it would cover ecocide. Moreover, Recommendation
2272 (2024) “Mainstreaming the human right to a safe, clean, healthy
and sustainable environment with the Reykjavik process” insisted
on the need to establish an effective monitoring mechanism for the
new Convention.
5. The Assembly notes that the draft Convention aims to effectively
prevent and combat environmental crime, promote national and international
co-operation and set minimum legal standards for States as regards environmental
crime. It welcomes the draft Convention’s emphasis on prevention
through a broad range of punishable offences, awareness-raising
measures among the general public and co-operation with civil society and
non-governmental organisations.
6. The Assembly welcomes the inclusion of provisions in the draft
Convention that specify that it “shall apply in times of peace and
in situations of armed conflict, wartime or occupation” and that
provide definitions of the terms “unlawful”, “water”, “ecosystem”
and “waste”, drawing lessons from member States’ experience and
practical difficulties with the enforcement of criminal law regarding
environmental issues. A definition of ecocide, such as the one proposed
by the Independent Expert Panel for the Legal Definition of Ecocide,
could be added to the Explanatory Report to the Convention in order
to guide member States towards aligning the understanding of this
legal concept and to facilitate its inclusion in national law. In
the same spirit, a tentative definition of the terms “irreversible”,
“widespread”, “substantial” and “long-lasting” used in Article 31
of the draft Convention should be added to the Explanatory Report,
as was originally proposed during the negotiation process. The Assembly
notes that in the French version of Article 31 of the draft Convention,
the French equivalent of the part of the sentence that reads “or
causes long-lasting, widespread and substantial damage” is missing
and should be added.
7. In this context, the Assembly recalls that many stakeholders
worldwide are working towards a recognition of ecocide or widespread,
long-term and severe damage to the environment as a fifth international crime
so that it could be prosecuted by the International Criminal Court.
The European Union’s new Directive 2024/1203 of 11 April 2024 on
the protection of the environment through criminal law lists environmental
offences, including those that can constitute a “qualified offence”
when they are committed intentionally and cause destruction or widespread
and substantial damage that is long-lasting to the environment,
which is similar to a “particularly serious offence” as defined
under the draft Convention.
8. The Assembly considers that there are good reasons to further
raise the level of ambition for this Council of Europe legal instrument.
The current draft of the Convention omits illegal logging and unlawful
fishing among the offences covered. Bearing in mind the 2001 FAO
(Food and Agriculture Organization of the United Nations) International
Plan of Action to fight illegal, unreported and unregulated fishing,
and with due regard to European Union Regulation 1005/2008 establishing
a community system to prevent, deter and eliminate illegal, unreported
and unregulated fishing, an article of the draft Convention concerning
unlawful fishing under Section 5 on natural resources should be
thus reinstated.
9. The Assembly notes that Chapter VIII of the draft Convention
establishes a monitoring mechanism whose scope was reduced during
the negotiations, despite the support of the Assembly’s representatives
for a stronger mechanism. After considering two options modelled
on the Council of Europe Convention on preventing and combating
violence against women and domestic violence (CETS No. 210, “Istanbul Convention”)
(stronger option) and on the Council of Europe Convention on the
Protection of Children against Sexual Exploitation and Sexual Abuse
(CETS No. 201, “Lanzarote Convention”) (weaker option), the weaker option
was retained. The currently proposed monitoring mechanism establishes
the Committee of Parties with modalities of functioning to be determined
by its own rules of procedure.
10. The Assembly notes with concern that, regarding the application
of the Convention, the drafters have accepted a provision under
Article 51.2 (on “Effects of this Convention”) allowing European
Union member States to apply between themselves European Union rules
falling within the scope of this Convention “without prejudice to
the full application of this Convention in their relations with
other Parties”. While this provision might facilitate the ratification
of the Convention by European Union countries and the European Union
itself, the wording of this clause sends a signal to other Parties
about the exceptionalism of the group of European Union countries.
Moreover, Article 56 dealing with reservations contains provisions
for the European Union and its member States to limit the scope
of the term “unlawful” in Article 3.a of the Convention, as well
as the scope of the terms “domestic law” (which should be placed
in the singular here in the French version), “domestic provisions”,
“protected” and “requirement” used for the purpose of defining offences
under Articles 13, 14, 19 to 22 and 26 to 30 of this Convention.
11. In order to strengthen the balance of provisions, render the
draft Convention more comprehensive and enable a more effective
prosecution of environmental crimes, the Assembly proposes the following amendments
to the draft Convention:
11.1 in
the sentence of the Preamble that refers to Assembly resolutions
and recommendations, after the words “that call for the recognition”
add the words “and legal codification”;
11.2 in the English version of the draft Convention, in the
sentence of the Preamble that refers to the resolutions by the General
Assembly of the United Nations, after the words “A/RES/76/185 of”
replace the words “11 January 2022” with the words “16 December
2021”;
11.3 in Articles 12, 16, 17, 18, 20, 21 and 23, after the words
“when committed unlawfully and intentionally” add the words “or
with negligence”;
11.4 in Article 16, replace the word “or” before the word “export”
with a comma and after the word “export” add the words “or release”,
given the particular toxicity and cumulative effects of even small quantities
of mercury or mercury-containing products;
11.5 in Article 25, before the words “the placing on the market
of unlawfully harvested timber” add the words “unlawful harvesting
of timber and” and reword the title of this article to read “Offences
related to unlawful harvesting of timber and related trade”;
11.6 after Article 24, add the following new article:
“Unlawful (illegal, unreported
and unregulated) fishing
1. Parties shall take the necessary legislative measures
to establish as a criminal offence under their domestic law, when
committed unlawfully and intentionally, fishing activities conducted
by national or foreign fishing vessels in maritime waters under
the jurisdiction of a State, without the permission of that State,
or in contravention of its laws, administrative regulations or decisions taken
by competent authorities, including the catching, placing on the
market, processing, importing, or exporting of the products of such
activities, except for cases where the conduct concerns a negligible
quantity.
2. Parties shall take the necessary legislative measures
to establish as a criminal offence under their domestic law, when
committed unlawfully and intentionally, fishing activities conducted
by national or foreign fishing vessels in maritime waters under
the jurisdiction of a State, which have not been reported to that
State or have been misreported to the relevant national authority,
in contravention of national laws, administrative regulations or
decisions taken by competent authorities of that State, except for
cases where the conduct concerns a negligible quantity.
3. Parties shall take the necessary legislative measures
to establish as a criminal offence under their domestic law, when
committed unlawfully and intentionally, fishing through the use
of fishing techniques or other instruments that are destructive
or non-selective with regard to wildlife, or that cause or are likely
to cause the mass destruction of marine animals, plants and their environment.”
11.7 in Articles 27 and 28, replace the words “protected wild
fauna or flora” with the words “protected wild fauna, flora or fungi”,
including in the title of these articles, given that fungi are neither
plants nor animals but a category apart;
11.8 in the French version of Article 31, after the words “des dommages irréversibles, étendus et substantiels,”
add the translation of the words “or causes long-lasting, widespread
and substantial damage”, which is missing in French and should be
as follows: “ou cause des dommages de
longue durée, étendus et substantiels,”;
11.9 in Article 39 on the right to participate in proceedings,
after the words “in accordance with this Convention,” add the words
“as well as the right to request the initiation of a judicial review
of any decision not to prosecute,”;
11.10 delete 56.3.b, thus narrowing the scope of reservations;
11.11 if the proposal above is not retained, in Article 56.3.b
of the French version, replace the words “droits
internes” with the words “droit
interne”, as in the rest of the draft Convention.
12. Finally, the Assembly asks the Committee of Ministers that
appropriate resources be allocated to promote the signature and
ratification of this Convention once it is launched with a view
to ensuring its entry into force as soon as possible.
