19 June 2003
Environment and human rights
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group
I. Conclusions of the Committee
1. The Committee on Legal Affairs and Human Rights shares fully with the Committee on the Environment, Agriculture and Local and Regional Affairs its conviction of the importance of a healthy, viable and decent environment, and agrees that the time has come to consider ways in which legal protection can be extended to help prevent environmental damage.
2. The Committee on Legal Affairs and Human Rights has, however, in its role as legal advisor to the Parliamentary Assembly, some apprehension as to the extent to which the European Convention on Human Rights and Fundamental Freedoms is an appropriate means to achieve this aim. It is also afraid that the European Convention on Human Rights and its Court would be given tasks beyond their competence and means. Accordingly it would propose certain amendments intended to ensure that the mechanisms of judicially-enforced human rights protection are applied only to those areas of environmental protection for which they are suitable.
II. Amendments proposed by the Committee on Legal Affairs and Human Rights to the draft recommendation
In paragraph 3, replace the words after “the time has come to consider” with the following:
“legal ways in which the human rights protection system can contribute to protection of the environment.”Am
In paragraph 4, replace the words after “distinguish itself by recognising” with the following:
“appropriate legal procedural safeguards against arbitrary environmental degradation.”Am
At the end of paragraph 6, add the following sentence:
“Article 9 of the Aarhus Convention stipulates that this right of access to justice is intended to provide a legal review procedure to persons receiving deficient responses from public authorities to requests for environmental information.”Am
In paragraph 8, replace the words after “concerning the recognition of” with the following:
“individual procedural rights, intended to strengthen environmental protection, to the rights set out in the European Convention on Human Rights.”
In paragraph 9.a., replace the words after “protection of the life” with the following:
“, health, family and private life, physical integrity and private property of persons, as protected by Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Protocol No 1, by also taking particular account of the need for environmental protection,”
In paragraph 9.b., after the words “protect the environment”, add the following:
“, in national laws, preferably at constitutional level,”Am
In paragraph 9.c., after the words “safeguard the individual” and before the word “rights”, add the word “procedural”.
In paragraph 10.a, replace the words after “concerning recognition of the” with the following:
“individual procedural rights, intended to strengthen environmental protection, as set out in the Aarhus Convention;”
After paragraph 10.a. add the following text:
“furthermore, as an interim measure in preparation for the drafting of an additional protocol,
ii. draw up a recommendation to member states setting out the ways in which the European Convention on Human Rights provides individual protection against environmental degradation, proposing adoption at national levels of an individual right to participation in environmental decision-making, and indicating a preference, in relation to cases concerning the environment, for a broad interpretation of the right to an effective remedy guaranteed under Article 13;”
In paragraph 10.b., replace the words “this text” with “these texts”.
III. Explanatory memorandum
by Mr Jurgens, Rapporteur
1. In its Recommendation 1431 (1999) the Assembly recommended inter alia that the Committee of Ministers examine the feasibility of
“drafting an amendment or an additional protocol to the European Convention on Human Rights concerning the right of individuals to a healthy and viable environment”.
2. The well-documented draft report by Mrs Agudo of the Environment Committee repeats this recommendation, next to other recommendations concerning international treaties obliging states to protect the environment. The Legal Affairs Committee of course supports strongly the idea that the Council of Europe should promote the very important objective of giving the citizens of Europe a healthy and viable environment by way of developing and supporting international treaties that serve this aim.
3. That is why the rapporteur for opinion has restricted himself to the element mentioned in the first paragraph. It would seem that the Legal Affairs Committee was not sufficiently alert to this point when the Assembly accepted the 1999 Recommendation because, from a legal point of view, the specific recommendation of adding an individual “right to a healthy, viable and decent environment” to the European Convention could turn out to be counter-productive.
4. This can be illustrated by the difference – correctly described in the Agudo report – between, on the one hand, the individual, claimable rights enshrined in the European Convention on Human Rights (ECHR); and on the other, rights whose purpose is to regulate environmental matters, which citizens can exert on the basis of national laws that are often themselves the result of international treaties. If these national laws give effect to specific policies intended to grant distinct rights to citizens, and these rights are matched by definite legal obligations imposed on national authorities and on private parties, then it can be possible for the judiciary to adjudicate on citizens’ claims that these laws have not been implemented.
5. However, if we give citizens a broadly formulated individual right to a healthy environment without being more specific as to the basis on which and against whom a citizen can in fact make a claim arising from that right, it becomes difficult for a judge to adjudicate. For what can the – already overloaded – Court in Strasbourg do if a citizen complains that the air or the water in his country is polluted, citing against the respondent state his or her general right to a healthy environment? It would be necessary to confirm that only those suffering injury or damage could bring a case on becoming aware of an unregulated source of pollution. The Court would not be able to condemn the respondent government in a general way, and would in most cases have no guidelines as to the specific measures it could require of that country. The broadly formulated right does not define them, with the result that the type and extent of remedy cannot clearly be determined. It would thus be impossible to evaluate execution of judgments.
6. Certainly, the existing articles of the Convention, especially Article 2 (right to life) and Article 8 (respect for family and private life, including physical and moral integrity), have been interpreted by the Court in such a way that, in specific and appropriate cases, unhealthy environmental conditions (e.g. fumes from a waste disposal plant, or intense aircraft noise) can be construed as a violation of the Convention2. In these cases it was clear what measures could be taken to end the violation for the individual concerned. The Court will presumably persist in developing its selective case law in this matter. Recognizing a general “right to a healthy environment” could well topple this carefully constructed edifice.
7. It would consequently seem wise – with a view to securing the acceptance and implementation of the Agudo report by the Assembly and subsequently by the Committee of Ministers – to narrow down the too generally formulated human right to a healthy environment to those elements that could more easily fit into the existing Convention and into the case law of the Court. To do this the rapporteur for opinion would like to make use of paragraph 2.5 of the Agudo report, which refers to the “procedural triad” described in Article 1 of the Aarhus Convention of 1998 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It would seem that these elements at least of the right to a healthy environment could properly be formulated as individual rights within the Convention, as they can be seen as variations on existing rights – particularly Articles 10 (freedom of information) and 8 (which has been interpreted by the Court to incorporate a right to information), and Article 6 (fair trial, including access to a court) – and thus fit within the terms of the Convention and the conceptual foundations of its case law.
8. An interim measure in preparation for the drafting of an additional protocol would be to ask the Committee of Ministers to draft a Recommendation to member states. This could elaborate the individual rights of protection against environmental degradation which are already implicit in the ECHR and which have been elaborated in the jurisprudence of the Court. In addition, it could encourage member states to guarantee a right to participation in environmental decision-making, and could also indicate a preference for a broad interpretation of Article 13 (the right to an effective remedy) with respect to cases concerning these ‘environmental rights’. Since, as noted above, the Convention and its jurisprudence already offer extensive individual protection against the adverse consequences of environmental degradation, this approach could still ensure effective implementation of most of the main provisions of the Aarhus Convention. It must also be noted that, of the Aarhus ‘triad’ of rights, an individual right to participation is the most problematic from the point of view of identifying those to whom it should apply in any given situation: indeed, such a right has not as yet been elaborated in the jurisprudence of the ECHR. Before being made enforceable under the ECHR, therefore, this "right" should first be developed and clarified under national laws. Furthermore, a recommendation would have the great advantages of simplicity and expedition when compared with the process involved in drafting and adopting an additional protocol. It would, therefore, amount to a measure offering more immediate protection prior to the adoption of an additional protocol.
9. It must be remembered that, despite its enormous success in advancing the protection of a particular range of human rights in Europe, the ECHR is not an instrument that is appropriate for all forms of rights. The ECHR was intended to protect a narrow range of rights and its mechanisms designed specifically with those rights in mind; it is not structured for nor capable of the protection of all rights addressed by international instruments. Its past achievements are not a guarantee of limitless resilience: indeed this very success can generate risks to its future integrity and to the capacity of the Court to work effectively in enforcing its provisions. These risks include the temptation to extend its jurisdiction to other forms of rights of uncertain content, scope and application. The inclusion of such ‘untested’ rights – which to a large extent could require primary elaboration not on national political and legal levels but through the caselaw of a pan-European judicial body – could not only undermine the standing of the Court but threaten it with an unmanageable burden of new applications (at a time when the level of applications is already a serious problem), to the detriment of protection of the rights currently included. The rapporteur for opinion therefore feels that further precision of the individual right of participation in decision-making in environmental matters is essential to ensure that its incorporation into the ECHR system is not premature. Accordingly it should first be implemented and the relevant principles developed under legislation at national levels, before the further step of protection under the ECHR via an additional protocol.
10. Before placing this opinion before the Legal Affairs Committee, I took the liberty of conferring with Mrs Agudo and obtaining her support for certain possible amendments to her draft recommendation. As a result of our discussions, a preliminary draft opinion was presented to the Environment Committee on 29 April for its consideration. The Environment Committee accepted all of the amendments on which Mrs Agudo and I had agreed. In addition to these amendments, however, I had included a further amendment as a result of insights gained after the discussions held with Mrs Agudo during the March/April part-session. Unfortunately, I had not the opportunity to explain this to her before the meeting of the Environment Committee of 29 April last, due to the short time available. This additional point concerns the idea of a Committee of Ministers’ Recommendation as a provisional interim measure to be implemented as a preparatory step prior to elaboration of a Protocol to the ECHR; it would appear in an amended recommendation as paragraph 10.a.ii. On learning of their discomfort with this proposal, therefore, I took the step of further elaborating this explanatory memorandum and of clarifying the purpose of the amendment which would introduce a new paragraph 10.a.ii to the recommendation. I hope this change has made the text acceptable.
Reporting committee: Committee on the Environment, Agriculture and Local and Regional Affairs.
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8369, Reference No 2377 of 26 April 1999
Opinion approved by the committee on 5 June 2003
Secretaries to the committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner
1 See Doc 9791 tabled by the Committee on the Environment, Agriculture and Local and Regional Affairs.
2 See for example López Ostra v. Spain (23/11/94) and Guerra & otrs v. Italy (19/2/98).