Parliamentary Assembly
Assembl�e parlementaire

Environment and human rights
Recommendation 1614 (2003)

Doc. 10041
24 January 2004

Reply from the Committee of Ministers
adopted at the 869th meeting of the Ministers’ Deputies (21 January 2004)

1.         The Committee of Ministers has taken note with interest of the Parliamentary Assembly’s Recommendation 1614 (2003) on Environment and human rights and has carefully examined it.  It has brought the recommendation to the attention of member states and has communicated it to the Steering Committee for Human Rights (CDDH) and to the Committee for the Activities of the Council of Europe in the field of biological and landscape Diversity (CO-DBP) for comments and opinions were received from them (see Appendices I and II).

2.         The Committee of Ministers recognises the importance of a healthy, viable and decent environment and considers, like the Assembly, that, accordingly, human rights which may be relevant to the protection of the environment need to be effectively protected.

3.         The Committee of Ministers is aware that several member states have already included in their Constitutions provisions on the protection of the environment, formulated as a right and/or as a state objective.  A programmatic provision on environmental protection has also been included in the Charter of Fundamental Rights of the European Union in Article 37, which provides that “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

4.         Although the European Convention on Human Rights does not expressly recognise a right to the protection of the environment, which, as pointed out by the CO-DBP Bureau, is an international concern that emerged after the coming into force of the Convention, the Committee of Ministers notes that the Convention system already indirectly contributes to the protection of the environment through existing Convention rights and their interpretation in the case-law of the European Court of Human Rights.  For the reasons indicated by the CDDH, it does not consider it appropriate to draft an additional protocol to the Convention or a recommendation in this field at this stage.

5.         However, the Committee of Ministers agrees with the CO-DBP that new legal ways should be sought in which the human rights protection system can contribute to the protection of the environment and, therefore, endorses the proposal made by the CDDH of drafting an appropriate instrument, in the form of guidelines or a manual, recapitulating the rights as interpreted in the Court’s case-law.  Such an instrument could also emphasise the need to strengthen environmental protection at national level, notably as concerns access to information, participation in decision-making processes and access to justice in environmental matters.  The Committee of Ministers shares the view that by making more explicit the protection indirectly afforded by the Convention to the environment, an instrument of this kind would also be a useful way of promoting greater awareness in member states of the implications of their existing obligations under the Convention in environmental matters.

6.         The Committee of Ministers has given terms of reference to the CDDH to draft such an instrument.  A representative of the Parliamentary Assembly and of the CO-DBP have been invited to participate in this activity.

Appendix I

Opinion of the CDDH on Recommendation of the Parliamentary Assembly 1614 (2003)
“Environment and human rights”

1.         The Steering Committee for Human Rights (“the CDDH”) shares the belief of the Parliamentary Assembly (“the Assembly”), expressed in Recommendation 1614 (2003) on “Environment and human rights”, that a healthy, viable and decent environment is of paramount importance and that, accordingly, human rights which may be relevant to the protection of the environment need to be effectively protected.

2.         The CDDH notes that the Assembly recommends that the Committee of Ministers: (i) draw up an additional protocol to the European Convention on Human Rights (“the Convention”) (paragraphs 8 and 10 (i)) and (ii) draw up as an interim measure a recommendation of the Committee of Ministers in this area (paragraph 10 (ii)).  The Assembly also recommends that it be represented in any committee entrusted by the Committee of Ministers with responsibility for drafting these texts.

3.         The CDDH acknowledges that neither the Convention nor its additional protocols expressly recognise a right to the protection of the environment.  However, it notes that several member states have already included in their Constitutions provisions on the protection of the environment, formulated as a right and/or as a State objective.  A programmatic provision on environmental protection has also been included in the Charter of Fundamental Rights of the European Union in Article 37, which provides that “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

4.         The CDDH recalls that the Convention system already indirectly contributes to the protection of the environment through existing Convention rights and their interpretation in the case-law of the European Court of Human Rights (“the Court”).  The Court has, for instance, interpreted Article 2 as protecting the rights of victims of fatal accidents caused by government negligence in the environmental field. Moreover, it has held that the State’s positive obligation which derives from Article 2 is also applicable to public activities in the environmental field, notably those liable to give rise to a serious risk for life[1].  Furthermore, Article 8 has become a central provision in the sphere of environment protection: the Court has found that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely”[2]. It is also worth recalling that Article 10 naturally covers the right to information in environmental matters, the right to hold opinions[3] as well as to receive and impart information and ideas[4].  As to the right to the peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1, the Court has also held that it was applicable in environmental matters, for instance where (i) pollution causes loss or degradation of one’s property[5], or (ii) a victim does not receive the full compensation awarded by a domestic court for health deterioration resulting from grave environmental problems[6]. Several judgments of the Court on Articles 6 and 13, notably concerning the protection against water pollution[7], or noise disturbance[8] and air pollution[9] caused by aircrafts, show that these provisions offer procedural protection to individuals in this area.

5.         The CDDH considers that the Court’s case-law shows that the Convention already offers a certain degree of protection in relation to environmental issues. Furthermore, it is likely that the Court’s case-law will continue to evolve in this area.  Therefore, the CDDH is of the opinion that it would not be advisable to draft an additional protocol to the Convention along the lines set out in the Assembly’s Recommendation[10].  Moreover, the CDDH considers that a recommendation of the Committee of Ministers to member states would not appear to be an appropriate measure either, notably in view of the case-law of the Court in this field which is already binding on States Parties.  On the other hand, the CDDH does see merit in the idea of drafting an appropriate instrument, such as guidelines or a manual, recapitulating the rights as interpreted in the Court’s case-law and also emphasising the need to strengthen environmental protection at national level, notably as concerns access to information, participation in decision-making processes and access to justice in environmental matters.  The CDDH believes that such an instrument, by making more explicit the protection indirectly afforded by the Convention to the environment, would also be a useful way of promoting greater awareness in member states of the implications of their existing obligations under the Convention in environmental matters.

6.         Following the Parliamentary Assembly proposals, the CDDH considers that such an instrument could rely on the principles recognised in the Court’s case-law and set out the ways in which the Convention provides indirect individual protection against environmental degradation, including the right to an effective remedy (Article 13 of the Convention) where there is an arguable complaint that a Convention right has been breached.  Such an instrument could also address measures that could be taken at national level in order to give effect to those principles.

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7.         In the light of the above observations, the CDDH proposes that the Committee of Ministers gives it terms of reference to draft such an instrument.  The CDDH would welcome participation of a representative of the Parliamentary Assembly in such an activity.

Appendix II

Comment of the Bureau of the Committee responsible for the activities of the Council of Europe in the field of Biological and Landscape Diversity (CO-DBP) on Recommendation 1614 (2003) of the Parliamentary Assembly: “Environment and human rights”

In response to the decision of the Ministers’ Deputies (Decision No. CM/Del/Dec (2003) 845/3.1), the Bureau of the CO-DBP, following examination of Recommendation 1614 (2003) of the Parliamentary Assembly “Environment and human rights”, issues the following comment.

The Bureau of the CO-DBP:

Recalls the fundamental work carried out by the Parliamentary Assembly during the last 40 years to promote environmental protection, which has launched different legal binding instruments, recommendations, resolutions, policies and strategies for the sake of the environment and particularly our natural heritage;

Recalls that the European Court of Human Rights has the competence to protect, at the European level, those individual rights that are enshrined in the Convention on Human Rights and Fundamental Freedoms of 1950 and the subsequent Protocols annexed to it;

Recalls that the Convention on Human Rights does not make any specific reference to the protection of the environment, an international concern that emerged at a stage ulterior to the coming into force of the Convention.  Therefore, the European Court of Human Rights cannot deal effectively with a number of “new generation” human rights including the right to a sound environment;

Recalls that, for the time being, the environmental protection under the Convention is bound to follow the rules, which apply with regard to the individual protection provided for by it; as for example Article 8 (protection of home, private and family life). An applicant must show that he/she has personally suffered from an act or omission of a State detrimental to the environment. A mere invocation of damage to the environment is not entertainable by the jurisdiction of the Court;

Considers indispensable some changes in the Court’s case law, by bringing forward wide interpretations of the individual damage, not yet covered by the present jurisprudence, such as the environment protection. Furthermore, as recognised by the Parliamentary Assembly, it considers that the time has come to give individuals a recognition of some environmental rights, as proposed in Recommendation 1614 (2003) with regard to the adoption of an additional Protocol to the European Convention of Human Rights;

Is aware of the difficulties of integrating environment protection into the human rights protection instruments;

In conclusion, the Bureau of the CO-DBP:

i)       shares the concern expressed by the Parliamentary Assembly about the deterioration of the environment and its effects on citizens’ health and well-being;

ii)       believes that the time has come to consider new legal ways in which the human rights protection system can contribute to the protection of the environment;

iii)      considers it of interest to examine the European Convention for the Protection of Human Rights and Fundamental Freedoms with the view of reinforcing environment protection;

iv)      also welcomes the proposal of the Parliamentary Assembly to draw up a recommendation to member States;

welcomes the proposal of the Parliamentary Assembly to set up a group of experts to examine the matters above. If requested by the Committee of Ministers, the CO-DBP would be available and very interested in actively contributing to this important task.

[1] European Court of Human Rights, �neryildiz v. Turkey, no. 48939/99, judgment of 18 June 2002 (not final, submitted to the Grand Chamber, before which it is still pending).

[2] European Court of Human Rights, Guerra and Others v. Italy, no. 14967/89, judgment of 19 February 1998;  European Court of Human Rights, Lopez Ostra v. Spain, no. 16798/90, judgment of 9 December 1994.

[3] European Court of Human Rights, Piermont v. France, nos. 15773/89, 15774/89, judgment of 27 April 1995.

[4] European Court of Human Rights, Thoma v. Luxembourg, no. 38432/97, judgment of 29 March 2001.

[5] European Court of Human Rights, �neryildiz v. Turkey, ibid.

[6] European Court of Human Rights, Burdov v. Russia, no. 59498/00, judgment 7 May 2002.

[7] European Court of Human Rights, Zander v. Sweden, no. 14282/88, judgment of 25 November 1993.

[8] European Court of Human Rights, Hatton and Others v. the United Kingdom, no. 36022/97, judgment of   8 July 2003.

[9] European Court of Human Rights, Zimmermann and Steiner v. Switzerland, no. 8737/79, judgment of  13 July 1983.

[10] See in this connection the Reply adopted by the Ministers’ Deputies at their 729th meeting 15 November 2000) to the Parliamentary Assembly’s Recommendation 1431 (1999).