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A. Draft resolution
(open)
B. Draft recommendation
(open)
2.1. Progress
towards giving the Council of Europe a leading role
Report | Doc. 15955 | 28 March 2024
Mainstreaming the human right to a safe, clean, healthy and sustainable environment with the Reykjavik process
Committee on Social Affairs, Health and Sustainable Development
Summary
The report highlights the urgent need to formalise the right to a healthy environment within the Council of Europe, underlining the positive developments in its recognition at global level and in national law. Despite States’ different approaches on the issue, a legally binding framework is clearly needed in order to enshrine this right in international law and satisfy the need for the protection of the right to a healthy environment as a human right in a consistent way, possibly through an additional Protocol to the European Convention on Human Rights or an autonomous convention.The report stresses that the right to a healthy environment is unique as it transcends individual rights and encompasses present and future generations, and calls for a responsible, forward-looking strategy. It stresses the importance of capitalising on existing Council of Europe standards and developing strategic environmental governance, including a special intergovernmental committee and a monitoring mechanism. It calls for concrete and concerted action to prevent the Council of Europe from losing its credibility in environmental action.
A. Draft resolution 
(open)1. The Parliamentary Assembly
stresses that the challenge of climate change constitutes the greatest existential
emergency for humankind and that this emergency is mainly due to
the lack of long-lasting structural action.
2. The Assembly notes with dismay that the Council of Europe
is now the only regional human rights system which has not yet formally
recognised the right to a healthy environment.
3. For decades, however, the Assembly has been urging the Council
of Europe member States to take this step. In particular, it reaffirms
its Recommendation 2211
(2021) “Anchoring the right to a healthy environment: need
for enhanced action by the Council of Europe”.
4. The Assembly notes that at the 4th Council of Europe Summit,
held in Reykjavik on 16 and 17 May 2023, the Heads of State and
Government recognised the urgency of additional efforts to protect
the environment, as well as to counter the impact of the “triple
planetary crisis of pollution, climate change and loss of biodiversity”
and its effects on human rights, democracy and the rule of law.
An Intersecretariat Task Force on the Environment was established
in January 2024 and has carried out a stocktaking survey of existing activities,
planned activities and proposals for new activities. It also proposed
elements for the development of a first Council of Europe strategy
on the environment.
5. The Assembly also notes that in 2024, the Committee of Ministers
will have to follow up work on the feasibility of instruments on
human rights and the environment and the draft convention superseding
and replacing the Convention on the Protection of the Environment
through Criminal Law (ETS No. 172).
6. Mindful of the strategic importance of this moment, almost
one year on from the 4th Summit and three years after Recommendation 2211 (2021), the Assembly wishes to update its expectations and
contribute to the implementation of the Reykjavik process through
concrete and realistic proposals.
7. The post-Reykjavik environment Strategy will be implemented
by and for the young generations and must be supported by civil
society. The course must therefore be firmly fixed for the future
and the bar set high as the Council of Europe and its member States
will be held accountable for decades to come. The Assembly considers
that the requirements in terms of accountability must be extremely
strict: transparency, ethics, accessibility, responsibility, efficiency,
and reliability must be the watchwords of all the measures deployed.
8. The Assembly underlines the need for the future strategy to
have a clear goal in terms of setting standards at European level
and encourages decision makers to focus on drawing up a legal binding instrument
recognising an autonomous right to a healthy environment within
the Council of Europe.
9. The Assembly reiterates that the nature, content and implications
of the right to a healthy environment have been widely documented
for decades and have been the subject of a wealth of scientific,
normative and judicial material.
10. The Assembly welcomes the fact that almost all Council of
Europe member States recognise the right to a healthy environment
in one form or another in their national legislation and that some
systems have already adopted an eco-centric view of this right.
11. In terms of governance, ecological transition will not take
place without the buy-in of citizens because of its far-reaching
impact on lifestyles. In the Assembly’s view, this means that the
future strategy must introduce concrete and ambitious measures to
promote social acceptance of environmental policies, ensuring meaningful
and fully-fledged citizen participation at national level.
12. In addition to compliance with environmental standards and
policies, the Assembly encourages measures aimed at strengthening
the resilience of the most vulnerable populations and ensuring their
inclusion without discrimination in the transition to a sustainable
future.
13. The Assembly believes that greater responsiveness can be achieved
through the development of specialised environmental teams in all
branches of governance. This approach should also be encouraged
in the allocation of budgets to courts. For national parliaments
to be involved in such developments and environmental policies in
general entails that they too should have specialised bodies.
14. In the light of these considerations, the Assembly calls on
the Council of Europe member States to:
14.1. continue to reflect continuously at national level on
the nature, content and implications of the right to a healthy environment
so that, in the near future, this right will be recognised in law
as an autonomous human right in each member State;
14.2. step up their efforts to promote, in all governance bodies,
the legitimacy and added value of the Council of Europe playing
a leading role in drawing up a binding legal instrument recognising
an autonomous right to a healthy environment;
14.3. engage in innovative projects to transform environmental
governance and in particular to:
14.3.1. encourage
the introduction of effective citizen participation mechanisms at
national level, such as citizens’ assemblies on climate, to promote
social acceptance of environmental policies;
14.3.2. provide a framework, structure and support for local initiatives
targeting the populations most vulnerable to environmental problems,
such as programmes designed to mobilise young people from working-class
backgrounds;
14.3.3. support the creation of specialised environmental teams
in all branches of governance.
B. Draft recommendation
(open)1. The Parliamentary Assembly
refers to its Resolution ... (2024) “Mainstreaming the human right
to a safe, clean, healthy and sustainable environment with the Reykjavik
process”.
2. The Assembly maintains that the recognition of the right to
a healthy environment must be based on a human rights approach.
In this regard, it reaffirms its Recommendation 2211 (2021) “Anchoring the right to a healthy environment: need
for enhanced action by the Council of Europe”, in which it proposed
complementary tools to achieve this.
3. The Assembly notes that the Council of Europe already offers
a convention ecosystem covering many aspects of the right to a healthy
environment. It sees this as an opportunity to capitalise on existing
standards.
4. The Assembly therefore recommends that the Committee of Ministers:
4.1. actively support the work of
the Intersecretariat Task Force on the Environment established following
the 4th Council of Europe Summit, and carefully consider its proposals
when drawing up a strategy and an action plan;
4.2. give utmost priority to implementing the encouragement
made in Reykjavik to set up an ad hoc intergovernmental
committee to organise, co-ordinate and run the implementation of
the strategy and the action plan;
4.3. devote the normative part of the strategy to the formal
recognition of the right to a healthy environment at the level of
the Council of Europe, by developing a binding legal instrument
as soon as possible;
4.4. in so doing, focus on the rapid implementation of Recommendation 2211 (2021), including devising a specific, autonomous instrument
covering substantive rights and procedural matters relating to the
environment that capitalises fully on the standards which have already
been drawn up;
4.5. ensure that the draft convention superseding and replacing
the Convention on the Protection of the Environment through Criminal
Law (ETS No. 172), currently being prepared within the Council of Europe,
incorporates the notion of ecocide as a criminal offense and establishes
an effective monitoring mechanism;
4.6. give the ad hoc intergovernmental
committee a multidisciplinary role, enabling it to act as an interface
between the Council of Europe and civil society in its broadest
sense and to carry out activities aimed at environmental monitoring
and governance as soon as it has been set up;
4.7. highlight the committee’s added value in dealings with
the Organisation’s other bodies, with which effective and focused
partnerships may be established to drive forward change in environmental monitoring
and governance;
4.8. set up a rapporteur group on environmental affairs at
Committee of Ministers level to ensure unity and co-ordination in
decision making.
C. Explanatory memorandum by Mr Simon Moutquin, rapporteur
(open)1. Introduction
1. The Committee on Social Affairs,
Health and Sustainable Development tabled a motion for a resolution entitled
“Mainstreaming the human right to a safe, clean, healthy and sustainable
environment with the Reykjavik process”. The motion was referred
to the committee for report on 23 June 2023 and I was appointed rapporteur
on 19 September 2023.
2. Between 2021 and 2022, the United Nations Human Rights Council
and General Assembly adopted resolutions explicitly recognising
“the right to a clean, healthy and sustainable environment”. This
recognition was in line with the development of regional human rights
instruments which already incorporated this right. In the wake of these developments,
the Council of Europe became an exception: it is now the only regional human
rights system which has not yet formally recognised this right.
Therefore, it is not surprising that at the 4th Council of Europe
Summit (held on 16 and 17 May 2023 in Reykjavik), the Heads of State
and Government acknowledged “the urgency of additional efforts to
protect the environment, as well as to counter the impact of the
triple planetary crisis of pollution, climate change and loss of
biodiversity on human rights, democracy and the rule of law”. The
Parliamentary Assembly welcomes this.
In the wake of these developments,
the Council of Europe became an exception: it is now the only regional human
rights system which has not yet formally recognised this right.
Therefore, it is not surprising that at the 4th Council of Europe
Summit (held on 16 and 17 May 2023 in Reykjavik), the Heads of State
and Government acknowledged “the urgency of additional efforts to
protect the environment, as well as to counter the impact of the
triple planetary crisis of pollution, climate change and loss of
biodiversity on human rights, democracy and the rule of law”. The
Parliamentary Assembly welcomes this.3. Following the Reykjavik Declaration, in January 2024, the
Secretary General set up a new Directorate for Social Rights, Health
and Environment within the Directorate General Human Rights and
Rule of Law, and in particular for the follow-up to the Reykjavik
Process and the Environment. As a result, an Intersecretariat Task
Force on the Environment was established, the first task of which
was to take stock of existing activities, planned activities and
proposals for new activities. It also proposed elements for the
development of a first Council of Europe strategy on the environment.
4. At their 1498th meeting in May 2024, the Ministers' Deputies
will follow up on the proposals of the Task Force. Some weeks after,
in June 2024, the Steering Committee for Human Rights (CDDH) is
expected to present the Committee of Ministers with its conclusions
on the need for, and feasibility of, one or more instruments on
human rights and the environment, following the work of the Drafting
Group on Human Rights and the Environment (CDDH-ENV). At the end
of the year, it will be the turn of the Committee of Experts on the
Protection of the Environment through Criminal Law (PC-ENV) to pass
on the results of its work to draw up a new convention on this issue.
5. This report follows on from my report on “Anchoring the right
to a healthy environment: need for enhanced action by the Council
of Europe” and the related Resolution and Recommendation, which
were adopted unanimously. Almost
one year on from the 4th Summit, it is intended to update and refine
the Assembly’s position in view of the progress made and the political
and legal stumbling blocks highlighted since 2021. The aim is to
use this as a basis to present a roadmap of concrete priorities
designed to respond to the challenges. This will make it possible
for the Assembly to update its expectations at a strategic point
in time, namely that of the beginning of the implementation of the
undertakings made in Reykjavik with a view to securing the human
right to a safe, clean, healthy and sustainable environment.
Almost
one year on from the 4th Summit, it is intended to update and refine
the Assembly’s position in view of the progress made and the political
and legal stumbling blocks highlighted since 2021. The aim is to
use this as a basis to present a roadmap of concrete priorities
designed to respond to the challenges. This will make it possible
for the Assembly to update its expectations at a strategic point
in time, namely that of the beginning of the implementation of the
undertakings made in Reykjavik with a view to securing the human
right to a safe, clean, healthy and sustainable environment.6. While financial, geopolitical and health crises have taken
frontstage recently and overshadowed the attention which was paid
in 2021 to the challenge of climate change, this is without any
doubt the greatest existential emergency for humankind and requires
immediate and concerted action.
2. Three major steps forward in the form of postulates
2.1. Progress
towards giving the Council of Europe a leading role
7. According to the United Nations
Special Rapporteur on the issue of human rights obligations relating
to the enjoyment of a safe, clean, healthy and sustainable environment,
in 2019, over 80% of UN member States (156 out of 193) recognised
the right to a healthy environment in their national legislation
in one form or another. The
nature, content and implications of the right to a healthy environment
have been widely documented for decades and have been the subject
of a wealth of scientific, normative and judicial material.
The
nature, content and implications of the right to a healthy environment
have been widely documented for decades and have been the subject
of a wealth of scientific, normative and judicial material.8. On the European continent, some States have adopted specific
laws, others have already incorporated an eco-centric view into
their system and others have only codified environmental protection
as a constitutional principle or objective. The definition,
scope, content and legal enforceability of the right therefore vary considerably
from one State to another. Another factor, albeit present to differing
degrees depending in particular on the States’ commitments to environmental
treaties, is the case law of domestic courts, which helps directly
or indirectly to shape the right to a healthy environment at national
level. Indeed, in most
States which recognise the right to a healthy environment in their
national legislation, this right is enforceable before the administrative
or constitutional courts.
The definition,
scope, content and legal enforceability of the right therefore vary considerably
from one State to another. Another factor, albeit present to differing
degrees depending in particular on the States’ commitments to environmental
treaties, is the case law of domestic courts, which helps directly
or indirectly to shape the right to a healthy environment at national
level. Indeed, in most
States which recognise the right to a healthy environment in their
national legislation, this right is enforceable before the administrative
or constitutional courts.9. Consequently, the reflection into the nature, content and
implications of the right to a safe, clean, healthy and sustainable
environment is under way and answers are being found at national
level. The embedding process at this level has been set in motion
and it will not stop. In Recommendation CM/Rec(2022)20 on human rights
and the protection of the environment, the Committee of Ministers
encouraged the member States to continue this process and to look
on the right to a healthy environment as a key human right for the
enjoyment of other human rights. The Reykjavik Declaration transformed
this aim into an undertaking to actively consider recognising the
right to a clean, healthy and sustainable environment at national
level as a fully-fledged human right.
10. The fact that this recognition is not the result of a common
or universal understanding of the substantive content of the right
to a healthy environment among the Council of Europe member States
should not act as any kind of curb on progress. This is an evolving
and volatile fact, as the changes are rapid, as evidenced by the
abundance of litigation proceedings pending before the courts of
the Council of Europe member States. Nor has the lack of a common
understanding ever prevented the European Court of Human Rights
from gradually building up its case law on the environment or on
any other subject.
11. Nonetheless, it seemed to me, that some member States have
been using this lack of common or universal understanding as a pretext
to distance themselves from the Council of Europe’s work in this
area, or even to deny it its legitimacy or its added value when
it comes to environmental matters. At the end of the day, it is
not of great matter that there is no common understanding. There
is no question of the Council of Europe substituting itself for
parliaments or governments – its aim is to provide them with a minimum
standard.
12. The lack of a common understanding would on the contrary seem
to indicate that the time has indeed come for the member States
to define the content of this right and its function in the European
context. This would allow them to clarify their understanding along
shared lines while leaving them with some discretion to decide how
to meet their obligations. Besides the political necessity for the
Council of Europe, such a definition would have the advantage of
guiding national legislation and would contribute greatly to legal
certainty. It would also enable Council of Europe member States
to influence any subsequent changes relating to the right to a healthy
environment at international level.
2.2. Towards legally binding formalisation
13. The Assembly could welcome
the fact that the CDDH-ENV has focused on the need and feasibility
of one or more instruments establishing a legal recognition of the
right to a healthy environment within the Council of Europe. The
Assembly trusts that in the follow up to this work, the Committee
of Ministers will go beyond the mere political recognition of the
right to a healthy environment envisaged by the Reykjavik Declaration.
Political recognition has been achieved at least since the political
impetus given by the Georgian Presidency through the High-Level
Conference of 2020 on Environmental Protection and Human Rights,
which was taken up by the following presidencies and,
more recently, by Recommendation CM/Rec(2022)20 and by the Icelandic Presidency
of the Committee of Ministers and of course the Reykjavik Declaration
itself.
and,
more recently, by Recommendation CM/Rec(2022)20 and by the Icelandic Presidency
of the Committee of Ministers and of course the Reykjavik Declaration
itself.14. We will assume therefore that the need to recognise an autonomous
right to a healthy environment is no longer in doubt from a political
viewpoint following the Reykjavik Summit. Any retreat from this
position would not be credible.
15. The challenge of the post-Reykjavik period lies in formalising
this right on a legal level. This is a real headache, which the
CDDH-ENV has been trying to disentangle for three years now so that
the Committee of Ministers can take an informed position.
16. I often hear it said that the Assembly’s work carried out
in 2021, which was at the core of the CDDH-ENV’s work, focused on
adding a protocol to the European Convention on Human Rights. This
is partly true. We did indeed make the effort of preparing a draft
protocol in advance to show that this was not an impossible task
from a legal and semantic viewpoint. This being
said, this proposal was not exclusive and was designed to complement
other options which the Assembly recommended to be considered in
combination with one another.
This being
said, this proposal was not exclusive and was designed to complement
other options which the Assembly recommended to be considered in
combination with one another.17. We proposed thus to complement the other leading treaty of
the Council of Europe protecting human rights (the revised European
Social Charter (ETS No. 163)) through the explicit recognition of
the right to a healthy, safe, clean and sustainable environment
through an additional protocol; to consider drawing up a separate
and comprehensive convention containing provisions on the “Five
Ps” of Prevention, Prosecution of violations of the right to a safe,
clean, healthy and sustainable environment, Protection of victims,
so that the Contracting States adopt effective and Perennial “integrated
Policies”, including a supranational monitoring mechanism along
the lines of a committee of independent experts; and to revise Recommendation
CM/Rec(2016)3 on human rights and business.
18. The heart of the campaign and the Assembly’s position therefore
were to work at least towards the preparation of a legally binding
Council of Europe instrument to guarantee the right to a safe, clean,
healthy and sustainable environment. This
should still be the Assembly’s position three years on.
This
should still be the Assembly’s position three years on.19. This position is all the more true since, in the meantime,
the Council of Europe member States all voted, on 26 July 2022,
in favour of recognising this right in a non-binding legal instrument,
namely Resolution 76/300 of the General Assembly of the United Nations. This is an approach which the
Reykjavik Declaration proposed to retain (Appendix V, point i).
I see no interest, save a purely symbolic one, in reproducing the content
of this resolution in a non-binding form in the framework of the
Council of Europe.
This is an approach which the
Reykjavik Declaration proposed to retain (Appendix V, point i).
I see no interest, save a purely symbolic one, in reproducing the content
of this resolution in a non-binding form in the framework of the
Council of Europe.2.3. Towards the recognition of an autonomous right to a healthy environment
20. The Assembly’s efforts to recognise
an autonomous right to a safe, clean, healthy and sustainable environment
go back to 1999 and were given new impetus in 2021 through Resolution 2396 (2021) and Recommendation
2211 (2021) “Anchoring the right to a healthy environment: need
for enhanced action by the Council of Europe”.
21. By recognising an autonomous right, what we mean is a recognition
which goes beyond the “greening” of the human rights contained in
the European Convention on Human Rights and the revised European
Social Charter, which was made necessary by the impact on respect
for fundamental rights of the deterioration of the environment and
the climate. I will not dwell therefore on the progressive integration
of environmental protection into the case law of the Court due to
the failure to respect the right to life (Article 2) in the most
serious cases, or the right to a private life (Article 8) in cases
of “serious breaches” with an adverse impact on the well-being or
health of citizens, or on the case law of the European Committee
of Social Rights (ECSR) in its work of interpreting the right to
protection of health (Article 11). However much this might teach
us, it is an indirect and fragmented approach which falls far short
of the real and current challenges. The Court sums this up perfectly:
the crucial element which must be present in determining whether,
in the circumstances of a case, environmental pollution has adversely
affected one of the rights safeguarded by the Convention is the existence
of a harmful effect on a person’s private or family sphere (or a
person’s life or health) and not simply the general deterioration
of the environment. Similarly, the ECSR
has been able to decide that a State party is not in conformity
with the Charter under the “right to a healthy environment” because
of the shortage of measures taken to protect the health and safety
of the persons concerned or
to guarantee access to adequate housing.
Similarly, the ECSR
has been able to decide that a State party is not in conformity
with the Charter under the “right to a healthy environment” because
of the shortage of measures taken to protect the health and safety
of the persons concerned or
to guarantee access to adequate housing. 22. The outcome of climate cases pending before the European Court
of Human Rights should not fundamentally change matters in this
respect. At
best, these cases will be a test to determine whether the Convention
system, as it is currently designed, is suited to countering the
indirect infringements resulting from damage linked to climate change. In addition,
supposing the Court examines the substance of these cases, it is
difficult to see how a more obvious “greening” of human rights would
be politically desirable in view of the risk that the Court will
thereby be in a position to impose economic and political choices
regarding the environment on governments. I emphasise this point
to counter the argument long used by the Committee of Ministers
to oppose the Assembly’s calls for recognition of the autonomous
right to a healthy environment, lastly in its reply to Recommendation 2211 (2021). In the Assembly’s view, only a move
by governments to recognise this right is essential and will enable
the Council of Europe to remain legitimate in the 21st century.
At
best, these cases will be a test to determine whether the Convention
system, as it is currently designed, is suited to countering the
indirect infringements resulting from damage linked to climate change. In addition,
supposing the Court examines the substance of these cases, it is
difficult to see how a more obvious “greening” of human rights would
be politically desirable in view of the risk that the Court will
thereby be in a position to impose economic and political choices
regarding the environment on governments. I emphasise this point
to counter the argument long used by the Committee of Ministers
to oppose the Assembly’s calls for recognition of the autonomous
right to a healthy environment, lastly in its reply to Recommendation 2211 (2021). In the Assembly’s view, only a move
by governments to recognise this right is essential and will enable
the Council of Europe to remain legitimate in the 21st century.23. The aforementioned campaign by the Assembly was the starting
point for the current debate on the recognition of the right to
a healthy environment at the Council of Europe. At its final meeting
(19‑21 March 2024), the CDDH-ENV completed the task for which it
was appointed by the CDDH, namely its assessment of the options
tabled by the Assembly and civil society. The approach adopted was
intended to be all-embracing insofar as each option was considered
on its own and in combination with others so as to highlight how
each option or combination of options could offset the shortcomings
of others.
3. The need for realism in paving the way after Reykjavik
3.1. May the end not compromise the means
24. The final decisions on the
follow-up to the Reykjavik Summit’s environment goals are for the governments
to take, as represented at the Council of Europe by the Ministers
and their Deputies. The Assembly’s role at this stage is to give
its opinion on the minimum orientations needed to get the most out
of the activities under way and to trace the outlines of the strategy.
25. It is important to set a clear goal. In this respect, the
Assembly should encourage the decision makers, having confirmed
that the Reykjavik process was officially launched in political
terms, not to fall short of the postulates which this report has
reiterated above and to centre a part of the strategy on drawing
up a binding legal instrument recognising an autonomous right to
a healthy environment within the Council of Europe.
26. After this, it is crucial, for the means deployed as part
of the strategy, to be based on high standards in terms of accountability:
transparency, ethics, accessibility, responsibility, efficiency
and reliability must thread themselves through all the measures
deployed. The post-Reykjavik environment strategy will be implemented by
and for the young generations and must be supported by civil society.
Our course must be resolutely set for the future, and we should
be setting the bar high, as the Council of Europe will be held accountable
for decades to come.
3.2. An approach based on human rights but not only
27. What approach should we take?
Clearly, we should continue to favour the human rights-based approach dating
back to the Stockholm Conference of 1972 and firmly reiterated in
the Reykjavik Declaration. We cannot emphasise too much that it
proclaims a form of “public order” linked to ethics and human dignity
with which the environment is closely connected.
28. We should not abandon the approach that the Assembly has advocated
for decades (see above), but it is becoming increasingly obvious,
with the speed at which environmental problems are growing and intensifying,
that a new reality has emerged: the right to a healthy environment
is unique, it “is both a human right and a right transcending humankind”, and
it relates to a shared human asset belonging to present and future
generations. Bearing this in mind, the Council of Europe’s standard
human rights treaties may prove too narrow and ill-equipped to guarantee
environmental human rights effectively as they are obliged to propose one-off
solutions at a (quasi)individual level to global problems.
and
it relates to a shared human asset belonging to present and future
generations. Bearing this in mind, the Council of Europe’s standard
human rights treaties may prove too narrow and ill-equipped to guarantee
environmental human rights effectively as they are obliged to propose one-off
solutions at a (quasi)individual level to global problems. 29. It seems inevitable therefore that as we devise future norms,
we will be forced to question the anthropocentric nature of the
right to a healthy environment and rethink the approach centring
on individual rights when drafting an autonomous convention. Such
a process will moreover allow for the standard-setting process in
the environmental sphere to progress notwithstanding the current
priority of the Convention, namely the accession process of the
European Union, which is now accepted and likely to mobilise energies
for several years to come.
3.3. An inclusive format drawing from the framework of existing conventions
30. The Council of Europe’s experience
in protecting the environment goes beyond human rights, covering the
ecological management of landscapes, protection of wildlife, public
health and a multitude of procedural requirements which are needed
to promote the environmental cause. The preamble to Appendix V to
the Reykjavik Declaration recognises this legitimacy.
31. Indeed, the diversity of the standard-setting arsenal which
the Council of Europe has set up through its compulsory norms is
indisputable. The Convention on the Conservation of European Wildlife
and Natural Habitats (1979, ETS No. 104, “Bern Convention”) is a
unique international instrument. The Landscape Convention (2000,
ETS No. 176, “Florence Convention”), initiated by the Congress of
Local and Regional Authorities, covers all the dimensions of the
landscape. On a procedural level, the Council of Europe’s contribution
is also highly developed. The Convention on Access to Official Documents
(2009, CETS No. 205, “Tromsø Convention”) concerns access to information,
access to public participation in decision-making processes and
access to justice, particularly in the environmental sphere. The
Convention on Civil Liability for Damage resulting from Activities
Dangerous to the Environment (1993, ETS No. 150, “Lugano Convention”) grants locus standi to environmental associations
and foundations, establishes the polluter pays principle and recognises
pure ecological damage. The Convention on the Protection of the
Environment through Criminal Law (1998, ETS No. 172), which is currently
being replaced, was the first international instrument to make it compulsory
to criminalise environmentally damaging behaviour.
grants locus standi to environmental associations
and foundations, establishes the polluter pays principle and recognises
pure ecological damage. The Convention on the Protection of the
Environment through Criminal Law (1998, ETS No. 172), which is currently
being replaced, was the first international instrument to make it compulsory
to criminalise environmentally damaging behaviour.32. This diversity presents an opportunity to consider all the
aspects of the right to the environment and devise a specific, autonomous
and inclusive instrument covering substantive rights and procedural
matters. It encourages us to capitalise fully on the standards which
have already been drawn up.
33. This will enable the member States to rationalise the undertakings
they have already entered into while working towards new commitments
where they prove essential for the proper respect of life on earth.
A priority task in this area will be standard-setting work on the
responsibility of private sector partners. There is no shortage
of codifying instruments in this field. The United Nations Guiding
Principles on Business and Human Rights, Recommendation
CM/Rec(2016)3 on human rights and business and the Guidelines for
Multinational Enterprises on Responsible Business Conduct of
the Organisation for Economic Co-operation and Development (OECD)
will help the Council of Europe gain time in drawing up and expanding
responsible business conduct standards. We are also awaiting the
imminent results of the work of the ad
hoc drafting group of the Standing Committee of the Bern
Convention, initiated in 2022, aimed at strengthening and ensuring
the sustainability of its financing system.
Recommendation
CM/Rec(2016)3 on human rights and business and the Guidelines for
Multinational Enterprises on Responsible Business Conduct of
the Organisation for Economic Co-operation and Development (OECD)
will help the Council of Europe gain time in drawing up and expanding
responsible business conduct standards. We are also awaiting the
imminent results of the work of the ad
hoc drafting group of the Standing Committee of the Bern
Convention, initiated in 2022, aimed at strengthening and ensuring
the sustainability of its financing system. 34. In the same vein, we can fully support the terms of reference
of the PC-ENV appointed by the Committee of Ministers in 2022 to
draft a new convention on the protection of the environment through
criminal law. In certain respects, the initial convention of 1998
had to be clarified and updated. This momentum should not be lost
by waiting for the formal adoption of the EU Directive on the protection
of the environment through criminal law intended to replace Directive
2008/99/EC. Referring
to Resolution 2477 (2023) and Recommendation 2246
(2023) “Environmental Impact of Armed Conflicts”, I am of the
opinion that the Council of Europe stands to gain by thinking bigger
and moving away from the notion of qualified infringement as outlined
in the Directive, to embrace that of “ecocide” and establish an
effective monitoring mechanism.
Referring
to Resolution 2477 (2023) and Recommendation 2246
(2023) “Environmental Impact of Armed Conflicts”, I am of the
opinion that the Council of Europe stands to gain by thinking bigger
and moving away from the notion of qualified infringement as outlined
in the Directive, to embrace that of “ecocide” and establish an
effective monitoring mechanism.4. A dynamic triangle empowered by suitable and adaptable modes of governance
35. In addition to the normative
aspect, a key element of the strategy will be to demonstrate creativity
and develop a genuine strategic vision regarding the modes of governance,
including monitoring and co-operation.
4.1. Priority number one – the Reykjavik Committee
36. The Reykjavik Declaration contains
a truly groundbreaking feature, namely a call to create a “new intergovernmental
committee on environment and human rights”; it also acknowledges
that the Council of Europe has “both the tools and the structures
to address human rights and the environment, in the spirit of co-operation
and by sharing experience and promising practice”.
37. The foremost urgency, immediately following the ministerial
session of May 2024, lies in the establishment of this ad hoc committee to organise, co-ordinate
and run the implementation of the Strategy and the action plan,
not only from a standard-setting viewpoint (see above) but also
in terms of governance. This operational committee, whose cross-cutting
tasks will call for close internal co-operation between the various
sectors of the Secretariat, will work closely together with the
recently established intersecretariat Task Force.
38. The Assembly is not against the idea of the Reykjavik Committee
being made up of intergovernmental experts if they benefit from
the expertise and responsiveness of specialised ministries. Its
working methods could be based initially on those of the European
Commission against Racism and Intolerance (ECRI) at the time of
its creation and centre on three main activities: collecting and
promoting examples of good practice on a country-by-country basis,
making practical recommendations to States, and ensuring interaction
with civil society in its broadest sense, namely the scientific
and academic world, youth associations, citizens’ movements, environmental
campaigners and groups speaking on behalf of people who are the
most economically and socially vulnerable or most exposed to environmental
degradation. It goes without saying that the Reykjavik Committee
can count on the support of the Assembly and its Parliamentary Network
for a Healthy Environment to disseminate its work in national parliaments.
4.2. A creative role under constraint
39. It is clear from the information
available to the Assembly that the Reykjavík Committee will immediately face
a constraint, namely the limited means provided for in the 2024-2025
budget to deploy the projects and activities for the implementation
of the commitments made in Reykjavik. However, the budget can and
should be revised for 2025. The Reykjavik Committee will have to
play a creative role, capitalising on the Organisation’s existing
capacity and resources. I propose three projects focusing on methods
of environmental governance which could be launched without additional
resources and would reflect the added value and visibility of the
Council of Europe without delay.
40. The first would be to contribute to the construction of social
acceptance of environmental policies through fully-fledged citizen
participation at national level. Because of its far-reaching impact
on lifestyles, ecological transition will not take place without
the consent of citizens and this calls for a change to the rules
of the game based on a bottom-up model. Several European States
have already seen the development of very interesting local initiatives
such as the emergence of a new deliberative model for environmental
policy making through the creation of citizens’ assemblies on climate or
support and education for groups of young people from working-class
backgrounds to mobilise around entrepreneurs, which
should be supervised, structured and promoted to increase their
legitimacy and their public profile. Within the Council of Europe,
the Reykjavik Committee could draw on the experience and activities
of the Congress of Local and Regional Authorities and establish
a partnership with this institution, which is increasingly present
in this field.
or
support and education for groups of young people from working-class
backgrounds to mobilise around entrepreneurs, which
should be supervised, structured and promoted to increase their
legitimacy and their public profile. Within the Council of Europe,
the Reykjavik Committee could draw on the experience and activities
of the Congress of Local and Regional Authorities and establish
a partnership with this institution, which is increasingly present
in this field.41. I seek to go beyond mere compliance with environmental norms
and policies. My ultimate goal is to integrate a social perspective
into all environmental public policies. Recognising that the most
vulnerable populations are often the first affected by environmental
challenges, we must promote initiatives that not only protect our
environment but also strengthen the resilience of marginalised communities
and ensure their inclusion in the transition to a sustainable future.
42. The second is to promote the development of specialised environmental
teams at all levels of governance and hence improve the response
potential. At government level, besides encouraging the creation of
ministerial portfolios focusing on the environment, there has been
a boom in the creation of specialist agencies or bodies tasked with
advising the government, and this would be worth cultivating. This
approach should also be promoted when equipping the courts, whether
it be through specialised judicial bodies, specialist court divisions
or special summary environmental proceedings. Whether judicial,
administrative or constitutional, national or international, they
are all concerned and climate justice stands to gain from greater expertise.
For national parliaments to be involved in such developments and
environmental policies in general entails that they too should have
specialised bodies. At the Council of Europe level, the Reykjavik
Committee will report to the Committee of Ministers, which could
set up a rapporteur group on environmental affairs. It could also
work with the European Commission for the Efficiency of Justice
(CEPEJ) to investigate the benefits of setting up a working group
on ways of increasing the efficiency of climate justice.
43. The third relates to the enhancement in practice of legal
protection for environmental defenders. The Council of Europe Commissioner
for Human Rights has made recommendations on the way in which the stakeholders
could better protect and support their work. In
the context of the Convention on Access to Information, Public Participation
in Decision-making and Access to Justice in Environmental Matters
(“Aarhus Convention”), a rapid response mechanism has been established
to protect environmental defenders and a first Special Rapporteur
for this new system has been appointed. The
Reykjavik Committee could contribute to the establishment of a legal
support programme specially designed for such defenders.
In
the context of the Convention on Access to Information, Public Participation
in Decision-making and Access to Justice in Environmental Matters
(“Aarhus Convention”), a rapid response mechanism has been established
to protect environmental defenders and a first Special Rapporteur
for this new system has been appointed. The
Reykjavik Committee could contribute to the establishment of a legal
support programme specially designed for such defenders.4.3. The Grail – a complaints and monitoring mechanism
44. In the longer term, the most
effective governance tool which comes to mind, because of the experience acquired
by the Organisation in human rights through the European Court of
Human Rights and the European Committee of Social Rights, is the
introduction, at the Council of Europe level, of a complaints mechanism against
State and non-State bodies and an environmental monitoring procedure.
45. Embarking on such an ambitious project will require major
analytical, logistical and financial means. Nor would it be possible
for the Reykjavik Committee, at first glance, to go ahead with this
without conducting a feasibility study to complement that already
carried out by the CDDH-ENV, geared to the choices that the Committee
of Ministers will have made about the normative step forward.
46. The Council of Europe has established robust models that have
proven their effectiveness and could serve as inspiration. In addition
to expanding the jurisdiction of treaty bodies through the addition
of substantive rights, the Assembly had discussed in 2021 the establishment
of an independent expert committee, such as the Group of Experts
on Action against Trafficking in Human Beings (GRETA), the Group
of Experts on Action against Violence against Women and Domestic
Violence (GREVIO) or the ECRI. More ambitious models could
also fuel the debate such as the European Commission for Democracy
through Law (Venice Commission) and the Commissioner for Human Rights.
More ambitious models could
also fuel the debate such as the European Commission for Democracy
through Law (Venice Commission) and the Commissioner for Human Rights.47. In my view, the option which seems most in keeping with the
current challenges is the appointment of a special representative
of the Secretary General for environment and human rights. His or
her task would be to examine complaints and, in connection with
this, but also on his or her own initiative, to lead investigations
and carry out analyses and assessments on specific environmental
issues, by examining, with the help of a team with an adequate and
stable budget, environmental policies, practices and consequences
in the member States.
48. This special representative could be given the power to call
on independent experts enabling him or her to outsource the establishment
of scientific facts. Environmental matters are often very complex
and call on the advanced scientific knowledge in the areas of climate,
health, environment, biodiversity, natural disasters, etc. It is
important for the Council of Europe to set an example and not to
use this complexity as a pretext to remain inactive.
49. A special representative would also raise the profile of the
Reykjavik Committee and would enable the Council of Europe to be
represented at a technically and politically high level in world
events and forums on environmental issues.
5. Conclusion
50. The follow-up to the Reykjavik
Declaration is a living process, many parameters of which will be discussed
and analysed over the long term. For the moment, this follow-up
lacks a binding element to bring all the work together. It is to
be hoped that this contribution by the Assembly will provide a source
of inspiration and that the Committee of Ministers will shift its
position so that it can contribute unequivocally to efforts to remedy
the shortcomings.
51. This will require resolute political action and commitments,
along with the budgetary resources needed to build a comprehensive
and efficient Council of Europe framework for the protection of
the environment and counter the impact of its degradation on human
rights, which is the extraordinary challenge of our times.
52. I would point out that the Council of Europe’s raison d’être
and credibility are at stake. The Organisation is expected, especially
by the younger generations, to make up the time lost. I hope that
this report will be the last to note for the umpteenth time the
disparity between the Assembly’s decades-long call for the Council
of Europe to step up its environmental activities and the actual
progress in this area.