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A. Draft opinion
(open)
Report | Doc. 16150 | 08 April 2025
Draft Council of Europe convention on the protection of the environment through criminal law
Committee on Social Affairs, Health and Sustainable Development
A. Draft opinion 
(open)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.
B. Explanatory memorandum by Ms Yuliia Ovchynnykova, rapporteur
(open)1. Introduction and background
1. Over the last decade we have
seen a growing collective awareness by the international community
of the need for stronger action to protect the environment. Thus,
the United Nations Sustainable Development Agenda and the Paris
Agreement on Climate Change were adopted in 2015, the European Green
Deal was launched in 2019, and Council of Europe member States recognised
the urgency of action on the triple planetary crisis by committing
– through the 2023 Reykjavik Declaration – to work “on the human
rights aspects of the environment based on the political recognition
of the right to a clean, healthy and sustainable environment as
a human right, in line with United Nations General Assembly Resolution
76/300 ‘The human right to a clean, healthy and sustainable environment’,
and by pursuing the implementation of Committee of Ministers Recommendation
CM/Rec(2022)20 on human rights and the protection of the environment”.
2. The Parliamentary Assembly has followed these international
and European processes by pleading for stronger legal instruments
that would engage European nations into concrete action to better
protect our living environment. I wish to single out Assembly Recommendation
2213 (2021) “Addressing issues of criminal and civil liability in
the context of climate change”, which has 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 without delay a new legal instrument to replace the
Convention on the Protection of the Environment through Criminal
Law (ETS No. 172), which remains unimplemented due to the lack of
ratifications”.
3. The Assembly reiterated this call through its Recommendation
2246 (2023) “Environmental impact of armed conflicts” by asking
the Committee of Ministers to “ensure that the revised version of
the Convention on the Protection of the Environment through Criminal
Law (ETS No. 172) being prepared by the Council of Europe applies
also in the context of armed conflicts, wars or occupation, and
that it covers 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 for the new draft
Convention to incorporate the notion of ecocide as a criminal offence
and to establish an effective monitoring mechanism. I greatly appreciate the
decision of the Committee of Ministers to set up a drafting group
(PC-ENV) tasked with the preparation of the new criminal law convention
on the protection of the environment. I have represented our Assembly, together
with colleagues from the Assembly’s Committee on Legal Affairs and
Human Rights, in the work of this drafting group.
4. The PC-ENV completed its work on the new draft Convention
and the related draft Explanatory Report in October 2024. Following
the validation of these two draft texts by the European Committee
on Crime Problems, the Committee of Ministers decided to transmit
them on 26 February 2025 to the Assembly for a statutory opinion.
The Assembly seized the Committee on Social Affairs, Health and
Sustainable Development for a report on this matter and I was appointed
rapporteur.
5. This report will first present a brief overview of the negotiation
process that led to the conclusion of the draft texts as they stand
(see Appendices 1 and 2 in Doc.
16120) at present. I will then give my observations and assessment
on these draft texts and will propose some amendments for the consideration
and endorsement of the Assembly. I wish to thank my colleagues Thórhildur
Sunna Ævarsdóttir (Iceland, SOC) and Constantinos Efstathiou (Cyprus,
SOC), members of the Assembly’s Committee on Legal Affairs and Human Rights,
for their support and contribution to the process of drawing up
the draft Convention, as well as the secretariat for fruitful co-operation
in the preparation of this report.
2. The negotiations on and the main features of the draft Convention
6. The PC-ENV was entrusted with
the preparation of a new Council of Europe Convention on the Protection
of the Environment through Criminal Law, replacing and superseding
the 1998 Convention on the Protection of the Environment through
Criminal Law (ETS No.172), which has never entered into force. There are
different opinions on why the original convention failed to attract
the requisite number of ratifications. Some have alleged that certain
features of the old convention did not meet the endorsement of many
member States; others believe that the old text did not pass the
scrutiny of time as many new legal developments occurred after the
launch of that legal instrument for signature; and finally, too
little attention was paid to the promotion of this text while member
States of the European Union (EU) adopted Directive 2008/99 on the
protection of the environment through criminal law (“the 2008 Directive”).
7. It is important to note that an evaluation of the 2008 Directive
revealed serious problems with the enforcement of criminal law regarding
environmental issues in EU member States. Critics
also pointed out problems with the definition of unlawfulness, appropriate
remedies for environmental harm and lack of capacity at the European
level to monitor compliance of the implementation of domestic environmental
law. The EU adopted a new environmental crime directive on 11 April
2024 right before the PC-ENV finalised the text of the new draft
Convention of the Council of Europe. The EU negotiators were very
significantly involved in the process in Strasbourg. In fact, they
dominated in the negotiations on the Council of Europe Convention.
Critics
also pointed out problems with the definition of unlawfulness, appropriate
remedies for environmental harm and lack of capacity at the European
level to monitor compliance of the implementation of domestic environmental
law. The EU adopted a new environmental crime directive on 11 April
2024 right before the PC-ENV finalised the text of the new draft
Convention of the Council of Europe. The EU negotiators were very
significantly involved in the process in Strasbourg. In fact, they
dominated in the negotiations on the Council of Europe Convention.8. The PC-ENV held five meetings between April 2023 and October
2024. Its work was based on contributions from experts on environmental
crime, notably representatives designated by member States, observer
States and certain entities of the Council of Europe, such as the
Assembly, the Office of the Commissioner on Human Rights and the
European Court of Human Rights. Selected international and European
organisations were very actively involved (the EU represented by
the European Commission, the UN, INTERPOL and non-governmental organisations
such as the Global Initiative to End Wildlife Crime, Wild Legal
and the Wildlife Justice Commission).
9. The draft Council of Europe Convention builds on a number
of international treaties and legal standards relating to environmental
protection, human rights and transnational crime, including a series
of Council of Europe legal instruments, as listed in the Preamble
to the Convention. The
Assembly’s call for the recognition and codification of ecocide
is partly included in the Preamble which also refers to the fact
that ecocide “is already covered by the law of certain member States
of the Council of Europe and is being discussed at the international
level”. However, this formulation does not encourage our member
States to consider joining the ranks of countries that have codified
ecocide through national criminal law.
The
Assembly’s call for the recognition and codification of ecocide
is partly included in the Preamble which also refers to the fact
that ecocide “is already covered by the law of certain member States
of the Council of Europe and is being discussed at the international
level”. However, this formulation does not encourage our member
States to consider joining the ranks of countries that have codified
ecocide through national criminal law.10. The stated purpose of the new draft Convention is to prevent
and combat environmental crime, promote national and international
co-operation and establish minimum legal standards for States as
regards environmental crime, so as to enhance the protection of
the environment. The 58 articles in the Convention, grouped into
chapters and sections, cover the main areas (purposes, scope, definitions;
integrated policies and data collection; prevention; substantive
criminal law; investigation, prosecution and procedural law; international
co-operation; measures for the protection of victims, witnesses
and persons who report offences or co-operate with justice authorities;
monitoring mechanism; relationship with other sources of international law;
amendments to the Convention; final clauses).
11. I welcome the drafters’ emphasis on prevention through awareness-raising
among the general public and co-operation with civil society and
non-governmental organisations. I also appreciate that in terms
of scope the new draft Convention “shall apply in times of peace
and in situations of armed conflict, wartime or occupation”, a provision
that was included following the Assembly’s proposal. The original
convention (ETS No. 172) did not include such a provision.
12. Article 3 of the new draft Convention provides definitions
of the terms “unlawful”, “water”, “ecosystem” and “waste”. As mentioned
in paragraph 7 above, the term “unlawful” was one of the problematic
aspects of the EU’s 2008 Directive, which was subsequently fixed
through the new directive in 2024, and the new draft Convention
of the Council of Europe also takes this development into account.
The definition of “ecosystem” helpfully provides comprehensive coverage
of “a dynamic complex of plant, fungi, animal and micro-organism communities”
and their environment which interact closely and include various
habitats. The Convention seeks to protect the environment in a wide
sense, encompassing all natural resources (such as air, soil, and
water, ecosystems and the services and functions they provide, wild
fauna and flora, and habitats). However, biodiversity-related offences
listed under Articles 27 to 29 do not mention fungi, which are neither
plants nor animals but rather a separate kingdom of life.
13. The new draft Convention, being the first international legally
binding instrument to address environmental crime, covers a broad
range of criminal acts (“offences”) that aggravate the triple planetary
crisis of climate change, pollution and biodiversity loss. It will
guide States in the prevention, prosecution and sanctioning of the
most serious criminal offences such as unlawful pollution, unlawful
management of hazardous waste, unlawful operation or closure of
installations concerning dangerous activities or substances, unlawful
recycling of ships and ship-source discharges of polluting substances,
unlawful mining and trade in unlawfully harvested timber, unlawful
trading in wild fauna or flora and the unlawful deterioration of
protected habitats.
14. The drafters of the Convention have recognised that the criminal
offences relating to intentional unlawful conduct as specified in
the text can lead to particularly severe – irreversible or long-lasting,
widespread and substantial – harm to the environment or destruction
caused by intentional acts. Accordingly, the Convention includes
a provision entitled “particularly serious offence”, encompassing
conduct comparable to “ecocide”, which is already covered by the
law of certain member States of the Council of Europe and which
is being discussed in international forums. While welcoming the
inclusion of this provision, I regret that the Council of Europe
missed the opportunity to play a pioneering role in offering a possible
definition of ecocide (for example, based on the work of the Independent
Expert Panel for the Legal Definition of Ecocide ) in this context in order to guide
our member States towards aligning an understanding of this legal
concept, which would merit being explicitly codified in national
law.
) in this context in order to guide
our member States towards aligning an understanding of this legal
concept, which would merit being explicitly codified in national
law.15. The new draft Convention contains specific provisions concerning
jurisdictional reach (covering both national and extraterritorial
offences), corporate responsibility and the sanctions and aggravating circumstances
for sentencing (such as when the offence led to “severe and widespread,
or severe and long-term, or severe and irreversible damage” to an
ecosystem; involvement in organised crime; offences committed by
public officials; or offences generating substantial financial gains
for the perpetrator). With regard to jurisdictional reach and liability
of legal persons (Articles 33 and 34), I note that Parties to the
Convention will be required to establish jurisdiction over any offences
specified in the text when they are committed, inter alia, by their nationals not
only on the territory of the Party but also that of another State; criminal liability
of legal persons can only be invoked by the Party on its own territory.
criminal liability
of legal persons can only be invoked by the Party on its own territory.16. Article 35 of the draft Convention outlines sanctions and
measures to ensure that the offences set out in the draft Convention
are effectively punishable while taking into account the gravity
of the offence committed. This article also includes some positive
measures such as an obligation for Parties to “establish due diligence schemes
for enhancing compliance with environmental standards”. Moreover,
the provisions on the freezing, seizure and confiscation of proceeds
of crime (or property of equivalent value) that derive from offences covered
by the Convention have a dissuasive effect – provided that information
is disseminated widely and the prosecution is effective.
17. We should note and welcome provisions aimed at developing
a transversal approach to the protection of the environment by acknowledging
the need to strengthen national strategies, resources, training
of professionals and protection of victims, witnesses, whistle-blowers
and persons co-operating with the authorities, as well as to promote
international co-operation, which are all crucial to effectively
prosecuting environmental crimes across borders.
18. Chapter VIII of the draft Convention establishes a light monitoring
mechanism whose ambition was significantly reduced during the negotiations
despite the support of Assembly 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 foresees to establish a Committee
of Parties with the modalities of functioning to be determined by
its own rules of procedure. The Assembly, the Commissioner for Human Rights,
the European Committee on Crime Problems and other relevant Council
of Europe intergovernmental committees will be asked to appoint
a representative to the Committee of the Parties while civil society
and NGO representatives may be admitted as observers. Only States
Parties to the Convention will have the right to vote in the future
Committee of the Parties.
19. Importantly, as with all recent legal instruments of the Council
of Europe, this Convention will be open for signature by non-member
States and the European Union (Articles 53 and 54). In line with
established practice, the text specifies that accession is open
to “the non-member States which have participated in its elaboration”;
other non-member States may be invited to accede to the Convention
– after its entry into force – upon invitation by the Committee
of Ministers and by unanimous vote of the Parties entitled to sit
on the Committee of Ministers. The Convention shall enter into force
after ten ratifications, including by at least eight member States
of the Council of Europe.
20. With regard to the application of the draft Convention, the
drafters have accepted a provision under Article 51.2. allowing
EU member States to apply between themselves EU regulations falling
within the scope of this draft Convention. This should facilitate
the accession of EU countries and the EU itself to the Convention. At
the same time, the wording of this clause sends a signal to other
Parties about the exceptionalism of the group of EU countries. Similarly,
Article 56 dealing with reservations contains complex opt-outs for
the European Union and EU countries concerning the scope of interpretation
of the terms “unlawful”, “domestic law”, “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.
3. Areas for improvement of the draft Convention
21. While welcoming the conclusion
of work of the drafting group on the new draft Convention, I believe
that there are good reasons to raise the level of ambition for this
Council of Europe legal instrument, which should reflect even more
strongly the values we stand for. I am aware that corporate lobbies
have been working hard in different European capitals to influence
the negotiating positions and dilute the draft text. Parliamentarians should
be aware that some offences were taken out from the draft text at
the request of the EU delegates. Thus, the offence related to unlawful
fishing was removed from the draft Convention.
22. In the same spirit, the Assembly should insist not only on
the recognition of ecocide as softly mentioned in the Preamble,
which refers to relevant Assembly resolutions and recommendations,
but also on its codification within the domestic and international
legal order. This would be a more complete reference to the Assembly’s
position expressed on several occasions (notably through Recommendation
2246 (2023) and Recommendation 2272 (2024)). I therefore wish to
propose that the words “and legal codification” be added before
the words “of ecocide” in the Preamble.
23. This would help recognise the efforts of the Council of Europe
member States that already have legal provisions on ecocide in their
domestic law (such as for example my own country Ukraine, as well
as Armenia, Belgium, France, Georgia, the Republic of Moldova) and
would encourage those that do not to consider doing this at the
earliest opportunity. Having provisions on ecocide has its importance
for the prevention of particularly serious harm to the environment
at national level through the dissuasive power.
24. We should recall that the issue of ecocide has been increasingly
discussed on the international stage, providing an opportunity for
various initiatives to attract greater support and recognition.
Since the Russian Federation’s full-scale war of aggression against
Ukraine, damage to the environment is scarring Ukraine. Notable
examples include the destruction of the Kakhovka hydropower plant
and the systematic devastation of ecosystems in eastern Ukraine;
they constitute what can be described as ecocide or a particularly
serious crime under the draft Convention because of the deliberate,
long-term, widespread and substantial environmental destruction
caused. Gaps in the international legal framework can lead to irresponsible behaviour
and impunity. For instance, Russian drone attacks on the shelter
of Reactor 4 at the Chornobyl Nuclear Power Plant could lead to
a massive release of radiation and environmental contamination affecting not
only Ukraine but also a number of European countries.
25. In this context, we should recall that many stakeholders worldwide
are working towards making ecocide recognised as a fifth international
crime so that it could be prosecuted by the International Criminal
Court (ICC). The EU’s new directive on the protection of the environment
through criminal law of 11 April 2024 sets out minimum
standards and increased penalties for a list of 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.
sets out minimum
standards and increased penalties for a list of 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. 26. To better guide Parties, the Explanatory Report to the draft
Council of Europe Convention could also make reference to the definition
of ecocide as proposed by the Independent Expert Panel for the Legal Definition
of Ecocide and
could include a tentative definition of the terms “irreversible”,
“widespread”, “substantial” and “long-lasting” used in Article 31
of the draft Convention as was originally proposed during the negotiation
process. This document should also lay the groundwork for the regulatory
framework governing the concept of ecocide and comparable environmental
crime by developing relevant criteria and a system for assessing
compliance with these criteria, as well as determining the legal
responsibility of States in this respect.
and
could include a tentative definition of the terms “irreversible”,
“widespread”, “substantial” and “long-lasting” used in Article 31
of the draft Convention as was originally proposed during the negotiation
process. This document should also lay the groundwork for the regulatory
framework governing the concept of ecocide and comparable environmental
crime by developing relevant criteria and a system for assessing
compliance with these criteria, as well as determining the legal
responsibility of States in this respect.27. A number of articles relating to various offences, evoke acts
committed unlawfully and intentionally. However, proving intention
might be very difficult; adding the words “or with negligence” would
facilitate the prosecution of reckless behaviour when such negligence
can cause particularly extensive harm to the environment and/or
death or serious injury of persons. I propose that these words be
added in Articles 12, 16, 17, 18, 20, 21 and 23. Such negligent
behaviour is also mentioned in the new EU Directive 2024/1203 on
the protection of the environment through criminal law.
28. Under Article 16 concerning offences related to mercury, the
provisions tackle the unlawful and intentional “manufacture, use,
storage, import or export of mercury, mercury compounds and mixtures
of mercury and mercury-added products” when such conduct can cause
death or serious harm to persons or the environment. However, any
deliberate release of mercury or mercury-containing substances into
the environment is not mentioned. I propose adding words “and release”
after the word “export” so as to avoid any ambiguity.
29. Referring to comments under paragraph 21 above, bearing in
mind the 2001 FAO (Food and Agriculture Organization of the United
Nations) International Plan of Action to prevent, deter and eliminate
illegal, unreported and unregulated fishing and with due regard to the EU Regulation
to prevent, deter and eliminate illegal, unreported and unregulated
fishing which entered into force on 1 January 2010, I wish to propose to reinstate an
article of the draft Convention concerning unlawful fishing under
Section 5 on natural resources, as follows:
and with due regard to the EU Regulation
to prevent, deter and eliminate illegal, unreported and unregulated
fishing which entered into force on 1 January 2010, I wish to propose to reinstate an
article of the draft Convention concerning unlawful fishing under
Section 5 on natural resources, as follows:“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.”
30. Article 25 of the draft Convention
is devoted to “Offences related to trade in unlawfully harvested
timber”. However, it does not mention illegal logging and centres
only on the trade-related aspects of unlawfully harvested timber.
Yet, illegal logging can occur both in Europe and beyond; it can
be carried out for purposes other than trade. While the EU legal
framework covers illegal logging and associated trade (Regulation
(EU) 995/2010 and Regulation (EC) 2173/2005), as well as deforestation-free
products (Regulation (EU) 2023/1115), aiming to address all deforestation
and forest degradation to produce commodities, it only applies to
EU countries. As the Council of Europe Convention
covers a much broader geographical area, it is necessary to make
this article more comprehensive by adding the words “unlawful harvesting
of timber and” before the words “the placing on the market of unlawfully
harvested timber”.
As the Council of Europe Convention
covers a much broader geographical area, it is necessary to make
this article more comprehensive by adding the words “unlawful harvesting
of timber and” before the words “the placing on the market of unlawfully
harvested timber”.31. Articles 27 to 29 of the draft Convention deal with offences
related to unlawful acts concerning protected wild fauna, flora
and habitats. However, they do not cover fungi (such as mushrooms),
which are neither plants nor animals but a category apart. To make
the draft Convention more comprehensive and inclusive, fungi could be
explicitly listed together with protected wild fauna and flora under
Articles 27 and 28.
32. Under Article 39 (Right to participate in proceedings), the
Assembly should restate its support to the addition of words concerning
judicial review by adding the words “as well as the right to request
the initiation of a judicial review of any decision not to prosecute”
after the words “in accordance with this Convention”. I believe
this addition would strengthen the balance of the provision and
render it more comprehensive.
4. Conclusions
33. We should warmly welcome the
conclusion of work on the draft Council of Europe Convention on
the Protection of the Environment through Criminal Law. When the
Committee of Ministers finalises, adopts and opens it for signature,
as is hoped for on 14 May 2025 as part of the “environmental package”
(also containing the draft Council of Europe Strategy on the Environment
and an Action Plan), the new Convention would replace and supersede
the 1998 Convention on the Protection of the Environment through
Criminal Law (ETS No.172).
34. This new Convention will be the first international legally
binding instrument to address environmental crime, covering a wide
range of offences, including a particularly serious offence that
is comparable to ecocide. However, the list of offences omits unlawful
fishing and illegal logging, much to our regret, which reflects
the complexity of legal and commercial arguments to the detriment
of environmental protection rationale. The new Convention will apply
at all times, including times of peace and in situations of armed
conflict, wartime or occupation; the original convention (ETS No.
172) did not include such a provision.
35. Ratification of the new Convention will be open to member
States of the Council of Europe, non-member States that have participated
in its creation and the European Union. Other non-member States
of the Council of Europe can be invited to accede to the Convention
only after its entry into force with ten ratifications, acceptance
or approval (including by at least eight member States of the Council
of Europe) and the unanimous agreement of the Parties that are member
States of the Council of Europe. It is to be hoped that the Multidisciplinary
Group for the Environment and its successor will promote the new
legal instrument and will facilitate swift accession by States.
36. We should note the significant, in fact dominant, involvement
of the EU in the drafting of the Convention. While this contribution
was most valuable on certain aspects of the new Convention, it also
served to lower the level of ambition for the Council of Europe
legal instrument, especially with regard to the weaker option for
the monitoring mechanism chosen, an opt-out provision for EU countries
in terms of reservations and the exclusion of the offence of unlawful
fishing. Although this approach might facilitate the accession of
the European Union and its member States to the new Convention,
the weakening of provisions creates an uneven playing field and reduces
the added value of the Convention. I do hope that the draft Convention
can still be strengthened by including the proposals for additions
by the Assembly.
37. I therefore propose for the Assembly’s statutory opinion to
include several amendments concerning the call to the member States
of the Council of Europe to codify the notion of ecocide within
the domestic and international legal order, as well as additional
words concerning offences related to mercury, unlawful fishing and
unlawful logging, negligent behaviour and with regard to judicial
review of criminal proceedings to ensure more comprehensive coverage
of criminal behaviour. Finally, the Assembly should in due course
join the collective effort to promote the signature of the new Convention
by the member States of the Council of Europe and States whose Parliament
enjoys observer or partner for democracy status.