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Doc. 8560

5 October 1999

Future action to be taken by the Council of Europe in the field of environment protection

Report

Committee on the Environment, Regional Planning and Local Authorities

Rapporteur : Mr Lars Rise, Norway, Group of the European People's Party

Summary

      The report raises a number of issues to be considered by the Council of Europe with regard to legal provisions for substantive obligations of states for environmental protection, state responsibility for environmental damage, civil and criminal responsibility of individuals and companies for environmental damage.

      There is still no global convention following the Rio Declaration on sustainable development (1992) that would impose general obligation on states to apply the precautionary principle and to respect the need for a sustainable development, to protect nature and prevent transfrontier pollution. A legally binding Convention on Sustainable Development could be therefore envisaged at European level.

      Furthermore, existing legal instruments of the Council of Europe such as the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (Lugano, 1993) and the Convention on the Protection of the Environment through Criminal Law (Strasbourg, 1998) need to be ratified and implemented in practice. Co-operation between international organisations namely needs to be reinforced in order to provide a coherent framework for efficient implementation of existing legal instruments and further development of environmental law in Europe.

Finally, the report examines the question of access to International Courts in environmental matters and recommends establishing compulsory jurisdiction of international Courts. An amendment or an additional protocol to the European Convention on Human Rights on the environmental rights of individuals is to be considered.

I.       Draft recommendation

1.       According to the recent data and in particular to the last report of the European Environment Agency ("Environment in the European Union at the turn of the century"), the state of European environment is not improving significantly and is in some respects worsening and therefore remains a matter of serious concern.

2.       The Assembly is concerned by increasing threats to the global environment as a result of the continuing releases of damaging substances into the environment and degradation of nature in general, leading among others to loss of biodiversity and desertification, and believes that the Council of Europe has a role to play in the protection of the environment.

3.       Since 1973 the Council of Europe has participated in different co-operation processes and contributed to the development of legal instruments concerning the environment at global and European level, one of its main activities in this field being to ensure the monitoring of the implementation of the Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979).

4.       Environmental legislation has significantly evolved in the last 30 years at European and global level and requires increased co-ordination between international organisations.

5.       Such co-operation needs to focus on efficient implementation of existing legal instruments and on a coherent framework for future legal developments, especially given the new geopolitical context in Europe where these instruments will be implemented. Therefore, close co-operation between the Council of Europe, the United Nations Economic Commission for Europe and the European Union is necessary

6.       On the other hand, the Assembly notes the absence of an overall European legal instrument on sustainable development establishing more precise general obligations on the protection of the environment, including the requirement to apply the precautionary principle and to promote sustainable development.

7.       The Assembly recognises the need to improve the effectiveness of existing international courts in environmental matters, especially by states accepting the compulsory jurisdiction of the International Court of Justice in environmental matters.

8.       The Assembly underlines the important role of the European Convention on Human Rights for the protection of democracy and basic rights and liberties of individuals. In the light of changing living conditions and growing recognition of the importance of environmental issues, it considers that the Convention could include the right to a healthy and viable environment as a basic human right.

9.       It is important also to take note that the International Law Commission of the United Nations (ILC) is in the process of finalising what may become a global convention on state responsibility for environmental damage and that a possible European Convention could be based on this work.

10.       As for the Council of Europe, its Committee of Ministers has recently adopted two significant Conventions - the Convention on civil liability for damage resulting from activities dangerous to the environment (Lugano, 1993) and the Convention on the protection of the environment through criminal law (Strasbourg, 1998) – and it would be crucial for those two conventions to be signed, ratified and implemented by the member states as soon as possible.

11.       The Assembly thus recommends that the Committee of Ministers :

i.       call on all governments of member state to sign and ratify the Convention on civil liability for damage resulting from activities dangerous to the environment (Lugano, 1993) and the Convention on the protection of the environment through criminal law (Strasbourg, 1998) after having modified their national legislation in order to implement those legal provisions on criminal and corporate environmental liability;

ii. instruct the appropriate bodies within the Council of Europe to examine the feasibility of :

a. developing, possibly through a European Charter for the Environment, general obligations of states to apply the precautionary principle and promote sustainable development, protect the environment and prevent transfrontier pollution;

b. drafting an amendment or an additional protocol to the European Convention on Human Rights concerning the right of individuals to a healthy and viable environment;

iii.       increasing co-operation between the Council of Europe and the United Nations Economic Commission for Europe, the European Union and other international organisations with regard to environmental protection, namely by improving recourse to international courts by individuals, non-governmental organisations and unilaterally by states, and by examining the possibilities to develop a European Charter for the Environment.

II.       Explanatory memorandum by the Rapporteur

Contents

1.       Introduction

2.       Substantive Obligations of States for Environmental Protection

      2.1       Conservation of Nature

      2.2.       Prevention of Pollution

      2.3       Procedural obligations

      2.4       Sustainable Development

      2.5       The Precautionary Principle

3.       State Responsibility for Environmental Damage

4.       Access to International Courts in Environmental Matters

5.       Civil and Criminal Responsibility of Individuals and Companies

5.       Human Rights Approaches to Environmental Protection

7.       Conclusions

1.        Introduction

The global environment is threatened by emission of damaging substances, e.g. greenhouse gases and ozone-depleting substances, as well as degradation of nature, leading to loss of biodiversity and desertification. The European environment is also under daily threat. A recent report by the European Environment Agency claims that the state of the European environment is not recovering significantly, and is in some respects worsening, and remains, consequently, a matter of serious concern.1

A number of international legal instruments have been adopted at the global, regional and bilateral level to address environmental problems. Unfortunately their implementation in practice is sometimes inadequate. Therefore, the aim of this report is to focus on the legal instruments at the European level, and to examine to what extent the Council of Europe should initiate amendment of existing or adoption of new instruments.

2.        Substantive Obligations of States for Environmental Protection

2.1. Conservation of Nature

The most important global conventions on the protection of nature are

- the Ramsar Convention on Wetlands of International Importance (1971),

- the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) (1972),

- the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973),

- the Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979) and

- the Convention of Biological Diversity (1992) and

- the Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979) in the European context.

Some of these conventions protect specific species by prohibiting or restricting catch, trade, etc. of these species. The Bern Convention establishes, inter alia, that picking of plants listed in Appendix I and catch of animals in Appendix II shall be prohibited (Articles 5 and 6).

The Bern Convention contains also general obligations on conservation of nature and species. Article 2 establishes:

“The Contracting Parties shall take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements and the needs of sub-species, varieties or forms at risk locally.”

This provision gives a priority to conservation rather than economic and recreational interests.2 But, although priority is given to conservation, much discretion is left to the Parties. Articles 3 and 4 contain obligations on the adoption of national conservation policies, to have regard to wild flora and fauna in planning and development policies and in measures against pollution, to adopt legislative and administrative measures to protect habitats, etc. These provisions have, however, a even vaguer character. It could be discussed to what extent more precise, general obligations on conservation of nature should be developed at the European level.

2.2. Prevention of Pollution

The global conventions on protection against damaging substances include :

- the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972),

- the Vienna Convention for the Protection of the Ozone Layer (1985) with the Montreal Protocol on Substances that Deplete the Ozone Layer (1987),

- the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal (1989),

- the United Nations Framework Convention on Climate Change (1992) with the Kyoto Protocol (1997), and

- the Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998).

At the European level, we have the Convention on Long-Range Transboundary Air Pollution (LRTAP) (1979) and its protocols on sulphur (1985 and 1994), nitrogen oxides (1988), volatile organic compounds (VOCs) (1991), heavy metals (1998), and persistent organic pollutants (POPs) (1998), which have been adopted under the UN Economic Commission for Europe (UN/ECE).

The Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR) (1992) sets out obligations for States and establishes a Commission for adoption of decisions and recommendations on marine pollution. The prevention of marine pollution is also the purpose of the International Conferences on the Protection of the North Sea, which adopt non-binding Ministerial Declarations. The Helsinki Convention on the Protection and Use of Transboundary Water Courses and Lakes has been adopted under the UN/ECE (1992).

The protocols under the LRTAP Convention commit States parties to reduce emission of specified substances by a certain percentage rather than explicitly prohibiting damaging effects on nature. The sulphur protocol (1994) establishes, however, differentiated emission ceilings among the Parties, based on what nature can sustain, i.e. the critical loads approach. This is also the regulation technique foreseen in the protocol on acidification, eutrophication and ground level ozone, expected to be adopted in 1999. It is, however, not expected that these protocol will reduce emissions to the critical loads in all areas. Furthermore, the protocols will only cover emission of defined substances, not damage caused by other substances. Consequently, there may be a need to supplement these specific obligations with a general obligation to prevent damaging effects on nature through emissions.

Similarly to the conventions on conservation of nature, the general obligations in conventions on the prevention of pollution are weak. Article 2 of the LRTAP Convention establishes:

“The Contracting Parties, taking due account of the facts and problems involved, are determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution.”

The vagueness of this provision raises the question whether it contains a legal obligation at all. Other general obligations of varying precision may be found in the 1982 UN Law of the Sea Convention, the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context, and the 1992 Convention on the Transboundary Effects of Industrial Accidents.

The Rio Declaration (1992), adopted in a non-binding form by the United Nations Conference on Environment and Development (UNCED), provides in Principle 2 that States shall prevent transboundary damage:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Such an obligation was confirmed by the International Court of Justice in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (1996):

“The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligations of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment (para. 29).”

A European legal instrument could provide a more precise definition of this general obligation, by establishing that States are not allowed to cause “significant” damage - or another threshold - to another State. Such an obligation would come in addition to specific obligations to reduce emission of certain substances. It would be easiest to apply in bilateral relations where it is clear which State is the source of the pollution. But it may also be applied in a regional context if the relative contribution of different States can be established, or if they can be considered to have a joint responsibility.

2.3. Procedural obligations

Procedural commitments regarding environmental impact assessments are set out in the Rio Declaration, Principle 17:

“Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”

Principle 19 of the Rio Declaration establishes a requirement of notification and consultation on activities which may have significant transboundary effects:

“States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.”

Procedural obligations on the preparation of environmental impact assessments, notification and consultation on transboundary environmental effects, and access to information are contained in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context, the 1992 Convention on the Transboundary Effects of Industrial Accidents, and the 1998 Århus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which were adopted under the UN/ECE. Such procedural obligations may be further developed in a European context.

2.4. Sustainable Development

While we have conventions establishing sector-specific duties on protection of certain species of plants and animals, or emission on certain substances, there is no global or European convention imposing a general obligation to respect the need for a sustainable development.

“States and people shall cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.”

Support to sustainable development as a legal principle was expressed by the International Court of Justice in the Gabcikovo-Nagymaros case (1997):

"The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of the damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development (para. 140) (emphasis added).”

It may be argued that sustainable development is part of customary international law. But is there a need for a European instrument with such a requirement?

Some may claim that sustainable development is a too vague a concept to be applied as a legal norm. And it is true that some norms contained in conventions may be considered non-binding ("soft law") due to their vagueness. But, on the other hand, we have several legal obligations which have a vague character, but which may be further refined through practice and interpretation of courts. Furthermore, there is nothing to prevent a more precise definition of sustainable development in a legal instrument.

It has also been argued that sustainable development is more feasible as a procedural norm, requiring environmental impact assessment, transparency, etc., than a substantive norm, which may be considered to be more of a political than legal nature.4 How could it be determined whether cutting down a forest or polluting a river violate sustainable development? On the other hand, a requirement of sustainable development may be used by international courts to set minimum standards for what is environmentally acceptable, or the principle may be applied as an element in the interpretation of other environmental obligations.

Finally, the concept of sustainable development may be difficult to apply if several States contribute to environmental damage: what would be the specific obligation of each of those States? Admittedly, this may be a problem, but it has not been considered insurmountable in other relations, such as in the 1982 Convention on the Law of the Sea, requiring all States to take necessary conservation measures when fishing on the high seas (Articles 116-20).

It may be concluded that sustainable development could be a meaningful obligation to be included in a European legal instrument. Such a requirement would supplement sector-specific conventions on both conservation of nature and prevention of pollution, and it would not be limited to transboundary effects. The concept could be further defined, and apply to procedural as well as substantive aspects of environmental interference.

2.5. The Precautionary Principle

Principle 15 of the Rio Declaration sets out the need for a precautionary approach:

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

Whereas several conventions refer to the need for a precautionary approach, e.g. the 1992 United Nations Climate Change Convention, Article 3 (3), and the 1992 Convention for the Protection of the Marine Environment (OSPAR), Article 2 (2) (a), we have no general global or European convention requiring States to apply this approach to protect the environment. It would seem that the introduction of such a general obligation - preferably in a more precise form - in a European legal instrument is worth consideration. This requirement should also apply to activities without transboundary effects.

3.        State Responsibility for Environmental Damage

The law of State responsibility addresses questions such as under what conditions a State may be responsible for damage to other States, and what are the consequences of the responsibility, e.g. a duty to restore the pre-existing situation and/or the payment of compensation. There is currently no general convention on State responsibility or responsibility for environmental damage. The International Law Commission of the United Nations (ILC) is, however, in a process of finalising what may become a global convention on State responsibility.5

One issue of particular interest for environmental damage is whether responsibility requires a violation of international law, or if responsibility also may be invoked for environmental damage in the absence of such violation, e.g. in the case of accidents in ultra-hazardous activities. It may, furthermore, be discussed to what extent States should be responsible for acts by private parties, such as polluting industries. This would mean that States are not only responsible for its own positive acts, but also for the lack of action to prevent damage caused by non-state entities. It may also be difficult to define which are the "injured States" when damage is caused to a unspecified number of States or to the global commons, such as the high seas or the atmosphere. Finally, it may be discussed what should be the consequences of responsibility, such as physical restoration, compensation, etc. The need for a special European convention on State responsibility for environmental damage may be considered in the light of the progress of the work of the International Law Commission.

4.        Access to International Courts in Environmental Matters

States will generally prefer non-confrontational procedures rather than the use of international Courts in environmental disputes. Consequently, several Multilateral Environmental Agreements (MEAs) provide for specially designed non-compliance mechanisms. There are, however, cases where such mechanisms are not available or are considered insufficient.

The International Court of Justice (ICJ) may be seized in environmental disputes between States. More specialised Courts, such as the International Tribunal for the Law of the Sea (ITLOS) and the dispute settlement procedure under the World Trade Organisation (WTO) may also have to determine cases with environmental aspects.

It could, however, be discussed whether there is a need for an International Environmental Court. Such a Court could be designed to meet the specific requirements of international environmental problems. It could also be accessible to individuals and Non-Governmental Organisations (NGOs), and not merely to States.6

The establishment of a specialised International Environmental Court would, however, contribute to the fragmentation of international law, rather than ensuring that due account of environmental concerns are taken, e.g. in treaty law, trade law, and the law of the sea. An alternative approach would be to improve the effectiveness of existing international Courts in environmental matters, especially by States accepting the compulsory jurisdiction of the International Court of Justice in environmental cases. Access for individuals and NGOs in such cases could be ensured by amendment or a separate protocol to the European Court of Human Rights (ECHR), see section 6 below.

5.        Civil and Criminal Responsibility of Individuals and Companies

The introduction of civil and criminal responsibility for individuals and companies through conventions may be an alternative or supplement to State responsibility. The Council of Europe has adopted the Lugano Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (1993) and the Convention on the Protection of the Environment through Criminal Law (1998).

The 1993 Lugano Convention has, however, no ratifications. Possible steps for its entry into force could be considered, including amendments to the Convention. The European Community has work in progress on environmental liability. A White Paper is currently being prepared, following a Commission decision of 29 January 1997. Co-ordination with the work of the European Community may thus prove beneficial.

6.        Human Rights Approaches to Environmental Protection

The European Convention on Human Rights (1950) has no explicit provision on the right to a decent environment. Some of its articles may, however, be invoked in environmental cases, e.g. the right to life (Article 2), the prohibition against inhuman or degrading treatment (Article 3), and the right to freedom of expression (Article 10). The European Court of Human Rights has relied upon Article 8 of the Convention (the right to privacy) in a couple of cases concerning the environment (Lopez Ostra v. Spain (1994)7 and Guerra v. Italy (1998)8).

It should be discussed whether the Convention should be amended to include environmental rights, or whether a protocol on such rights should be adopted.9 This could also give individuals and NGOs access to an international court in environmental cases.

The extension of the European Convention on Human Rights to environmental rights must, however, be considered in the light of the characteristics of environmental rights. Thus, some international environmental problems, e.g. climate change, may be best dealt with at the inter-state level rather than as an individual human right. A distinction may also be made between a substantive right to a decent environment and procedural mechanisms to protect such rights. Finally, different techniques may be required if action by States is required to protect the environment, as opposed to guarantees against interference with traditional individual freedoms. An extension of the Convention to cover environmental rights should take into account the need to facilitate the capacity of the European Court to handle such cases.

7.        Conclusions

There is a continuous need for examining the relevance of existing legal instruments in international environmental law, and the need for amendments or new instruments. This report refers to several possible options which merit scrutiny. Of special pertinence is the absence of an instrument establishing more precise general obligations on the protection of nature, a threshold for acceptable transfrontier pollution, a requirement to apply the precautionary principle, and to promote sustainable development. Furthermore, there may be a need for compulsory jurisdiction of the International Court of Justice in environmental matters. Such environmental obligations and jurisdiction of the International Court could be included in a European Charter for the Environment in the form of a convention, initiated by the Council of Europe. Finally, an amendment or an additional protocol on environmental rights to the European Convention on Human Rights should be considered.

*

* *

Reporting committee : Committee on the Environment, Regional Planning and Local Authorities

Budgetary implications for the Assembly :none

Reference to committee : Doc. 8143 and Reference No. 2307 of 22 June 1998

Draft recommendation adopted by the committee on 30-31 August 1999

Members of the committee : Mr Akçali (Chairman), Mr Besostri (Vice-Chairman), MM. Hoeffel (Alternate : Lengagne), Haraldsson (Vice-Chairmen), Andreoli, Assis Miranda, Berlusconi (Alternate : Risari), Bockel, Briane, Browne (Alternate : Gregory), Sir Sydney Chapman, MM. Ciobanu (Alternate : Debono Grech), Ciupaila, Cox, Diana, Mrs Dromberg, MM Duivesteijn, Frunda, Mrs Granlund, Mrs Hornikova, MM. Kalkan, Khukhunaishvili, Kieres, Kittis, Korakas (Alternate: Micheloyiannis), Kurucsai, Kurykin, Lachat, Mrs Langthaler, MM. Linzer, Luczak (Alternate : Gibula), Martinez Casan, Melo, Mezeckis, Mrs Mikaelsson, MM. Minkov (Alternate : Ivanov), Molnar (Alternate : Lotz), Mota Amaral, Mozetic, Müller, Mrs Oleinik, MM. Prokes, Prosser (Alternate : O'Hara), Rados, Rakhansky (Alternate : Strizhko), Recoder (Alternate : Gonzalez de Txabarri), Rise, Ruffy, Schutz, Mrs Sehnalova, Mrs Severinsen, MM. Skoularikis, Sobyanin, Staes, Steolea, Tahiri, Mrs Terpstra, MM. Theis, Toshev, Truu, Valkeniers, Vella, Vishnyakov, Zierer.

NB. The names of those members present at the meeting are printed in italics.

Secretaries of the committee : Mrs Cagnolati, Mr Chevtchenko, Mrs Karanjac.


1 Environment in the European Union at the Turn of the Century, Environmental Assessment Report No. 2, European Environment Agency, 1999, pp. 7, 23-5.

2 Simon Lyster, International Wildlife Law, Grotius Publications Ltd., 1985, pp. 131-2.

3 The World Commission on Environment and Development, "Our Common Future".

4 Alan Boyle, The Gabcikovo-Nagymaros Case: New Law in Old Bottles, 8 Yearbook of International Environmental Law (1997), Oxford University Press, pp. 13-21 at 18.

5 ILC Report 1998, GAOR, 53rd Session, Supp. 10, Doc. A/53/10, pp. 11-69.

6 See Alfred Rest, The Indispensability of an International Environmental Court, 7 Review of European Community & International Environmental Law 1 (1998). pp. 63-8 and Amedeo Postiglione, The Global Demand for an International Court of the Environment, International Court of the Environment Foundation (ICEF), 1999.

7 Publications of the European Court of Human Rights, Series A Vol. 303-C.

8 Reports of Judgements and Decisions 1998-I, No 64, pp. 210-96.

9 See about the right to the environment as a human right, Alan Boyle and Michael Anderson (eds.), Human Rights Approaches to Environmental Protection, Clarendon Press, 1998 and Maguelonne Déjeant-Pons, The Right to Environment in Regional Human Rights Systems, in Kathleen E. Mahoney and Paul Mahoney (eds.), Human Rights in the Twenty-first Century. A Global Challenge, Martinus Nijhoff Publishers, 1993.