On 16-17 May, the Heads of State and Government of the Council of Europe’s 46 members met at the Council’s Fourth Summit in Reykjavík to discuss the human rights impacts of current challenges, including the war in Ukraine, the climate crisis and the development of new technologies. The Summit concluded with the adoption of the Reykjavík Declaration, which laid out the Council’s commitment to strengthen the organisation in the fields of human rights, democracy, and the rule of law, and to develop tools to tackle emerging challenges in the areas of technology and the environment.
Regarding the environment, the Declaration calls for ‘additional efforts to protect [it], as well as to counter the impact of the triple planetary crisis of pollution, climate change and loss of biodiversity on human rights.’ In a dedicated appendix, the Declaration elaborates on the interlinks between human rights and the environment, and recognises that a ‘clean, healthy and sustainable environment is integral to the full enjoyment of human rights by present and future generations.’
However, despite the outcome document recognising the urgent need for coordinated action to address the impacts of environmental degradation, it falls short of delivering a solid commitment to legally recognise the right to a clean and healthy environment (R2E). Given that the Council is Europe’s primary human rights organisation, the body is in a unique position to accelerate the realisation of this newly recognised universal right by integrating it into its legal framework. Calls on the Council to do so have been made by its internal organs, such as the Parliamentary Assembly (PACE), which has encouraged the Council to proactively adapt its legal framework to address this ‘new-generation human right.’
The right to a healthy environment is enshrined in the constitutions of several Council member States, and it is being increasingly recognised in international and regional human rights instruments as well as in national legislation. Yet, despite clear support from member States – for instance, all 46 of the Council’s members voted in favour of the General Assembly resolution recognising the right at UN level in 2022 – the right to a clean, healthy and sustainable environment is not enshrined in the European Convention on Human Rights (ECHR). To date, the European Court of Human Rights (ECtHR) has examined cases related to the environment from the prism of other rights covered by the Convention, mostly the rights to life, health, free speech, and family life.
This European context stands in contrast with the recognition of R2E in other regional frameworks. The right to a healthy environment is explicitly set out in regional treaties including the African Charter on Human and Peoples’ Rights, the San Salvador Protocol, the Escazú Agreement, and the Arab Charter on Human Rights.
Why recognise the right to a healthy environment?
So far, the European Court of Human Rights has relied upon the idea that other rights contained in the Convention can be undermined by environmental harm, and therefore the scope of those rights is enough to address human rights violations emerging from such harms. However, this approach overlooks the greater potential for human rights protection that the independent recognition of R2E could entail.
Such recognition would provide legal coherence and certainty, as it would allow the Court to issue binding rulings that would lead to increased enforcement of State obligations and the implementation of concrete measures to protect R2E, including for those most at risk as well as environmental human rights defenders. It would consolidate both the procedural (e.g., access to environmental justice, public information, and participation in decision-making) and substantive elements (access to clean water and sanitation, clean air) of the right at a regional level. In doing so, it would help bring domestic regimes into line with one another. At the same time, a comprehensive system of regional safeguards could incentivise increased protection at domestic level. Moreover, such enhanced coherence could be even stronger if the European Union completes its decades-long accession process to join the ECHR.
Second, recognising R2E as a standalone right could open up further avenues for climate litigation and increase chances of success, which could in turn translate into more comprehensive and consistent protection across the continent. Over recent years, courts across Europe have developed a rich body of jurisprudence dealing with the impacts of climate change, with some cases gaining international attention for litigants and courts around the world. Although cases continue to grow in national jurisdictions, EU courts, and at the ECtHR, these are mostly concentrated in a small number of countries – namely France, Germany, Spain, and the UK. The vast majority of these cases seek to enforce existing climate standards or to reinforce national policy frameworks to address climate change. Therefore, if such claims were underpinned by a legally recognised R2E, they could lead to better integration of human rights into climate policy. Additionally, these new opportunities for climate litigation could have significant implications for business actors and accountability for the human rights impacts of their activities. Victims of business-related environmental violations would have a more solid claim to seek remedy, while businesses would have more incentives to comply with existing standards, especially considering the financial and reputational risks and costs associated with climate litigation processes.
Basing legal recognition of R2E upon current understanding of this right and its implications, as set out in the relevant General Assembly and Human Rights Council resolutions, would also result in a rights-based framework that accounts for the modern challenges posed by climate change. Consequently, it could take into account the gendered dimension of climate change and its differentiated impacts on certain segments of the population, including women and girls, indigenous peoples, children, older persons, and persons with disabilities. Furthermore, recognition would also channel demands for increased action, including from the Council’s own structures and from civil society. Ahead of the Reykjavík Summit, PACE called on the Council to respond to such public demands by making R2E part of its core mandate. Such calls have also been made by civil society organisations, which have pressed for the political will necessary to secure ‘actionable and enforceable recognition’ of R2E.
Therefore, by embracing recognition, the Council could send several messages: that it is committed to adapting as new priorities and challenges emerge; that it has the foresight and is open to tackle such challenges proactively, with the protection of human rights as its ultimate purpose; and that it listens to the public.
Moving forward
If the Council is to move forward with recognition of R2E, it has one main option: drafting a binding protocol to the ECHR, as it has done before to expand the rights covered by the Convention. An additional protocol would bring R2E onto an equal footing with other rights included in the Convention, granting it autonomous protection. The process would help define the reach and scope of R2E and member States’ legal obligations thereto. Ultimately, such a protocol would contribute to creating a coherent, unified, and enforceable protection system for human rights across the continent, that could cascade into enhanced protection measures by States.
Recent international developments have built up considerable momentum for broadening the legal framework around environmental and human rights protections. These include the aforementioned Human Rights Council and General Assembly resolutions (2021 and 2022), and the March 2023 GA resolution requesting the International Court of Justice to deliver an opinion clarifying States’ obligations with respect to climate change.
The Council of Europe is equipped to harness that momentum. After almost 75 years championing human rights on the continent, the Council has the tools and structures needed to address the links between human rights and the environment. Moreover, it has affirmed it stands united to meet current and future challenges. The recognition of the right to a clean, healthy and sustainable environment would be a perfect way for the Council to take a decisive step forward in tackling the human rights impacts of the triple planetary crisis.
Image credit: Council of Europe Summit, Reykjavik, 16-17 May 2023
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