As soon as he was elected President of the Parliamentary Assembly of the Council of Europe (PACE) last January, the Belgian Rik Daems announced that he wanted to make the climate “an objective that moves heads and hearts” (see EUROPE 12412/18, 12438/21). One of his stated aims was to revive a recommendation voted by the Assembly in 2009, but still blocked by the Committee of Ministers, calling for the initiation of work on an additional protocol to the European Convention on Human Rights, devoted to the right to a healthy environment.
Six months after the election of Rik Daems, the Council of Europe has made environmental protection a priority. It has never lost interest - the first guidelines date from the late 1970s, but a new phased strategy is being put in place.
At this stage, Rik Daems notes the High-Level Conference on “Environment and Human Rights” organised by the Council of Europe on 27 February of this year; the coordination of three rotating presidencies of the Committee of Ministers who have made this theme one of their priorities (Georgian from November 2019 to May 2020 / Greek from May to November / German from November to May 2021) and the ‘alignment’ of the three Council of Europe governing bodies, namely the Secretary General, the Committee of Foreign Ministers of the 47 member states (CM) and PACE.
This alignment was confirmed by their Joint Statement of 4 June, on the occasion of World Environment Day. “As countries across Europe emerge from lockdown and look to the future, we must make full use of the tools we have – including human rights – to help build and maintain a healthy environment for generations to come”, the three bodies said before referring to the mandate given to the Council of Europe's Steering Committee on Human Rights, now officially charged with drafting a new legal text on “Human Rights and the Environment”.
This work could lead to guidelines as early as November and even to a new legal tool “Environment and Criminal Law” which could be adopted at the Ministerial Conference in May 2021. “If we succeed”, Rik Daems emphasises, “it will be a major step forward that will oblige us to keep the subject on the table during the Hungarian Presidency, which will succeed the German one from May 2021”. With one ultimate goal: the adoption of a protocol to the European Convention on Human Rights that allows citizens to obtain redress in environmental matters.
For the lawyer Elisabeth Lambert, director of research at the CNRS (SAGE, University of Strasbourg), who prepared an academic report published at the conference on 27 February, this step-by-step process is “ambitious” and takes place in a “fairly short timeframe”. Addressing it through a reform of the “Convention on the Protection of the Environment through Criminal Law” - adopted in 1998, but only ratified by Estonia and therefore inoperative - is “the best way”, as it “will enable States to strengthen their law enforcement arsenal in the field of environmental crime”.
“The implementation of an additional protocol to the European Convention on Human Rights is a project that can be reactivated”, says Lambert. In addition: “(This protocol) would make it possible to refer cases directly to the Court and no longer in a ‘roundabout’ way by using Articles 2 (right to life) and 8 (right to privacy). But it would only solve part of the problem. The actio popularis - which allows a legal person (NGO or association) to take legal action - would remain impossible, since only natural persons can turn to the judges in Strasbourg, the impunity of private actors would remain, since only States can be implicated and it will no doubt be difficult to include the precautionary principle”.
However, Elisabeth Lambert is convinced that the Council of Europe is an “ideal platform” for advancing the right to a quality environment. “Although ambitious plans exist at the UN level, it will be difficult to reach a consensus among more than 200 countries. This is potentially possible at the level of the 47 Member States of the Council of Europe”, she said. (Original version in French by Véronique Leblanc)