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Human Rights for the Planet
High-level international conference
Strasbourg, 5 October 2020
Climate change and protection of the environment, a question of policy or of human rights law?
15.25-16.25, Panel moderated by Judge Ksenija Turkovic, ECtHR
Speech by Mr Rik Daems, President of the Parliamentary Assembly of the Council of Europe
Distinguished President of the Court, Distinguished Judges of the European Court of Human Rights,
Ladies and gentlemen,
It is an honour to participate in this conference which brings together judges to the European Court of Human Rights and eminent lawyers.
I am particularly pleased to address you today as the President of the Parliamentary Assembly of the Council of Europe.
The issue of environment and human rights is a political priority for the Parliamentary Assembly. We fully support the joint efforts of the Georgian and Greek Presidencies of the Committee of Ministers, as well of the Secretary General to prioritise the Organisation’s work in this area. The “trialogue” approach will help us build synergies and coordinate the work of our Organisation in this regard.
Ladies and gentlemen,
The question that the organisers have put on the table for this panel cannot be answered in a simple way.
Is environmental protection an issue of policy or human rights law? I am afraid, in my view, it is not an “either – or” question.
I believe that addressing the environmental emergency requires a holistic approach in terms of both, policy and human rights law.
I am not a lawyer but a politician and a member of Parliament.
The job of parliamentarians is to translate policies into laws that set standards, rules, objectives and targets to be achieved and implemented by the executive. The role of the judiciary is to ensure that the rule of law is respected, to settle disputes and to provide legal protection of fundamental rights and freedoms.
It is clear that the environmental emergency, especially climate change as the most visible phenomenon, has to be addressed -first and foremost- from a policy perspective. This approach is enshrined in international agreements, in particular the Paris agreement, which sets specific targets and international commitments to be respected by the participating states.
Yet, it is a fact that Governments and Parliaments have been slow to act to address environmental challenges and climate change.
Where policy efforts have been insufficient, the judiciary stepped in, addressing the environmental challenges from a right’s perspective, through the protection of individual’s rights: to life, private and family life, receive and impart information, property, as well as the rights to an effective remedy and to a fair trial.
Thus, the past decade has witnessed a steady process of “greening” of human rights. The European Court of Human Rights has made a remarkable contribution to this process. The role of the European Committee on Social Rights is equally important when to it comes to upholding the right to the protection of health.
Other regional international human rights bodies are following suit, as does for example the Inter-American Court on Human Rights through its case law under the American Human Rights Convention and its additional San Salvador Protocol.
Most importantly, national Courts are becoming gradually involved in environmental litigation. We all know the Urgenda landmark decision where the Dutch Supreme Court recognised a positive obligation of the State under articles 2 and 8 of the European Convention on Human Rights to take action to mitigate the effects of climate change.
These are indeed progressive and positive steps that are enhancing the level of protection of our fundamental rights as well as set standards for public policies regarding environment.
But is this approach sufficient or sustainable in the long run? In other words, is environmental litigation the right way to address the environmental emergency and, in particular, climate change?
For me, as a politician and a parliamentarian, the answer is clear: further development of environment-related human rights case law needs to be anchored into solid legal foundations.
Because the right to live in a healthy, clean and safe environment should be part of the universal corpus of fundamental human rights.
We are witnessing today the emergence and development of a “new generation of rights” which includes issues such as environment or artificial intelligence. International human rights instruments must provide substantive guarantees of these rights.
As regards the environment, this is already the case in the American Human Rights Convention through the San Salvador Protocol or the African Charter on Human and Peoples' Rights, to give but two examples. However, the European Convention on Human Rights does not cover the right to a healthy, clean and safe environment as a substantive right. This is why the Parliamentary Assembly of the Council of Europe has repeatedly called for the drafting of an Additional Protocol to the Convention concerning the right to a healthy environment.
Having such a Protocol has several advantages.
Firstly, it would create a uniform and solid legal foundation for the protection of the right to a healthy, clean and safe environment for the benefit of 830 million European citizens.
Secondly, it would give an additional political push to Governments and Parliaments of member states to develop further “green” policies and legislation, thus contributing to a global effort to address the environmental challenge.
Thirdly, it would strengthen accountability for actions that potentially harm the environment.
I believe that the drafting of this Protocol should be our strategic priority. At the same time, I am well aware that the journey ahead of us might be long and difficult.
Because the drafting of an Additional Protocol brings about some risks too.
Complex legal negotiations will have to be conducted among member states which do not necessary share the same vision of how environment should be linked up to human rights.
The entry into force of the future Protocol may take a while because of the lengthy process of its ratification by Parliaments of all 47 member states.
Above all, as we embark on this ambitious project of enlarging – through a new Protocol – the scope of the rights guaranteed by the Convention, we have to make sure that our efforts do not undermine the existing acquis developed through the case law of the Court.
In this context, I believe that we should carefully assess the possible real impact of our future “Green Protocol”. For instance, we know that Protocol No. 12 to the Convention on the prohibition of discrimination was adopted 20 years ago but it has largely remained a piece of paper with no case-law. We do not want our “Green Protocol” to repeat the same story.
Hence, let me put you a legal question: how do you see the best possible remedies in environmental cases? Should judicial remedies be the main avenue? Or, can we think about some other more flexible avenues? Your expert guidance will be very important for us, as politicians – parliamentarians or members of the executive.
Ladies and gentlemen,
The risks of developing an Additional Protocol are real, but I am strongly convinced that we can overcome them.
If there is a will there is a way. And the Council of Europe has not only the necessary legal expertise to find appropriate legal solutions – it has THE expertise when it comes to human rights standards.
In the meantime, we should build the political momentum for a new Protocol.
This is what we are doing today, by developing further our “soft law” through a Recommendation of the Committee of Ministers containing guidelines to be followed by member states. The work on the upgrading of our Convention on the Protection of the Environment through Criminal Law could clarify legal obligations and provide mechanisms of sanctioning environmental crimes, especially in a transnational context. The launching of a new HELP course on environment and human rights will further build up the awareness and knowledge of legal professionals in this field.
The Parliamentary Assembly is currently preparing a series of reports dealing with environmental challenges from the angle of the rule of law, democratic participation, children’s rights, artificial intelligence, migration and inequalities.
These combined joint efforts – I am confident – will help us build the case for a new Protocol to the European Convention on Human Rights.
Because environment is a human right and it must be incorporated as such in our Convention, which is and remains the constitutional instrument of Europe’s public legal order.
Thank you for your attention.