Slouching towards Strasbourg? Recognizing the Right to a Healthy Environment at the Council of Europe

by Corina Heri

Corina Heri is a postdoctoral researcher at the University of Zurich. She attended the 9th and 10th sessions of the CDDH-ENV’s work as a FIDH delegate. This post is written in her personal academic capacity and does not represent the position of any organisation.

Image source: Julian Leicht.

In recent weeks, all eyes have been on the European Court of Human Rights and its first-ever climate judgments. These cases complement other environmental rights developments at the Council of Europe, namely the ongoing process to consider the recognition of the right to a healthy environment. A Recommendation by the Parliamentary Assembly of the Council of Europe (PACE) tabled the idea of recognizing this right – which had been proposed and then abandoned several times before – in 2021, initiating further work on this issue. In March 2024, a milestone was reached by the drafting group’s conclusion of its study of the necessity and feasibility of recognizing this right. However, as the procedure for drafting this study showed, there is still a long road ahead for the recognition of the right at the Council of Europe level.

Ten drafting sessions since 2021

Since PACE’s 2021 recommendation, the possibility of recognizing the right to a healthy environment has been contemplated with a mixture of interest and scepticism from within the Council of Europe. A first step in this process, the work of the Council of Europe’s drafting group on human rights and the environment (CDDH-ENV), is now complete. On 19-21 March 2024, this group – tasked with preparing a study on the need for and feasibility of further instrument(s) on human rights and the environment – held its 10th and final meeting. Pursuant to this meeting, it finalized its feasibility study, which can be read here.

The CDDH-ENV drafting group was set up by the CDDH, the Council of Europe’s steering committee for human rights. Like the CDDH-ENV, the full CDDH comprises government experts on human rights law, non-voting observers including other Council of Europe actors and civil society organisations. The experts that make up the CDDH carry out intergovernmental work. They are not independent experts, but rather government representatives – e.g., ministerial staff or government agents before the European Court of Human Rights. Therefore, it is no surprise that this procedure has been geared towards finding a solution palatable to States, whose political appetites to recognize an additional binding human right vary. Although the drafting group’s sessions were not public, States’ comments on the previous two versions of the draft study, which are publicly available here and here, indicate the content of the discussions.

Next steps
So: what happens now? The report of the CDDH-ENV drafting group has been transmitted to the full CDDH, which meets biannually and reports to the Committee of Ministers (the Council of Europe’s decision-making body) on questions of human rights law and policy. The CDDH can produce new instruments – including reports, recommendations and treaties – for adoption by the Committee of Ministers. In line with the deadline for completing this work, which is currently on 30 June 2024, the CDDH intended to adopt the CDDH-ENV’s feasibility study at its 100th meeting, to be held from 25 to 28 June 2024 in Helsinki. However, it has decided to delay this decision to reflect on the recent climate rulings from the European Court of Human Rights (ECtHR). In light of these landmark rulings, the CDDH Bureau decided that, instead of adopting the CDDH-ENV study at its June meeting, the CDDH would be invited to take note of the study; share observations on the issues at stake in light of the ECtHR’s climate rulings; take a position on possible conclusions, instruments, or policy recommendations; and report to the Committee of Ministers on its progress, requesting more time to conclude the feasibility study (asking for an extension until 31 December 2024, with adoption of the study slated for 26-29 November 2024).

From the CDDH, the study will then make its way to the Committee of Ministers. This is standard procedure, and efforts to create a potential new instrument on human rights and the environment (for example, a draft protocol to the European Convention on Human Rights (ECHR) or to the revised European Social Charter, or an entirely new standalone instrument) would work similarly, passing from the CDDH to the Committee of Ministers. However, it is still unclear whether a new instrument will follow the CDDH-ENV’s draft of the feasibility study. Because the CDDH has reserved the right to make conclusions on this topic, the feasibility study as finalized by the CDDH-ENV contains no conclusions on whether and how the Council of Europe should recognize the right. This approach reflects the perceived political sensitivity of the topic.

High expectations?

The Council of Europe is the only regional human rights system in the world that has yet to recognize the right to a healthy environment. Its ongoing recognition process deserves attention because of State reticence, the ongoing politicization of environmental rights, and because States who endorse the creation of a new instrument at the Council of Europe level have only recently started to come forward. The CDDH-ENV study is centred around various additional rationales that speak for the right’s recognition – including filling gaps in the legal framework, encouraging environment-friendly jurisprudence, enhancing domestic protection, allowing States to create a shared and harmonized standard, meeting civil society expectations, and protecting environmental human rights defenders. The report examines each of these rationales for the different available recognition options, and provides an easy-to-use overview by applying a traffic-light system of green ticks, orange tildes and red crosses. As noted, it does so without concluding what the best or most feasible option would be – this was left to the CDDH.

That’s not to say that there is no discernible best option here. In this post, Annalisa Savaresi, Linnéa Nordlander, and I previously discussed the value of a binding recognition of the human right to a healthy environment in, specifically, an additional protocol to the ECHR. In an open letter, signed by 460+ organisations at the time of writing, civil society representatives clarify that this would “provide the most powerful and impactful human rights-based response to the environmental crisis.”

Outside the CDDH process, momentum for more direct Council of Europe engagement with environmental rights is building. For example, the 2023 Reykjavík Declaration set in motion institutional changes within the Council of Europe, including:

  • the creation of a new Department on the Reykjavík Process and the Environment and an Inter-Secretariat Task Force on the Environment;
  • continued drafting work for a new Convention on the Protection of the Environment through Criminal Law (to replace a treaty on this topic from 1998 that never came into force for lack of ratifications);
  • a slight increase of the budget for the Bern Convention on Conservation;
  • and ongoing discussions for creating an intergovernmental “Reykjavík Committee” on the environment and human rights.

It remains to be seen how these shifts will play out, especially when factoring in the ECtHR’s recent climate rulings. Increased attention to the interdependence of human rights and the environment is to be welcomed given that worsening planetary crises increasingly impact human rights in the Council of Europe Member States. However, not all options are equal here. Compared to a binding recognition of the right to a healthy environment, the steps mentioned above must be understood for what they are: weaker alternatives that do not guarantee actionable rights to individuals.