The reluctance of the Council of Europe’s Member States to recognise a right to a clean, healthy and sustainable environment at the European level

• Main Author: Ailincai, Mihaela Anca
• Other Authors: Institut universitaire de France (IUF), Ministère de l'Education nationale, de l’Enseignement supérieur et de la Recherche (M.E.N.E.S.R.), Centre de Recherches Juridiques (CRJ), Université Grenoble Alpes (UGA), Faculty of Law, University of Cambridge
• Format: Conference Object
• Language: English
• Published: HAL CCSD 2023
• Subjects: Right to a healthy environment; Council of Europe; European Court of Human Rights; Recommendation; Steering Committee for Human Rights; [SHS.DROIT]Humanities and Social Sciences/Law; Reykjavík
• Online Access: https://shs.hal.science/halshs-04306861

International audience It may be thought that the European Court of Human Rights (ECtHR) can help to find efficient solutions to protect the environment. As a result, civil society and academia sometimes express tremendous expectations about the climate change cases currently pending before that Court. However, the European Court may not be in a position to satisfy such huge hopes. The aim of the proposed paper is to show that the political context within the Council of Europe may not be such as to allow the ECtHR to deepen its environmental case law as far and as quickly as it should, given the environmental emergency. The ECtHR has been steadily developing a case law which in some way protects the environment. It is worth noting that the Court condemns environmental damages only if they simultaneously constitute a violation of a right protected by the European Convention on Human Rights (ECHR). The required link between an environmental concern and a conventionally protected right entails major loopholes that notoriously prevent accurate protection of the environment. One of the ways which could allow the Court to move forward is the recognition of an autonomous right to a clean, healthy and sustainable environment. This could encourage the Court to shift from indirect to direct environmental protection, and thus to protect natural elements per se. Since 1999, the Parliamentary Assembly of the Council of Europe has been calling for an additional protocol to the ECHR on this issue. The Committee of Ministers has twice rejected this proposal. Nonetheless, changes could be expected. On 22 September 2022, the Committee of Ministers adopted the Recommendation CM/Rec (2022) 20 on human rights and the protection of the environment. It has then mandated the Steering Committee for Human Rights to consider the need for further work. Finally, the Fourth Summit, held in Reykjavík on 16th and 17th of May, has launched the “Reykjavík process” to strengthen the Council of Europe’s work on the human rights aspects of the ...