Iceland is leading discussions about recognising the right to a healthy environment across the 46 nations of the Council of Europe.
Prime minister Katrín Jakobsdóttir told a high-level conference today that there is a “pressing need for an autonomous right to a clean, healthy and sustainable environment” to help address climate change and other environmental crises and pledged to send “a strong message on future challenges” at a forthcoming leaders’ summit.
Recognition of the right to a healthy environment would shift political priorities, say legal experts, and open up the potential for environmental lawsuits at both national and regional levels.
The island nation made promotion of the links between human rights and the environment one of the key aims of its six-month presidency of the Council of Europe, which since 1949 has been tasked with upholding human rights, democracy and the rule of law.
The end of Iceland’s presidential stint in May will be marked by a summit in its capital Reykjavik, where leaders are expected to seriously discuss the prospect of enshrining the right to a healthy environment in law.
Such summits are rare – this is only the fourth to take place since 1993 – and Iceland describes it as a “historic opportunity for the Council of Europe to refocus its mission, in the light of new threats to democracy and human rights”, as well as to support member state Ukraine in its fight against Russian aggression.
A healthy and sustainable environment is increasingly being seen as a fundamental human right around the world.
Last summer, the UN General Assembly passed a landmark resolution recognising it as a universal right. However, subsequent attempts by the UN Human Rights Council to crystallise this political statement into something more tangible have proved more problematic.
The Council of Europe endorsed a set of guidelines on human rights and the environment in 2022. But it held back from unambiguously restating the existence of the right to a healthy environment, even though all member states had voted in favour of the UN resolution.
Instead, a technical body has been tasked with exploring the need and feasibility of a legal tool to protect the right, and is due to report on its findings in September.
The strongest way such a right could be recognised within the Council of Europe would be by adding a new protocol to the European Convention on Human Rights, which would then be enforced by the European Court of Human Rights.
All 46 member states are subject to the rulings of this Strasbourg-based court, which recently heard its first climate-related cases and has scheduled another for the autumn.
The Parliamentary Assembly of the Council of Europe (PACE) is the organisation’s parliamentary arm albeit without the power to make law. It has urged Council of Europe leaders to support a legally binding framework and to place the issue high on the agenda at the Rejkjavik Summit.
In a letter to the permanent representations of member states of the Council of Europe in Strasbourg, dated 12 April, a coalition of civil society groups also called for recognition of the right “without delay”.
They note that the right to a healthy environment is already recognised by all other regional human rights frameworks, making the European Convention on Human Rights “an outdated exception”.
The groups say recognition of such a right would grant the “greater unity” among European countries that the Council of Europe is mandated to achieve. “Not recognising the right… would signify that the Council of Europe is unable or unwilling to address the most pressing dangers in the 21st century to the rights it must protect.”
Sébastien Duyck, human rights and climate campaign manager for the Center for International Environmental Law, believes some countries are nervous of the European Court of Human Rights’ power.
“Strasbourg is where the rubber hits the road,” he said. “That’s where you have those great international principles on human rights that are converted into something with real impacts on member states.”
He said there were legitimate concerns about how such a right would be implemented, such as the question of what type or scale of ecosystem harm would allow someone to bring a claim.
“But these should be addressed by a negotiating committee,” said Duyck. “If you were to have government structuring a protocol, that’s what they would be doing.”
Iceland is treading carefully on this potentially sensitive issue, and experts say today’s conference is one way in which it is trying to build support for the idea.
Opposition to idea
Robert Spano, former president of the European Court of Human Rights, who gave a keynote speech, was wary of the idea.
He said it was justified for the international community to “robustly debate” the need for adopting a binding right to a healthy environment.
But he did not think it as “sound policy” to incorporate it into the European Convention on Human Rights, saying climate change is too broad an issue for the court to deal with and suggesting it should remain a political – not a legal – matter.
But Jakobsdóttir maintained that the organisation must follow in the “very important footsteps” of the UN if it is to continue to hold its role as one of the leading human rights institutions worldwide.
Amnesty International said this shows the presidency is putting a big emphasis on the issue.
Failure at home
Domestically, Iceland is one of 14 members of the Council of Europe, alongside the UK, Germany and Switzerland, not to explicitly recognise the right to a healthy environment in domestic law.
There appears to be public support for the idea, said Jóna Þórey Pétursdóttir, an associate at Icelandic law firm Réttur.
But in 2021, prime minister Jakobsdóttir failed to pass a constitutional reform bill recognising the right. “Hence, the seriousness of the government on the topic can easily be questioned, unfortunately,” she said.
Icelandic MP Andrés Ingi Jónsson of the Pirate Party agreed that the issue remains a “fairly high priority” for Jakobsdóttir, “although she usually adds the caveat that Russia‘s attack on Ukraine is likely to take center stage”.
Duyck said the war between Russia and Ukraine, both of which were members of the Council of Europe until Russia was expelled last year, had left the alliance “soul-searching” about its fundamental role and looking to reaffirm what its shared values are.
As well as providing a new tool to hold Russia accountable for the damage it is causing in Ukraine, he said, recognising the right to a healthy environment could provide just such a unifying cause.
Duyck believes the right will be recognised among Council of Europe members in one way or another. “The question is, is the [European Court of Human Rights] going to continue to have its creative interpretation of the convention by incorporating the right to a healthy environment more and more explicitly? Or are governments going to actually play the policy-making role that’s expected of them and just tell the court how this should be done?”
The Pirate Party’s Jónsson said the legacy of Iceland’s presidency of the Council of Europe would depend on the strength of the summit’s declarations and how well its results are followed through.
“This is not just the role of a single state,” he said, “but also something that civil society throughout the member states will have to hold their governments to account.”