Council of Europe Climate Law Standards and Perspectives

The Council of Europe (CoE) is an organisation which covers virtually the entire European continent and is anchored in the three pillars (or common values) – human rights, democracy, and the rule of law. It is famous for its developments regarding human rights protection and the promotion of democratic standards, and is focused mainly on actions aiming to protect and promote these three pillars. Nevertheless, its scope of interest is very wide and includes not only human rights protection, democracy-building and combating challenges to the rule of law, but also biodiversity protection, challenges to sports, and youth and culture issues. Among this variety of interests and activities are some which are linked – directly or indirectly – with the protection of the environment. In this article, selected case law related to the environment from the European Court of Human Rights (ECtHR) and from the European Committee of Social Rights (ECSR), as well as the official publications of the CoE in this field will be outlined, to demonstrate its contribution to the climate change debate. Attention will also be paid to various texts relating to the above subject matter and revealing the real level of commitment of the organisation and its entities to the subject matter, mainly by the Committee of Ministers (CM), the Parliamentary Assembly of the Council of Europe (PACE), the Congress of Local and Regional Authorities (CLRA), and the CoE Human Rights Commissioner. Apart from that, references to the attempts to systematise the internal actions of the CoE bodies in the above field by establishing the Inter-secretariat Group on Climate Change will be included, in order to answer the question of whether the organisation has developed its own set of climate law standards. Subsequently, prospects and possibilities that arise from present achievements will be commented on. One key observation that the organisation acknowledges that climate change has become a very important issue and uses the environmental the the Millennium Development Goals; Resolution 1435 (2005) on Energy Systems and the Environment; Recommendation 1689 (2004) on Hunting and Europe’s Environmental Balance; Recommendation 1653 (2004) on Environmental Accounting as a Sustainable Development Tool; Recommendation 1637 (2003) on Pan-European Environmental Co-operation: The Council of Europe’s Role the Kyiv Minis-terial Conference and the Johannesburg Summit; Recommendation 1614 (2003) on Environment and Human Rights; Resolution 1296 (2002) on the Change of Name of the Committee on the Environment and Agriculture to Committee on the Environment, Agriculture and Local and Regional Affairs; Resolution 1295 (2002) on the State of the Environment of the Baltic and Recommendation 1571 (2002) on Reducing Environmental Risks by Destroying Chemical Weapons.


Introduction
Today, the Council of Europe (CoE) consists of 47 member states which are home to approximately 800 million citizens. The organisation, founded on 5 May 1949 by ten countries, now covers virtually the entire European continent. It is said 1 to seek to develop common and democratic principles throughout Europe, based on the European Convention on Human Rights (ECHR, the Convention) 2 and other reference texts on the protection of individuals. 3 In this article, it will be examined whether the CoE -the organisation anchored in the triad of human rights, democracy and the rule of law -has developed its own set of climate law standards. Subsequently, prospects and possibilities that arise from present achievements will be commented on. In particular, it is argued that anthropocentric perspectives A.  Rights and Fundamental Freedoms (1950) as amended by Protocols No. 11 (1994) and No. 14 (2004) The triad of values appears to divide the CoE's activities into three segments. At the same time, the values are so similar that it is not always easy to exactly match each activity with only one value. Therefore, to specify the appropriate value, it is advisable to analyse the budget of the CoE, its organisation, 9 the arrangement of its Secretariat, the current terms of reference of its internal structures, 10 and other relevant documents.
It might also be helpful to use the divisions applied on the CoE's website. 11 In this regard, one may observe that the so-called climatic activities of the CoE are mostly performed under the following headings: • Democracy, that is, PACE and CLRA activities • Biodiversity, that is, activities relating to the European and Mediterranean Major Hazards Agreement and the Bern Convention on the Conservation of European Wildlife and Natural Habitats, and • Human rights, that is, some aspects of jurisprudence of the ECtHR, development of human rights law and policy, and social rights guaranteed under the European Social Charter.
At the same time, one should take into account the structure of the Secretariat -the CoE's administrative body -which ensures that the organisation's various offices function properly and fulfil their mandates. In particular, it is noted that a clear division is made between the Directorate General of Human Rights and Rule of Law (DG I) on the one hand, and the Directorate General of Democracy (DG II) on the other. 12 The above structure implies that the activities of DG I are derived either from the notion of human rights or from the concept of the rule of law, 13 whereas DG II concentrates its work on the area of democracy. 14 9 See Council of Europe Programme andBudget 2012-2013, pp 3, 223 Summing up, the CoE examines climatic issues mostly under the headings Democracy and Human rights, which obviously correspond with the tasks of both DG I and DG II. Generally speaking, climate change is being discussed by various actors in different segments of the CoE's activities. Therefore, it is difficult to associate the climate law standard-setting mission with only one specific organ or body responsible for its further development and application. Nevertheless, the topic of climate change seems to be important enough to generate a need to link all the activities. In particular, a sort of inter-secretariat collaboration in this field has already been established in the shape of an Inter-secretariat Group on Climate Change. 15 In the discussion that follows, a brief analysis of the 'climatic' actions taken by chosen actors on various levels of the CoE's structure will be provided in order to answer the question about climate law standards and the organisation's perspectives.

Democracy
As noted above, the vast majority of deliberations within the CoE concerning climatic issues take place under the heading of Democracy. In this regard, one may indicate two key actors: PACE (a statutory organ of the CoE) and the CLRA (established with the statutory resolution of the CM). The above forums are mainly platforms for exchanging views, and their standard-setting role in the field of climate law is not preponderant. Nevertheless, they do not hesitate to provide inspiration to other relevant organs, in particular the CM. In this respect, these two entities gradually call for the adoption of I. new regulations in the field of environmental law. Therefore, an overview of their actions will be presented.

Parliamentary Assembly of the Council of Europe
PACE is a forum for debate for parliamentarians from all over Europe and represents the political forces (majority and opposition) within the CoE member states. It can adopt three different types of texts: recommendations, resolutions and opinions. 16 PACE recommendations contain proposals addressed to the CM, the implementation of which is within the competence of governments. PACE decisions on questions which it is empowered to put into effect, or expressions of view for which it alone is responsible, take the form of resolutions. PACE also expresses opinions, mostly on questions put to it by the CM. 17 PACE contains, inter alia, the Committee on the Environment, Agriculture and Local and Regional Affairs. This Committee resulted from a merger that took place in 2001 between the Committee on the Environment, Regional Planning and Local Authorities and the Committee on Agriculture, Rural Development and Food. The Committee on the Environment, Regional Planning and Local Authorities, which was established in 1952 as a special body on municipal and regional affairs, became a general committee of the Assembly in 1956. The subject of "Environment" was added to the Committee's title in 1986. 18 This Committee seems to be concerned with the issue of climate change, and stimulates the debate about climate change within PACE. Among the Committee's recent actions is that, in 2011, it issued a Declaration on climate change entitled "As the world's warmest year ends, time for climate change to be seen as a human rights issue". 19 In this Declaration, the Committee called on the CoE to hold a major transversal conference on "human rights and climate change" to discuss the connections It is also important to emphasise PACE's activities outside the CoE. In particular, attention should be devoted to the outcome paper issued by the Inter-parliamentary Union (of which PACE is an associate member), together with the Mexican Congress, with the support of the United Nations Development Programme (UNDP) on the occasion of the 16th Conference of the Parties to the UNFCCC and the 6th Meeting of the Parties to the Kyoto Protocol (COP16/CMP6) in Cancún, Mexico, on 6 December 2010. In the said outcome paper, parliamentarians from all over the world called on the Inter-parliamentary Union to pursue its efforts to mobilise the global parliamentary community around the issue of climate change. 21 At CoE level, PACE has also issued many texts committed to protecting the environment 22 which are thematically related to the issue of climate change. Among these texts, it is worth mentioning Recommendation 1885 21  In this regard, it should be stressed that PACE texts have no binding effect on either the member states or the CM, and are merely of an opinion-making and advisory nature. It is also not easy to establish to what extent they reflect the political moods present in the governments and parliaments of Europe. This is because parliamentarians appointed to PACE represent various political forces of their member states, as a requirement exists for a balance of political parties within each national delegation. Therefore, PACE texts may principally be considered as a very interesting voice in the discussion on the European response to climate change phenomenon and the challenges it implies, and may be invoked at various forums. Nevertheless, due to the nonbinding character of the texts issued by PACE, as well as the specific way in which PACE delegations are elected, the above voice has no decisive impact on the final solutions adopted at governmental level.
Committee for Human Rights (CDDH, Comité Directeur pour les Droits de l'Homme) of a Manual on Human Rights and the Environment: Principles emerging from the case-law of the European Court of Human Rights in 2006, and had taken note of the agreement within the CDDH, within the framework of the Committee of Experts for the Development of Human Rights (DH-DEV), to update and extend the Manual, in the light of, notably, the case law of the ECtHR and of the ECSR, of relevant standards set out by other international organisations, and of good practices adopted at national level, in order to give effect to the principles emerging from the ECtHR's case law. Finally, the CM referred to the substantial work already carried out by the CoE in the field of the environment, which has led to the adoption of important legal instruments such as the

Congress of Local and Regional Authorities
As mentioned above, the present CLRA is not one of the statutory bodies of the organisation, anchored directly in the Statute of the Council of Europe, but was established on 14 January 1994 by way of Statutory Resolution 94(3) of the CM. It is a consultative organ composed of representatives of local and regional authorities. 27 Its main role is to evaluate the application of the European Charter of Local Self-government and to support the improvements of governance of local and regional authorities. 28 In a similar way to PACE, the CLRA also pays attention in its texts to the The above texts call for purposive actions in the respective areas and emphasise the need to engage local and/or regional authorities. 33 As is the case 2. The character of the CLRA implies that the meaning of its Recommendations and Resolutions is comparable to those of PACE. They may be treated as a very interesting voice in the discussion. Nevertheless, their impact on governmental activities remains limited. At the same time, one should emphasise a very unique feature of the CLRA texts: they all stress the need to engage local and/or regional authorities in activities concerning climate change.

Other Environmental Work
Apart from the work of PACE and the CLRA, the substantial work already carried out by the CoE in the field of the environment is worth mentioning, which has resulted in the adoption of significant legal instruments such as the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention), 36 the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, 37 and the Convention 3. 34  14 Council of Europe Climate Law Standards and Perspectives change is quite evident. Nevertheless, it seems to me that it is the subject matter of the Bern Convention that needs to take into account the changing climatic conditions, rather than the other way around. To be more precise, the Bern Convention is, in principle, a tool for biodiversity conservation. Therefore, any attempts at its implementation make no sense without considering the local circumstances such as climate. At the same time, application of the above treaty may have little or no effect on the process of climate change; or, at the very least, the prevention or slowing down of climate change was not the purpose the drafters had in mind. 45

Human Rights
As already stated, there are deliberations relating to climate law within the CoE that take place under the heading of human rights. In this regard, the case law of human rights protection bodies, but also the work of other bodies and organs based on that case law are of particular relevance.

Case Law of Human Rights Protection Bodies
In discussing human rights protection bodies, the 'environmental dimension' of jurisprudence of the ECtHR needs to be focussed. Taking into account certain other developments, specific findings by the ECSR are also considered. Both the ECtHR and the ECSR were designed to judge whether states parties are in conformity in law and in practice with the provisions of the human rights treaties -the ECHR and Additional Protocols to the ECHR, 46 or the European Social Charter, respectively. Therefore, it should II. first be emphasised that neither the Convention nor the Charter guarantees the right to a healthy environment as such. Indeed, it is also difficult to think of the above human rights protection instruments as being able to prevent or stop climate change. Nevertheless, it is now indisputable that the gradual evolution of jurisprudence by the ECtHR has resulted in the recognition of environmental human rights, 47 mostly in connection to Article 8 of the Convention, which provides a right to respect for one's "private and family life". 48 The above tendency was followed by the ECSR. 49 The existing case law of the ECtHR seems to be significant for the overall work of the CoE. In particular, it is often treated as a starting point for further deliberations by various bodies and organs. To emphasise its meaning, the appropriate set of references to the jurisprudence of the human rights protection bodies was collected by government experts from CoE member states and published in 2006 as the Manual on Human Rights and the Environment. 50 One may also observe the ECtHR's own proactiveness, which aims to promote the link between human rights and the environment. To strengthen the effect of the dissemination of knowledge and to stress the considerable scale of the ECtHR's achievements, in January 2012, the ECtHR Registry decided to issue a fact sheet on environment-related cases in the ECtHR's case law and to publish it on the ECtHR website. 51 Thanks to the above efforts, it is not difficult to indicate the ECtHR case law concerning airport noise; 52 neighbouring noise; 53 industrial pollution posing a danger to people's health; 54 industrial pollution posing other adverse effects on the environment; 55 deforestation and urban development; 56 and passive smoking. 57 Of course, the above indication is illustrative, not exhaustive. It covers cases in which the ECtHR has found the violation of 'environmental' human rights 58 and the ones where no such violation was found. 59 Similar efforts were made with regard to the environmental findings of the ECSR. In 2008, the Case Law Digest 60 was published, presenting the interpretation that the ECSR had made of the various Articles of the Euro-pean Social Charter. 61 The Digest, under the heading of "The right to enjoy the highest possible standard of health attainable" (Article 11 of the Charter), contains a whole section on healthy environment, with subsections on food safety, nuclear hazards for communities living in the vicinity of nuclear power plants, risks relating to asbestos, and air pollution. It contains references to the ECSR's findings in the cases International Federation of Human Rights Leagues (FIDH) v France 62 and Marangopoulos Foundation for Human Rights (MFHR) v Greece. 63 Other CoE bodies commonly refer to these environmental judgments and decisions in order to support their own position and/or activities in the field of 'environmental' human rights. In this regard, once again PACE's Recommendation 1885 (2009) on Drafting an Additional Protocol to the European Convention on Human Rights Concerning the Right to a Healthy Environment needs to be highlighted. 64 In the above text, PACE referred directly to "case law in the environmental field developed by the European Court of Human Rights" as well as to the Manual on Human Rights and the Environment, 65 which serves as a guide to the Strasbourg case law. The author would also like to add a reference to the viewpoint of the CoE Commissioner for Human Rights of 19 October 2009 entitled "Climate change is causing an unprecedented, global human rights crisis -and must now be countered by coordinated, rights-based action", by the then Commissioner Thomas Hammarberg. 66 In the author's opinion, the Commissioner's viewpoint, based on the references to ECtHR and ECSR case law, illustrates the way in which the majority of environment-related texts are being structured within the CoE. He invoked ECtHR case law 67 and emphasised that European human rights standards and principles envisaged safeguards which needed to be integrated into plans and policies to address climate change. The Commissioner also provided a short analysis of ECtHR findings, and observed that, according to the latter's case law, severe environmental pollution could affect the well-being of individuals and prevent them from enjoying their homes in such a way as to adversely affect their private and family life. 68 He noted that the ECtHR had confirmed the obligation of states to conduct proper studies before allowing an activity which could cause environmental damage, and to bring such studies to the attention of the public. 69 Furthermore, he indicated that the ECtHR had found a violation of the right to life in a case where the authorities had not taken preventive action when they had been aware of an increased risk of large-scale mudslides and had not informed the population of the risk. 70 He also emphasised that the European Social Charter provided for the right to health, on the basis of which the ECSR had held states responsible for showing measurable progress in lowering levels of pollution. 71 In addition, he stated that the same ruling would cover nuclear hazards as well as risks related to asbestos and food safety. 72

Development of Human Rights Law and Policy
As far as the development of human rights law and policy is concerned, a brief comment on the work at governmental level by the Steering Committee for Human Rights (CDDH, Comité Directeur pour les Droits de l'Homme) should be made, 73 followed subsequently by the work executed by the CM. To do this, it is necessary to note again that the principal role of the CDDH, under the auspices of the CM, is "to set up standards commonly accepted by the 47 Member States with the aim of developing and promoting human rights in Europe and improving the effectiveness of the control mechanism established by the European Convention on Human Rights." 74 It can be seen that climate change is not situated in the centre of interests of either the CDDH or the CM. At present, the standard-setting role of the said Steering Committee in the field of climate law is quite narrow, as the CDDH is willing to undertake activities solely of a promotional nature.
A fine and relatively current illustration of the above approach is contained in the CDDH Opinion on PACE Recommendation 1883 (2009) on the Challenges Posed by Climate Change. 75 In this Opinion, the CDDH reiterates the position adopted in its comments to Recommendation 1614 (2003) on the Environment and Human Rights, 76 which is that neither the ECHR nor its Additional Protocols expressly recognise a right to the protection of the environment. At the same time, it noted that the ECHR system had already indirectly contributed to the protection of the environment through existing Convention rights and their interpretation in ECtHR case law. Consequently, the CDDH did not consider it advisable to draft an Additional Protocol to the Convention on the suggested topic. Nonetheless, it expressed its support for the idea to pursue studies on the subject at intergovernmental level by means of regular exchanges of views within the framework of the Committee of Experts for the Development of Human Rights (DH-DEV) and by updating and extending the 2006 Manual on Human Rights and the Environment, in the light of the jurisprudence of the ECtHR, of the ECSR, of relevant standards set out by other international organisations, and of good practices adopted at national level. The CDDH also noted the possibility, subject to available funding, of holding a conference to examine the issue of climate change from various angles, e.g. human rights and legal affairs, the environment, and social cohesion. If so, it expressed its availability to contribute to this work through the DH-DEV. The above Opinion illustrates the CDDH's general approach of refraining from deep engagement into establishing new, legally binding human rights standards in the field of protection of the environment. It is notable that the CDDH concentrates on promoting the existing standards inferred from already adopted international treaties. In particular, the CDDH decided that it would be appropriate to make more explicit the protection indirectly afforded by the ECHR to the environment by updating the 2006 Manual. In the CDDH's view, such an approach would be "a useful way of promoting greater awareness in member states of the implications of their existing obligations under the Convention in environmental matters." 77 As it transpires from the previous submissions under Subsection I above, the CM subsequently shared the CDDH position. The CM expressed its attitude towards the above idea in its reply of 19 June 2010 to Recommendation 1883 (2009)

Environmental Activities of the CoE
The above short review of recent selected activities of the CoE indicates that the environmental achievements of the organisation are not significant. Its main environmental accomplishment in the latter half of 2012 was the updating of the 2006 Manual on Human Rights and the Environment. One may also point out similar actions, such as the publication of the relevant Factsheet on the ECtHR website, and of the Digest on the ECSR website. In this context, it is possible to note a general, visible trend to disseminate and promote the already existing 'environmental' human rights standards. Nev-C. 77  ertheless, the CoE is talking about human rights, human rights perspectives, human rights standards, and a human rights environmental dimension. The link between the above standards and the issue of climate change is not direct. In particular, the primary aim of the jurisprudence collected in the Manual, the Digest and the relevant Factsheet was not to combat climate change, but to provide an adequate response to human rights violations. In this regard only the general individualistic and anthropocentric approach of the human rights protection bodies to the above-mentioned challenges will be emphasised. As regards the Manual itself, attention should be paid to the overall process of its preparation. The CDDH received the terms of reference to draft the Manual from the CM in a decision dated 21 January 2004. 78 The CDDH entrusted this task to a subordinate intergovernmental body of experts, namely the DH-DEV. The Manual was published in 2006. 79 In 2009, the CM decided 80 on the said PACE Recommendation 1885 (2009) 81 to update the Manual, and it was duly published in 2012. 82 Apart from activities aimed to increase the public understanding of the relationship between the European system of human rights protection and the environment, some internal coordination work was done within the CoE. In particular, the Inter-secretariat Group on Climate Change was established, which represents many different entities and sectors of the CoE and serves the purpose of exchanging information and discussing possible common initiatives. 83 In other words, it improves the flow of information within different CoE entities. It appears that meetings of the Inter-secretariat Group took place on 11 February 2011, 17 March 2011, 30 May 2011, 5 July 2011, 6 February 2012and 16 March 2012 The deliberations within this Group resulted in the establishment of a climate change CoE website, which contains the most relevant documentation by the organisation on climate change, and is capable of acting as a knowledge base. 85 The Group has also been responsible for examining the possibility of organising the above-mentioned conference to explore the relationship between climate change and human rights in Europe.
Thus far, the discussions concerning a possible conference have not led to concrete results. It was first scheduled for 2012 but was then postponed -largely due to budgetary and organisational constraints. 86 Nevertheless, there seems to be consensus at the level of the Inter-secretariat Group, at least, that such a conference is necessary and will be useful. The conference is also perceived as an opportunity to raise awareness in the CM about climate change. Furthermore, it is expected to act as a catalyst for building on the valuable work on climate change being carried out in different parts of the organisation. 87

Standards and Perspectives
As is shown by the above discussion, the achievements of the CoE in the field of climate law standards are modest. The organisation has not developed any legally binding instrument that could be exclusively devoted to the issue of climate change. In fact, it is due only to the creativity of various bodies and organs that the existing legal texts have been linked with climate change. As a result, certain achievements regarding the protection of the environment and/or human rights are now being used as a starting point for further climatic deliberations.
In this regard, the actions taken under the heading Biodiversity (Bern Convention-related actions within the Pillar of Democracy) have to be distinguished from other deliberations around the subject of Human rights (within the Pillar of Human Rights and/or Democracy). As stated above, in the case of the Biodiversity segment, the link between the subject matter of the Bern Convention and climate change is quite evident. Nevertheless, one should be reluctant to name the above treaty as a source of the climate law and standards. 88 Also, the various climatic recommendations of the Standing Committee of the Bern Convention seem to be technical tools for accurate D. 86 The conference was initially planned for 2012. It was subsequently decided to postpone it until 2013. See 7th Inter-secretariat Group on Climate Change Meeting Report of 6 February 2012 [unpublished]. 87 (ibid.:4). 88 As has already been stated, the author perceives the Bern Convention primarily as a nature-preservation instrument.
implementation of the above treaty rather than a source of climate law as such.
At the opposite extreme, there is a range of human rights treaties, such as the ECHR, Additional Protocols to the ECHR, and the European Social Charter. In this respect, it is important to remember that -89 … [n]either the European Convention on Human Rights nor the European Social Charter protects the environment as such, but various individual rights provided for in these treaties which might be affected by the environment. Hence, it is rather the impact on the individual than the environment that both the Court and the Committee are concerned with.
The above anthropocentric perspective makes the present European system of human rights protection an incommodious tool for developing climate law standards. One may notice that the already existing case law of the human rights protection bodies is always retrospective and involves an element of individual rights violation (the victim status), which is also harmful to the environment (e.g. noise pollution, industrial pollution or passive smoking). In this regard, environmental rights protection under the Convention and the Charter is merely fragmentary. Only a few cases 90 may be directly linked to the issue of climate change. Due to this fact, as well as the subject matter involved, the author is not convinced that existing or future case law may play a decisive role in establishing climate law standards on a regional or global scale. In particular, it seems unlikely that the system, which is individual-complaint-oriented, would be the best possible tool to combat pollution, biodegradation and climate change. Such an advocacy may play an auxiliary and not a leading role in the process of standard-setting.
The above insufficiency was already noticed by PACE, which called for the adoption of a new human rights treaty in the form of an Additional Protocol to the European Convention on the Protection of the Environment. As it transpires from the reply of the CM referred to above, the idea did not gain support at governmental level. It resulted merely in updating the 2006 Manual. The internal discussion about the possible organisation of a conference on human rights and climate change at the level of the CoE is still pending.
It is apparent that the issue of climate change was never a priority for the CM. Also, at least until now, the CDDH has not given priority to this issue in its future planning. It seems that climate law has been perceived more as 89 CoE (2012:16 a global issue that should be discussed from a worldwide perspective at the UN level rather than from a European perspective. 91 At the same time, the topic itself seems to be important enough to command the attention of various bodies and organs within the CoE, such as PACE, the CLRA and the Human Rights Commissioner. In this regard, further multiplication of environmental case law of the human rights protection bodies is to be expected. Furthermore, actions aiming to present and promote the principles flowing from existing case law can be anticipated. Nevertheless, it seems rather unlikely that the organisation becomes a key player that would contribute to the process of climate law standard-setting in the worldwide debate at any time soon.