Opinion of the European Economic and Social Committee on the right to a healthy environment in the European Union, especially in the context of the war in Ukraine (own-initiative opinion)
Date: 2023-04-27
Institutions: European Economic and Social Committee
Subjects: EU environmental policy, Russo-Ukrainian issue, Ukraine, accession to the European Union, ecosystem, environmental impact, environmental protection, human rights, polluted area, war








C_2023228EN.01001001.xml










29.6.2023   


EN


Official Journal of the European Union


C 228/10






Opinion of the European Economic and Social Committee on the right to a healthy environment in the European Union, especially in the context of the war in Ukraine
(own-initiative opinion)
(2023/C 228/02)






Rapporteur:



Ozlem YILDIRIM











Plenary Assembly decision


27.10.2022




Legal basis


Rule 52(2) of the Rules of Procedure




 


Own-initiative opinion




Section responsible


Agriculture, Rural Development and the Environment




Adopted in section


13.4.2023




Adopted at plenary


27.4.2023




Plenary session No


578




Outcome of vote
(for/against/abstentions)


162/1/1




1.   Conclusions and recommendations









1.1.


On 23 June 2022, Ukraine became an EU candidate country. When Ukraine joins the EU, it will be the EU’s largest or second-largest Member State in terms of territory. Ukraine’s large territory boasts diverse ecosystems; indeed, according to the secretariat of the Convention on Biological Diversity, Ukraine covers 6 % of Europe’s territory but hosts 35 % of its biodiversity.












1.2.


The environmental damage caused by the war includes ecosystem degradation, air and water pollution, and contamination of arable and pasture fields. According to reports, since the war began, 200 000 hectares of forest have been affected by fires, 680 000 tonnes of fossil fuels have gone up in flames, and 180 000 cubic metres of soil have been contaminated by munitions. The war has degraded protected areas and destroyed water treatment plants. Over 100 forest fires have been triggered by the conflict, releasing 33 million tonnes of CO2.












1.3.


Russia’s actions appear to amount to ecocide, based on a definition proposed by legal experts and published in June 2021. The European Economic and Social Committee (EESC) has called for ‘ecocide’, as defined by the Independent Expert Panel for the Legal Definition of Ecocide, to be codified as a criminal offence under EU law. The recognition of the crime of ecocide in the revised EU Environmental Crime Directive will lead to developments in legislation beyond the EU, in particular in the International Criminal Court, which may aid in bringing a degree of accountability for Russia, reflecting the environmental and ecological harm caused.




The EESC:








1.4.


highlights the urgent need to improve environmental protection for fundamental rights in the EU and beyond, which has been exacerbated by the environment damage caused by the war in Ukraine, including damage to human physical and mental health, ecosystem degradation, air and water pollution, and contamination of arable and pasture fields, directly threatening agricultural production and exposing the fragility of global food security;












1.5.


draws attention to the environmental and social impact of Russia’s invasion and the importance of and need for support in documenting, mapping and measuring those consequences, pursuing legal protection of the environment, ensuring accountability, and laying the groundwork for a green and sustainable post-war recovery and helping to assess financial needs when reallocating funds for the green recovery;












1.6.


calls on the Commission and the Council to take steps to identify the adverse environmental impacts of Russia’s illegal war against Ukraine and their human rights implications. The Commission and the Council must support civil society’s efforts to document environmental damage, including environmental crimes, committed by Russia, and support civil society’s role in shaping the rebuilding of Ukraine;












1.7.


urges that the EU must help protect Ukraine’s environment and repair the environmental damage caused by the war. The EESC maintains that all reconstruction efforts will be carried out in compliance with international ILO standards and the principles of social conditionality;












1.8.


stresses that human health and the quality of the environment cannot be separated — the health of ecosystems, animals and people are interconnected — and that the EU must safeguard this right. Environmental deterioration is the primary cause of ill health. Noise pollution, for example, results in 12 000 deaths per year. The interconnectedness of environmental and human health is also particularly apparent in the area of food security;












1.9.


calls on the Commission and the Council to strengthen food and agricultural inspection methods when entering the single market, with specific attention to detecting environmental pollution induced by the war in Ukraine in order to guarantee the health of all European citizens and our environment;












1.10.


stresses that the right to a healthy environment is vital to the social and economic well-being of people in Europe and worldwide. It is estimated that some 40 % of jobs globally depend on a healthy climate and ecosystem. In the light of the international legal framework and this stark reality, it is not surprising that numerous pieces of EU legislation have been adopted to give effect to the EU’s obligation to ensure respect for the right to a healthy environment;












1.11.


encourages all Members States and European institutions to deepen their efforts to improve the effectiveness of existing legal tools, as effectiveness in practice is often lacking. The many examples of litigation challenging failures by Member States or the EU itself in areas such as clean air, climate, fishing, or water show the extent to which public authorities are failing to ensure respect for this right.




2.   General comments

2.1.   Right to a healthy environment in the context of Russia’s war in Ukraine and Ukraine’s accession to the EU









2.1.1.


On 16 March 2022, the Committee of Ministers of the Council of Europe expelled Russia with immediate effect (1). Thus, while the EU was in the midst of negotiating its accession to the European Convention on Human Rights (the Convention), on 16 September 2022 Russia ceased to be bound by it. This has dramatically reduced the coverage of human rights protection across the European continent. At the time of the invasion, however, and until 16 September 2022, Russia was bound by the Convention, and, despite Russia’s further withdrawal from international institutions, the country was, and remains, subject to a wide range of international obligations. These concern not only human rights (2) but also the environment: the International Framework Convention on Climate Change (3) and the Convention on Biodiversity are among those that Russia has flouted in its aggression.












2.1.2.


It is vital to ensure that human rights and the environment are protected in the rest of Europe — not only in the 27 Member States of the EU, where human rights protection will be reinforced by the EU’s accession to the Convention, but also in the remaining 19 Member States of the Council of Europe, including Ukraine.












2.1.3.


This is all the more important given that, on 23 June 2022, Ukraine became an EU candidate country. When Ukraine joins the EU, it will be the EU’s largest or second-largest Member State in terms of territory (4). Ukraine’s large territory boasts diverse ecosystems; indeed, according to the secretariat of the Convention on Biological Diversity (5), Ukraine covers 6 % of Europe’s territory but hosts 35 % of its biodiversity. Additionally, the country’s farmland — crucial to global food supplies — and its extensive fossil fuel infrastructure — on which certain neighbouring Member States are particularly dependent for energy supplies — have both come under immense pressure over the past year.












2.1.4.


Russia’s actions appear to amount to ecocide, based on a definition proposed by legal experts and published in June 2021 (6). Since 2001, the Ukrainian criminal code (7) has included the crime of ecocide. In parallel to the decision of the European Parliament (8), the EESC has called for ‘ecocide’, as defined by the Independent Expert Panel for the Legal Definition of Ecocide, to be codified as a criminal offence under EU law (9). The recognition of the crime of ecocide in the revised EU Environmental Crime Directive will lead to developments in legislation beyond the EU, in particular in the International Criminal Court, which may aid in bringing a degree of accountability for Russia reflecting the environmental and ecological harm caused.












2.1.5.


On 19 January 2023, the European Parliament adopted a resolution calling for the establishment of a tribunal on the crime of aggression against Ukraine — supported by the EESC in its plenary session in February (10). The text of the resolution makes reference to environmental matters twice. First, it recognises the link between war and long-term damage to the natural environment and climate. Second, it calls for the establishment of an international register that, among other things, records widespread and severe damage to the natural environment and the climate in order to help determine future reparations for the damage caused. In this context, it is essential that the link between environmental damage as a weapon of war is emphasised and strengthened and that these crimes are prosecuted.












2.1.6.


The environmental damage caused by the war includes ecosystem degradation, air and water pollution, and contamination of arable and pasture fields. For example, the leaks of two Russian gas pipelines in the Baltic Sea could cause an unprecedented impact on the climate and other aspects of the environment (11). Since the war began, 200 000 hectares of forest have been affected by fires, 680 000 tonnes of fossil fuels have gone up in flames, and 180 000 cubic metres of soil have been contaminated by munitions. The war has degraded protected areas and destroyed water treatment plants. The danger is all the greater as Ukraine is the 2nd most nuclearised country in Europe with 15 reactors. Over 100 forest fires have been triggered by the conflict, releasing 33 million tonnes of CO2. Russian bombing is destroying Ukrainian biodiversity. Ukrainian experts estimate the environmental damage caused by Russia at EUR 24 billion.












2.1.7.


The war in Ukraine is inflicting unprecedented and long-lasting challenges on the environment. It is also adversely affecting the physical and mental health, integrity and well-being of the Ukrainian people and its future generations. These impacts are compounded for vulnerable groups and special attention has to be paid to the psychological effect of the war and mental health issues. The war is causing air, water and soil contamination, as well as noise pollution, all of which will affect its victims for generations. Many problems can be considered to go beyond the borders of Ukraine and serious risks exist collectively for public health. Like the effects of war, the mental and physical health impacts of environmental degradation, in particular the impacts of air, soil, and water contamination, are known to be intergenerational. It is not only the children living in or who have fled Ukraine today who will suffer their impacts; generations to come will also suffer.












2.1.8.


This makes the efforts of Ukrainian youth movements and organisations to ensure a voice for their generation particularly poignant. It is important that their voices and opinions form part of reconstruction efforts.












2.1.9.


Damage to our shared ecosystem, such as soil degradation, is directly threatening future agricultural production and exposing the fragility of global food security. In particular, the current structure of the commodities market is not delivering for the ‘sustainable economy we need’ and for the objectives linked to sustainable development, climate ambition and the just transition enshrined in the UN’s 2030 Agenda and the European Green Deal, but rather actively works against them (12).












2.1.10.


Civil society played a key role in defending the environment in Ukraine before the war. The war has dramatically affected civil society’s ability to conduct its activities. Many environmental defenders have had to flee, or are contributing to the war efforts. Those still able to operate have turned their attention to documenting the consequences of Russia’s war of aggression on the environment (13). Their involvement will be vital in rebuilding Ukraine’s environment and ensuring that Ukraine adopts the EU’s environmental law in order to enable it to accede to the EU.












2.1.11.


Environmental protection and the impacts on daily life and health continue to be important for Ukrainians. Moreover, according to a public survey, 95,2 % of respondents believe that restoring nature will be important in the-post war reconstruction of Ukraine (14).












2.1.12.


With adequate international support, Russia’s destruction of Ukraine’s heavy industry infrastructure could be turned into an opportunity for Ukraine to tap its solar and wind potential and build back better and greener with alternative electricity sources, benefiting its citizens and those beyond its borders, which would substantially strengthen Ukraine’s position in its EU accession negotiations.












2.1.13.


The situation at present remains unstable. There are serious uncertainties about the future. Beyond the dramatic human and humanitarian disaster, questions will arise on the final cost of rebuilding Ukraine and the extent to which Russia can be held liable for bearing it. The EU has an important role to play. In the EESC’s resolution on War in Ukraine and its economic, social and environmental impact (15), alongside the human impacts, the EESC highlighted that environmental impacts of the war as a consequence of bombings, oil and gas leaks, and incidents in chemical factories and nuclear plants, are of major concern for Ukrainians, the EU and beyond. These environmental impacts will inevitably have long-lasting consequences for human health and ecosystems. The environmental impact of the war is a real threat for the population: the pollution could take years to clean up, increasing the risk of cancers, respiratory diseases and developmental delays in children, UN experts warn (16). Reproductive health is another concern. The EESC stressed that the EU must help protect Ukraine’s environment and repair environmental damage caused by the war. The EESC maintains that all reconstruction efforts will be carried out in compliance with international ILO standards and the principles of social conditionality. The EESC has proposed that the EU respond through programmes such as RescEU and the LIFE programme, in coordination with national, regional and local mechanisms and in cooperation with the private sector and NGOs.












2.1.14.


While the war is still ongoing, cross-border cooperation between civil society organisations, governments and international organisations is important for mapping and monitoring environmental damage of a cross-border nature, in order to assess the extent of the damage and financial needs, spark investments, and reallocate resources for the sustainable and social restoration of Ukraine. In the case of mapping, the EEA has supported efforts to improve capacity to gather information reflecting the pre-war state of the environment, which could be used as the baseline in monitoring processes (17).












2.1.15.


The Commission and the Council must support civil society’s efforts to document environmental damage, including environmental crimes, committed by Russia. The EU must also ensure that its efforts to support the rebuilding of Ukraine prevent and mitigate the dire ecological and environmental impacts of the war so as to give effect to human rights.












2.1.16.


The EU’s efforts must also ensure that Ukraine’s economy and the EU economy are no longer dependent on fossil fuels and that rebuilding efforts move away from fossil fuel infrastructure. The EU’s efforts must also ensure that Ukraine is able to play its role in the global food system and — with a view to Ukraine’s accession to the EU — to enable the EU to fulfil its commitments under the Paris Agreement and the Kunming-Montreal Agreement. The EU should also ensure that its sanctions programmes have a positive impact on the environment. NGOs have called, for example, for the use of sanctions that would not only hamper Russia’s ability to pursue its illegal war but also its ability to profit from illegal, unregulated and unreported fishing (18).




2.2.   The EU’s legal obligation to protect the right to a healthy environment









2.2.1.


On 28 July 2022, the UN General Assembly adopted a landmark resolution recognising the right to a clean, healthy and sustainable environment as a human right (19), which calls upon nations, international organisations, businesses and all other stakeholders to step up efforts to ensure a clean, healthy and sustainable environment for all. The 27 EU Member States voted in favour of the resolution, alongside the overwhelming majority of nations. Echoing the EESC’s 2021 Information Report on Environmental protection as a prerequisite for respect for fundamental rights (20), the UN’s resolution recognises that ‘environmental degradation, climate change, biodiversity loss, desertification and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to effectively enjoy all human rights’. Among other things, the resolution calls upon international organisations such as the EU ‘to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all’.












2.2.2.


The right to a healthy environment acknowledges the fundamental link between the environment and human health. Human health and the quality of the environment cannot be separated — the health of ecosystems, animals and people are interconnected — and the EU must safeguard this right. Environmental deterioration is the primary cause of ill health. For example, in 2019, 307 000 premature deaths were attributed to fine particulate matter, 40 400 to nitrogen dioxide, and 16 800 to acute ozone (21). Of course, the problem extends beyond air quality. Noise pollution, for example, results in 12 000 deaths per year (22). The interconnectedness of the environmental and human health is also particularly obvious in the area of food security.












2.2.3.


The EU’s legal order is at the cutting edge globally when it comes to the recognition, at a supranational level, of the right to a healthy environment. Treaty provisions (Article 37 of the Charter of Fundamental Rights and Article 11 of the Treaty on the Functioning of the European Union) sit alongside various others, notably Article 3(3) and Article 21(2) of the Treaty on European Union, Article 191 TFEU (23), as well as various other provisions of the Charter (24), which, read together, amount to recognition of a right to a clean, healthy and sustainable environment. By virtue of Article 51(1) of the Charter, the EU institutions are subject to this obligation at all times and the Member States are subject to it when implementing EU law (25). The European Parliament has called for ‘the right to a healthy environment [to] be recognised in the Charter’ and for the EU ‘to lead the initiative to recognise a similar right internationally’ (26).












2.2.4.


By virtue of Article 52(3) of the Charter of Fundamental Rights, the EU is also bound to respect the provisions of the Convention when provisions of the Charter correspond to provisions of the Convention. Notably through the right to respect for private life, family life, and home (Article 7 of the Charter, Article 8 of the Convention), the European Court of Human Rights has arguably already recognised the right to a safe and healthy environment (27). This implies not only negative obligations (the obligation not to impair the right to a healthy environment), but also positive obligations to take measures, such as those concerning air quality, in order to ensure respect for this right (28). These obligations will become even more enforceable once the EU accedes to the Convention, as it is required to do by Article 6(2) of the Treaty on European Union. Echoing the European Parliament, the Parliamentary Assembly of the Council of Europe has called for a protocol to the Convention that would explicitly recognise ‘the right to a safe, clean, healthy and sustainable environment’ (29). This would create an enforceable right across the 27 EU Member States and the 19 third countries that are also members of the Council of Europe.












2.2.5.


The EU is also widely recognised as having an outsized influence on global environmental regulation. Various areas of EU law that affect the right to a healthy environment — notably the rules on toxic substances under the REACH Regulation (30) — are textbook cases of the ‘Brussels effect’ (31), by which EU rules become global standards.












2.2.6.


The right to a healthy environment is vital to the social and economic well-being of people in Europe and worldwide. It is estimated that some 40 % of jobs globally depend on a healthy climate and ecosystem (32). In the light of the international legal framework and this stark reality, it is not surprising that numerous pieces of EU legislation have been adopted to give effect to the EU’s obligation to ensure respect for the right to a healthy environment. EU rules on ambient air quality (Directive 2008/50/EC of the European Parliament and of the Council (33)) are a clear example. Advocate-general Kokott found that ‘[t]he rules on ambient air quality therefore put in concrete terms the Union’s obligations to provide protection following from the fundamental right to life under Article 2(1) of the Charter and the high level of environmental protection required under Article 3(3) TEU, Article 37 of the Charter, and Article 191(2) TFEU.’ (34) For maximum protection of human health, the EESC recommends fully aligning the EU’s air quality standards with the updated World Health Organization Global Air Quality Guidelines by 2030.












2.2.7.


The EU’s Environmental Action Programmes — required under Article 192(3) TFEU — increasingly acknowledge a healthy environment as a right. The 8th Environmental Action Programme explicitly recognises that ‘[p]rogressing towards the recognition of the right to a clean, healthy and sustainable environment, as laid out in Resolution 48/13 of the United Nations Human Rights Council, is an enabling condition for attaining the priority objectives of the 8th EAP.’ (35)













2.2.8.


What is often lacking, however, is effectiveness in practice (36), and the EESC encourages all Members States and European institutions to deepen their efforts to improve the effectiveness of existing legal tools. The many examples of litigation challenging failures by Member States or the EU itself in areas such as clean air, climate, fishing, or water show the extent to which public authorities are failing to ensure respect for this right.












2.2.9.


In the context of Russia’s war in Ukraine and Ukraine’s prospective accession to the EU, it is more important than ever for the EU and its Member States to give effect to the right to a healthy environment. This means giving environmental protection the same priority as other areas of law, such as competition or data protection, where the EU is a global model in both theory and practice.












2.2.10.


In doing so, the EU has the opportunity to acknowledge the intergenerational nature of the right to a healthy environment.












2.2.11.


It is not surprising that youth movements are especially vocal in calling for environmental protection. Because of the negative impacts of environmental degradation on reproductive health, the very existence of future generations is at risk. The EU should follow the example of Member States that have introduced institutions designed to protect the interests of future generations. Such an institution at EU level would help ensure that future generations enjoy the social and economic benefits that environmental protection today will bring.





Brussels, 27 April 2023.


The President of the European Economic and Social Committee

Oliver RÖPKE




(1)  CM/Del/Dec(2022) 1431/2.3, Consequences of the aggression of the Russian Federation against Ukraine.

(2)  See, for example, Article 11(2)(b) of the International Covenant on Economic, Social and Cultural rights.

(3)  See, for example, Article 3(5): ‘The Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties’.

(4)  No Member State is larger. Among current candidate countries, only Turkey is larger.

(5)  Convention on Biological Diversity: National Biodiversity Strategy and Action Plan.

(6)  ‘Unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’, Stop Ecocide Foundation.

(7)  Criminal Code of Ukraine.

(8)  Decision of 29 March 2023.

(9)  EESC opinion: Improving environmental protection through criminal law (OJ C 290, 29.7.2022, p. 143).

(10)  Resolution of the European Economic and Social Committee on ‘Ukraine: One year after the Russian invasion — the European civil society perspective (OJ C 146, 27.4.2023, p. 1).

(11)  Nord Stream: Russian gas pipe leaks could have an ‘unprecedented’ environmental impact | Euronews.

(12)  EESC opinion on Food price crisis: the role of speculation and concrete proposals for action in the aftermath of the Ukraine war (OJ C 100, 16.3.2023, p. 51).

(13)  See, for example, the work of EcoAction: Crimes against the environment after one month of Russia's war against Ukraine — Ecoaction.

(14)  How does the war change Ukrainians: public opinion poll about the war, the environment, post-war reconstruction and EU accession, Resource and Analysis Centre ‘Society and Environment’, 2023.

(15)  OJ C 290, 29.7.2022, p. 1.

(16)  OECD, July 2022, Consequence's environnementales de la guerre en Ukraine et perspectives pour une reconstruction verte (oecd.org).

(17)  ENI Shared Environmental Information System (SEIS).

(18)  Agence Europe, Europe Daily Bulletin No 13014, ‘Thirteen NGOs call for inclusion of Russian fishing vessels in upcoming EU sanctions against Putin’s regime’, 6 September 2022.

(19)  Resolution (A/76/L.75) — UN Digital Library.

(20)  EESC information report: Environmental protection as a prerequisite for respect for fundamental rights.

(21)  European Environment Agency, ‘Air Quality in Europe 2021: Health impacts of air pollution in Europe’, 15 November 2021.

(22)  European Environment Agency, ‘Health risks caused by environmental noise in Europe’, 14 December 2020.

(23)  This Article sets out the aims of EU environmental policy.

(24)  Notably Article 2 (right to life), Article 3 (right to integrity of the person), Article 35 (ensuring a high level of human health in the definition and implementation of the EU’s policies and activities), and Article 38 (consumer protection).

(25)  ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’.

(26)  P9_TA(2021)0277, EU Biodiversity Strategy for 2030: Bringing nature back into our lives, paragraph 143.

(27)  Irmina Kotiuk, Adam Weiss and Ugo Taddei, in the Journal of Human Rights and the Environment, vol. 13, special issue, September 2022.

(28)  On positive obligations under Article 8 of the Convention (and therefore Article 7 of the Charter), see e.g., Fadeyeva v Russia, application number 55723/00, judgment of 9 June 2005.

(29)  Resolution 2396 (2021), Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe.

(30)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1).

(31)  Anu Bradford, The Brussels Effect: How the European Union Rules the World, Oxford University Press, 2020.

(32)  ILO: World Employment and Social Outlook 2018 — Greening with jobs, 2018.

(33)  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ L 152, 11.6.2008, p. 1).

(34)  Case C-723/17, Craeynest v Brussels Hoofdstedelijk Gewest, paragraph 53.

(35)  Decision (EU) 2022/591 of the European Parliament and of the Council of 6 April 2022 on a General Union Environment Action Programme to 2030 (OJ L 114, 12.4.2022, p. 22).

(36)  EESC opinion on the Implementation of EU environmental legislation in the areas of air quality, water and waste (OJ C 110, 22.3.2019, p. 33).