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INSTITUTIONALISING THE NEEDS, INTERESTS AND RIGHTS OF FUTURE GENERATIONS,

AN OMBUDSPERSON FOR FUTURE GENERATIONS

IN THE NETHERLANDS,

WORLDCONNECTORS, LEGAL BACKGROUND PAPER1

1. INTRODUCTION – The interests of Future Generations

“We borrow environmental capital from future generations with no intention or prospect of

repaying… We act as we do because we can get away with it: future generations do not vote; they

have no political or financial power; they cannot challenge our decision.”

Brundtland Report, “Our Common Future”, 1987.2

Some members of the future generations, that the Brundtland Commission was concerned about,

are now 25 years old. The International Labour Organisation refers to this generation as a “lost

generation” in its 2012 report “The youth employment crisis: A call for action”, because of record

numbers in youth unemployment (13% globally).3

Even in rich countries, child poverty has reached 30% (UK), and over 25% of children in the US lived

off food stamps in 2010, double the percentage of adults. Most countries face a fast-growing wealth

gap in their societies (the Gini Co-efficient in China went from 0.3 to 0.5). In some cases it is the

highest on record (US). In a world of 60 trillion of global GDP, around 1 billion people live in chronic

hunger. Meanwhile, the Planetary Boundaries within which humanity can operate safely are reached

or (often gravely) overshot - with a clear rising tendency.

In the last few hundred years, there has been an extraordinary disengagement of humans from the

natural environment. This is mostly due to the enormous shift of people away from rural areas into

cities. Here, contact with nature is often only available via parks. Never have humans spent so little

time in physical contact with animals and plants. Nevertheless, the central notion that contact with

1 This paper was written by Worldconnector Jan van de Venis together with legal intern Stefanie Pijnenburg on behalf of the Worldconnectors Working Group (WG) Ombudperson for Future Generations and includes comments by the Working Group. 2 World Commission on Environment and Development, Our Common Future, 1987, Chapter 12, para. 84, full report at: <http://www.scribd.com/doc/50043161/Our-Common-Future-Report-of-the-World-Commission-on-Environment-and-Development>, (last visited 7 February 2013). 3 The youth employment crisis: A call for action, Resolution and conclusions of the 101st Session of the International Labour Conference, Geneva, 2012. Download: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_185950.pdf

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nature is beneficial, perhaps even essential, to human health and well-being is increasing.4 Children's

relationship with nature is important for their development and for a sustainable future on Earth.5

Did we see great institutional changes following the Brundlandt and other alarming reports? Not

really. Although the needs of future generations are a crucial element of sustainable development,

they are not institutionalised and not represented in the relevant decision-making processes.

National and international policymaking is still inherently constricted to short-term thinking by

electoral cycles. Governmental and business plans are still waylaid from a sustainable path and

suppressed by short-term budgetary arguments and profit margins.

The electorate, i.e., people over the age of 18, votes and acts unconscious of the impact on and

interests of a substantial chunk of the long term demographic: those under 18 and the generations

that are yet unborn.

The interest and rights of Future Generations and Rio+20

In the preparations towards the 2012 United Nations Conference on Sustainable Development, or

Rio+20, reference was made to giving a voice to Future Generations: “The needs of future

generations are a crucial element of sustainable development, but are not represented in the

relevant decision-making processes.”6. The solution was also presented, repeated and even written

into the (so-called “Zero Draft”7) draft Rio+20 outcome Declaration “The Future We Want”: A way to

remedy this situation and ensure that long-term interests are heeded would be to create High

Commissioners/Ombudspersons for Future Generations at UN and national levels.

The world hereby was presented with a great opportunity to right this unsustainable wrongdoing in

policymaking. However, although many of the Major Groups strongly lobbied for it and many

delegations seemed open for a new UN High Commissioner for Future Generations, in the end this

initiative failed and all reference to this High Commissioner or Ombudsperson were removed from

the Rio+20 Declaration.

4 Healthy Parks, Healthy People: The Health Benefits of Contact with Nature in a Park Context. download: http://www.georgewright.org/262maller.pdf Includes reference to research done by The Health Council of the Netherlands and The Dutch Advisory Council for Research on Spatial Planning, Nature and Environment in 2005. 5 Young Children's Relationship with Nature: Its Importance to Children's Development & the Earth's Future, Randy White, see: http://www.whitehutchinson.com/children/articles/childrennature.shtml 6 United Nations Department of Economic and Social Affairs Division for Sustainable Development Sustainable Development in the 21st century (SD21), Review of implementation of Agenda 21 and the Rio Principles, Synthesis, January 2012, download: http://www.uncsd2012.org/content/documents/194Synthesis%20Agenda%2021%20and%20Rio%20principles.pdf 7 The so-called “Zero Draft” declaration was put together by the UN Secretariat for the conference as an initial basis for negotiations,

drawing on submissions from civil society groups, governments and international organisations. On page 10, the ombudsman clause says: “We agree to further consider the establishment of an Ombudsperson, or High Commissioner for Future Generations, to promote sustainable development.” Download: http://www.uncsd2012.org/rio20/content/documents/370The%20Future%20We%20Want%2010Jan%20clean.pdf

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Although this crucial institutionalisation failed in the Rio+20 Declaration8, later adopted as UN

General Assembly Resolution 66/288, many very relevant references are included in the Declaration:

* Principle 1: “We… …renew our commitment to sustainable development and to ensuring the

promotion of an economically, socially and environmentally sustainable future for our planet and for

present and future generations.”;

* Principle 39: “We are convinced that in order to achieve a just balance among the economic,

social and environmental needs of present and future generations, it is necessary to promote

harmony with nature.”

* Principle 86: “We will also consider the need for promoting intergenerational solidarity for

the achievement of sustainable development, taking into account the needs of future generations…”;

* Principle 191: “We recall that the United Nations Framework Convention on Climate Change

provides that parties should protect the climate system for the benefit of present and future

generations of humankind on the basis of equity and in accordance with their common but

differentiated responsibilities and respective capabilities.”; and

* Principle 197: “We recognize the severity of the global loss of biodiversity and the

degradation of ecosystems, and emphasize that these undermine global development, affecting food

security and nutrition, the provision of and access to water and the health of the rural poor and of

people worldwide, including present and future generations.”

Even though these strong references to future generations, their rights, harmony with nature, their

sustainable development, etc., were made in the Rio+20 Declaration, the world failed to remedy this

erroneous systemic situation and did not institutionalise a UN High Commissioner or Ombudsperson

for Future Generations.

However, the references are clear and call for action. And so does our everyday life. The financial,

food, water and energy crises make us realise that we have been unsuccessful implementing and

executing sufficient Sustainable Development strategies. In fact, the urgency to implement these

strategies has only and dramatically risen since Rio+20.

Instead of providing “healthy and fulfilling lives for the current generation while entrusting to future

generations the means to do the same” (UNCED 1992), the preconditions for a good quality of life in

the future are declining rapidly, even for those economically wealthy today.

8 United Nations, General Assembly Resolution 66/288, The future we want, 27 July 2012, Principle 39. We recognize that planet Earth and

its ecosystems are our home and that “Mother Earth” is a common expression in a number of countries and regions, and we note that some countries recognize the rights of nature in the context of the promotion of sustainable development. We are convinced that in order to achieve a just balance among the economic, social and environmental needs of present and future generations, it is necessary to promote harmony with nature.

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The global community failing to meet its goals on sustainable development

The global community agreed formidable goals for a balanced rather than threatening future at the

first Sustainable Development Summit in Rio de Janeiro, 1992. We have failed to meet them. In the

preparation for the Rio+20 Earth Summit, the UN Secretary General has compiled country reports

into a Synthesis Report on progress on Sustainable Development commitments and strategies. Four

shortcomings stand out:

1. The sustainable development agenda often remains separated from the core of policy

formulation that takes place in single-issue departments;

2. Monitoring and enforcement of agreed sustainable development strategies at all governance

levels are weak, and usually trumped by short-term economic growth concerns;

3. Some sectors and policies remain almost untouched by sustainability concerns, in particular the

financial sector, and accountability is weak; and

4. Transparency and disclosure of information on the underlying trade-offs of policy choices are

insufficient, in particular with concern to long-term trends.

One concrete institutional change to tackle these implementation gaps would be the instalment of

Ombudspersons for Future Generations, the World Future Council argues on its websites9. We agree.

As dire situations demand fundamental change and not simply minor amendments to the status quo,

it can be easier to take big steps in times of crisis rather than small ones. Sustainable development

has been recognised as an overarching goal for institutions at the national, regional, and

international levels. Sustainable development will, however, only become a reality with the full and

equal consideration of all its three pillars: environmental, social, and economic.

Environmental and social concerns are currently often disregarded or undermined by economic

motivations and, as a consequence, externalisation of costs and false trade-offs are presented.

This planet has a fragile ecosystem and a finite supply of resources. It must be realised and acted

upon as these planetary boundaries present a serious financial and social reality, not only an

environmental one. To ensure that this reality is not blindsided by short-term interests, electoral

distractions, or tempting profiteering and short-cuts, an institution must be created that is mandated

to take the longer view and focuses on the common interests of Present and Future Generations.

9 http://www.worldfuturecouncil.org

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2. EXECUTIVE SUMMARY

As we make decisions today that impact future generations, present generations bear the

responsibility to respect the rights and consider the needs of those who are yet to come. Although

the needs of future generations are a crucial element of sustainable development, they are not

institutionalised and not represented in the relevant decision-making processes. An increasing

number of countries have established different innovative instruments with the purpose of

protecting the rights of future generations.

The Ombudsman for Future Generations as institutionalised in Hungary has proven to be the most

effective, because this Ombudsperson10:

Has a firm mandate based on a constitutionally safeguarded human right to a healthy

environment;

Works at the heart of the state system;

Holds and independent position from the political and administrative system;

Is not subject to electoral cycles, which so often constrict national policymaking to short-term

thinking and therefore;

Can truly adhere to long-term analysis.

In the Netherlands, such a guardian for Future Generations would perfectly fit within the existing

framework of Ombudsmen. This new Ombudsperson would, together with the current Ombudsman

for Children, in accordance with current law11, be a deputy Ombudsman, residing under the National

Ombudsman.

An Ombudsperson for Future Generations would need an adequate mandate to operate on. Similar

to Hungary, a constitutional right to a healthy environment can help safeguard the environment,

benefiting current and future generations and serves as the required mandate for the Ombudsperson

for Future Generations. This human right has been recognised several regional human rights treaties,

many constitutions around the world, through the case law of both the European Committee on

Social Rights and the European Court of Human Rights and in many other international instruments

10

The concept of "Ombudsman" originated in Sweden in the mid-1700's and then spread worldwide to the academic, public and private

sectors. We use the gender neutral term "ombudsperson", rather than "ombuds" or "ombudsman" to describe the office. 11

Wet Nationale Ombudsman, Wet van 4 februari 1981, houdende instelling van het ambt van Nationale ombudsman en wijziging van een

aantal wetten, online: http://wetten.overheid.nl/BWBR0003372/geldigheidsdatum_15-08-2011

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like United Nations declarations and resolutions. The time has come for The Netherlands to

constitutionally recognize and codify and to respect this human right as a substantive right:

‘Everyone has the right to an environment that is not harmful to their health or well-being and the

right to have the environment protected, for the benefit of present and future generations’

Establishing an Ombudsperson for Future Generations and a codification of the right to a healthy

environment in the Dutch Constitution are two sides of the same coin. Codification of the right

provides the Ombudsperson with a firm mandate, and at the same time, the Ombudsperson is able

to pro-actively guard this right and prevent it from becoming nothing more than nice sounding

words.

These two features are crucial in order to have a real impact on the lives of future generations.

Establishing a new Ombudsperson would be relatively easy to facilitate and would only require

altering the specific Dutch Ombudsman Law, the “Wet Nationale Ombudsman”, as the example of

the Deputy Children’s Ombudsman established in 2011 shows. The Ombudsperson for Future

Generations shall operate at the same level with the same authority and capacities as the existing

Ombudsmen, but more specific in his/her own area of work on Future Generations.

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3. STANDING UP FOR THE RIGHTS OF FUTURE GENERATIONS

3.1 The need for an institution protecting the rights of future generations

Humanity is not limited to the people living on Earth today, but includes generations who will be

born in the foreseeable future. Future generations are unrepresented; they are without a voice. Even

though their very existence is threatened, they are unable to invoke or secure their interests.

As we make decisions today that impact future generations, present generations bear the

responsibility to respect the rights and consider the needs of those who are yet to come.12

By giving a voice to the voiceless, through the establishment of an instrument that can represent

future generations, we will be able to live up to our responsibility in the Netherlands. An instrument

should be able to effectively guard the rights of future generations so to prevent these rights from

being just nice, but empty words.

In this section, we will first discuss certain basic principles crucial to the effective functioning of a

guardian for future generations. After that, we will explore how other countries have established

innovative instruments to represent the voices of future generations in their policy-making

processes, in accordance with their own specific governance framework and legal architecture.13

3.2. Effective rights for future generations

Although all instruments concerned with the rights of future generations need to be structured in

accordance with the national legal and cultural reality, several criteria have been identified by the

World Future Council Foundation - an internationally recognised and leading organisation in the area

of rights for future generations14 - that are important in order to have an effective impact.

An institution safeguarding the rights of future generations should at least have the following

characteristics:

12 Marcos Orellana et al., The High Commissioner for Future Generations: The Future We Want, World Future Council, 2012, p.1. 13 Catherine Pearce, Ombudspersons for Future Generations: A Proposal for Rio+20, UNEP, 2012, p.5. 14 For more information, visit the website at <http://www.worldfuturecouncil.org>.

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1. Independent. Thus entailing that a guardian and its staff should not hold any other public

(governmental) posts, nor should they have any interests in commercial sectors. The office should

also be legally independent, and its budget fixed over longer time.

2. Proficient, in terms of having a staff equipped with a multidisciplinary background.15

3. Transparent, in order to create and maintain trust. It ought to act in accordance with its mandate

and allow for broad participation of all stakeholders. Also, regular reports should appear about its

work which are to be publicly available.16

4. Democratically legitimate, meaning that the office should enjoy large public support. This can be

guaranteed through the selection process and the ability for citizens to deliver inputs and receive

information.

5. Access to information. The institution needs to have access to all relevant information from

governmental authorities.

6. External Assessment, widely accessible to external (expert) assessments and citizens concerns so

that well informed and broad argumentation becomes possible.17

We would like to add to this:

7. Mandate. Appropriately and evidently mandated by law, in terms of powers, duties and

responsibilities.

The World Future Council identified a number of possible roles for these institutions, which we

support:

A. Be responsive to citizens, thus increasing trust in policy implementation and Government

accountability and combating high levels of political apathy;

B. Remain informed and help engage decision makers and the general public;

C. Facilitate coherence between separate pillars of government;

D. Hold government departments and private actors accountable;

E. Balance short-term interests with long-term interests of society as a whole.18

15 Alice Vincent, Ombudspersons for Future Generations: Bringing Intergenerational Justice in to the Heart of Policy Making, UN Chronicle, 2012, available at <http://www.un.org/wcm/content/site/chronicle/home/archive/issues2012/thefuturewewant/ombudspersonsforfuturegenerations> , (last visited 7 February 2013). 16 Maja Göpel, Ombudspersons for Future Generations as Sustainability Implementation Units, Stakeholder Forum, 2012, p. 3. 17 Maja Göpel and Malte Arhelger, “How to protect Future Generations’ Rights in European Governance’, 2010 Intergenerational Justice Review, 1/2010, p. 7. 18 Catherine Pearce, “The Road from Rio: Establishing a principal advocate for the needs and interests of future’, 2012, Outreach, p. 6.

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3.3 A peak across our borders

Several countries have already successfully established institutions that watch over or safeguard the

rights of future generations. These institutions have been structured differently, in alignment with

specific conditions of each individual country.19 National instruments include Parliamentary

Commissions for the Environment, for Sustainable Development or for Future Generations Rights,20

National Commissioners for the Environment and Sustainable Development 21 and an Ombudsperson

for Future Generations.22

In Brazil, Chile, Finland and Germany Parliamentary Commissions have been set up on sustainable

development and/or environmental issues, mandated with the responsibility to take into account the

interests of future generations. Although these are indeed initiatives to be welcomed, analyses by

the World Future Council show that their lack of institutionalisation, limited mandate and

independency restrains their impact with regard to the rights of future generations. 23

Parliamentary Commissioners for the environment can be found in Canada and New Zealand.

Compared to the earlier mentioned Parliamentary Commissions, these are mostly granted a broader

mandate. However, analyses by the World Future Council show that these Commissioners still lack a

great deal of independency, resources and competences to secure compliance of their governments’

commitments related to the rights of future generations.24

The most effective instrument in protecting the rights of future generations is without a doubt the

establishment of an Ombudsperson (still often called “Ombudsman” - and also known as

Commissioner) for Future Generations25 - as has been exemplified by Hungary. (S)he has been

assigned with the task “to make human responsibility felt in all the fields of state and civil life, with

respect to the conservation of natural values trusted to us, for the sake of protecting the next

generations.”26

19 World Future Council, National Policies and International Instruments to Protect the Rights of Future Generations, A Legal Research Paper, pp. 4-5. 20 Commission on Environment and Sustainable Development in Brazil, Commission on Natural Resources, Environment & National Resources in Chile, Committee for the Future in Finland and a Committee for Sustainable Development in Germany. 21Parliamentary Commissioner for the Environment in New Zealand and a Sustainable Development Commissioner in Canada. 22 Parliamentary Commissioner for Future Generations in Hungary. 23 World Future Council, National Policies and International Instruments to Protect the Rights of Future Generations, A Legal Research Paper, p. 7. 24 World Future Council, National Policies and International Instruments to Protect the Rights of Future Generations, A Legal Research Paper, p. 10. 25 Also called a Parliamentary Commissioner for Future Generations 26 Sándor Fülöp, Comprehensive summary of the parliamentary commissioner for future generations of Hungary, 2010, p. 9.

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The Hungarian Ombudsperson’s mandate is based on the Constitution, according to which: “The

Republic of Hungary acknowledges and enforces everyone’s right to a healthy environment.”27 The

competence of this Ombudsman does not merely cover environmental protection in the narrow

sense, but also other issues concerning the sustainability (of nature) and the environment.

Pursuant to the Hungarian Ombudsman Act, (s)he monitors legislative developments and proposals

so to ensure that they will not pose a threat to the environment and future generations. Means are

available to the Ombudsman to achieve this objective include complaints investigation,

parliamentary advocacy and strategic development and research.28

Anyone can address the Ombudsman for complaints investigation if opportunities of any other

administrative legal remedy have been exhausted, without the case being taken to court.

If the Commissioner encounters constitutional misconducts, (s)he has the ability to carry out a

variety of measures, ranging from calling the authority or other body to take necessary remedial

steps, suspending the execution of administrative resolutions, through initiating or intervening

administrative or legal actions, up to taking the floor in the House of Parliament.29 Thanks to this

permission, the Commissioner has been able to halt several construction plants to prevent their

negative impact on the environment,30 like in the municipality of Budapest, which wanted to

construct high-rise buildings in an area that already experienced substantial environmental pressure.

As for Parliamentary advocacy, the Ombudsman must be consulted on every draft legislation and

governmental initiative concerning the environment and sustainable development so that (s)he can

express his/her opinion or - in cases of a violation of the right to a healthy environment - initiate

constitutional review of the legal norm with the Constitutional Court.31

The opinion of Mr. Fülöp, the first Ombusman for Future Generations, proved to be very valuable in

the case of a draft (Hungarian) Forestry Act laying down less stringent rules on forest management.

Resulting from his statements, several MPs submitted proposals for amendments to the bill identical

27 Constitution of Hungary, Article 18: The Hungarian Republic recognises and implements everybody's right to a healthy environment. 28 Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (ombudsman) art. 27/B. 29 Sándor Fülöp, Comprehensive summary of the report of the Parliamentary Commissioner for Future Generations of Hungary, 2008-2009, p. 9. 30 Other successes include for example prevention from protected historic buildings in the town-centre of Budapest being demolished and a re-examniation by the municipality Piliscsaba of a spatial plan to construct an underground karsts water reservoir for public and commercial purposes in an area where the water balance was already negative. 31 Article 27/B. e) of Act LIX of 1993.

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to the Commissioner’s comments.32 Also, the Ombudsman recognised the fundamental importance

of water affecting essential conditions of future generations by emphasising the responsibility of the

state on this field in connection with the planned reorganization of public water utilities. 33

By strategic development and research, the Ombudsman can pro-actively represent future

generations’ interest, promote long-term thinking and determine areas for improvement.34 Under

this heading, the Climate Change Project has been carried out to raise questions and call attention to

the need for long-term scenarios and timely response to the challenges of climate changes.35

Concluding on institutionalising the safeguarding of rights of future generations:

As illustrated, rights of future generations can be found on political agendas in an increasing number

of countries from different parts of the world. Different positions have been created to ensure that

the needs of those who are not alive today will be considered.

Amongst these different approaches, the position of the Ombudsperson for Future Generations

clearly stands out. The Ombudsperson’s mandate explicitly aims at (safe)guarding the rights of future

generations in an environmental context, in contrast to the secondary or inferential links, which are

found in other positions and their mandates.

Moreover, even though working at the heart of the state system,36 the position of an Ombudsperson

is the most independent, owing to the ability to investigate and sanction public institutions. Also

removing an Ombudsperson from office is difficult without a genuine cause. This means that the

office is not restricted to electoral cycles, which so often constricts national policy making to short-

term thinking with an eye to being re-elected.

Owing to this independent position, the Ombudsperson is able to take long-term interests into

account. These characteristics have proved to be of indisputable value in guaranteeing effective

performance.37

32 Éva Tóth Ambrusné, ‘The Parliamentary Commissioner for Future Generations of Hungary and his Impact, 2010 Intergenerational Justice Review, 1/2010, p. 22. 33 Sándor Fülöp, Comprehensive summary of the report of the Hungarian Parliamentary Commissioner for Future Generations, 2010, p. 24. 34 Éva Töth Ambrusné, ‘The Parliamentary Commissioner for Future Generations of Hungary and his Impact’, 2010, Intergenerational Justice Review, p. 23. 35 Ibid., p.23; another project launched by the Ombudsman’s office is the Sustainability Project, which provides professional and coordinative support to initiatives in local communities dedicated to the implementation of sustainable development in their settlements. 36 Alice Vincent, Ombudspersons for Future Generations: Bringing Intergenerational Justice in to the Heart of Policy Making, UN Chronicle, 2012, available at <http://www.un.org/wcm/content/site/chronicle/home/archive/issues2012/thefuturewewant/ombudspersonsforfuturegenerations> , (last visited 7 February 2013). 37 World Future Council, National Policies and International Instruments to Protect the Rights of Future Generations, A Legal Research Paper, p. 14.

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3.4 The Netherlands: establishment of an Ombudsperson for Future Generations

As set out in the previous paragraphs, the Ombudsman as established in Hungary has been the most

effective in protecting rights of future generations and is most correspondent with the principles

established by the World Future Council, we support and extended.

We already have a framework of Ombudsmen in place in the Netherlands who guard over specific

rights of our citizens. What does that Dutch system of Ombudsmen look like? Could a Dutch guardian

for future generations be institutionalised as an Ombudsperson within the existing framework?

3.4.1 Institutional Framework

At present, we have two Ombudsmen in the Netherlands.

1) The National Ombudsman, currently Mr. Alex Brenninkmeijer, is the general or main

Ombudsman who deals with complaints about the conduct of public servants and governmental

bodies. He can also start an investigation on his own initiative. His activities are supported by an

office consisting of 170 employees.38

2) The Children’s Ombudsman, Mr. Marc Dullaert, a deputy Ombudsman who’s task is to ensure

that governmental bodies and other organisations safeguard the rights of children as enshrined

in the Convention of the Rights of the Child. This Ombudsperson can start an investigation on the

basis of complaints or on his own initiative and raises awareness on children’s rights.39 With this

own mandate, tasks and competences, the Children’s Ombudsman is accountable for his own

actions to Members of Parliament. The Children’s ombudsperson has a team of eight people

supporting him.40 This deputy Ombudsman and his employees are supported by the Office of the

National Ombudsman (“Bureau Nationale ombudsman”) in fulfilling his tasks, which facilitates

HR, finances and ICT.41

The National Ombudsman is appointed by the Members of Dutch Parliament (“Tweede Kamer”) for a

period of six years. In the nomination and appointing process, the Members of Parliament have to

take into account the joint recommendation of the Vice-President of the Council of State (“Raad van

State”), the President of the Supreme Court of the Netherlands (“Hoge Raad”) and the President of

the Court of Audit (“Algemene Rekenkamer”). 42

38 Information about the Dutch National Ombudsman can be found at: <www.denationaleombudsman.nl> (last visited 7 February 2013). 39 Information about the Children’s Ombudsman can be found at: <www.kinderombudsman.nl> (last visited 7 February 2013). 40 Annual Report Children’s Ombudsman 2011 p. 57. 41 Ibid., p. 52. 42 Art. 2 Wet Nationale Ombudsman

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Deputy Ombudsmen are appointed by the (Members of) Parliament on request of the National

Ombudsman for the period of the (remainder of the) term of the Ombudsman at whose request he is

appointed, plus one year.43 Ombudspersons are not allowed to carry out any other governmental or

private positions that are incompatible with the fulfilment of the Ombudsperson’s function.44

3.4.2. Room for one more?

We have a comprehensive and firmly established institutional framework for Ombudsmen in the

Netherlands. Positioning the guardian for future generations within this framework, would endow

this (Ombuds)person with the characteristics the World Future Council has identified as being of

crucial importance for having an effective impact (see paragraph 3.2). Independency of the

Ombudspersons is guaranteed as they are established by law, are able to investigate misconduct of

governmental institutions and are not allowed to hold any conflicting posts. Their activities are

transparent, as during their annual reports they have to give account of their activities. Their

democratic legitimacy is secured through the selection process. The Ombudspersons have access to

all relevant information, as governmental agencies are obliged to cooperate with an investigation.

Also, the institutions are easily accessible to citizens who can provide the Ombudsmen with

information or file complaints. Furthermore, the Office of the National Ombudsman is proficient in

terms of personnel and facilities and supports its deputy Ombudspersons.

Last but not least, changing the law to enable this new Ombudsperson to take office, would be a

relatively easy step to take. We have already drafted the law proposal needed for this within the

current system of Ombudsmen. However, as we have set out before, we would rather use the

gender-neutral term "Ombudsperson(s)", rather than "Ombudsman" or “Ombudsmen” to describe

the office. If the Dutch Parliament supports this gender-neutral approach, this new amendment,

changing the title of the law into “Wet Nationale Ombudspersoon”, could also and easily anticipate

that change.

However, if indeed we are to institutionalise a watchdog for future generations through an

Ombudsperson, it is very important that this Ombudsperson has a firm and clearly delineated

mandate to act upon. This will be discussed in the next Chapter.

43 Art. 9 (2) Wet Nationale Ombudsman 44 Art. 5 Wet Nationale Ombudsman

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4. A CONSTITUTIONAL RIGHT TO A HEALTHY ENVIRONMENT - Required for Future

Generations in The Netherlands?

4.1 Introduction: A Human Right to Environment, the legal basis for the Ombudsperson to

operate on?

In Chapter 3 we advised for an institutionalization of guardian activities for future generations

through a Dutch Ombudsperson for Future Generations. This Ombudsperson needs an adequate

mandate, a firm basis on which to operate. The mandate of the Ombudsman for Future Generations

in Hungary, is based on 'the right to a healthy environment', as codified in the Hungarian

Constitution.45 The Ombudsperson is mandated to safeguard this right.

"The realization of the rights of our successors to a healthy environment, …

is for structural reasons very difficult in the current democratic system.

The effects of human activity, which are long in space and in time,

cannot be considered in their appropriate importance by the current forms of decisions.

That is why it is important to enlarge the democratic institutional system in a way that ensures the

responsibility of the current generation towards the future generations."

Benedek Jávor, currently a Member of Parliament in Hungary, stated this in support of a human right

to environment and the safeguarding of the rights of future generations at the 2007 Budapest World

Science Forum.46

He articulated his point very well. A firm legal basis is needed to support the institutional framework

that safeguards the rights of future generations. As said, the Hungarian constitution codifies the right

to a healthy environment. But does the Dutch constitution?

Article 21 of the Dutch constitution imposes a duty on the Dutch government to ensure the

habitability of the land - including the general infrastructure and especially the vital sea-defenses -

and the protection and improvement of the environment. Based on this article, the Dutch

government has a duty of care towards its people when the environment is concerned, but there is

no 'rights' based codification.

45 Constitution of Hungary, Article 18: The Hungarian Republic recognises and implements everybody's right to a healthy environment. 46 Benedek Jávor, Giving a Voice to Future Generations, Pázmány Péter Catholic University, Dept. of Environmental Law, Védegylet – Protect the Future, Hungary. (Presented at World Science Forum, Budapest, 8-10, November, 2007.

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This article therefore does not grant individuals, let alone future generations, rights to stand up

against (potential) environmental disruption or other acts or omissions of the Dutch government,

which would weaken the rights of future generations.

Like Mr. Jávor points out, we need to enlarge the democratic institutional system in a way that

ensures the responsibility of the current generation towards the future generations.

This Chapter will show that a constitutional right to a healthy environment can help safeguard the

environment and will benefit current and future generations.

In the following paragraphs we will give an introduction into (the development of) the human right to

(a healthy) environment. We introduce the topic of linking human rights and the environment on a

global scale. We provide with in depth information where this human rights-based approach to

environmental issues came from, what tangible benefits such a right could bring and where it

currently stands globally and, more specifically, in Europe under the European Convention on Human

Rights. We will also briefly analyse the 2010 Council of Europe’s Committee of Ministers rejection of

a Parliamentary Assembly recommendation on acknowledging a Right to Environment under the

European Convention.

4.2 A Short Historical Overview on Linking Human Rights and the Environment

The United Nations Charter of 1945 and the 1948 Universal Declaration on Human Rights mark the

beginning of modern international human rights law. This was long before people started thinking of

the concept of a rights-based approach to environmental concerns.

In response to growing environmental pollution and increasing awareness about this, many treaties

and laws on environmental protection were introduced in the second half of the twentieth century.

Since the 1970s the connections between human rights and the environment have been

progressively recognized. The Stockholm Declaration of 197247, with its “Principles” that proclaim

rights, is generally seen as the starting point of the modern international framework for human

rights-based environmental protection (in the same way that many will say the 1992 Rio Declaration

has been on sustainable development48).

Despite their initially separate treatment, in terms of their protection under international law, over

the years it has become increasingly acknowledged that human rights and the environment are

47 Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, U.N.Doc.A/.CONF.48/14/Rev.1 at 3 (1973), available at <http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503> (last visited 7 February 2013) 48 The United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, June 1992, available at <http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163> (last visited 7 February 2013)

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inherently interlinked as people started to realize that a clean and healthy environment not only

yields great benefits for humans, but is in fact essential to the enjoyment and realization of other

fundamental human rights.49 To give one clear example: the right to life, personal integrity, family

life, health and development of each human being depends on protecting the environment as the

resource base for all life.

Ever since the 1972 Stockholm Declaration, the international community has progressively started

addressing the links between human rights and environmental rights. This process led to the 1992

Rio Declaration, which acknowledged the right to a healthy and productive life in harmony with

nature and the right of access to environmental information and of public participation in

environmental decision-making.50

However, the process of linking human rights and environmental issues seemed to lose momentum

at the official international level, when the Declaration of the 2002 World Summit on Sustainable

Development in Johannesburg51 only stated that consideration was being given to the possible

relationship between environment and human rights.

Even so, recent case law based on international conventions such as the American Convention on

Human Rights and African Charter on Human and People’s Rights, together with other local, regional

and international developments and initiatives – including the Millennium Development Goals52 and

the Earth Charter53 – have reaffirmed that environmental and human rights are strongly linked and

that the right to a healthy environment is a fundamental part of the right to life and to personal

integrity.

4.3 Examples of ‘Environment’ Codified as a Human Right

Currently, two regional human rights treaties acknowledge a right to environment:

The African Charter on Human and Peoples’ Rights (1981) confirms in Article 24: “All peoples

shall have the right to a general satisfactory environment favourable to their development.“

49 For more in-depth information and research, please see the website <www.RightToEnvironment.org >which includes reference to the academic research and publications and working papers by Prof. Dinah Shelton, like ‘Health and Human Rights Working Paper Series No 1’, Human Rights, Health & Environmental Protection: Linkages in Law& Practise, A Background Paper for the World Health Organisation, Prof. Dinah Shelton, London, 2002 50 Ibid. 51Johannesburg Declaration on Sustainable Development, Adopted at the 17th plenary meeting of the World Summit on Sustainable Development, on 4 September 2002, at <http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POI_PD.htm> (last visited 8 February 2013) 52 For more information visit the website at <http://www.un.org/millenniumgoals>. 53 For more information and download <http://www.earthcharterinaction.org/content/pages/Read-the-Charter.html>

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The American Convention on Human Rights in the Area of Economic, Social and Cultural

Rights (1988), Article 11 (of the Additional Protocol)54, proclaims:

“(1.) Everyone shall have the right to live in a healthy environment and to have access to

basic public services and (2.) The States parties shall promote the protection, preservation

and improvement of the environment.“

The Aarhus Convention55 grants the public rights regarding access to information, public participation

and access to justice in governmental decision-making processes on matters concerning the local,

national and transboundary environment and focuses on interactions between the public and public

authorities.

All of the 46 States (including all EU member States) that ratified the Aarhus Convention, through its

preamble, recognize that “every person has the right to live in an environment adequate to his or her

health and well-being, and the duty, both individually and in association with others, to protect and

improve the environment for the benefit of present and future generations.”. The Convention itself,

however, does not reiterate this right.

Although research undertaken in 2002 by Prof. Dinah Shelton56 shows that, besides the regional

treaties mentioned, more than 100 constitutions throughout the world guarantee a right to a clean

and healthy environment, impose a duty on the state to prevent environmental harm, or mention

the protection of the environment or natural resources, this right had not yet been accepted

commonly at the international level in the early 2000s.

For the 2011 Office of the High Commissioner on Human Rights study ‘Human Rights and

Environment’57, the Dutch NGO Nederlands Juristen Comité voor de Mensenrechten (NJCM) made an

overview on constitutional provisions on environmental rights and duties.

This overview demonstrates that:

Currently over 75 constitutions explicitly recognize a ‘right to environment’ for individuals,

groups, or communities in some form or other;

54 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador, November 17, 1988, OAS T.S. 69. 55 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus, Denmark, 25 June 1998. 56 Health and Human Rights Working Paper Series No 1, Human Rights, Health & Environmental Protection: Linkages in Law& Practise, A Background Paper for the World Health Organisation, Prof. Dinah Shelton, London, 2002, p.26. 57 NJCM stakeholder input for 2011 OHCHR study Human Rights and Environment, ANNEX II, List of constitutional provisions on environmental rights and duties (integral part of the ‘stakeholder input’ submitted earlier by the NJCM to the OHCHR, on 30 June 2011, available from: http://www.njcm.nl/site/english/english_reports), download via <www.RightToEnvironment.org> under “News”.

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Alternatively, 60 constitutions affirm that individuals have a ‘duty’ to protect the environment of

which 27 constitutions explicitly recognize this duty as related to a ‘right to environment’;

Additionally, 22 constitutions recognize rights or duties of environmental protection towards

future generations of which 10 constitutions explicitly link such rights or duties to a

constitutional ‘right to environment’.

Recent research done for and by the United Nations has shown that international human rights law is

beginning to recognize that individuals have a “human right to a healthy and clean environment”.58

This is supported by two more recent and explicit codifications of the “right to environment”:

The September 2007 United Nations Declaration on the Rights of Indigenous Peoples:59

Article 29: 1. Indigenous peoples have the right to the conservation and protection of the

environment and the productive capacity of their lands or territories and resources. 2. States

shall establish and implement assistance programmes for indigenous peoples for such

conservation and protection, without discrimination; and

The 2010 United Nations General Assembly Resolution 64/15760: “Affirms that a democratic and

equitable international order requires, inter alia, the realization of ... ..The right of every person

and all peoples to a healthy environment”.

Traditional Environmental and Human Rights NGOs are increasingly asserting this right. Some good

examples include:

Amnesty International Banners in 2009 proclaimed: “A healthy environment is a human right.

Demand Dignity.”61

Greenpeace International (new) International Executive Director Mr. Kumi Naidoo in 2010

stated: “I accepted the role of International Executive Director at Greenpeace, because I believe

that ensuring a green and peaceful planet is also a basic human right.”62

58 Such as: The 2002 Office of the High Commissioner on Human Rights research “Human Rights and The environment”, info and conclusions at <http://www2.ohchr.org/english/issues/environment/environ/index.htm> ; and The UN Secretary-General report on Relationship Between Human Rights and the Environment (2005), UN Doc. E/CN.4/2005/96 (19 January 2005). The report analyses some of the developments that have taken place at the international, regional and national level in recognition of the link between the protection of the natural environment and the enjoyment of human rights. The report concludes that, since the World Summit on Sustainable Development, there has been growing recognition of the connection between environmental protection and human rights. 59 United Nations Declaration on the Rights of Indigenous Peoples, Adopted by United Nations General Assembly Resolution 61/295, 13 September 2007. 60 Resolution adopted by the General Assembly [on the report of the Third Committee (A/64/439/Add.2 (Part II))]64/157. Promotion of a democratic and equitable international order, A/RES/64/157, 8 March 2010, under point 4, paragraph l. 61 Demand Dignity Campaign in 2009. An example at <http://www.amnesty.org/en/library/asset/ASA20/009/2009/en/4acc7b8d-a4f1-4b0c-a33d-d07c8591c426/asa200092009en.pdf> (last visited 8 February 2013). 62 See <http://www.greenpeace.org/international/en/news/features/open-letter-hatoyama120210 > (last visited 8 February 2013).

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Countries and NGO’s are progressively calling for this right to be codified at the global level, often

more general, sometimes very specific, like the September 2012 World Congress of the International

Union for the Conservation of Nature (IUCN), passing a resolution declaring that Children have a

Human Right to Nature and a Healthy Environment.

Over 10,000 people, representing the governments of 150 nations and more than 1,000 non-

governmental organizations, adopted this resolution which calls on IUCN’s members to promote the

inclusion of this right within the framework of the United Nations Convention on the Rights of the

Child. The resolution recognizes "concern about the increasing disconnection of people and especially

children from nature, and the adverse consequences for both healthy child development ('nature

deficit disorder') as well as responsible stewardship for nature and the environment in the future."63

Still, this “right to environment” has not yet been accepted in a binding international human rights

treaty. If one carefully analyses the development of this right over the past decades, a fair conclusion

would be that the development of this right will continue and that, probably in a few years to one or

two decades from now, the next logical step will be taken: the consideration and codification of the

human right to (a clean and healthy) environment under international human rights law.

4.4 A Right to Environment under the European Convention on Human Rights or European

Social Charter

4.4.1 The European Convention on Human Rights64

As the astute reader will have concluded by now, the European Convention on Human Rights was not

mentioned before and indeed still lacks an explicit codification of the environment as a human right.

Despite this, the European Court of Human Rights has developed clear case law over the last decades

through which it has defined that certain (gross) environmental pollution or degradation can lead to

the violation of specific human rights that are acknowledged under the European Convention; more

specifically - in most cases - violations of the ‘right to life’ or ‘right to family life’, as codified in articles

2 and 8 of the ECHR respectively.65

63 The text of the resolution can be downloaded from the IUCN website: <http://portals.iucn.org/docs/2012congress/motions/en/M-132-2012-EN.pdf> (last visited 8 February 2013). 64 For signatures and ratifications of the European Convention on Human Rights, see <http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG> (last visited 7 February 2013). 65 Examples of such cases are ‘Lopez Ostra v Spain’ 16798/90 [1994] ECHR 46 (9 December 1994), ‘Guerra v. Italy’ 14967/89 [1998] ECHR 7 (19 February 1998) and ‘Budayeva and Others vs. Russia’, Application, 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 [2008] (20 March 2008).

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Landmark cases include Lopez Ostra v Spain66 and Guerra v. Italy67. In both of these cases, the

European Court of Human Rights concluded that Article 8 (the right to privacy and family life) of the

Convention had been violated. The Court, in Lopez Ostra v. Spain, held for the first time that a failure

by the state to control industrial pollution was a violation of Article 8 where there was a sufficiently

serious interference with the applicants’ enjoyment on their home and private life. The Court

explicitly noted that regard has to be given to the fair balance between the competing interests of

the individual and the community as a whole (balancing the first and second paragraphs of Article 8).

It is important to note that, in some cases, the economic interests of a state (which is regarded as the

interest of the community as whole) can overrule the interests of an individual.

Judges of the Court until 2010 remained reluctant to interpret (Article 8) the European Convention to

contain a Right to Environment thus allowing the 47 Council of Europe Member States a wide margin

of appreciation in this regard. Generally put, this allows Member States to weigh economical

development ‘against’ the protection of the environment. This more or less means that Member

States have been allowed to favour economical development and to allow environmental

degradation as long as the specific codified human rights mentioned were not violated. Why?

Principally because judges have felt - and have stated so in case law68 - bound by the fact that the

European Convention currently lacks a specifically codified ‘right to environment’.

The results of not having a specific right under the Convention are clear: there is no room for the

precautionary principle. Instead, Member States were long afforded a broad margin of appreciation

and only a human rights violation due to environmental disruption will be recognised if the

disruption is so grave that it violates an already recognised right under the Convention, such as the

right to life or family life.69

The most recent case law by the Court, however, shows that the Court by now has made the next

step, towards the recognition of a right to a healthy environment. We will analyse this recent case

law in paragraph 4.5.6.

66 Lopez Ostra v Spain 16798/90 [1994] ECHR 46 (9 December 1994). 67 Guerra v. Italy 14967/89 [1998] ECHR 7 (19 February 1998). 68 Like recently in Leon and Agnieszak Kania v. Poland, Application no 12605/03 (21.07.2009). 69 For an extensive outline of the European Court on Human Rights case law in Environmental matters, see: The Human Right to a Viable Environment, Dr. Sangini Ramnewash-Oemrawsingh, Cambridge University Press, 2009.

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4.4.2 European Social Charter70

The European Social Charter also lacks an explicit codification of the environment as a human right.

The right to protection of health is guaranteed in Article 11 of the Charter, and complements Articles

2 and 3 of the European Convention on Human Rights. Article 11 provides for a series of rights to

enable persons to enjoy the highest possible standard of health attainable. These are reflected in

measures to promote health and health care provision in case of sickness.71

The European Social Charter acknowledges that overcoming pollution is an objective that can only be

achieved gradually. States must nevertheless take measures to achieve this goal within a reasonable

time, with measurable progress and making maximum use of available resources. In order to

guarantee a healthy environment, States must develop and regularly update sufficiently

comprehensive legislation and regulations in the environmental field, introducing threshold values

for emissions, measuring air quality, etc.) to prevent air pollution.72

So although no explicit right to environment is enshrined in the European Social Charter, the

(interpretation of the) right to health does offer a certain level of environmental protection under

the Charter. But does the case law based on the European Social Charter offer the same level of

protection as that under the European Convention on Human Rights? No, it offers even more.

In the case of Marangopoulos v. Greece73, the European Committee of Social Rights explicitly

recognised the “right to a healthy environment” as embodied in the right to health and also linked

this right to the right to life under the European Convention on Human Rights. The Committee found

that Greece violated this right by failing to fight air pollution.

Given that EU air pollution levels are regularly exceeded in the urban centres of the EU Member

States (all of which are also bound by the Council of Europe’s Social Charter), this decision should be

considered a wake-up call for European governments, Ms. M. Trilsch concludes in her in-depth

analysis of this case.74

70 For signatures and ratifications of the European Social Charter, see <www.coe.int/socialcharter>. 71The Right to Health and the European Social Charter, ESC secretariat, March 2009, see: <http://www.coe.int/t/dghl/monitoring/socialcharter/Theme%20factsheets/FactsheetHealth_en.pdf > (last visited 7 February 2013). 72 Ibid. p. 2. 73 Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Complaint No. 30/2005, European Committee of Social Rights (E.C.S.R.) (2006). 74 M. Trilsch, European Committee of Social Rights: The right to a healthy environment, International Journal of Constitutional Law, Volume 7 Issue 3, 2009, p. 529-538.

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Trilsch states: “It may be that the committee’s endorsement of the right to a healthy environment

will even find its way into national constitutional rights interpretation.”...”Still, the most important

aspect of the decision is its impact on the material content of the rights involved. The committee

essentially removes the right to a healthy environment from the constrained realm of so-called third-

generation rights and introduces it into the mainstream of human rights. This is done by linking it not

only to the social right to health but also to the ‘classical’ human right to life. On a theoretical level,

the decision henceforth may be understood as a strong affirmation of the indivisibility and

interdependence of all human rights.” and “...Therefore, the committee’s decision can be

understood as further advancing the progressive endorsement of environmental issues by the

European human rights institutions.”

4.5 A ‘Right to Environment’ in the European Convention on Human Rights

In September 2009, the Parliamentary Assembly of the Council of Europe - by an almost unanimous

vote - recommended the drafting of an additional protocol to the European Convention on Human

Rights, which would codify ’a right to a healthy and viable environment’75.

4.5.1 The Initiative of the Parliamentary Assembly of the Council of Europe

The steps towards this recommendation were chosen carefully, as the Parliamentary Assembly had

tried and failed twice before (in 1999 - Recommendation 143176 and 2003 - Recommendation

161477) to get a right to environment into the European Convention on Human Rights.

In recommendation 1885, The Parliamentary Assembly reaffirmed its commitment to issues

regarding the environment and considers it not only a fundamental right of citizens to live in a

healthy environment but a duty of society as a whole and each individual in particular to pass on a

healthy and viable environment to future generations”. Thereby explicitly mentioning, the rights

bearers of this Legal Background Paper: Future Generations.”78

And so the “Assembly recommends that the Committee of Ministers: ...draw up an additional

protocol to the European Convention on Human Rights, recognizing the right to a healthy and viable

environment.79

75 Council of Europe, Parliamentary Assembly Recommendation 1885 (2009). <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta09/erec1885.htm> (last visited 8 February 2013). 76 Council of Europe, Parliamentary Assembly Recommendation 1431 (1999), “Future action to be taken by the Council of Europe in the field of environment protection”. <http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta99/EREC1431.htm> (last visited 7 February 2013). 77 Council of Europe, Parliamentary Assembly Recommendation 1614 (2003), “Environment and human rights”. <http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1614.htm> (last visited 8 February 2013). 78 Ibid. point 1. 79 Ibid. point 10.1.

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4.5.2 Support by United Nations Environment Programme (UNEP) Executive Director Mr. Steiner

On 14 May 2010, close to the date on which the final decision was to be made by the Committee of

Ministers, UNEP Executive Director, Mr. Achim Steiner, sent a letter addressed to Ms. Calmy-Rey, at

that time Head of the Department of Foreign Affairs and Chair of the Committee of Ministers of the

Council of Europe, openly supporting and calling for the acceptance of a right to environment.80

Mr. Steiner’s strong plea shows that he was aware of the global developments concerning the right

to environment :

“However, it is again, widely recognized that

a healthy and clean environment is a fundamental prerequisite to the enjoyment of human rights,

it elevates the entire spectrum of sustainability, conservation and environmental issues

amidst the most fundamental values of society, on a level equal to other human rights.

I therefore have confidence that the Committee of Ministers will decide to add

the right to a healthy environment to the other rights codified in and protected under ECHR.”81

4.5.3 The Rejection by the Committee of Ministers of the Council of Europe

On 18 June 2010 the Committee of Ministers rejected recommendation 1885.82 The Committee did

not mention or counter the arguments in favor of this right by the Parliamentary Assembly, CEMAT

and CDPATEP.83 It seems that lack of political will or perhaps fear of the unknown early 2010 guided

the Committee, whereas - backed up by the recommendation of the Parliamentary Assembly and the

advice of the internal advisory bodies - a decision based on rationale, facts, global and regional

developments and vision would have lead to accepting the recommendation.

80 United Nations Environment Programme, DRC/ROE/OUT 2010, 14 May 2010. Letter uploaded at: <http://www.righttoenvironment.com/ip/uploads/downloads/UNEP%20Steiner%20calls%20for%20RightToEnvironment%20in%20ECHR%20www.sufyr.org.pdf> (last visited 8 February 2013). 81 Ibid. p. 2. 82 CM Documents, CM/AS(2010)Rec1883-1885 final, 18 June 2010. <https://wcd.coe.int/wcd/ViewDoc.jsp?id=1638385&Site=COE> (last visited 8 February 2013). It recalled its replies to Recommendations 1614 (2003) on “Environment and human rights” and 1862 (2009) on “Environmentally induced migration and displacement: a 21st century challenge” in which it noted inter alia ”... that although the European Convention on Human Rights does not expressly recognise a right to the protection of the environment, the convention system already indirectly contributes to the protection of the environment through existing convention rights and their interpretation in the evolving case law of the European Court of Human Rights. On both occasions, the Committee of Ministers did not consider it advisable to draw up an additional protocol to the convention in the environmental domain. At present, the position of the Committee of Ministers on this issue remains unchanged.” 83

The Committee of Ministers (the Committee), consisting of the (47) Ministers of Foreign Affairs of the 47 Council of Europe Member

States83, was to have its final say on this. Before reaching this decision, the Committee was advised by three internal Council of Europe bodies. Two of them - the Committee of Senior Officials of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT) and the Steering Committee for Cultural Heritage and Landscape (CDPATEP) - advised in favor of a new additional protocol acknowledging this right. The third, the Steering Committee on Human Rights (CDDH), advised not to follow the recommendation of the Parliament and to deny this human right, despite the vast support for it in the Parliament. It seemed, though, that all arguments presented by CDDH in its advice, had been dealt with by the Parliament in the process leading up to recommendation 1885 but, after having been considered, had proven invalid for the Parliamentary Assembly.

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4.5.4 The European Court of Human rights at the same time chooses to take steps towards

acknowledging the right to a healthy environment

To the contrary of this decision by the Committee of Ministers, the European Court of Human Rights

confirmed that it was (getting) ready to acknowledge a human right to environment, when it took a

big step in that direction almost at the same time that the Committee rejected the proposal. It did so

in 2010 in the case of Băcilă v. Romania (No. 19234/04, 30 March, 2010).

In this case it was clear that applicants were affected by the operation of an industrial plant in gross

excess of applicable environmental standards. The complaint of the applicant pertained to the fact

that the state had not acted in due diligence in ensuring that the impugned plant would reduce

pollution levels to a level consistent with the level needed to ensure the well- being of the

population. The levels of permissible environmental harm in the operating permit were set inter alia

by reference to the levels set at EU level and through the use of findings in an IEA carried out by a

special institute.

In deciding on the merits of the case, and in finding that the state had not respected the interest of

the applicant to ‘live in a healthy and balanced environment', the Court inter alia relied on domestic

legal provisions determining unsafe levels of pollution, environmental studies commissioned by the

authorities, relevant reports, statements or studies made by private entities, and medical certificates.

Early 2012, the European Court of Human Rights took the next step and confirmed the 'Right to

Environment' and concluded to a violation by Italy in Di Sarno and others v. Italy (No.30765/08, 10

January 2012). The Court, in this case having to deal with waste issues in the city of Napoli,

concluded:

"The collection, treatment and disposal of waste were hazardous activities; as such, the State had

been under a duty to adopt reasonable and appropriate measures capable of safeguarding the right

of those concerned to a healthy and protected environment."

The Court did so, even though people had not (yet) suffered concrete damage to their health.84

84

The Court noted that the applicants had not complained of any medical disorders linked to their exposure to the waste and that the

scientific studies produced by the parties had made conflicting findings as to the existence of a link between exposure to waste and an

increased risk of cancer or congenital defects.

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The Băcilă case in 2010 was the first case in which the European Court of Human Rights clearly

affirmed the existence of a right to environment. Now there is another one, the 2012 Di Sarno case,

that even broadens the scope of this right:

"When dealing with hazardous activities,

the State is under a duty to adopt reasonable and appropriate measures capable of

safeguarding the right of those concerned to a healthy and protected environment.”

4.6 The Right to Environment at and beyond the 2012 UN Rio+20 summit.

Although the Rights to a healthy Environment was not explicitly noted or confirmed in or through

(the Principles of) the Rio+20 Declaration document “The Future We Want”85, in their letter to the

Dutch Parliament, the Dutch government representatives State Secretaries Atsma and Knapen did

explicitly mention The Right to a Healthy Environment.86

“Over 100 Heads of States and Heads of Government gathered for the plenary session.

Abdelkader Bensalah, President of Algeria, addressed the meeting on behalf of G77 and China.

He stated that the necessity to realize sustainable growth is now bigger than ever.

The human right to a healthy environment is the fundament of the basis of the three pillars of

sustainable development.”87

The Dutch Social and Economic Council (Sociaal Economische Raad, SER), repeated this quote in its

December 2012 “Beyond Rio+20” report.88

The fact that both the Dutch Government and the Dutch Social and Economic Council, SER, explicitly

mention and repeat this reference to The Right to a Healthy Environment being the fundament of the

three pillars of sustainable development, a statement made on behalf of so many countries (G77 and

China), to us confirms that they too see it’s time to have this right recognized in Europe and The

Netherlands.

85 United Nations Conference on Sustainable Development, Rio+20 Declaration, The Future We Want, download: http://www.uncsd2012.org/content/documents/727The%20Future%20We%20Want%2019%20June%201230pm.pdf 86 Brief van de Staatssecretarissen van Buitenlandse Zaken en van Infrastructuur en Milieu aan de Voorzitter van de Tweede Kamer der Staten-Generaal, Duurzame Ontwikkeling en Beleid, nr. 30 196, 182, Den Haag, 5 juli 2012, https://zoek.officielebekendmakingen.nl/kst-30196-182.html 87 Translated from the Dutch quote: “Aan de plenaire sessie (20–22 juni 2012) werd door ruim 100 staatshoofden en regeringsleiders deelgenomen. Abdelkader Bensalah, president van Algerije, voerde het woord namens de G77 en China. Hij stelde dat de noodzaak om duurzame groei te realiseren nu groter is dan ooit. Het mensenrecht op een gezond milieu ligt aan de basis van de drie pilaren van duurzame ontwikkeling”. Ibid, Hoofdstuk 3. Plenaire sessie 88 SER Rapport “Na Rio+20, Voortgangsrapportage IMVO tweede helft 2012 en werkprogramma 2013”, December 2012, blz. 80. Download: http://www.ser.nl/~/media/Files/Internet/Publicaties/Overige/2010_2019/2012/na-rio-plus-20/na-rio-plus-20.ashx

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4.7 How would people and future generations benefit from a Right to Environment as a

substantive human right?

Benefits of having a constitutional or human right to environment would be:

1. It would elevate the entire spectrum of environmental issues - including sustainability, air, soil

and water pollution and conservation of species and habitats - to a place amidst the most

fundamental values of society, on a level equal to other human rights and superior to ordinary

legislation. Placed at this level, where it belongs, it can contribute to the paradigm shift or

change in consciousness of humanity, remembering that we - now and future generations - are

part of nature and dependent on planet Earth;

2. It would transfer a moral imperative into binding legal rights, thus creating rights and duties,

responsibilities, more awareness and better practices on these issues for Member States,

business and individuals;

3. Victims of environmental disruption would have access to legal procedures to hold those

accountable who violate this right or who lack the will to prevent or halt violations that threaten

their health and well-being; and

4. In many instances based on other human rights, petitioners have been afforded redress under

the European Convention on Human Rights and governments have taken measures to remedy

the violation. So a rights-based approach would, compared to the existing environmental laws

and to the Dutch constitution, focus less on states and more on the people who get hurt or could

get hurt by the disruption of the environment;

As set out above, in the absence of a guaranteed right to environment, other constitutionally

protected rights, such as property rights, currently are often given automatic priority instead of being

balanced against environmental and future concerns, such as conservation of habitats or clean air,

water and soil.

This right would help to realize greater environmental protection and it would contribute to a (more)

adequate standard of living for all humans, including future generations. Having a right to

environment acknowledged in the Dutch Constitution will likely benefit many missions, campaigns

and goals, whether their focus is on human rights, development, aid, children, environmental or

other issues, but will certainly contribute to safeguarding the rights of future generations.

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4.7 Conclusions and Recommendations

We do not yet have a right to environment codified in or protected in the Dutch constitution or

under the European Convention on Human Rights.

Both the case law of European Court of Human Rights and European Committee on Social Rights

offer a high level of human rights based environmental protection, currently both acknowledging a

“right to a healthy environment”.

The time has come for The Netherlands to take on its responsibility based on international

developments and principles it agreed on, like through the Aarhus Convention, to adopt the case law

of the European Court of Human Rights and European Committee on Social Rights and to catch up

with most other countries in the world and those in Europe.

The time has come for The Netherlands, like Belgium did in 1994, to constitutionally codify and to

respect this human right as a substantive right - the basis for other human rights and life itself,

‘Everyone has the right to an environment that is not harmful to their health or well-being

and the right to have the environment protected, for the benefit of present and future generations’

Having such a right constitutionally warranted in The Netherland would give the Ombudsperson for

Future Generations the firm basis, a proper mandate, based on which he can operate.

What if a Right to Environment is not feasible in the short term in The Netherlands?

It may well be that an inclusion into the Dutch constitution of the Right to a healthy Environment is

not possible in The Netherlands at the short term.

In that case, the Ombudsperson’s mandate could be based on to linking to the European case law

mentioned, possible other laws, treaties or Charters. Alternatively it could be based on an explicit

reference of (rights of) future generations in the new Dutch Nature Law (or Natuurwet)89, the

amendment to the current Wet Nationale Ombudsman, or based on another law, Article 11 of the

Treaty on the Functioning of the European Union90 and / or Article 37 of the Charter of Fundamental

Rights of the European Union91

89 The new Nature Law (Natuurwet) is the anticipated replacement for the Flora-faunawet, the Natuurbeschermingswet 1998 and the Boswet. Late 2012 the Dutch Parliament declared the Natuurwet proposal of deputy Minister Bleker to be ‘controversial’. Several parties are now working at a new proposal. The proposal “Mooi Nederland’ (Beautiful The Netherlands) by PvdA, D’66 and GroenLinks, mentions the word future (‘toekomst’) five times and includes the phrase: ‘Maar ook een land waar mensen de natuur van nabij kunnen beleven en er van kunnen genieten. Nu en in de toekomst.’ – In short: ‘Where people can experience and enjoy nature. Now and in the Future.’ 90 Article 11: Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. 91 Article 37: Environmental protection: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

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5. HOW TO INSTITUTIONALISE AND INTRODUCE AN OMBUDSPERSON FOR FUTURE

GENERATIONS IN THE NETHERLANDS

Codifying the right to a healthy environment in the Dutch Constitution and the establishment of an

Ombudsperson for Future Generations form two sides of the same coin. At one side of the coin,

codification of the right provides the Ombudsperson with a firm mandate. At the other side, the

Ombudsperson is able to pro-actively guard this right and prevent it from becoming an empty

promise.

A Dutch Ombudsperson as guardian for the future with a mandate firmly based in the Dutch

Constitution would be most effective in protecting the rights of future generations. With clearly

delineated competences and this mandate, (s)he can have a real impact and bring long-term vision to

the heart of policy making.92 Being an independent body not subject to electoral trends, the

Ombudsperson is able to completely focus on the long-term analysis and represent it

wholeheartedly. An Ombudsperson moreover increases trust in governmental agencies, as (s)he is

responsive to citizens complaints and can start investigations through own empirical observations.

Through these means, new trends in the population and civil society are easily detected and

transmitted to policy-making processes.93 Furthermore, both the instalment of the Ombudsperson

and the codification of the right to environment will provide a powerful symbol to the public that

today’s politicians are concerned with rights of their children and grandchildren.

With enough political will, institutionalising this new Ombudsperson would be fairly easy to facilitate

from a practical point of view. The Ombudsman for Children has been established and introduced

quite recently, in 2011. This recent amendment to the Dutch “Wet Nationale Ombudsman” can be

recycled and adjusted in order to establish an Ombudsperson for Future Generations. We have

already made up a draft, which will be annexed to this Legal Background Paper as Annex I.

Just like the deputy Ombudsman for Children’s rights, the Ombudsperson for Future Generations

would form a part of the overarching “Bureau Nationale Ombudsman” (Office of the National

Ombudsman). 94 (S)he shall operate at the same level with the same authority and capacities as the

existing Ombudsmen, but more specific in his/her own area of work on Future Generations and with

own competences.

92 Maja Göpel, Ombudspersons for Future Generations as Sustainability Implementation Units, Stakeholder Forum, 2012, p. 5. 93 Maja Göpel, Ombudspersons for Future Generations as Sustainability Implementation Units, Stakeholder Forum, 2012, p. 5. 94 Article 1 in conjunction with Article 9(1) Wet Nationale Ombudsman.

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Ombudsman for Children to take on Rights of Future Generations as well?

We would like to emphasise that the Ombudsperson for Future Generations will have a completely

different and clearly distinct focus from the Ombudsman for Children. The latter sees to compliance

of governmental actors with children’s’ rights as set out in the Convention of the Rights of the Child.

This Convention protects the rights of children in the context of education, health care, family life

and abuse.95

Protection of the environment, sustainable development and concerns of those who are yet to be

bourn, the future generations, are not mentioned in this Convention. The Ombudsman for Children

focuses on the rights of those who are a child now. As long as they are not bourn yet or as soon as

they turn 18, they are out of scope. Future generations will consist of children, but of adults too.

Their rights should be anticipated and safeguarded as well.

The mandate of the Ombudsman for Children should obviously and clearly be distinguished from the

mandate of the Ombudsperson for Future Generations, who is to ensure that governmental activities

are in accordance with the right to a healthy environment in order to protect the rights of

generations to come.

To achieve this, the Ombudsperson should be endowed with the capacity to start an investigation,

either after receiving a complaint or on his/her own initiative. As a corollary to this, (s)he would have

the ability to give advice to Parliament and other governmental agencies on matters falling within

his/her competence so to ensure that legislations and actions are in accordance with the right to a

healthy environment. Lastly, (s)he would have an important role in raising awareness on

intergenerational rights and sustainability.

As with the other Ombudspersons, his/her actions would not have any binding force but are of

authoritative value. In his/her functioning, the Ombudsperson can find guidance in the Millennium

Development Goals and the Earth Charter and other relevant international binding and non-binding

commitments.

95 Convention on the Rights of the Child.

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6. RECOMMENDATIONS

The Worldconnectors:

1. Call for the institutionalisation of a Dutch Ombudsperson for Future Generations

The Worldconnectors call for a new Dutch Ombudsperson for Future Generations, to be installed at

the shortest possible term, who shall operate within the existing framework, at the same (minimum)

level and with the same (minimum) authority and capacities as the existing Ombudsmen, but more

specifically in the area on Future Generations.

The Dutch Ombudsperson for Future Generations would be a deputy Ombudsperson within the

current legal framework provided under the “Wet Nationale Ombudsman”, who should ensure that

governmental bodies and other organisations safeguard and respect the rights of Future

Generations. The Ombudsperson should be able to act and rule on complaints, to research and

inform on the topic of Future Generations and to provide (un)solicited advice to parliament and

other governmental agencies.

We would also recommend for the Wet Nationale Ombudsman to be amended as proposed to allow

the introduction of Ombudspersons, thus establishing all current and future Ombudsmen to have the

gender neutral title of Ombudspersons (“Ombudspersonen”) or Ombuds: Nationale Ombudspersoon,

Kinder Ombudspersoon and Ombudspersoon Toekomstige Generaties..

2. Codifying the Right to a Healthy Environment into the Dutch Constitution

In addition to this the Worldconnectors call for the Dutch Parliament to safeguard and acknowledge

the right to a healthy environment in the Dutch constitution, thus providing the Ombudsperson with

an appropriate mandate and bringing the Dutch constitution up to date with many, if not most, other

constitutions on this planet and in compliance with the interpretations by the European Human

Rights Courts.

We need to have this moral imperative acknowledged as a fundamental right, to ensure the

Ombudsperson for Future Generations is both morally and legally properly mandated. Today several

regional human rights charters, other conventions and declarations – like the Aarhus Convention and

the UN Declaration on the Rights of Indigenous Peoples, and over 100 constitutions contain a

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pronunciation of a human right to a healthy environment. Both the European Court of Human Rights

and the European Committee of Social Rights have confirmed that we, the people of the

Netherlands, have a Right to a Healthy Environment under the European Convention on Human

Rights and European Social Charter. It’s time for the Netherlands to become compliant with these

international developments and to codify this moral imperative into a constitutional right.

Both current and future generations, including the children of today, would even be better off if the

Dutch constitution would further acknowledge (and add to the general right to environment) “The

Child’s Right to Connect with Nature and to a Healthy Environment”, which in September 2012 was

adopted as a IUCN Resolution by the IUCN World Conservation Congress.

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Concluding remarks

Dr. Sándor Fülöp, the first Hungarian Ombudsman for Future Generations, and the experts of the

World Future Council, have responded with great enthusiasm and are excited about our ideas. They

have offered to provide us, within their capability, with support and look forward to joining us in an

expert meeting on the topic in the Netherlands.