At the end of September 2021, the Parliamentary Assembly of the Council of Europe, referring to its Resolution 2396 (2021) “Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe”, reiterated the need to recognize a new generation of human rights. In Recommendations 2211 (2021) the Assembly expressed its extreme concern at the rate and extent of environmental degradation, the loss of biodiversity and the climate crisis, which has a direct impact on human health, dignity and life. The Assembly stated that it was time for the Council of Europe to show ambition and strategic vision for the future by facing up to this major transformative challenge for human rights and securing their enhanced protection in the era of systemic environmental threats to the present and future generations.

In this regard, the Assembly recommended that the Committee of Ministers develop an additional protocol to the European Convention on Human Rights on the right to a safe, clean, healthy and sustainable environment and proposed the text of such a protocol.

As stated in Recommendation 2211 (2021), the inclusion of this right in the Convention will establish a clear responsibility of Member States, including Ukraine, to maintain a proper environment compatible with a dignified life and good health and the full enjoyment of other fundamental rights; it will also contribute to much more effective protection of a safe, clean, healthy and sustainable environment at the national level, including for future generations.

Text of the proposal for an additional protocol to the European Convention on Human Rights concerning the right to a safe, clean, healthy and sustainable environment

unofficial translation of the main provisions

Preamble

The member States of the Council of Europe and other High Contracting Parties to the European Convention on Human Rights, signatories hereto,

Considering the urgent nature of the environmental crisis and its consequences for biodiversity, ecosystems and present and future generations;

Recognising the interrelationship between environmental protection and human rights;

Taking into account the intrinsic value of Nature and the paramount importance of the duties and obligations of present generations towards the environment and future generations;

Noting that every human being “has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being” and that he bears a “solemn responsibility to protect and improve the environment for present and future generations” (Principle 1 of the Stockholm Declaration of 1972);

Noting that the right to a safe, clean, healthy and sustainable environment requires going beyond an approach based on individual rights alone;

Being resolved to define the right to a healthy environment as an autonomous human right;

Have agreed as follows:

Section I – Definition

Article 1

For the purposes of this Additional Protocol, “the right to a safe, clean, healthy and sustainable environment” means the right of present and future generations to live in a non-degraded, viable and decent environment that is conducive to their health, development and well-being.

Section 2 – General principles

Article 2: Principle of transgenerational responsibility, equity and solidarity

Every generation has a duty to protect the environment and biodiversity and to prevent any irreparable and irreversible damage to life on Earth, so as to ensure the right of subsequent generations to live in a safe, clean, healthy and sustainable environment.

Every generation shall ensure that natural resources are used and managed in an environmentally sustainable manner, and that scientific and technological progress in all areas does not harm life on Earth.

Every generation is responsible for protection of the environment and has a duty to:

1. prevent environmental damage;

2. remedy environmental damage.

Article 3: Principle of environmental non-discrimination

1. No one can be discriminated against on account of his/her belonging to a particular generation.

2. Each High Contracting Party shall see to it that discrimination is prohibited and shall ensure equal and effective protection against discrimination to enable all individuals, groups and peoples to enjoy a safe, clean, healthy and sustainable environment.

3. Each High Contracting Party shall ensure that additional measures are taken to protect the rights of persons who are more vulnerable to or particularly threatened by environmental harm.

Article 4: Principles of prevention, precaution, non-regression and in dubio pro natura

Where a risk of harm to the environment and biodiversity has been established, measures for preventive action and rectification, as a priority at source, shall be put in to avoid the occurrence of environmental damage.

Where there are threats of severe damage to the environment or to human, animal or plant health, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent the degradation of the environmental and biodiversity.

1. Any rolling back of legal protection of the environment or of access to environmental justice shall be prohibited.

2. National and international provisions on the environment may be subject only to continuous improvement, having regard to the current state of scientific and technological knowledge.

In case of doubt, all matters before courts, administrative agencies and other decision-makers must be resolved in a way most likely to favour the protection and conservation of nature, with preference to be given to alternatives that are least harmful to the environment.

Section 3 – Substantive right

Article 5: Right to a safe, clean, healthy and sustainable environment

Everyone has the right to a safe, clean, healthy and sustainable environment.

Article 6: Procedural rights

Everyone is entitled to access information relating to the environment held by public authorities, without having to prove an interest.

If a project, programme or policy has an impact on the environment and biodiversity, everyone shall be entitled to be consulted in advance in order to be herd by the decision-making bodies regarding the authorization and development of that project.

Everyone has the right of access to justice in matters relating to the environment.

Everyone whose rights set forth in this Protocol are violated shall have an effective remedy.