Oleksii Plotnikov (PhD, international judiciary)

Modern international law established new approaches for the right on healthy environment. Evaluations of those new mechanisms are extremely important for protection and defense the ecologic rights of Crimean residents.   

International law is often said to be developing too slowly, but this rebuke clearly does not apply to the development of international environmental law in 2021. In March, a discussion began about a new international crime of ecocide [1]. On September 29, the Parliamentary Assembly of the Council of Europe (PACE) presented a draft of a new protocol to the European Convention on Human Rights, which introduces the right to a safe, clean, healthy and sustainable environment [2]. On October 8, the UN Human Rights Council proclaimed the right to a healthy environment as a fundamental human right [3].

However, international environmental law has existed for a long time, and there are many decisions of international courts, which recognized the violation of human rights due to environmental problems. What is the fundamental nature of the change that is taking place now, and what practical significance does it have? Let’s take a look at history.

International environmental law as a concept can be dated back to 1972, when the Stockholm Declaration was adopted, which recognized that the environment is important for “the realization of fundamental human rights, including even the right to life itself” [4] (apologies to experts who would perhaps recall the “Trail Smelter” or “Lake Lanoux” arbitrations, but we will not touch on them here). Since then, many international documents have been adopted, both of a general nature (for example, the 1992 Rio Declaration, which embodied the wishes of the international community, but did not become binding [5]), and those that contained specific obligations on certain issues (for example, the famous Kyoto protocol on emissions of greenhouse gases [6]).

Environmental provisions can also be found in other international agreements. For example, the Agreement on cooperation in the use of the Sea of ​​Azov and the Kerch Strait between Ukraine and Russia contains obligations for cooperation in the field of environmental safety [7].

There are two problems with all such documents. First, they are declarative, and do not create obligations for states in general (that is, they are statements of good intentions), or do not contain an effective mechanism for bringing violators to justice. Secondly, all these treaties created obligations for states in relation to states, and do not allow anyone other than the state to declare a violation of an international legal obligation. Therefore, one could speak of the existence of international environmental law, but the human right to a healthy environment did not exist.

This can be compared to the history of the idea of ​​human rights as such. It has existed for centuries, and manifested itself in the laws of states. However, the implementation of these rights also depended exclusively on the state. Human rights became truly effective only with the adoption of a number of international treaties, enabling individual complaints to an independent international court against own state.

The international courts have accumulated significant practice in relation to environmental human rights. This practice contributed to the recognition of the right to a healthy environment (partially described here: [8]). However, in such cases, the complaints concerned some other rights (the right to life, the right to private life, etc.) that were affected by environmental factors, but not the right to a healthy environment as such. The most recent example is the case “Kapa and Others v. Poland” (decision adopted by the European Court on Human Rights on October 14 [9]). The applicants complained about the excessive level of exhaust gas emissions and noise pollution due to the construction of a road next to their houses, that is, the complaints, as well as the whole process in Poland, concerned precisely the violation of the right to a healthy environment negatively affecting the applicants and their children. The European Court upheld the claims of the applicants, but recognized a violation of the right to private life, since there is no right to a healthy environment in the Convention yet.

The need to invoke other rights to substantiate violations of environmental rights in international courts entails a number of inconveniences. Not all environmental offenses can be associated with the violation of other rights. Additional difficulties arise with the evidence. Overly complex legal structures are created to “adjust” the facts of environmental offense to the standards necessary to establish violations of other rights.

The introduction of the right to a healthy environment as a separate independent right will (hopefully) lead to resolution of these problems. However, the PACE decided to go much further than simply recognizing the right to a healthy environment. The proposed protocol to the European Convention is structured differently from the previous protocols and looks like a separate international treaty.

The draft protocol is presented in the form of a PACE recommendation [2]. The Assembly directly refers to the concept of generations of human rights, determining that the Convention system now covers the rights of the first (civil and political) and second (economic, social and cultural) generations. The right to a healthy environment is likely to become the first of the third generation rights (the so-called collective rights, which include, in particular, the rights of peoples), which will be protected by European mechanisms for the protection of human rights. It is no longer about the individual rights of people, but about the right of groups, about the recognition of nature as a separate object worthy of legal protection and about the so-called “intergenerational justice”, which requires that the environment be passed on to future generations not in a worse condition than it was received from previous ones.

This is precisely what the preamble of the proposed protocol indicates, when it emphasizes that “the right to a safe, clean, healthy and sustainable environment requires going beyond an approach based on individual rights alone”. Indeed, the definition of the right to a healthy environment in Article 1 of the proposed draft speaks of “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”. This definition is strikingly different from the existing provisions of the Convention, typically beginning with the phrase “everyone has the right” in the meaning of a personal individual right.

The inclusion of not only rights, but also principles in the protocol also looks unusual. In particular, this is the principle of intergenerational responsibility, equality and solidarity, the principle of non-discrimination in the use of a clean, healthy and sustainable environment, the principles of prevention, precaution, prohibition of degradation, as well as a completely new principle in dubio pro natura – in case of doubt, in favour of nature. .The latter means that when resolving disputes, all doubts should be interpreted in a way that is best for the protection and preservation of nature, taking into account alternatives that will be least harmful to the environment.

The description of the right itself could consist of one article, but it is divided into three: the substantive aspect of the right, the procedural aspect of the right and the conditions for limiting the right. The material aspect is everyone’s right to a safe, clean, healthy and sustainable environment. The procedural aspect includes the right of everyone to free access to information on the state of the environment held by public authorities, the right to participate in consultations on actions that may have an impact on the environment, the right to access to justice in environmental matters, the right to an effective remedy. Limitations of the right are described in terms similar to those used to describe the limitations of other non-absolute rights in the Convention.

There is no doubt that this protocol will be adopted in a few years, although not necessarily in the current version. Each person will have the right to defend their rights described in the protocol in the European Court of Human Rights. True, a number of questions arise, for example, whether an individual will be able to complain about a violation by the state of not only rights, but also principles. The answer to these questions is a matter of the future. However, the fact remains – in European human rights law moves towards a fundamentally new approach based on the third generation of human rights. Indirectly, this marks an even greater restriction of state sovereignty in favour of collective rights exercised without regard to state borders.

The Protocol to the European Convention concerns only the 47 member states of the Council of Europe. What about the UN? The Human Rights Council resolution [10] declared a healthy environment a human right in almost the same terms as the PACE. The difference is that the resolution contains neither principles, nor procedural rights, nor provides for a protection mechanism. The right is proclaimed as a separate document, that is not included in the UN system of conventions on human rights, and it is impossible to appeal to any of the UN committees regarding the violation of this right. The resolution contains call to states, but does not contain remedies. Its only advantage is that it has already been adopted and can already be treated as a valid international document proclaiming the existence of a human right to the environment.

Will this be of practical importance for Crimea? It is known that the activity of the occupying state causes significant and irreparable harm to the unique ecology of the peninsula, which the “ARC” constantly writes about (for example [11], [12], [13]. Therefore, any strengthening of international mechanisms of responsibility for environmental damage plays into the hands of Ukraine. The only question is whether Ukraine, as a state, the indigenous peoples of Ukraine, Ukrainian civil society, and individual citizens, will be able to benefit from these mechanisms.

Appealing to international courts for violation of environmental rights remains a matter of the future, but this future is getting closer. At least now it is necessary to collect information for future appeals to the European Court of Human Rights, because violations of environmental rights are often not an instant act, but an ongoing process, therefore, events taking place now and continuing in the future can become the factual basis forbringing the occupying power to justice in Strasbourg.

Another important finding is that the importance of environmental law and environmental rights at the international level is growing rapidly. Almost all processes somehow regulated by international law are now considered from the point of view of the protection of environment and sustainable development. It is critically important to bring information about the ecological state of the occupied territory and the activities of the occupying power to the UN bodies, the Council of Europe and other international structures. The display of such information in the reports of international organizations will have a positive impact on any further actions of Ukraine in matters of the Crimean ecology.

1. https://arc.construction/16617?lang=ru

2. https://pace.coe.int/en/files/29501/html

3. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27635&LangID=E

4. https://zakon.rada.gov.ua/laws/show/995_454#Text

5. https://zakon.rada.gov.ua/laws/show/995_455#Text

6. https://zakon.rada.gov.ua/laws/show/995_801#Text

7. https://zakon.rada.gov.ua/laws/show/643_205#Text

8. https://arc.construction/19755?lang=ru

9. http://hudoc.echr.coe.int/eng?i=001-212138

10. https://undocs.org/a/hrc/48/l.23/rev.1

11. https://arc.construction/18443?lang=ru

12. https://arc.construction/17349?lang=ru

13. https://arc.construction/20632?lang=ru