Draft Right

Draft Accord between States for the Development and Realization of a Substantive Environmental Right

Preamble

Seeking – to achieve environmental sustainability for existing and future generations.

Recognizing – that the decision-making of individuals, groups of people, organizations and governments can cause harm to the environment, ecosystems and natural systems.

Recognizing – that a universal substantive human right to a good environment should be developed for all peoples i.e. a right to a good, clean and healthy environment in which all ecosystems and natural systems are protected.

Recognizing – that the realization of such a right requires the adoption of positive legal duties for all decision-makers to protect the environment, whether they be state or non-state actors.

Recognizing – that the realization of such positive duties requires the amendment of the constitutions of both states and non-state actors.

Recognizing – that the equitable realization of such a right requires a system of decision-making which upholds other human rights.

Main Text

The international community will adopt a programme of work to make the changes to the constitutions of states and also non-state actors to incorporate the following substantive environmental right:

Any decision by a person, group of people, organization or government that brings about or could bring about degradation of the environment, is contrary to the human right to a good environment and as such is fundamentally unlawful. It is a human right to be able to challenge such decisions throughout the process of decision-making and in courts of law and tribunals. Environmental degradation can be rendered lawful when brought about to satisfy other basic human rights and where other less environmentally degrading alternatives are not viable. In the event that such decisions are sanctioned on the grounds that it is necessary to cause environmental degradation to satisfy other basic human rights, the degradation must be tied to an equitable form of compensation that in at least equal measure, benefits the environment of the community or the area of land, air, sea, ecosystem or water that is suffering or would suffer that degradation or risk of degradation.

[Stephen J. Turner, A Substantive Environmental Right – An Examination of the Legal Obligations of Decision-Makers Towards the Environment, Kluwer Law International (2009)]