Access rights as means for achieving environmental protection

The World Charter of Nature,²⁹ adopted by the United Nations General Assembly a decade after the 1972 Stockholm Conference on Human Environment, was the first international document to explicitly address access rights as functional for the pur-poses of environmental protection. The Charter claims ‘the urgency of maintaining the stability and quality of nature and of conserving natural resources’³⁰, and deter-mines that ‘all planning’ requires, among its essential elements, ‘the establishment of inventories of ecosystems and assessments of the effects on nature of proposed policies and activities’.³¹

This instrument is the first to delineate the right to information as a means for achieving environmental protection, as well as the right to participation in deci-sion-making in environmental matters. Access to justice, a fundamental pillar under international human rights law, is settled in paragraph 23 of the Charter: ‘all per-sons, in accordance with their national legislation,… shall have access to means of redress when their environment has suffered damage or degradation’.³²

28 Term coined by Paul Crutzen. Svampa, ‘Imágenes del fin’, supra note 4, at 151.

29 ‘World Charter for Nature’, UNGA Res. 37/7 of 28 October 1982.

30 Preamble.

31 Para. 16.

32 Para. 23.

The United Nations Conference on Environment and Development of Rio in 1992 served as a catalyzer for the incorporation of access rights in international environ-mental law. Despite being considered as an instrument that pursues to conciliate economic growth and environmental sustainability,³³ the Rio Declaration made a significant contribution to the democratization of environmental governance, as well as to the centrality of access rights.

The Rio Declaration establishes that individuals

shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities, and the opportunity to participate in deci-sion-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceeding including redress and remedy, all be provided.³⁴ Procedural rights guarantee transparency and accountability in the design and im-plementation of policies, allow the formation of support-coalitions to the imple-mentation of environmental decision-making, and set favorable conditions for more peaceful inclusive and sustainable societies and models of sustainable development.

By virtue of procedural obligations, states have to adopt timely measures to make the enjoyment of human rights effective, but they should also refrain from infringing on them. Procedural human rights require ’proactive action by the State in adopting the necessary actions to ensure the free and full exercise’ of human rights.³⁵

Regarding the right to participate in public affairs in matters affecting the environ-ment, states must create spaces for participation, involve people since early stages of discussion, provide training to eliminate barriers to access deliberation processes;

guarantee conditions of freedom and security for the people who participate, and ensure real opportunities of influence.³⁶ Within the Latin American context, a very important contribution in this regard is the Inter-American Strategy for the Pro-motion of Public Participation in Decision-Making for Sustainable Development.³⁷ Access to information is often considered as both an active and passive right, to the extent that it not only implies the production or availability of information, but

33 Francioni, ‘International Human Rights’, supra note 27, at 45; and Alan Boyle, ‘Human Rights or Envi-ronmental Rights? A Reassessment’, 18 Fordhman EnviEnvi-ronmental Law Review (2006) 471-511.

34 Principle 10.

35 Comisión Económica de las Naciones Unidas para América Latina y el Caribe (CEPAL), Sociedad, dere-chos y medio ambiente: estándares internacionales de deredere-chos humanos aplicables al acceso a la información, a la participación pública y al acceso a la justicia (2016), available at <https://repositorio.cepal.org/bitstream/

handle/11362/40735/4/S1600931_es.pdf> (visited 21 October 2019) at 24.

36 Ibid. at 29-30.

37 Organización de Estados Americanos (OEA), Estrategia Interamericana para la Promoción de la Partici-pación Pública en la Toma de Decisiones sobre Desarrollo Sostenible (2001), available at <https://www.oas.

org/dsd/PDF_files/ispspanish.pdf> (visited 26 January 2019).

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also the very existence of means of provision. Consequently, providing information on environmental issues should bring more opportunities to participate in deci-sion-making, allowing for public involvement in the management and governance of collective environmental resources.

A very specific process of environmental law brought by procedural rights has been the conduct of environmental impact assessments (EIAs). EIAs coincide with the responsibility to collect information on ecosystems and to evaluate the impacts of human activities on the environment, recognized, for instance, by the United Na-tions Convention on the Law of the Sea³⁸ (Section 4), the International Labour Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples (Article 7),³⁹ but also and particularly the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)⁴⁰ and its Protocol on Strategic Environmental Assessment.⁴¹ Nowadays, EIA’s are usually mandatory in project permit or funding requirements by states or international organizations, and have been associated with human rights cases in regional jurisprudence, concerning for instance violations of the right to property or the determination of an appropri-ate balance between individual and public interests.⁴²

Concerning the right to access justice, it is itself a right and a means to protect and enforce the exercise of those rights that could have been infringed. The six essential components of this pillar have been established by the Committee on the Elimination of All Forms of Discrimination against Women, which can be resumed in: justiciability; availability; accessibility; good quality; provision of remedies; and accountability of justice systems.⁴³

Human rights instruments and bodies have reiterated the principle that states must provide effective remedies when people’s protected rights are violated. This has im-plied, in the case of indigenous communities and local farmers, for instance, the right to demand from states to provide accommodation and land for cultivation, as well as just compensation when they have been displaced.⁴⁴

38 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, in force 16 No-vember 1994, 21 International Legal Materials (1982) 1261.

39 Convention (No. 169) concerning indigenous and tribal peoples in independent countries, Geneva, 27 June 1989, 1650 United Nations Treaty Series 383.

40 Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991, in force 10 September 1997, 30 International Legal Materials (1991) 802.

41 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assess-ment in a Transboundary Context, Kyiev, 21 May 2003, in force 11 July 2010, <http://www.unece.org/

env/eia/sea_protocol.html>.

42 United Nations Environment Programme (UNEP) and Center for International Environmental Law (CIEL), UNEP Compendium on Human Rights and the Environment: Selected International Legal Ma-terials and Cases (2014), available at <http://wedocs.unep.org/bitstream/handle/20.500.11822/9943/

UNEP_Compendium_HRE.pdf?sequence=1&isAllowed=y> (visited 15 February 2019) at 4.

43 Committee on the Elimination of Discrimination against Women, General recommendation No. 33 on women’s access to justice, UN Doc. CEDAW/C/GC/33 (2015).

44 ‘Report of the Independent’, supra note 10, at 41.

Regional law has provided more concrete measures and obligations for states con-cerning access to justice in environmental matters. For instance, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have demanded access to justice in the situation of alleged violation of rights under the American Convention on Human Rights⁴⁵ as a consequence of environmental damage. The Court of Justice of the Economic Community of West African States, for its part, has established the need for accountability and responsibility and to ensure adequate reparation in the context of pollution.⁴⁶

Overall, the reinforcement of procedural obligations under environmental law has progressively gained space in international documents. The Draft Principles on Hu-man Rights and the Environment, released in 1994, dedicated an entire part to interpret the provisions under this triad of rights.⁴⁷ The outcome document of the 2012 Rio+20 Conference recognizes the need for ‘opportunities for people to influ-ence their lives and future, participate in decision-making and voice their concerns are fundamental for sustainable development’.⁴⁸

More recently, the 2030 Agenda for Sustainable Development and its 17 goals and 169 targets⁴⁹ put access rights at the center of state action and mainstream procedur-al obligations across many Sustainable Development Goprocedur-als (SDGs). They are procedur-also grouped in SDG 16, which expresses the commitment of states to guarantee public access to information, the adoption of inclusive, participatory and representative decisions, and equal access to justice.

A number of MEAs have since the early 1990s incorporated provisions emanated from Principle 10 of the Rio Declaration, though they vary as to how and the extent to which the rights of public participation, availability of information and the en-forceability and opportunity of justice are included.

45 American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, <https://trea-ties.un.org/doc/Publication/UNTS/Volume%201144/volume-1144-I-17955-English.pdf> (visited 20 February 2019).

46 ‘Report of the Independent’, supra note 10, at para. 42.

47 See UN Economic and Social Council Sub-Commission on Prevention and Protection of Minorities,

‘Human rights and the environment: Review of further developments in fields with which the sub-com-mission has been concerned’, Final Report of Fatma Zohra Ksentini, Doc. E/CN.4/4.Sub.2/1994/9 (1994) including a Draft Declaration on Principles of Human Rights and the Environment, which states among its 27 principles that ‘the information shall be timely, clear, understandable and available without undue financial burden to the applicant’; also ‘the right to a prior assessment of the environmental, de-velopmental and human rights consequences of proposed actions’, and ‘the right to effective remedies and redress in administrative or judicial proceedings form environmental harm or the threat of such harm’.

48 Rio +20 Outcome Document ‘The Future We Want’, UNGA Res. 66/288 of 11 September 2012 at para.

49 13.‘Transforming our world: the 2030 Agenda for Sustainable Development’, UNGA Res. 70/1 of 25 Sep-tember 2015.

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