Democratic Environmental Rights
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Public information
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Public participation
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Access to justice
I. The right of access to environmental information
The right of access to environmental information is one of the fundamental guarantees of citizens and constitutes the essential corollary of the right of public participation and access to environmental justice. It is part of the guarantees granted to individuals whose ultimate aim is to ensure democratic and effective governance of the environment.
Although the right of access to environmental information is today widely recognized, there are gaps in its enshrinement in international law. The Rio Declaration formalizes this requirement, but in a non-binding manner, in its principle 10 according to which "every individual must have duly access to information relating to the environment held by public authorities, including information relating to hazardous substances and activities in their communities.” The Paris Climate Agreement also provides in Article 12 that “the Parties shall cooperate by taking measures (…) to improve (…) the population's access to information in the field of climate change”. of this article that the principle of public information is an integral part of the principles making it possible to strengthen the action of States in the fight against climate change.
The clearest consecration of the principle is found in a regional agreement, mainly applicable in Europe: the Aarhus Convention on access to information, public participation in decision-making and access to justice in matters of The environment makes access to environmental information a condition for the realization and effectiveness of the right to live in a healthy environment. It provides in particular that the authorities must make the requested environmental information available within one month (article 3) and can only exempt themselves from this in restrictively listed circumstances. The authorities must update this information and keep it available to the public in a sufficiently accessible manner (Article 5). Other instruments, again regional, provide for this type of guarantee such as the African Convention on the Conservation of Nature and Natural Resources of Maputo in its article 16, or the Escazú Regional Agreement, of 2018, on the access to information, participation and justice in environmental matters in Latin America and the Caribbean.
In the field of civil society, the Earth Charter also requires that “all information of vital importance for human health and the protection of the environment, including genetic information, be accessible to the public”. The New Delhi Declaration, the Johannesburg Principles relating to the role of law in sustainable development, the Oslo Principles on global obligations for climate change, the IUCN draft Compact and the World Declaration of the IUCN on the environmental rule of law all affirm the right of individuals to benefit from adequate information on environmental matters.
Finally, at the jurisprudential level, we find some appearances of this principle: the European Court of Human Rights has recognized a right to receive information regarding activities dangerous to the environment. It considered in the Guerra et al. vs. Italy of February 1998 that by leaving the applicants awaiting essential information which would have enabled them to assess the risks which could result for them from continuing to reside in the territory of a municipality exposed to a major risk, the The respondent State had violated Article 8 of the Convention.
II. Public participation
A traditional complement to the right to information, the principle of public participation covers the right for citizens to formulate an opinion when an administrative decision or a normative act likely to impact the environment must be taken.
Once again, we observe gaps in international environmental law for this principle. Principle 10 of the Rio Declaration is worded in a very general and non-mandatory manner: “[t]he best way to deal with environmental issues is to ensure the participation of all affected citizens, at the appropriate level. ". The World Charter for Nature makes it a right of “every person” to “participate […] in the development of decisions which directly concern their environment”.
Apart from these texts without legal scope, the principle of participation is enshrined in conventions of a sectoral or regional nature. Thus, on the specific issue of climate, Article 12 of the Paris Agreement includes this requirement, stating that the parties cooperate in taking measures to improve “public participation […] in the field of climate change” .
With regard to regional texts, the Aarhus Convention, mainly applicable in Europe, establishes a more detailed regime. It provides for public participation both in the authorization procedure for certain specific activities which are listed in Annex I in Article 6, and during the development of programs and policies relating to the environment in Article 7 and during the phase of development of regulatory provisions and/or legally binding normative instruments of general application in Article 8. The principle of public participation may involve the organization of public debate. For its part, the African Convention for the Conservation of Nature and Natural Resources provides in its article 16 that “[t]he Contracting Parties shall adopt the legislative and regulatory measures necessary to ensure in a timely and appropriate manner: [...] ] c) public participation in decision-making that may have a significant impact on the environment.”
Regarding civil society initiatives, the draft IUCN Covenant enshrines a right “to participate effectively in the decision-making process at the local, national and international level with regard to activities, measures, plans, programs and policies that can have a significant impact on the environment", like the CIDCE's draft International Covenant on the Right of Human Beings to the Environment. The IUCN Global Declaration on the Environmental Rule of Law, on the other hand, presents the principle of participation as one of the “key governance elements” on which the environmental rule of law must be based. In addition, it includes an article that protects the right to participation, specifically, for certain minority or vulnerable groups. Its principle 9 states that “[t]he inclusion of minorities and vulnerable groups, and of intergenerational perspectives, must be strongly encouraged with regard to access to information, active and open participation in the decision-making process , and access to justice »
III. Access to justice in environmental matters
In national law, today the right to a clean, healthy, and sustainable environment is generally accepted, as there are currently 178 States around the world that recognise it in their constitutions or in sub-constitutional regulations. Nonetheless, there is a gap at the international level: today this right is essentially affirmed in major environmental texts with no legal force. Thus, the first principle of the Stockholm Declaration states that "Man 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". More modestly, the first principle of the Rio Declaration states that "Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”. Finally, the Johannesburg Declaration on sustainable development also indirectly raises the point, in particular in the objective of its Principle 18, which is to ensure "access to such basic requirements as clean water, sanitation, adequate shelter, energy, health care, food security, and the protection of biodiversity".
Alongside these major, symbolic international documents are some sector-specific international and regional conventions on the right to live in a healthy environment, for a limited domain or geographic area.Thus, in its first article, the Aarhus Convention protects "the right of every person of present and future generations to live in an environment adequate to his or her health and well-being". This is also the case with some regional conventions on human rights. Article 24 of the African Charter on Human and People’s Rights states the right of all peoples to "a general satisfactory environment favourable to their development". Article 38 of the Arab Charter of Human Rights, in turn, protects the right of each person "to a healthy environment".
In the inter-American system, in addition to the American Convention on Human Rights, article 11 of the Protocol of San Salvador calls for the "right to live in a healthy environment". Finally, while the right to a healthy environment is absent from the European Convention for the Protection of Human Rights and Fundamental Freedoms adopted in 1950, the Strasbourg Court has since used it to afford indirect protection through the guaranteed rights, based on a dynamic interpretation of the Convention. In particular, since the Lopez Ostra v. Spain case of December 9th, 1994, in which the applicant complained of the passivity of the authorities with respect to the nuisance caused by a purification plant near her home, it considers that the right to private and family life protected in article 8 of the Convention includes a right to be protected against serious damage to the environment as this may "affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely".
The United Nations Commission on Human Rights has stressed that the right to a healthy environment formalises the close ties between human rights and the protection of the environment. The Inter-American Court has also clearly asserted the relationship between the environment and human rights in a recent advisory opinion. For Alexandre Kiss, environmental law and the right to the environment have the same objective, namely "protecting humans with an appropriate living environment". The difference is in the implementation, by public authorities on the one hand and by individuals on the other; this can prove to be beneficial in terms how effective the protection is.
The existing broad consensus concerning this right leads to the idea that the moment has come for it to be clearly acknowledged at the international level. It is to this end particularly revealing that most of the documents resulting from initiatives by civil society in favour of the protection of the environment mention this right, whether it is the Earth Charter, the draft Covenant on the Human Right to the Environment, the International Covenant on Environment and Development or the IUCN World Declaration on the Environmental Rule of Law.