Abstract
The need to protect and prevent the destruction and pollution of the environment is recognized by all governments and individuals. The possibility of litigation and litigation against harmful actions for the environment is one of the guarantees of effective implementation, which should be given more attention by the governments and regulatory mechanisms of the region and internationally, and the possibility of litigation based on benefits. Public courts or competent regional authorities, including the European Court of Human Rights, the American Court of Human Rights, and the African Court of Human and Peoples' Rights, appear to be an effective step in protecting the environment and respecting fundamental human rights. The chapter examines the procedure of the regional courts of human rights and the domestic courts in some countries regarding the possibility of public litigation.
TopConcept Of Public Interest Litigation
In 1996, the United Nations Economic Commission for Europe presented its interpretation of the relationship between human rights and the environment. In this interpretation, the right to the environment is considered a means for humans to enjoy the fundamental right to life. This orientation was endorsed by the Aarhus Convention in 2001. Before the entry into force of this Convention, most national and international legal systems allowed only the aggrieved party to seek redress through the judiciary and the grievances of others. Individuals who did not personally suffer damages could not sue the victim or injured party. Thus, it was accepted as a general rule that unless a person has personally suffered damages, no one can claim compensation for certain actions, even if those actions violate the law (Goldston, 2006).
It should be noted that in this article, public interest litigation in human rights courts is only concerned with the assessment of acts and omissions performed by public authorities and does not consider its broader meaning. Also, anything that is considered to be in the public interest is not in the public interest.
In general, when there is a public interest in a case, several factors can be cited, some of which is where the public interest is gained from the outcome of the dispute; The outcome of the lawsuit has no personal, financial or material benefit, or if such a benefit arises, is not such as to justify the lawsuit economically; And litigation deals with issues that are more important than the immediate interests of the litigants.
In environmental claims, the European Commission has stated that the important nature of environmental law does not justify the exercise of those rights solely based on private interests. In addition, the environment is often referred to as a “common concern” or even a “shared heritage” of humanity. These factors in the public interest can be found in environmental litigation and should therefore be considered public interest litigation (Badwaza, 2005).
Key Terms in this Chapter
Environmental Law: Environmental law is a collective term encompassing aspects of the law that protect the environment. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focuses on managing specific natural resources, such as forests, minerals, or fisheries. Other areas, such as environmental impact assessment, may not fit neatly into either category but are nonetheless important components of environmental law. Previous research found that when environmental law reflects moral values for betterment, legal adoption is more likely to be successful, usually in well-developed regions. In less-developed states, changes in moral values are necessary for successful legal implementation when environmental law differs from moral values.
Equity: Defined by UNEP to include intergenerational equity—“the right of future generations to enjoy a fair level of the common patrimony”—and intragenerational equity—“the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources”—environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for cost for environmental remediation and compliance with pollution control regulations involve this principle.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment. UNEP considers transboundary responsibility at the international level to prevent damage to neighboring environments at the international level as a potential limitation on the rights of the sovereign state. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.
Sustainable Development: Defined by the United Nations Environment Programme as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” sustainable development may be considered together with the concepts of “integration” (development cannot be considered in isolation from sustainability) and “interdependence” (social and economic development, and environmental protection, are interdependent). Laws mandating environmental impact assessment and requiring or encouraging development to minimize environmental impacts may be assessed against this principle. The modern concept of sustainable development was discussed at the 1972 United Nations Conference on the Human Environment (Stockholm Conference) and the driving force behind the 1983 World Commission on Environment and Development (WCED, or Bruntland Commission). In 1992, the first UN Earth Summit resulted in the Rio Declaration, Principle 3 of which reads: “The right to development must be fulfilled to equitably meet developmental and environmental needs of present and future generations.” Sustainable development has been a core concept of international environmental discussion ever since, including at the World Summit on Sustainable Development (Earth Summit 2002 AU77: The in-text citation "Earth Summit 2002" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. ) and the United Nations Conference on Sustainable Development (Earth Summit 2012 AU78: The in-text citation "Earth Summit 2012" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. , or Rio+20).
Prevention: The concept of prevention etc. can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing, or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Public Participation and Transparency: Identified as essential conditions for “accountable governments...industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas, etc. a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle as follows, to protect the environment, States shall widely apply the precautionary approach according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.