Environmental Rule of Law and the Role of Access to Justice in Delivering on SDGs 16 and 13 | RFSD 2024

About this Event

The world is facing the triple existential threats of climate change, catastrophic loss of biodiversity, and pollution. This is compounded by structural injustices, inequalities and emerging human rights challenges. Efforts to attain SDGs, in particular Goals 13 and 16, and efforts to address environmental degradation can mutually reinforce and complement each other.

In the face of this challenge, environmental rule of law has never been more important or relevant. Environmental rule of law provides an essential toolbox of approaches for strengthening the implementation and enforcement of and compliance with environmental law. It empowers us to fortify the application, strengthen enforcement, and ensure better environmental actions for the planet for both present and future generations.

The event addressed the key trends, gaps, and opportunities related to environmental rule of law, including those identified in the UNEP’s second environmental rule of law report, Environmental Rule of Law: Tracking Progress and Charting Future Directions, and the work undertaken under auspices of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) and UNDP on Environmental Justice.

The event brought together environmental law experts and senior judiciary from the region to discuss access to justice as one of the cornerstones of environmental rule of law contributing to the region’s efforts in achieving SDGs 13 and 16 through addressing environmental and climate change challenges, reducing inequality, building trust and strengthening accountability of institutions.

Speakers

By order of intervention.

Arnold KREILHUBER

Director, Europe Office, UN Environment Programme

Soo-Young HWANG

Legal Officer, UN Environment Programme

Luc LAVRYSSEN

President, Constitutional Court of Belgium; Chair, Aarhus Convention Task Force on Access to Justice & President, European Union Forum of Judges for the Environment

Christina VOIGT

Chair, IUCN World Commission on Environmental Law; Professor of Law, University of Oslo & Co-chair of the Paris Agreement´s Compliance and Implementation Committee

Fatima MRDOVIC

Judge of the Supreme Court of Federation of Bosnia and Herzegovina

Emma PAGLIARUSCO

Advocacy and Policy Coordinator, Youth and Environment Europe and the European ECO Forum

Sean O'CONNELL

Rule of Law, Security, and Human Rights Policy Specialist, UN Development Programme | Moderator

Highlights

Video

Live via Webex

Summary

Opening Remarks

Arnold KREILHUBER | Director, Europe Office, UN Environment Programme

• As we face the triple planetary crisis of climate change, biodiversity and land loss, and pollution we have seen that this crisis is increasingly compounded by other crises, by inequality, by challenges to human rights. Environmental rule of law can be a catalyst well beyond SDG 16 and 13 for the achievement of the sustainable development agenda.
• Climate change serves as a threat multiplier, it creates new challenges but also exacerbates existing ones and existing vulnerabilities particularly for those most affected by the crisis.
• We have also seen the increasing challenges posed by the triple planetary crisis in our region, around agriculture, water management, the transition to more sustainable energy and so the impacts of climate change as an emblematic challenge for the triple planetary crisis affect us today but will affect us significantly in the months and years to come.
• I always describe environmental rule of law as the rule of law applied in the field of the environment but perhaps with two distinct specific characters.
  • One is the scientific uncertainty best described by the precautionary approach but then also the aspect of the intergenerational equity.
• The rights of future generations are very important, particularly also as we look at the high-level political forum but also then to the summit of the future where of course this intergenerational aspect will also be in focus.
• The rule of law in the field of the environment is essential for equity in terms of the advancement of the SDGs. It is essentially providing fair access by assuring a rights-based approach and the promotion and protection of environmental and other socioeconomic rights. The strengthening of institutions and the call for delivering what the international community has promised has been very much at the core of the development of environmental rule of law.
• The origins of this concept can be traced back to a governing council decision of UNEP in 2013, the first Universal governing Council before the inauguration of what we now know as the UN environment assembly and member states. At that time, we have been particularly concerned about a lack in the implementation of environmental law, a lack in the capacity of institutions to effectively implement environmental law and concerned by the impact that violations of environmental law have on the achievement of sustainable development
• Today, we will track progress on environmental rule of law, we will do so also with the launching of the second Global Environmental rule of law report because you cannot manage what you do not measure.
• It is important for the international community to keep track of the capacity of institutions to deliver the promises the international community has made and which have been encapsulated in many laws around the world including constitutional laws.
• The context and role of the judiciary is also important. The judiciary has increasingly embraced its role in safeguarding and promoting environmental rule of law making sure that environmental law can deliver for people and the planet through efforts like the global judicial institute on the environment which is an institute by judges for judges to discuss and share experiences, share best practices. The judiciary’s capacity has increased around the world, particularly in our region.
• Nevertheless, it is still an area where we need more effort, more capacities. We need more dialogue among the different stakeholders and the hope is that this side event today will contribute to this, and will bring different stakeholders together, legal practitioners but also others to engage in the discussion of how environmental rule of law can play an increasing catalytic function to help us achieve sustainable development goals 16 and 13.

Introduction of Key Trends and Findings from the Environmental Rule of Law Report

Soo-Young HWANG | Legal Officer, UN Environment Programme

The rule of law corresponds to principles of rule of law applied in the environmental context. SDG 13 and 16 have a specific target that promotes the rule of law at the national and international levels to ensure equal access to justice for all. We clarified the relationship between SDGs and the environment rule of law in our first global report saying environment rule of law and SDGs are mutually reinforcing and we need both to be able to make sure that the environment rule of law is implemented, and SDG targets are met.

The goals of the report include:

• Undertake a global assessment of global trends and gaps related to EROL,
• Support countries to promote and strengthen EROL.
• Establish benchmarks and identify opportunities for future action and collaboration.

Report Highlights

Key takeaways on Justice:

• A fair, legitimate, and well-functioning justice system is crucial for EROL and vice versa.
• Ensuring equal access to courts allows for equality before the law. This can be done by:
  • Facilitating financial and geographical accessibility (SDGs Targets 16.3 and 16.b)
  • Providing for open standing (SDG Targets 16.3 and 16.b)
  • Overriding the loser-pays principle in particular cases (public interest, good faith) (SDGs Target 16.a)
  • Promoting thematic training, information-sharing and judicial capacity (SDGs Targets 13.3, 16.6 and 16.a)

Global trend 1: Digitalization of the judiciaries

• Most courts adopted teleconferencing technologies to adapt to the logistical problems of the COVID-19 pandemic.
• Systems that had emergency plans in place (the CJEU and Lithuania) were able to adjust more nimbly.
• To assist in this transition, the Council of Europe developed the ‘Ethical Charter on the Use of Artificial Intelligence in Judicial Systems and their Environment’, including relevant principles on data security and transparency.
• While digital tools enhanced access to justice for many, they also excluded people with limited access to Internet connections.

Global trend 2: Climate change litigation

• Judicial action on climate change has grown at an unprecedented pace:
  • To remedy inaction from other branches of the government (SDGs Targets 13.2, 16.6, 16.7 and 16.b)
  • To challenge specific projects and programs whose climate impacts violate the law (SDGs Targets 13.2, 16.10, 16.b)
  • To hold companies accountable for their emissions (SDGs Targets 16.10 and 16.b)
• Judgements are increasingly based on human rights, including the right to a clean, healthy, and sustainable environment and the rights of future generations (SDGs Target 16.10)

Global trend 3: Number and variety of remedies

• Courts are granting an increasing number and variety of remedies in environmental cases, including:
  • Orders to restore environmental harm,
  • Symbolic compensation and declaratory judgments,
  • The establishment of programmes to educate the public,
  • Injunctions to public authorities to undertake or stop certain activities, to enact new legislation or strengthen existing norms,
  • Legal mechanisms enabling judges to closely monitor the progress in the implementation of their orders.

Global trend 4: Transboundary liability

• Due to the transboundary nature of many environmental issues, victims of environmental harm are increasingly resorting to transnational lawsuits (e.g., Four Nigerian Farmers and Milieudefensive v. Royal Dutch Shell.
• Judges are becoming more open to hearing the claims of foreign plaintiffs who have suffered environmental damage caused by entities domiciled within their jurisdiction (e.g., Luciano Lliuya v. RWE AG)
• Courts are increasingly imposing liability on parent companies for harm caused by subsidiaries abroad (e.g., Okpabi v. Royal Dutch Shell)

Panel Discussion

Luc LAVRYSSEN | President, Constitutional Court of Belgium; Chair, Aarhus Convention Task Force on Access to Justice & President, European Union Forum of Judges for the Environment

What is the significance of this increase in climate litigation and what is the role of judges and or access to justice initiatives in such actions in environmental rule of law in particular in the context of advancing the rights of future generations?

• The topic we are addressing today is very actual and even dominates the news. From one side we hear that the past winter was the warmest on record according to the World Meteorological Organization and an increasing number of places experience water shortages, floodings and other extreme weather events. From another side we see an increasing number of cases brought by members of the public across different regions in specific countries that demand effective climate action and to mitigate loss and damages from climate change
• Some of those cases relied on human rights enshrined in international law and national constitutions and challenged the legality of acts and omissions of public bodies and private persons. Other cases relied on National and European Union climate law.
• The Aarhus Convention is a legally binding international treaty that offers an important framework that provides a substantive obligation to protect the right of every person of present and future generations in an environment adequate to his or her health and
  • Therefore, the protection of intergenerational equity is a fundamental tenant of the Aarhus Convention. The Convention also establishes important requirements to guarantee effective access to justice including timeliness review of substantive and procedural legality, effective and adequate remedies assistant mechanism to remove or reduce financial and other barriers for members of the public to access justice and the prohibition of penalization persecution and harassment for exercising their rights.
• Another important issue to underline is the protection of environmental defenders. The convention was the first treaty which provided solid obligations to safeguard environmental defenders.
  • There are cases related to climate issues, lawsuits brought against the states or against public authorities challenging domestic plans and the enforcement of climate related laws and policies.
  • There are cases concerning environmental assessment and permitting of projects with an impact on climate.
  • There are cases concerning access to information on public trust and just transition, trade and investment, reducing and trading of greenhouse gas emissions, protection of biodiversity and EOS systems and the failure to adapt to climate change and impacts of adaptation.
  • There are also lawsuits against corporations and other private persons based on corporate liability and responsibility for climate harms, reduction of greenhouse gas emissions, access to information and challenging green washing and misleading advertising.
• These cases are often legally, scientifically, and technically complex and I think that there is a crucial need for courts and other review bodies to have access to independent scientific or technical expertise to resolve them effectively and timely.
• We addressed at the 2022 judicial colloquium in Geneva, the 2022 annual conference of the European Union Forum of judges for the environment in Paris, and the 2023 Aarhus convention talks for on access to justice and other international You can find background documents and other materials on those events on the respective meeting web pages.
• Given the ongoing climate cases being considered by the European Court of Human Rights and the expected judgments before summer as well as the requests for advisory opinions before other international courts and tribunals it might be not excluded that we will see new interpretations of international law emerge in this area in the coming period. It will clearly support a synergetic action to implement SDGs 16 paragraph 3 on access to justice for all or SDGs 13 on climate action.

Christina VOIGT | Chair, IUCN World Commission on Environmental Law; Professor of Law, University of Oslo & Co-chair of the Paris Agreement´s Compliance and Implementation Committee

• Increasing climate litigation is unprecedented, unprecedented in many ways because of the sheer number of cases but also because there are more cases coming forward and in different jurisdictions. Therefore, there are more and more countries that see climate focused cases coming up in their judicial system, countries that traditionally would not expect to see that kind of litigation being brought forward but we also see climate litigation being brought from more and more diverse litigant or claimants to more and more diverse respondents.
• When we look at the different claimants, we see indigenous people’s leaders, elderly, women organizations, farmers, young people, children (these litigants are putting the focus to the intergenerational aspect of these cases).
• When it comes to the respondents of these cases, we had the first wave of climate litigation against governments, but we are currently seeing many different respondents being targeted like private actors, companies, multilateral companies but also individual responsibility for example of directors of companies that are now targeted for individual
• Hence, we have seen increasing range of different actors in this field, but we are also seeing an increasing variety of claims being brought forward with constitutional provisions being the basis of claims but also human rights, private law claims, criminal law, thus, a widening variety of different legal acts or legal tools being used and being applied in the context of climate change.
• The latest development is of course the move from domestic courts to international courts including the European Court on Human Rights, the InterAmerican Court on Human Rights and then the International Tribunal on the Law of the Sea and the highest judicial organ of the United Nations system the International Court of Justice.
• We have the science in place, the IPCC delivers every couple of years global assessment reports that provide us with a cutting edge of climate science, but policies are lagging, or their implementation is lagging hence the judiciary is stepping in with its rightful role in holding governments to account or individual or private actors to the laws that they are subject to.
• We see a commonality when it comes to spatial expansion including transboundary issues leaving climate change being a global challenge that does not stop at the border. It is something consistently now being addressed in many cases and the temporal scope for addressing issues of justice of future generations.

Fatima MRDOVIC | Judge of the Supreme Court of Federation of Bosnia and Herzegovina

A pioneer in Bosnia trying to make the work of the judiciary in the area of environmental law more visible, to support the organization of the Civil Society in defending the solution of the problems that we are struggling with.

• We published the review of judicial practicing environmental protection in Bosnia and Herzegovina last year with the support of European Union and the idea and inspiration for writing this paper is the result of many years of collecting case law of environmental protection cases and my participation in several very important regional and international conferences like this with the topic on environment and the achieved cooperation and exchange of opinions and experiences with fellow judges from Europe and the world.
• We have some cases, and our public should know how our courts interpret and implement international standards and the international treaties that we ratified.
• In 2010 the Council of ministers of Bosnia adopted the decision on the establishment of authorized body for the implementation of project of the clean development mechanism of the Kyoto Protocol. We also have a designated national authority and the secretariat in the entities, and they are assigned to create and maintain public database containing information on approved CDM projects and other relevant information of CDM process at the entity
• The main problem was that we did not have any systemized database including the data on a court decision. Hence, we are trying to publish as much as many decisions as possible because we have a portal for the case law at the Supreme Court, the highest court in the in the country and we try to make our decisions more visible to publish them especially the legal standing from the decisions.
• Our existing legislation and regulatory framework do not contain provisions to address the problem of climate change, thus, we have to apply general rules and it is very important to know the principles especially the ones from the Aarhus convention to access to justice, access to information, protection of Human Rights and the obligation of the court to make it a rule of law functioning in this area.
• We follow the practice of the European Court of Human Rights, of the European court of justice. We try to create our databases to educate and train our judges and to wait to get some very important case to solve because we have the capacity even though we are still a country with more problems than solutions.

Emma PAGLIARUSCO | Advocacy and Policy Coordinator, Youth and Environment Europe and the European ECO Forum

• As a young climate activist, I am extremely concerned about the future of the planet. Therefore, the rising climate litigation, the role of judges and access to justice is a critical aspect of our fight for environmental justice. However, it is also crucial for advancing the rights of future generations especially in light of SDGs 13 and 16.
• First, increasing climate litigation represents a powerful tool for us. It allows us to hold governments and corporations accountable for their actions or inactions and contributed to climate change and its devastating effects on the future.
• Therefore, by taking legal action we are demanding justice for ourselves and for future generations who will inherit the consequences of today’s decisions. Under these perspectives, we must remind ourselves that judges are not just arbiters of the law, they are guardians of justice and of course protectors of human rights.
• In climate litigation judges have the power to interpret and enforce environmental laws ensuring that governments and corporations fulfill their obligations to address climate change and protect the environment.
• Their decisions can set precedents and establish legal standards and shape policies crucial for advancing the rights of future generations, particularly accessing justice, which is key in advancing intergenerational equity. The principle that presents generations should ensure that the rights and interests of future generations are safeguarded.
• Climate change is not just an environmental issue but an issue of intergenerational justice. The actions we take today or that we fail to take will have profound impacts on the lives of those who come after us.
• Judges therefore have a responsibility to consider the long-term implications of the decisions and to prioritize the interest of future generations in the rulings.
• By upholding the principles of SDGs 13 and 16 it is possible to ensure that climate litigation serves as a catalyst for positive change driving governments and corporations towards more sustainable and equitable practices. It can help us build a legal framework that protects the planet and guarantees the rights of all people including those who are yet to be
• Accessing justice does not only play a key role in protecting the rights of future generations but also ensures that present ones, the youngest ones including children, can make their voices heard in a safe space.
• One of the most worrying trends that we are facing today is directly linked to the shrinking of civic space and the violent repression of young environmental defenders in Europe which is a clear violation of among many others young people’s environmental procedural rights.
• Effective youth participation fulfills the principle of intergenerational equity as it ensures that young people contribute to shaping their future. Access to Justice provides them with legal protections and recourse against such threats, ensuring their safety and well-being as they continue their advocacy
• In conclusion, on the one hand and as climate activists and young people we must continue to advocate for climate justice through all available means including climate litigation and access to justice. We must work together to hold decision makers accountable to demand justice for ourselves and for future generations and to ensure that the principles of SDGs 13 and 16 guide our actions every step of the way.
• On the other hand, we need to rely on the certainty that judges consider the long-term effects of the decisions when it comes to upholding the environmental rule of law. Likewise, it is necessary that today the rise of public participation access to information and access to Justice in environmental issues are exercised by everyone including the youngest generations.

RFSD 2024

The Regional Forum for Sustainable Development 2024 will take place in Geneva on 13 and 14 March 2024, preceded by pre-meetings on 11 and 12 March. While taking place at a time of multiple crises, including the triple planetary crisis, in recognition of the strong affirmation of the 2030 Agenda at the SDG Summit, Governments and Stakeholders across the UNECE region are now looking for impactful, innovative and crisis-resilient policies and solutions to accelerate the implementation of the Sustainable Development Goals.

Against this background, the theme for the 2024 Regional Forum is: “Reinforcing the 2030 Agenda for Sustainable Development in the Economic Commission for Europe region in times of multiple crises: The effective delivery of sustainable, resilient and innovative solutions”.

Documents

• Invitation
• Presentation

Links

• Environmental Rule of Law: Tracking Progress and Charting Future Directions | UNEP
• 2024 Regional Forum on Sustainable Development | UNECE
• UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters | Aarhus Convention
• Environmental Justice | UNDP
• Human Rights and Environment | GEN