Rio+20 missed an opportunity to emphasise how people can effect real change through courts.
While politicians may have failed to agree any headline-grabbing commitments in the main event at Rio this week, a sister conference quietly showed how judges in courts and tribunals across the world are adapting to give practical effect to laws for the protection of the environment. It also pointed the way to strengthening them nationally and internationally in the future.
While politicians may have failed to agree any headline-grabbing commitments in the main event at Rio this week, a sister conference quietly showed how judges in courts and tribunals across the world are adapting to give practical effect to laws for the protection of the environment. It also pointed the way to strengthening them nationally and internationally in the future.
The world congress on justice, governance and law for environmental sustainabilty was a gathering in Rio of more than 150 judges, prosecutors, public auditors and enforcement agencies from some 60 countries, hosted by the UN environment programme (UNEP). The event marked a decade of progress since the global judges' symposium in Johannesburg in 2002, which spelled out for the first time in unequivocal terms the crucial role that judges have to play in interpreting and enforcing environmental law, nationally and internationally.
One of the purposes of this week's Rio congress was to review progress and to learn from our successes and failures. There is now widespread acknowledgement of an international "common law" of the environment based on principles such as sustainability, and inter-generational equity. There is now greatly expanded awareness of environmental issues among the judiciary, and the development of specialist courts and tribunals in many countries.
A recent study identified over 360 specialist environmental courts or tribunals in forty-two countries. Brazil itself has an impressive record of specialist judges developing flexible and effective approaches to environmental crimes. In the Amazon area, an environmental court judge has developed new remedies. The judge regularly orders offenders to attend an environmental night school he has created; makes community service directly relate to the offence (eg sentencing waste dumpers to work in a recycling plant, illegal foresters to plant trees, wildlife poachers to work for wildlife recovery groups); and provides community education through billboards on buses and environmental comic books.
Since 2002, a judicial taskforce, of which I was part, has developed a programme of work to improve the understanding and practice of environmental issues among judges across the world. Our initiatives included the preparation of accessible information for judges, such as a manual on environmental law, and organisation of a series of regional training events. For example, in 2007 I took part in a training event in Nairobi for African judges, co-hosted by the Commonwealth Magistrates and Judges Association. In Europe, we established the EU Forum of Judges for the Environment (EUFJE), through which judges exchange information and ideas.
There has been progress also on public involvement, information and access to justice under Rio Principle 10. In Europe, the Aarhus Convention applies across over 45 European countries. This provides a legally-binding framework for access to information, the right to participate in environmental decision-making, and access to justice to challenge the legality of environmental decisions. Kofi Annan described the convention as "by far the most impressive elaboration of principle 10 of the Rio Declaration … (and) the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations". In February 2009 the UNEP governing council proposed the extension of similar principles internationally.
However, among the judges at the Rio+20 congress there was disappointment that the draft "common vision" document at the main event did not contain a more explicit commitment to extending these principles of how people, through the courts, can help effect real change, worldwide. It appeared to us to be something of a missed opportunity. The congress adopted a declaration re-emphasising the importance of judicial capacity-building, and calling on governments to strengthen UNEP's role, and to develop more effective institutions for dealing with transborder crime and international environmental disputes.
The congress included a series of workshops on different themes. The involvement of public auditors gave us a new perspective, emphasising the need for effective monitoring of the work of governments and enforcement agencies. I chaired a lively session on "new and emerging environmental sustainability issues", in which we heard powerful presentations from two specialist judges, from Pakistan and India, and from representatives of Interpol and CITES (Convention on International Trade in Endangered Species).
The Johannesburg global symposium was an important step forward. Fundamental was the recognition that laws are nothing without judges and courts familiar with the issues, with the power to enforce them, and able to provide accessible justice to individuals and representative agencies. The Rio+20 congress was a reaffirmation of that commitment.
Lord Carnwath of Notting Hill is a justice at the UK supreme court
