Environmental Rule of Law: Trends from the Americas

Civil Society Organizations, Judiciary, Academia, Prosecutors, Private practitioners Parlamentarians and International Organizations Trade, Investment Conflict Prevention and Environment and Management Legal Frameworks in Shared Natural for Water Resource Resources Management Environmental Access Rights: Enforcement Information, Justice and Process Environmental Rule of Law: Trends from the Americas Selected Essays Sustainable Development General Secretariat Organization of American States 1 RIGHTS OF THE AUTHOR© (2015) General Secretariat of the Organization of American States (OAS). Published by the Department of Sustainable Development. All rights reserved under International and Pan-American Conventions. No portion of the contents may be reproduced or transmitted in any form, or by any means, electronic or mechanical, including photocopying, recording or any information storage retrieval system, without prior permission in writing from the publisher and the General Secretariat of the OAS. Design and illustrations: María Montas OAS Cataloging-in-Publication Data Inter-American Congress on the Environmental Rule of Law (1st : 2015 : Montego Bay, Jamaica). Estado de derecho en materia ambiental: Tendencias en las Américas : Ensayos seleccionados / [Publicado por el Departamento de Desarrollo Sostenible de la Secretaría General de la Organización de los Estados Americanos]. p. : ill. ; cm. (OAS. Documentos oficiales ; OEA/Ser.D/XXIII.31) ISBN 978-0-8270-6460-7 1. Environmental law--Congresses. 2. Environmental policy--Congresses. 3. Sustainable Development--Law and legislation. 4. Rule of law. I. Title. II. Organization of American States. Department of Sustainable Development. III. Congreso Interamericano sobre el Estado de Derecho en Materia Ambiental (1st : 2015 : Montego Bay, Jamaica). IV. Series. OEA/Ser.D/XXIII.31 ISBN 978-0-8270-6460-7 The views expressed herein are presented for informational purposes only and do not represent the opinions or official positions of the Organization of American States, its General Secretariat, its Member States or any of its partner institutions. Selected Essays 5 Luis Almagro Secretary General Organization of American States Foreword This publication embraces a unique opportunity by addressing an issue of significant and wide-ranging importance to human well-being, peace, democracy, access to justice, the protection of human rights and generally, to sustainable development. The Rule of Law is the binding element within and between these respective domains. And in my hum- ble view it represents the only effective way of achieving equity, and the necessary balance that can assure environmental sustainability and human well-being. Ultimately, our efforts towards sustainable development, security, environmental sustainability and po- litical stability will be meaningless if they do not significantly improve the quality of life of our people. As we all know, there are many, sometimes differing perceptions, of the Rule of Law. However there are a few common elements we can all agree on, and included among these is respecting and implement- ing environmental laws and conventions to guarantee the right to a healthy environment that the citizens of the Americas and the world are entitled to. Ensuring all these elements come together affording more rights for more people is a common respon- sibility of legislators and parliamentarians, judges, attorney generals, prosecutors and ultimately the people. A holistic society approach is required to address the challenges of our times, which means also involving civil society and the private sector. Since the Rio + 20 Summit in Brazil we have witnessed an encouraging surge of interest among mem- bers of the Executive, the Legislature and the Judiciary branches of Government across the world on the environment. Equally encouraging is the growth of jurisprudence in the subject from the Inter-American Human Rights system to national courts and tribunals. But there is a great deal more work to be done. I believe we need a fresh conceptual sustainable development framework, one focused on the human and environmental potential, in our countries, to guide our future efforts in this critical endeavor. The elements of such a framework should be based on the notion of “government of the people, by the people, for the people” exposed by President Lincoln in his famous Gettysburg address in November 1863. To me this is a potent reminder that the “tree of government” consists of more than the three branches referenced earlier i.e. the Executive, Legislature and Judiciary. These branches of Government are not of their own making and do not exist for their own sake. 6 Environmental Rule of Law: Trends from the Americas The people are the very embodiment of the tree of Government. And I regard the Rule of Law as the trunk which holds that tree together, under pinned by an inclusive governance approach, focused on consultation with all stakeholders, accountability and transparency. The tree of Government will, in the words of President Lincoln, “perish from the earth” if the natural environment from which it derives its sustenance, is in any way compromised or polluted; if its executive, legislature and judiciary branches act in a manner that ignores the will of the people and does not protect and advance the people’s well-being. The challenge before us is to how to devise a system of democratic and environmental governance that is the embodiment of the Tree of Government described above. The selected essays in this publication carefully and respectfully consider the evidence, facts, and opinions that were shared over the two days of the Inter-American Congress on the Environmental Rule of Law and represent the hope to invest in designing and adopting necessary, appropriate and effective policies, laws and regulations to protect the well-being of the people and their environment, but also to strengthen participatory decision-making frameworks that give effect to the Tree of Government approach. At the heart of this approach must be sustained education and communication especially among the users of natural resources, about the laws and procedures that are needed and that are set in place to facilitate effective enforcement and compliance. As we identify and focus on the emerging trends regarding the environmental rule of law, and on ways of curbing irresponsible use of the environment and natural resources, we must seek to develop a more balanced and Integrated paradigm for sustainable development, one that will balance the needs of the market with the social challenges and the opportunities the environment offers. The OAS has had a deep and abiding interest on the topics addressed in these essays. As integral development, human rights, multi-dimensional security and democracy are the four main pillars of the OAS and have received considerable attention ever since the formation of our organization. As a conse- quence, I believe the OAS has a great deal to offer the global community both in terms of the availability of clear and thoughtfully-negotiated instruments like the Inter-American Democratic Charter, the Charter on Social Protection, and the Inter-American Strategy on Public Participation in Decision-Making for Sustainable Development, but also in terms of significant lessons learned over more than 50 years of ground-breaking work in environment and sustainable development. The Americas is currently at a critical juncture in its history characterized by profound changes driven by a motivation to adjust to the current and future challenges. As we join in this global journey of fashioning a global framework for the environmental Rule of Law, we at the OAS with UNEP , WCEL and CCJ our key partners will be alert for insights that will help us build on the achievements of the Inter-American Democratic Charter and on the agreed principles and policy framework for the promotion of public participation in sustainable development decision making; to ensure that laws are representative of the people and are crafted in a manner that assures effective enforcement and compliance; that the role of citizens, women, indigenous people, youth and children is enhanced and supported in the legal frameworks; and that justice is neither blind nor unwilling to tilt the scales to achieve fairness for those that are most vulnerable. Luis Almagro Secretary General Organization of American States Selected Essays 7 Elizabeth Mrema Director, Environmental Law and Conventions, UNEP Prologue In facing ever increasing complexities regarding our planet, people everywhere view environmental rights, environmental law and jurisprudence and environmental governance as becoming increasingly central to resolving problems of environmental justice. The American region has equally been facing these complexities. Latin America and the Caribbean region for instance is home to approximately 23 per cent of the world’s forests, 31 per cent of its fresh- water resources and six of the world’s 17 mega-diverse countries. And although these resources are not evenly distributed, the overall richness and economic importance of the region’s ecosystems and its natural capital are undeniable. Thus despite this vast natural wealth, the Region countries face many challenges which have ham- pered the efficient management of the rich natural resources. With 79 per cent of the population liv- ing in towns and cities, the region remains one of the most urbanized in the world thereby impeding the region’s ability

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