sustainable development 20 years on from the ... - José Eli da Veiga

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Many of the existing mechanisms for participation do not recognize the great number of
individual actors involved. Their reach does not often cover indigenous populations, rural organizations,
unions, cooperatives, associations of producers, and small and isolated communities, among others (The
Access Initiative, <strong>20</strong>05).
3. Access to justice
The countries in the region have progressed in designing and establishing specialized bodies with
environmental jurisdiction in justice systems or in institutions attached to ministerial or autonomous
agencies. However, there are difficulties in access to environmental courts, as the courts are concentrated
in urban centres and major cities. UNEP national reports agree on the need to improve mechanisms for
disseminating information on access to and the content of environmental justice, which has a special
impact on criminal activities such as illegal logging and trade in endangered species.
The Access Initiative (<strong>20</strong>05) adds that traditional courts are not the right place for addressing
environmental issues because their legal reasoning usually concerns administrative, civil or criminal
matters rather than environmental ones. Judges or members of tribunals are not normally sufficiently
trained in environmental matters, despite the efforts of legal training institutions. Furthermore, in most
countries, there are no alternative mechanisms for conflict resolution. This has led to a trend towards
judicializing environmental conflicts, which incurs significant costs and delays and does not always
provide acceptable or <strong>sustainable</strong> solutions for the various stakeholders. Environmental conflicts,
especially those where there has been very active public participation in terms of providing ideas,
information and possible solutions, tend to create opportunities for positive change by bringing up issues
and options that have never been considered before.
Over the last few <strong>years</strong>, however, legislation enacted in several of the region’s countries has
offered a broader range of procedural remedies, and burgeoning jurisprudence is paving the way towards
a more functional form of environmental law. There is also an open debate on the timeliness and
advisability of setting up specialized jurisdictional bodies. In this connection, several countries have set
up specialized environmental prosecutors’ offices: one is Brazil, where public prosecutors already have
several <strong>years</strong>’ experience. Mexico has a federal prosecutor’s office and state prosecutor’s offices,
Argentina created an environmental prosecutor unit and, more recently, Peru set up environmental
prosecutor offices in March <strong>20</strong>08.
In addition, the justice system has been proactive in defending environmental rights in several
countries, overcoming procedural obstacles and adapting traditional legal institutions to the specifics of
environmental law to resolve disputes of great technical and legal complexity. Examples include the decision
adopted by the Supreme Court of Argentina in the Riachuelo case 8 and the ruling by the Constitutional Court
of Guatemala on an appeal for protection, which found the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal to be directly applicable (UNEP, <strong>20</strong>10b).
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In <strong>20</strong>04, 17 people living close to the Matanza-Riachuelo river basin submitted a petition to the Supreme Court
of Justice of Argentina, consisting of two separate complaints: in the first, they sued 40 companies, the State,
Buenos Aires province and the city of Buenos Aires, seeking compensation for harm caused by pollution. In the
second, they requested that the Court order the various authorities to implement sanitation measures to reduce
and resolve the environmental problem. The Supreme Court declared itself competent to hear the first matter and
two <strong>years</strong> later found in favour of the petitioners, an unprecedented decision in ordinary judicial processes. It
conducted public hearings and required that the respondents put forward a comprehensive plan for alleviating the
environmental crisis in the river basin (Coalición Argentina, for the Access Initiative, <strong>20</strong>09).