This was the question put to two renowned judicial champions of the environment, Justice Antonio Benjamin and Justice Ragnhild Noer, at a live Q&A session on environmental justice hosted by UN Environment on 5 July.
According to the Brazilian High Court’s Justice Benjamin, judicial oversight is key to realizing environmental rights.
“Just because a right is laid out in a treaty doesn't mean that it's implementable. That's why we need courts,” Justice Benjamin said.
“The best system for implementing environmental law is a system where all stakeholders participate in a transparent manner. This means that we need a transparent executive, an effective legislature, an efficient administration, and a strong civil society to help hold the system to account.”
Constitutionally enshrined environmental rights are particularly challenging for courts because defining what is encompassed by the “environment” is open to interpretation.
However, Justice Noer of the Norwegian Supreme Court said that there was common agreement that “the human footprint cannot be greater than what nature can tolerate.”
According to Justice Benjamin, when cases involving environmental rights require a balancing of environmental protection against property rights, nature should come first.
“You can own the land, but you can never own the ecosystem services [that land provides]. Judgments should always offer maximum protection to the environment where there are a number of ways of interpreting the law.”
While litigation is a common way of enforcing some of the most basic environmental human rights, proper administrative compliance and enforcement procedures are needed for it to be fully effective.
One institution helping to ensure these procedures are in place is the Global Judicial Institute for the Environment. Established in 2016, the Institute aims to develop the capacity of judges to exercise their role in environmental matters, to share experience, and to recognize the contribution to environmental protection made by the more than 1,200 environmental courts and tribunals worldwide.
“The new Global Judicial Institute for the Environment supports the role of courts and tribunals in systematically applying and enforcing environmental laws and ensuring the fair distribution of environmental benefits and burdens,” Justice Benjamin said, noting that the challenges facing environmental law cannot be solved by one judge or court alone.
Guests attending the July Q&A included ambassadors and diplomats, students from the University of Nairobi, Strathmore University, Riara University and Kenyatta University, as well as representatives from human rights organizations, UN Habitat and the United Nations Office on Drugs and Crime.
The event followed the launch of UN Environment’s New Frontiers in Environmental Constitutionalism, which describes constitutional responses to environmental challenges and new frontiers in the implementation of constitutional, international, and regional rights-based approaches to promote environmental protection. UN Environment and Columbia Law School also recently released the first comprehensive survey of climate change litigation worldwide.
For more information on UN Environment’s work on environmental rule of law
For more information on the Global Judicial Institute on the Environment
Please contact niamh.brannigan@unep.org +254 717733348 for further enquiries.
