LAWS20009 Lecture Notes - Lecture 10: Customary International Law, Rights-Based Approach To Development, Rio Declaration On Environment And Development
LECTURE 10: PROCEDURAL RIGHTS AND PARTICIPATION
• A form of anthropocentric human rights:
• Rights: prioritise human welfare – distinct from sustainable development
(overarching framework of env law internationally and domestically)
• Rights based approach v sustainable development approach:
o Rights based: certain, prioritise human welfare – env rights
through human rights, has enforcement inbuilt in it!!!!!!
o S.D: broad, murky, balances economic, social and environmental
interests, no enforcement (due to contested definition)
Human Rights to Participation – International Law
• International customary law
• ICCPR
o Article 19: right to hold opinions without interference, to freedom of expression – includes freedom to seek,
receive and impart information and ideas
o Article 25: right and the opportunity to take part in the conduct of public affairs
• ICESCR
o Article 15: right to participate in cultural life
• Pulp Mills on the River Uruguay 2010 (ICJ) – importance of procedure
o Must undertake EIS, and must consult neighbouring communities
o Court confirmed that meetings, interview and report was enough to fulfil Uruguay’s responsibility
o Right to be consulted – international customary law – merely a procedural right, not enough to change the
outcome
Participation and Environmental Law
• Rio Declaration (Principle 10): right to participation in environmental matters, in env context: participation must be
multilayered, information to communities, involvement of communities in decision making, ability of communities to seek
review of decisions
• UN Declaration on the Rights of Indigenous People
• The Earth Charter – not int. law – further considerations: transparency, accountability, clear and timely information,
supporting communities to bring cases, enabling communities to express their dissent
• Aarhus Convention (European Law)
o Converts some of soft law Rio Declaration articles into hard law
▪ Right to receive information held by public authorities
▪ Right to participate in environmental decision-making
▪ Right to review procedures to challenge public decisions
• Australia: National Strategy on ESD (policy, not law)
o “Participation of every Australian, through all levels of government, businesses, union and community – is
central to the effective implementation of ESD in Australia”
• Occurs at: planning level (environmental assessment process) – views debated, then in the courtroom
Participation as Access to Courts
• Litigation can be used in a wide variety of ways to try and achieve environmental goals
• A large amount of environmental cases are what we call ‘public law’ cases
o Refers to cases where citizens or groups challenge the actions or decisions of the government
▪ E.g. they might challenge an environmental approval being granted under the EPBC Act, or might
allege a violation of human rights
Lecture Overview
• Procedural rights and participation
at 2 levels:
o Participation in
government decision-
making
o Participation as access
to the courts
Maya Indigenous Community of the Toledo District v Belize (2004)
• Right to consultation – Indigenous peoples
• InterAmerican Court of Human Rights
• Maya land logged
• Claimed a breach of a number of HR, including right to participate in government – to fulfil the right, consultation must be
more than mere formality – must provide full and fair opportunity to be heard and genuinely influence decisions
• Court: Maya people didn’t know because there wasn’t public knowledge of the concession, and meetings providing
misleading information to Maya communities – therefore, no effective consultations & confirmed consent
o The fulfil this right: all members of community must be fully and accurately informed of the nature of the
consequences of a project and be provided an action to be involved individually or as a collective
o A right to participate would be seen when there was a written agreement between parties
o Government must set clear standards of consultation
o Participation must be: timely, and structured
