in law

Arthur Chaskalson
describes how the judiciary is increasingly working with civil society and the international community to secure and enforce environmental rights and freedoms

The boundaries of environmental law are expanding rapidly. The Millennium Declaration pledged to spare no effort to free all humanity from the threat of living on a planet irredeemably spoilt by human activities and whose resources would no longer be sufficient for its needs. It builds on the first principle of the Stockholm Declaration which, more than 30 years ago, recognized our fundamental right to adequate conditions of life and an environment of a quality that permits dignity and well-being. We also owe corresponding obligations to ourselves and to future generations to protect and improve the environment.

There are fundamental issues that we need to address: the tension between development and protection of the environment, particularly acute in the poorer developing countries, but present throughout the world; the tension between short-term needs and long-term concerns; the tension between developing frameworks of laws designed to protect the environment and implementing them; and the issue of globalization and the presence throughout the world of multinational corporations, which are often the source of development, but are also a source of environmental damage.

Securing respect
It may seem strange that judges, who have at times been considered somewhat aloof, should concern themselves about these matters. But they do. More than 100 senior judges from around the world, including 32 chief justices, held a conference in Johannesburg at the time of the 2002 World Summit on Sustainable Development and acknowledged the existence of these rights and obligations. They also acknowledged the important role that civil society has in securing respect for these rights and compliance with these obligations.
The more vibrant civil society, the greater the likelihood is that rights and freedoms will be respected
Rights are not self-executed. We have learned from bitter experience that unless they are vigorously and assertively enforced, they may have no substance. Civil society has a crucial role in promoting respect for and asserting fundamental rights and freedoms. As a South African, I have lived in a society in which there was no respect for rights, freedoms and human dignity. I know from my own experience the absolutely crucial role that civil society played in the struggle for them in my country and how much we owe it for the rights and freedoms that we have now in our country today and the extraordinary Constitution in which they are entrenched.

Right to the environment
One of the rights and freedoms entrenched in our Constitution is the right to the environment. It says that everyone has the right to an environment which is not harmful to healthy well-being, and to have it protected for the benefit of present and future generations through reasonable legislation and other measures that prevent pollution and ecological degradation, promote conservation, and secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.

It is one of a series of socio-economic rights in our constitution, which also include the right to access to health care, the right to access to housing, the right to access to education and children’s rights. All these rights are ‘justice seeable’ and our courts are being called upon on occasion to enforce them. In doing so, they have occasionally told the Government that it is not complying with its obligations under the Constitution.

Central cases
The really central cases are almost always brought to court by organs of civil society. They have the expertise, the knowledge and the commitment to assemble facts in a coherent way and to identify the crucial issues – and to present a case which brings to the fore these rights and the suffering of the people being denied them, and explains the reasons why the court should intervene. Great suffering can occur if those cases are not brought before the court – or worse are brought, but not properly, so that important evidence is left out and important arguments not raised, causing the case to fail through lack of preparation.

Civil society is therefore the engine for asserting these rights and freedoms, but the judiciary also has an important role to play in upholding them. In this sense, the judiciary and organs of civil society are partners in securing compliance with the law. Those who suffer the most when rights are not protected, and freedoms are not upheld, are the poor. It is the poor, too, who are likely to suffer the most as a result of environmental degradation. But it is not only the poor and marginalized sections of the community who look to civil society to protect their rights and interests: all sections of society do so. It is the responsibility of governments and civil society to see these rights are not abused or ignored. The more vibrant civil society, the greater the likelihood is that rights and freedoms will be respected.
We must learn to act as equal members of a community with concern for the welfare of all
At the judges’ symposium in Johannesburg, we recognized that the boundaries of environmental law are expanding rapidly, and that there is an urgent need for a concerted and sustained programme of work focused on education, training and disseminating information in this field. We recognized the importance of public participation in environmental decision making; the need for access to justice for the settlement of environmental disputes and for the defence and enforcement of environmental rights; and the necessity for public access to relevant information. We acknowledged the important contribution of the whole of society and the need to strengthen the capacity of organizations and initiatives that seek to enable the public to focus attention – on a well-informed basis – on environmental protection and sustainable development issues.

Capacity building is important. The judges are committed to undertaking programmes to enhance their knowledge and skills in environmental law. They recognize that there is a need for civil society to do the same, and fully support initiatives to bring this about. A second meeting of senior judges, in Nairobi in January 2003 – called to give substance to the discussions in Johannesburg, and to plan for implementing some of the decisions taken there – also recognized the important role of civil society. It called on UNEP to develop and implement programmes of capacity building, not only for judges but for other legal stakeholders such as prosecutors, enforcement officers, lawyers, public-interest litigation groups and others engaged in developing, implementing and enforcing environmental law in the context of sustainable development. The judges expressed their full support in cooperating with UNEP in developing and implementing such programmes – particularly in developing countries and countries in transition. They undertook themselves to contribute towards capacity building within the judiciary, and formed a committee of ten senior judges from all regions of the world to advise UNEP on developing and implementing the capacity building programme.

Being human and fallible, we all tend to think about ourselves more than others; about the present time, rather than the future. We must learn to act as equal members of a community with concern not just for our own welfare but for the welfare of all, for the welfare of our children and their children, and their children’s children. If we aspire to sustainable development and a healthy environment, that is the commitment we must make

The Honourable Justice Arthur Chaskalson is Chief Justice of the Republic of South Africa.

PHOTOGRAPH: Henry M. Nyaga/UNEP/Topham

This issue:
Contents | Editorial K. Toepfer | Strengthening the rule of law | Partners in law | Justice can be shortsighted | Force of law | A matter of judgement | A law of energy | People | Rule of man, or rule of law? | At a glance: The rule of law | Sebastião Salgado | Sustainable development comes from Saturn! | One planet, different worlds | Nature’s wisdom | Kickback fightback | Conflict and cooperation | Holistic landmark | Empowering the poor | Legal climate | Small is effective | Building the framework

Complementary issues:
Globalization, poverty, trade and the environment 2003
Biological diversity 2000