The recognition of environmental rights and duties in legal form is thus an aspect of access to justice in environmental matters. From the earlier sections of this overview we can get an idea of the extent to which the existing law provides fair opportunities for the public to gain access to information and to participate in decisionmaking in environmental matters. We have seen a steady progress in the recognition of substantive and procedural rights relating to information and participation. But access to justice in environmental matters does not mean only access to justice in access to information and public participation. It means access to justice in all environmental matters. For this reason it is important to consider not only legal standing in these types of cases, but also whether the public has possibilities to oversee the discharge by authorities of their obligations to uphold the system of environmental rights and duties. A useful tool in ensuring environmental protection where authorities cannot or will not act is citizen oversight through direct enforcement.
The development of substantive and procedural rights has gone hand in hand with the development of other rights, some of them basic, such as the right of association, the right of assembly, and the right to petition the government. As these rights are relevant to access to information and public participation; a proper assessment of access to justice in environmental matters ought to include some mention of them.
Most relevant of the rights, of course, is the right to a healthy environment. This right differs somewhat from traditional individual rights, and in some countries has taken remarkable shapes — for example, the right to compensation for environmental harm has been directly linked to this right on a constitutional level in parts of the NIS. The way in which this right is being shaped in many instances demonstrates that access to justice in environmental matters depends upon the willingness of courts to accept a role as interpreters of the law.
If one accepts the maxim "there is no right without a remedy," then it is attendant upon the courts to use the tools at their disposal to see that "everyone has his due." The adequacy of remedies is an important question in this respect. While there have been notorious disappointments, courts throughout Europe have shown a general willingness to tackle complex environmental issues. In turn, environmental legal issues have provided a means for the judiciary to assert itself, which is especially significant in countries in transition.
Much of this pan-European overview has focused on the Aarhus Convention and its relationship to emerging trends in development of environmental rights. While the convention may serve to raise ongoing multi-level processes to a high profile on the international level, those ongoing processes preceding, supporting and surrounding the convention must be remembered. Therefore, we must look to other international processes, such as the development of the concept of environmental human rights, especially in the context of the European Declaration on Human Rights. Besides the Aarhus Convention, the newly in-force Espoo Convention on EIA in a Transboundary Context and other international initiatives of the UN ECE emphasize the increasing internationalization of the subject matter of this report. But most importantly we must look to the national administration of the law on the country level. Over a vast region encompassing both stability and revolutionary change, prosperity and poverty, rigidity and flexibility, civic openness and authoritarian secrecy, in which systems of government make use of a wide array of possible tools for the approximation of justice, it is impossible to talk of pan-European trends. Even within the three sub-regions covered by the accompanying studies, a great deal of variation can be found. Yet the changes are leading somewhere, and if any one trend can be identified it is perhaps towards improved justice in the environmental sphere generally.
If this is the emerging meaning of the right to a healthy environment, then Western governments may relax, since the same inevitable path is being followed in Western Europe, although a different basis in rights is being used. In the Lopez Ostra case from Spain, and more recently in the case of Guerra v. Italy, the European Court of Human Rights in Strasbourg has interpreted the "right to home" found in Article 8 of the European Declaration of Human Rights to reach a similar result. These cases involved dereliction of duty with respect to environmental protection obligations in which people suffered actual or potential harm. Lopez Ostra concerned inadequate waste water treatment and the Guerra case involved a factory producing fertilizers and organic compounds. In these cases, authorities were found to have a duty to take affirmative measures to protect the environment because a healthy environment is inextricably related to the right of the individual to respect for his private and family life. Even though the two cases in which Article 8 was used to ensure a certain level of environmental protection came from Western Europe, the European Convention on Human Rights is now applicable in most of the countries considered in this study. Most recently the convention was ratified by the Russian Federation.
Against this background it is interesting to reconsider Poland's shift from a right to a healthy environment to a principle of sustainable development. Does the latter formulation provide the same substantive guarantees as found in the Hungarian and ECHR cases? If not, is this against the comparative international trend demonstrated by those cases? Has the change made it necessary for Polish citizens to appeal to Strasbourg for the same level of protection? These are questions which cannot be answered at present. The decision of the International Court of Justice in the GabËÌkovo-Nagymaros case, especially the concurring opinion of Judge Weeramantry, indicates that these may not be the same.
Where a right to a healthy environment is found (for example, in 12 of 17 CEE jurisdictions and in four of five NIS countries covered), the formulation of the right can be revealing. Evidence for the sometimes unappreciated influence of the Chernobyl disaster on national consciousness and its status as one of the root causes of the moral collapse of the Soviet Union can be found in the formulations used in Belarus, Ukraine, Russian Federation and Moldova. In these countries, the provision containing a constitutional or statutory right to a healthy environment also includes rights of access to environmental information and to compensation caused by violation of the right. These issues were at the heart of the aftermath of Chernobyl. While the catastrophe itself was caused by human error, the consequences were horribly compounded by official denial and secrecy. The inadequacy of attempts to properly address the problems caused thereby through some form of compensation was a major issue surrounding the Soviet Union's collapse. Thus, these provisions generally date from the period 1991-92. Cases concerned with compensation of Chernobyl victims and victims of other man-made environmental disasters have created some of the most interesting precedents to arise out of the NIS.
Conclusion: The main factor in shaping the right to a healthy environment is jurisprudence on both a national and trans-national level. The right is taking the shape of an obligation on the part of authorities to guarantee an objectively high level of environmental protection as one of the necessary conditions for enjoyment of life. In specific cases where authorities do not discharge their responsibilities, individuals may enforce the right.
Legal standing cannot be considered apart from the balance between administrative and judicial remedies in a particular country. In many countries, a system of active judicial review of the decisions of authorities is still in the process of formation. What may be surprising to some is the fact that courts in the Russian Federation are increasingly active in sorting out the shifting hierarchy of rights and obligations.
While it may not make a difference in a given case whether legal standing arises out of a right or an entitlement, it is nonetheless important as a reflection of the source of standing and may in fact affect the availability of certain remedies. An entitlement in this sense means that an authority has conferred legal standing on a particular class. As such it resembles an enforceable privilege. In some countries in Europe legal standing in public participation is based on a mixed system of entitlements and rights. The most extreme example can be found in Switzerland, where NGOs must be in existence for 10 years before they are granted an unconditional right to challenge certain projects. More commonly, legal systems require an NGO to meet formal requirements, in its statute (charter) or bylaws, such as the inclusion of specific environmental protection language in its purpose clause. In addition, many NIS and some CEE countries perpetuate the Byzantine structure of social organization that includes heavy centralization and monopolies by sanctioned organizations in specialized sectors. While open standing for NGOs may indeed be a stepping-stone towards broader standing rights in Western Europe (and therefore ought to be encouraged in that context), the situation in Central and Eastern Europe is quite different. Such systems may unfairly favor established groups and impose insurmountable burdens on the unrecognized. Unfortunately, environmental NGOs, especially those with a Western orientation, are often unknowingly complicit in supporting such solutions, and in fact often agitate for a special status for environmental NGOs on a Pan-European level. According to another view, consistent with the right of association, an environmental NGO should have no less right and interest than that of its members, as our reporters have concluded to be the case in Austria, Portugal and the UK (and Ukraine with respect to civil courts). The Danish example of the case of the Ornithological Society against the ministry of transport might represent a happy medium.
Conclusion: While the notion of legal standing is not changing substantially in the West, increased recognition of environmental rights goes hand in hand with enhanced standing. Meanwhile, what was previously an insignificant matter in Central and Eastern Europe has grown in importance as rights are taken more seriously, with the result that standing rules are more carefully circumscribed. The general trends are towards more open standing in certain administrative proceedings, especially those relating to access to information, and special standing for NGOs in specific procedures.
In some parts of former Yugoslavia (Croatia, Yugoslavia), the doctrine of actio popularis allows any member of the public to bring an action for the protection of the public weal, such as environmental "objects." This form of action can result in orders to remove a source of danger or disturbance, or to prevent damage or disturbance, and/or an award of damages. Possibly the same mechanism is found in Slovenia, where individuals may bring a case for removal of immediate environmental dangers. Similarly, in the Russian Federation, certain successful cases in which broad generalized standing was found approach the same result.
Conclusion: Direct citizen enforcement of environmental laws is not yet well-developed in Europe, although a few countries have either long-standing rules or are moving forcefully in this direction. Occasionally, special powers are granted to NGOs. In general, however, heavy institutional barriers stand in the way of broad acceptance of this notion such as may be found in the US.
Access to justice in environmental matters must include a consideration of possibilities to receive compensation for damages to health and the environment. As noted above, such a provision is found in the constitutions of several states. The main problem in compensation cases is establishing causation. The European Court of Human Rights cases have found one way to address the problem of causation by looking beyond the individual harm to the behavior of authorities. A similar approach has been taken in the Russian Federation where lawyers have used the notion of moral damages to seek awards. Under this legal theory, the simple violation of environmental and health standards is sufficient to establish liability, since these standards have been set based on established risk factors. Exceedences of standards therefore create a reasonable apprehension of harm on the part of persons living in the vicinity of the facility or who are otherwise exposed to the pollutants. It is not yet clear what remedies might be available — for example, whether an injunction to halt activities would be sustained as a result of simple exposure. Using Slovenia as an example, in the case of extraordinary actions to halt environmentally dangerous activities, simple exceedances are specifically excluded as the basis of a claim. Rather, demonstrable threats to health or the environment must be present. Another innovation was tried in Hungary, where an award was granted concerning exposure to radiation from the Chernobyl accident based on workers compensation principles.
These examples underscore the role of environmental advocates in facilitating access to justice in environmental matters in Europe. Environmental advocates have played an especially significant role in countries in transition, due to the very nature of transition itself, which provides a fertile ground for new ideas and for risk-taking. But throughout Europe environmental advocacy is on the increase, including the establishment of environmental law clinics in universities in the Netherlands, Czech Republic, and Ukraine. Moreover, environmental advocacy is moving out of the core countries where it developed (Netherlands, Denmark, Spain, United Kingdom, Czech Republic, Slovakia, Hungary, Slovenia, Ukraine, Russian Federation) into a broader and more widespread phenomenon throughout Europe.
Because of the special nature of environmental cases, in that environmental values are generally unique and irreplaceable, simple damages are often inadequate remedies. Thus, it is very important that injunctive relief be available to halt activities damaging the environment or to compel protection measures to be taken. Injunctions are generally available throughout Europe, with notable exceptions (Albania, Bulgaria, Czech Republic, Estonia, Lithuania [with respect to legal persons]). In some cases injunctive relief requires an extraordinary action, such as the "presidential ordinance" in Romania. Access to information is particularly suited to injunctive relief. Thus, we find several examples of extraordinary injunctions being available, including the fast-track "injunction to grant access to documents" in Portugal.
Substantial opportunities are provided for individuals to bring action against authorities for failing to carry out their duties. These are found consistently throughout Europe, and may include collateral extraordinary actions undertaken by the procuracy at the citizen's request, as well as civil, administrative, and disciplinary proceedings. Interestingly, it appears that the doctrine of exhaustion of administrative remedies is not as strongly applied in the NIS.
Of course at the root of the adequacy of remedies is the willingness of courts to use them. The Armenian example of the Victory Park case cited in the NIS Regional Report — in which citizens were unable to reverse a mayor's decision to allow the construction of villas by public officials in a protected park — shows that some countries still have far to go. Similarly, while the decision of the High Arbitration Court of Ukraine in the Mikolaiv Fertilizer Terminal case was an exceptional success (see NIS Regional Report), its cancellation by the court en banc — even though the grounds are unclear from the case description — raises basic questions. The failure of courts to enforce the requirement to hold a public hearing during state ecological expertise procedures in the NIS, except in very rare instances, is another example of judicial impotence.
Barriers to the use of legal remedies have encouraged the development of alternative mechanisms for dispute resolution. The (originally Scandinavian) institution of ombudsman has enjoyed considerable success in Central and Eastern Europe, with more than half the countries in this region employing it on some level. This and other non- or quasi-judicial appeals mechanisms such as arbitration and mediation offer many advantages. They are generally flexible, inexpensive and informal in comparison with judicial actions. By way of contrast, the tool of local referendum has been more popular in the NIS, especially with respect to nuclear issues. The ombudsman institution has not been successful in the NIS, considering the fact that the main example is the parliamentary Human Rights Commissioner in the Russian Federation. This position has been politically manipulated and in fact remained vacant for nearly three years, from 1995 to 1998, after the previous commissioner was dismissed.
Conclusion: Because environmental damage is often irremediable, the adequacy of remedies is of critical importance. Difficulty in obtaining injunctive relief (and its unavailability at all in some countries) is therefore one of the major stumbling blocks to achieving access to justice in environmental matters. Furthermore, the judiciary is still very weak, inexperienced and disorganized in some parts of Europe. One of the results of the situation in these parts is reliance on alternative mechanisms, such as referenda and ombudsmen. On the positive side, citizens are bringing cases and lawyers are helping to develop jurisprudence that constantly and gradually shapes the law.
Among the most important barriers in terms of costs is the requirement of posting bond in order to bring forward a civil case, as found in several NIS countries. The amount of the bond, moreover, is affected by the kind of relief sought. Where more extraordinary relief is required, such as the issuance of an injunction, the required bond is higher, since the potential loss of the defendant is greater. This results in the situation where the more serious the problem, the more difficult it is to address it through civil means. In this manner, resolution of the most important problems in society remains in the hands of a bloated and inefficient bureaucracy, removing one of the important controls of a civil society and further increasing opportunities for corruption and arbitrariness in decisionmaking. In the special circumstances involving environmental protection, the result is often devastating. Such a system cannot move quickly enough to stop illegal activities and serious degradation of the environment.
In more advanced countries, mechanisms have been introduced to lower cost barriers. One possibility is a "one-way" shifting of the costs of litigation onto the losing party, whereby those suing in the public interest can recover costs, but in any case would not have to pay the other party's costs, unless the suit is completely groundless. Poland has introduced this mechanism in the case of suits against public authorities. Slovakia exempts public interest organizations from the payment of court fees. Such special rules do not always increase efficiency, however. Such is the case in parts of the NIS through the granting of special privileges to certain groups. There, obstacles to recourse to the courts may be lower for veterans, Chernobyl victims, charitable organizations, and many public authorities. While this may be laudable in some circumstances, the rule is applied unevenly, with the result that costs are lower not on the basis of real need, but on the basis of overly broad categories that sometimes exclude those working in the public interest.
Conclusion: While costs are not necessarily an insurmountable barrier to access to justice, they are nevertheless significant. Consequently, transaction costs tend to introduce inefficiencies and may often have an impact on the final resolution of disputes. Mechanisms to address the problem of costs are underdeveloped. New rules reducing barriers to access to administrative and judicial procedures are needed.
Access to justice is the one "pillar" supporting the whole environmental rights structure which reminds us most spectacularly that the Aarhus Convention does not provide all the answers. It is not just that the convention is relatively weak in handling access to justice. Beyond that is the knowledge that even this minimal level of achievement required a difficult struggle. The very incompleteness of the pillar itself emphasizes the failure of the drafting parties to accept on a political level that environmental protection is intertwined with democratization and fundamental notions of justice.
While it is difficult to talk of access to justice in environmental matters on a pan-European level, it is nonetheless somehow possible, and this itself is a significant development. Across Europe, law and justice are well on the way toward de-politicization, whereas less than a generation ago considerations of fairness and justice were heavily tinged with politics. In place of political content, however, other forms of corruption may arise and this is one of the most important things to guard against. Meanwhile, throughout Europe, East and West, processes are becoming more pluralistic and participatory, constituting a shift in understanding from consensus-building (top-down) to reconciliation of rights and interests (bottom-up). What this means for access to justice is increasing recognition and enforcement of substantive and procedural rights. At the same time, substantial barriers to justice remain, but these barriers now stand out clearly against a background of substantial agreement over basic concepts.