1 Introduction
Questions of ‘sustainability’ are mostly approached from the level of international or regional law (like EU law) – disregarding the fact that domestic legal orders have used comparable concepts in their nature protection laws or administrative practice even before the Brundtland Report or the Rio Declaration existed. The idea of sustainability as a way of safeguarding natural resources for future use or of seeing nature as a holistic concept,1 albeit not necessarily under this name, has been a reason to promote causal and medial environmental protection.2 Although my research found no clear evidence that international instruments are based on pre-existing national concepts of sustainability, there is some indication that the German concept of Nachhaltigkeit3 was transferred to early 20th century US-American forestry management, and from there – under German influence –into ‘The Limits of Growth’ by the Club of Rome (1972) and back into § 1 Bundeswaldgesetz,4 prior to publication of the Brundtland Report.5 International law has subsequently informed transformation processes within domestic legal orders and has led
The same applies to participatory instruments meant to enable neighbours, specific societal groups, the public concerned or the general public to raise concerns and make their voices heard in administrative or legislative decisionmaking or in judicial control of decisions. Although the original concepts of participation have most likely been modified through the influence of inter- or supranational instruments, like Directive 2003/35/EC8 or the Rio Declaration9, it seems important to look at pre-existing and persisting models10 on how to integrate the goal of ‘sustainable development’ or of ‘participation’ into a legal order and on how to make it work in daily administrative business.
Therefore, this comparative study not only seeks to explore the variety of regulation on sustainability and participation, but also to search for a common core underlying environmental laws in various legal orders. It is vital to show how different interpretations develop under different constitutional settings and to explore various models of linking participation to sustainability in order to promote environmental protection and to control adherence to environmental regulation. Different from international treaties and supranational law, domestic law is directly applicable and thus able to govern the behaviour of governments, administrative bodies and individuals. Its use in various legal orders, only connected by the weak bond of international, or the slightly stronger bond of supranational law, bears the danger of fraction and misinterpretation, as domestic administrative bodies and courts will be more acquainted with the respective understanding of ‘their’ system. Thus, a
2 Course of the Comparative Analysis
2.1 Choice of Legal Orders
The analysed legal orders were chosen by applying the following (alternating) criteria:
- –legal orders from all around the globe (except Asia),12 therefore with different legal and constitutional traditions,
- –signatories of the Aarhus Convention (1998) or the Escazú Agreement (2018) as well as non-signatories (African states),
- –legal orders with a tradition of or a need for participatory elements due to history, indigenous population, strong cultural identification with participation of the people or dialogic elements and transparent decision-making of the state,
- –countries with rich natural resources or are especially affected by climate change,
- –countries with different approaches to nature due to their spiritual or cultural heritage.
The comparison concentrates on laws and regulations as well as case-law from South Africa, Namibia, Kenya, Brazil, Ecuador, Costa Rica, New Zealand and Germany. It mentions some other legal orders, when suited.
2.2 Comparative Method
A functional comparative analysis was used in order to explore the use of the legal concepts. For this purpose, the general questions underlying all chapters have been turned into a kind of questionnaire to render various approaches
2.3 Examples for the Regulation of Sustainability and Participation
In this part, some regulatory models are introduced in an overview. The legal orders are used as examples for specific models that are reflected further down.
2.3.1 Brazil – Sustainable Development as a ‘Diffuse’ Environmental Right for Everyone
Brazil is known for its early adoption of a constitutional right to a healthy environment including the Intergenerational Responsibility Principle15 in 1988 (Art 225 BrazC).16 Art 225 is inextricably linked to Art 170 (economic order). It obliges the public powers in a very detailed manner to protect the environment, to prevent detrimental action and to strive for sustainable mining.17 These obligations are to be taken into account when the administrative authorities
Thereby, firstly, access to justice21 for everyone is guaranteed in a kind of class action both on the constitutional level (ação popular ambiental)22 for all natural persons and on the level of civil law remedies (ação civil pública) for associations, communities, and the Ministério Público,23 a special authority vested with the power to control the implementation of environmental rights.24 The claimants are not required to argue a violation of an own individual right. Rather claiming a violation of environmental goods suffices, as the safeguard of the environment is perceived to be in the diffuse interest of everyone.25 The civil law remedy can be used to claim damages for environmental pollution, but also for prohibitory actions.26
Secondly, Art 225 § 1 IV BrazC guarantees an environmental impact assessment, which is, however, not directly linked to public participation in the text. The statutory law, foremost the Forestry Code, as well as the provisions on Environmental Impact Assessment (which have existed since 1981) include rights of indigenous people. However, the implementation of environmental impact assessment is deemed to be imprecise and has overlooked inter alia
Thirdly, the constitution contains substantial obligations for private persons to protect and restore natural resources, combined with a close connection between property and sustainable use.29 As in other Latin American legal orders,30 many natural resources are publicly owned, therefore the (constitutional) responsibility for sustainable use falls (also) upon the state. This ‘ecological function of property’ is seen as a key concept as it demands activities that are consistent with sustainable development both from private land owners (via a ‘green’ reading of the social responsibility clause in Art 186 BrazC) and the state.31 This duty is reinforced by the 2012 Forest Code,32 which demands rural landowners to set aside a so-called legal reserve. It can only be sustainably managed in order to preserve the environment for future generations.33
2.3.2 New Zealand – A Long History of Sustainable Resource Management Under (Indigenous) Participation
Neither sustainability nor participation or comparable concepts are mentioned in constitutional law.34 Thus, the central legal document is the Resource Management Act (RMA)35 from 1991, amended in 2017, which covers both sustainable resource management and participation. This has established an
New Zealand was the first state to develop a comprising legal instrument to prioritise sustainable development in reaction to the Brundtland report of 1987. The RMA has acted as a blueprint for similar legislation, e.g. in Canada and Ecuador.37 It is complemented by statutory instruments like the Forest Act (FA) and the Fisheries Act 1996, which contain specific definitions of sustainable management (e.g. s 2 Forest Amendment Act (1993)).38 S 5 (2) RMA defines the sole purpose of the act, i.e. sustainable development, as:
managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while (a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
S 6 and 7 go on to list measures to be taken and principles to be observed in order to sustainably manage resources, like protection of specific areas and habitats, recognition of the benefits of renewable energies or respect for the intrinsic value of ecosystems. A striking feature, which can only be explained by the legislative history, is the focus on management as the link to a centralistic planning of infrastructure and allocation of natural resources by the government. This therefore speaks of the need for management criteria39 to attain a twofold goal: avoiding detriment to nature without impeding development.
The RMA follows an eco-centric understanding of ‘sustainable development’ rather than the ‘three-legged-stool’ model supported by international
The legal order – like many of the Latin American legal orders – shows a strong link to the recognition of indigenous rights as well as to rights of nature47 which have been developed over recent decades and nowadays form the core of legislation connected to sustainability and participation. This is especially reflected by the explicit reference to the Treaty of Waitangi in s 8 RMA, which
The landscape of New Zealand is marked by significant geothermal activity. Its simultaneous exploitation as an energy source and touristic attraction despite the fragility of geothermal features risks its destruction. This fact coupled with the significance as a cultural site for the Maori can be seen as formative for today’s understanding both of sustainable resource management and participation of Iwi authorities and Maori communities.49 This is reflected by s 58N ff of the RMA Amendment Act (2017) introducing Mana Whakahona a Rohe as a specific binding statutory agreement entered during the planning process by the councils and Iwi that allows for participation in resource management and decision-making processes.
2.3.3 South Africa and Namibia – Social, Economic and Environmentally Sustainable Development as an Enforceable Human Right
The principle of sustainable development features as part of the fundamental right to ‘an environment that is not harmful to human health and wellbeing’ and to protection of the environment in s 24 SAConst.50 It includes a clear reference to all three pillars of sustainable development: the promotion of economic and social development, the benefit of present and future generations, and an ecologically sound use of natural resources. The strong connection between environment and economic and social development establishes a sphere model.51 S 24 is interpreted in the light of the three main international documents, the Stockholm Declaration, the Brundtland Report and the Johannesburg Declaration on Sustainable Development,52 mirroring the approach to sustainability contained within.53 The constitutional provision
Similar to New Zealand, South Africa has introduced a National Environmental Management Act (NEMA),56 which serves as framework legislation with the primary goal to reconcile all three pillars of sustainable development (s 2 (3)).57 The goal is that development serves present and future generations.58 However, although the equal balance between all elements of sustainable development is also stressed by non-binding policy instruments like the National Framework for Sustainable Development in South Africa, the legislation on sustainability seems fragmented, leaning towards an understanding of sustainable development as ‘protection of natural resources and a green environment’.59 This reading is supported by s 4 (a) NEMA that defines sustainable development more precisely by listing general principles of environmental law, like the precautionary principle or waste avoidance.60 A definition of sustainable, which is solely directed at the protection of natural resources for the needs of present and future generations, can be found in s 1 Biodiversity Act61 – sustainable use involves impeding the long term decline and the disruption of ecological integrity. A look at several other sectoral laws as well as the White Paper on an Environmental Management Policy for South Africa, shows that the greening of governmental management practices is the key aspect, although – given the apartheid past of South Africa – aspects of non-discrimination, equality and social as well as economic development might play a more important role than in other legal orders.62
A forerunner and possible blueprint for the South African regulation is the Constitution of Namibia (1990), which includes in Art 95 (1) a state obligation
Provisions on public participation in environmental decision-making stem likewise from s 24 SAConst and further constitutional provisions and have been fleshed out by non-binding instruments on the sustainable management of resources as well as the above-mentioned statutory instruments.67 This is meant to avoid vague obligations and an enforcement gap – the stated principles include procedural rules like inclusivity, diversity and transparency.68 S 2 (4) (f) NEMA lays down that ‘participation of all interested and affected parties in environmental governance must be promoted’ and also demands capacity-building measures for ‘equitable and effective participation’. Participation may be partly linked to local government, where local authorities need to take decisions that contribute locally to the implementation of environmental rights and sustainable development.69 By encouraging dialogue between the local government authority and the community, participation is said to have
2.3.4 Germany – in the Search of Effective Individual Rights and an Encompassing Definition
Being a European Union (EU) member state, German environmental law is influenced by an additional layer of law. The EU has competence for the harmonisation of environmental law under Art 191 ff TFEU75 which has been used not only for directives on medial and causal environmental protection, but also to implement the participatory regime introduced by the Aarhus Convention.76 Via Art 11 TFEU (so-called environmental horizontal integration clause) the EU and member states alike are obliged to include considerations of sustainable development in their implementation of EU politics.77 The European
Sustainability and participation in German law are used as examples for the implementation of supranational law in domestic administrative law. They demonstrate a process of norm-creation that is strongly influenced by the specific compliance and enforcement mechanism of a supranational legal order. Simultaneously, on local and state level, Germany has a long tradition of direct democracy not restricted to questions of sustainability, environmental protection or planning law.79 There is, however, a significant overlap, especially at local or municipal level both in the choice of topics for local referenda, which often address aspects of all three legs of sustainability.80
On the other hand, the Grundgesetz (Federal Constitution, hereafter: GG)81 neither explicitly mentions sustainability nor participation – Art 20a GG is a non-justiciable obligation of all state power to safeguard the means of livelihood (also) for future generations. Thus, it only addresses one strand of sustainability (intergenerational justice)82,83. This is commonly interpreted as containing a principle of economical use of resources,84 while social aspects rather form part of the principle of the welfare state in Art 20 GG.
Starting with s 1 BWaldG, German administrative laws have continuously codified both the principles of sustainability (Nachhaltigkeit) and of public participation in planning processes (Öffentlichkeitsbeteiligung) especially medial and causal environmental protections acts and regulations. For
It is claimed that the understanding is patchy with some of the statutes following an ample understanding reflecting the three-pronged-approach of international law (such as s 1 (5) Town Planning Act,87 which explicitly mentions the social, economic and ecological aspects of town planning, also with respect for future generations),88 while others rest on a clear green notion.89 In all acts, the position of the principle is rather weak as a mere ‘purpose’ of the law, which is not justiciable, but might be used to guide the interpretation and application of the laws. However, the use in environmental impact assessments clearly favours the ecological leg of sustainable development. It is also partly seen as a tool to move away from the traditional anthropocentric approach in German environmental law towards a more eco-centric approach.90 The main gateway for all three aspects of sustainable development is seen in the
On the other hand, public participation in all administrative decisions that involve planning decisions is well established and has been around even before international and EU law demanded so. Whether there is a link to the concepts of sustainability or whether they are seen as mere objective guiding principles for state action remains to be seen. A procedural link between the substantive principle of sustainability (or rarely sustainable development) and participation can be established in the rules of public participation in planning law – participation is used to enforce aspects of sustainability, for example in environmental impact assessments or plan approval procedures.91
2.3.5 Costa Rica and other Latin American Legal Orders Rights of Indigenous People and Rights of Nature
The combination of principles of sustainable development (mostly with a focus on the green leg) and participation through access to justice, rights of nature and rights of indigenous communities features in many Latin American legal orders, most prominently in Costa Rica, Ecuador, Argentina and Colombia. The Environmental Protection Act of Costa Rica (EPA CR) not only sets ‘sustainability’ (utilization sostenible), responsibility for future generations and the right to a healthy environment as a goal for state policies, it also establishes a (non-enforceable) duty for every inhabitant and obliges the state to support active participation of the public in environmental decision-making.92 Costa Rica has, as early as 1997, based on its Forestry Law 7575, introduced a marketbased solution in order to promote sustainable ecosystem management by paying private landowners for environmental services – and therefore catching all three prongs of sustainable development by a new instrument, mostly aimed at forest protection.93 This can also be seen as a form of actual
3 Sustainability and Participation Compared
The comparative analysis will first explore where the principles occur and how they manifest before comparing the approaches of the different legal orders.
3.1 Manifestation of the Principles and Legal Approaches to the Concepts
3.1.1 Multi-level Approaches and Foundation of the Principles in Constitutional Law
Both concepts can be found at various levels of a legal order. Administrative legislation (or case-law) is widely used to put constitutional provisions into effect. Several legal orders have regulated sustainability (or related concepts) on a constitutional level, some of them also contain participatory instruments such as referenda or rights to information (e.g. s 112 Constitution of Norway).94 Despite differences in the understanding of constitutionalism,95 the rule of law obliges state powers to legislate in conformity with the constitution, to adhere to legal provisions and often also to actively implement constitutional goals and human rights on the level of laws and regulations.96 Support by the government is seen as vital for the implementation of sustainability goals.97 An obligation of state authorities can regularly be found in constitutions, alternatively social fundamental rights to a healthy environment, which directly oblige the administrative bodies to further sustainable development in their
As of 2015 about 100 constitutions embodied some kind of substantive environmental right, today there are about 150.98 Yet, one must be careful to equate a ‘right to a healthy environment’ or a constitutional imperative to protect the environment or the natural foundations of life with concepts of sustainability, sustainable development or a state obligation to guarantee participation (even in environmental matters). There is an overlap of sustainability with the right to live in a healthy environment in substantive elements of ‘intergenerational equity’, ‘preservation of natural systems’ and ‘sustainable exploitation of natural resources’.99 Still, not all constitutional rights to a healthy environment also convey an individual right to sustainable development, and if so, they mostly do not include its social, economic or cultural aspect.100
Sustainability is explicitly mentioned more often in provisions that formulate state obligations, i.e. Art 7bis Belgian Constitution.101 This applies also to some aspects like intergenerational equity or respect for future generations, like Art 20a GG.102 Some states make reference to frugality in the use of natural resources or energy,103 which highlights the aspect of conserving parts of nonrenewable resources for future generations.104 All these aspects can be part of balancing processes by administrative bodies and need to be included in proportionate decision-making, if the constitution requires this.
In all legal orders, even in those where quite detailed constitutional provisions existed, sustainable development as well as participation were further specified in statutory law or extensive judicial interpretation of constitutional provisions. Administrative laws provide various means to effectuate constitutional, but also international requirements mostly in environmental protection laws. Some legal orders, like New Zealand or South Africa, have enacted general, comprehensive legislation for the concepts of sustainability and
Finally, the comparative analysis has taken into account influences from inter- or supranational law, especially if its implementation is binding like under Art 288 TFEU for EU directives. They might function like ‘legal transplants’ and thus eventually modify the domestic legal order, if certain requirements for a successful transplant are fulfilled.109 One example is how ‘standing’ in German administrative court procedure has been continuously modified by EU law in environmental matters and the implementation of the Aarhus Conventions.110 Sometimes, the legislation was also influenced or even determined by international law (e.g. in South Africa) or regional human rights law (like the IACHR, the ECHR or the ACHR).111 International and regional instruments, advisory opinions or judgements have sparked the development of environmental law and participatory instruments. They can even lead to crossfertilisation between legal orders, as has best been demonstrated by the right to a healthy environment.112
3.1.2
In general, there are three ways for a legal concept to enter a legal order: (1) even in common-law countries nowadays the regular way, by legislatory intervention answering a regulatory need, is either by a modification of the constitution or by statutory law, (2) both in civil law and common law countries, by judicial activism creating new norms and standards and (3) increasingly, as an answer to obligations in international or supranational law, either in order to implement legal obligations into domestic law or to value a decision by an international or regional court or commission.
Based on constitutional provisions, constitutional or supreme courts might play a central role in developing both principles out of a right to a healthy environment.113 This seems to be true in Brazil as well as in South Africa – this stresses that for sustainable development environmental, social and economic interest must be reconciled and that this balance can only be struck on a case-by-case-basis.
Yet, also in those legal orders, like New Zealand and, to a lesser extent also Germany, where the introduction of the principles was instituted by statutory law, courts are seen as central for the implementation and development of the rather vague principle of sustainability and for the effective implementation of participation provisions in administrative proceedings. In New Zealand, even a specific Environmental Court exists, based on the idea of ensuring ‘good environmental decision-making and appropriate case management’ by the administration.114 However, it has been doubted whether the court has used its powers to put life into the principle of sustainable management.115 In most legal orders, environmental adjudication is also not limited to administrative courts, but takes place in criminal law cases, tort litigation/litigation for damages, or property-related cases.116
3.1.3 Rights-based Approaches
Both concepts can be established as substantive rights of the individual – either at a constitutional or statutory level. Substantive rights give the individual power to demand – at least – protection, sometimes also to gain access
This type of regulation can also be found in Kenya, where Art 3 EMCA120 combines the right to a healthy environment with an individual procedural right in case the state obligations for the protection of the environment or the principle of sustainable development are violated. Also, the idea of the ‘amparo environmental/ação’, which can be found in a number of Latin American states (e.g. Argentina, Brazil, Ecuador, Chile), gives the individual, sometimes also communities or NGO’s the right to seek judicial redress against violations of environmental provisions.121 The peculiarity is that – although it is a rights-based approach – a violation of an individual right of the claimant is not necessary (transindividual or collective right). At the same time, this rights-based approach is regularly linked to either rights of nature and/or indigenous rights. The public trust doctrine established in the NEMA SA as well as several sectoral laws in South Africa can also be seen as a way to fortify the fundamental right to a healthy environment, as it obliges the state to act in a manner that sustainably develops various natural resources.122
3.1.4 Altruistic Obligation of the Individual
A way to support sustainable development, mainly as regards protection of the environment and wise use of natural resources, might be an obligation of private parties – either as an individual duty to act in an altruistic way or as a non-justiciable appeal on constitutional level. Often, this obligation correlates to a duty of the state to protect the environment or to respect sustainable development and to a right to a healthy environment, as can be seen in Art 66 (2) Portuguese Constitution and less explicitly in Art. 39 (1) Landesverfassung Brandenburg. In some cases, the right is linked to constitutional provisions on property or the economic order (Art. 170 BrazilC), demanding a socially compatible use of property also by private actors and an economy which respects the environment.123
However, in legal orders that follow the liberal Western-style concept of fundamental rights as state duties to protect, binding individual environmental duties are difficult to reconcile with the doctrine of horizontal effect and the idea that individual freedom can only be restricted by other legal interests of the individual.124 At the core lies the debatable relation between society or even humankind and individual freedom: if a person uses a fundamental right altruistically for ecological purposes, it is questionable under classical social contract theory whether this could justify the restriction of another person’s freedom. As all humans are perceived equal and free, restrictions can only be justified by the legitimate aim of colliding fundamental rights or human common welfare.125 An exception is s 8 (2) SAConst,126 which enables horizontal
3.1.5 The Special Role of Indigenous Peoples and Local Communities
A striking aspect of linking the two concepts is that the legal recognition of (fundamental, sometimes procedural) rights for indigenous peoples and/or local communities is often mentioned in tandem with participatory rights, and even more so with sustainability and the protection of the environment. Indigenous peoples therefore seem to play a special role. They are seen as the best promoters of earth law or so-called ecocentric approaches to sustainability.129
However, this connection needs to be clarified: although the recognition of specific rights for indigenous or local communities is often a requirement of international130 or – as in New Zealand131 – constitutional law and has been the focus of civil rights movements especially in Latin America,132 this does not per se yield a sustainable management or a guardianship for nature. Primarily, it is a human right aimed at the wellbeing of these communities and people living within (sometimes linked to the right to health and life or, like in Art 24 of the Banjul Charter, to collective rights to development, growth and a sound environment).133 Indigenous rights include an (often) actionable
Yet, those societies where nowadays indigenous rights are valued account for a certain interlink, drawing from the respect for different concepts of law, property and nature as well as a (perceived) better guardianship for nature and natural resources. Partly, this must be seen from the perspective of decolonising the concept of sustainability.136 Partly, indigenous environmental justice, a concept reflecting the differing conception of a more than human world and another position of humankind than the Western understanding of human beings being the ‘crown of creation’, is used as an antagonistic concept to sustainable development.137 Legal systems in Latin America,138 Africa (e.g. Kenya) and New Zealand resort to indigenous participation or management schemes in the context of environmental law and protection of natural resources. Thereby, they also aim to resolve environmental and land use conflicts that originate in the exploitation of land and resources through forestry or mining by the state or non-indigenous investors.139 It can also be seen as one aspect of environmental justice trying to create an inclusive access to political deliberation, especially by those who have been marginalised in the past and might still not be represented equally in the conventional political system.140 This approach still has many deficits – e.g. it is claimed that the Escazú Agreement omits indigenous rights in the context of participation in environmental
Another approach has been taken in Costa Rica by allowing indigenous communities, who collectively own land, to partake in the ‘payment for ecological services’ programme and therefore ‘sell’ their sustainable management of land.142 Art 3 EMCA includes cultural and social principles traditionally applied by any community in Kenya for the management of the environment into the principles for sustainable development – this is not a participatory approach, but another way of including traditional knowledge into administrative decision-making and of valuing different approaches to maintain a sound environment.143 It can be seen as a step towards co-production of knowledge, which might be a further stepping stone in participatory approaches.
The German perspective adds another idea of local responsibility for sustainable development; that of municipal referenda, which exist in all German states with slight modifications, and where the local community gains the possibility to influence decision making within municipal self-government. They often, albeit not always seem to enhance sustainable decision-making in all three dimensions (ecological, economic and social).144 As main reasons for non-sustainable decision-making in singular cases Popp identifies nimbyism and procedural deficits of specific referendum provisions, but he also finds that all three aspects of sustainability are equally addressed in those local referenda, even if the singular voter has a preferred reason for their vote.145
3.1.6 Perspectives from Administrative Procedural Law
Participation has a long tradition in the administrative law of several states in the form of public participation in the planning process. Historically, there might also be roots of sustainable development, e.g. in nature protection laws. Through formation by EU law and public international law, the two concepts might have been incorporated into the regulations of special environmental law and are being applied and interpreted by the authorities and courts.
Participation of, at least, ‘affected and interested parties’,149 is established as a means to reach sustainable use of a natural resource in administrative procedure. This is mostly effectuated by participation in environmental impact assessments, in the making of decisions that might affect the environment and/or in the administrative process of issuing a resource (or management) consent by the environmental authority.150 Even where environmental impact assessment is not directly linked to participatory elements, it can be seen as a means to foster at least the green aspect of sustainable development. In the case where environment is conceived more broadly and depending on the criteria to be taken into consideration, the social-cultural aspects might also be addressed.151 The RMA NZ includes significant participatory rights in the process of developing sustainable management plans, demanding resource consent – comparable to participatory rights that exist in some of the German environmental acts.
Another procedural link between sustainability and participation is established wherever the administration needs to balance various interest – partly at the constitutional level, partly at the statutory level, like in German town planning or water law. Here, public participation might also provide facts and interests that administrative bodies need to consider in the balancing process. Yet, if sustainability is only one of the aspects to be considered, it has a rather weak position for the outcome of the balancing process.152
3.1.7 Rights of Nature as a Special case of Participation?
A more eco-centric understanding of the relationship between humankind and nature – which might be demanded by sustainable development – is attempted by legal orders, like in many Latin American countries155 or New Zealand,156 through introducing rights of nature. This can be seen as a special case of participation, allowing nature itself to partake in environmental decision-making or others to altruistically enforce the rights of nature.157 In most cases, the guardians come from indigenous communities. The link to sustainability is furthermore drawn in those constitutions that obligate individuals to respect the rights of nature and therefore, to use natural resources sustainably.158
3.2 Comparative Analysis of the Concepts
The central aim of this paragraph is to establish whether there is a common understanding of sustainable development and if not, what the differences are. It is analysed whether there have been legal transplants, imports of legal concept or communication between legal orders, especially in the same region. In order to establish best practices, ways and goals of participatory instruments and their possible connection to sustainable development are explored.
3.2.1
It has been claimed that the international conception of sustainable development requires ‘nothing less than the radical refashioning of the relationship between humanity and the environment.’159 However, implementing legislation is still, nearly 35 years after the Brundtland report, strongly anthropocentric with a focus on future generations, intra-generational justice and an understanding of nature and natural resources as an asset for the wellbeing of humankind. As Aguila and Gomez put it: ‘Sustainable development is currently the predominant global model for protecting the environment while ensuring quality of life for humans’,160 thereby stressing (and criticising) the mostly anthropocentric approaches.
Legal orders either include the three-pronged approach of international law (Brundtland Commission)161 or focus on resource management and intergenerational justice and therefore environmental law from a human perspective: The environmental pillar of sustainable development in most legal orders is linked to different areas of law that reflect natural resources and ecosystems, demanding their protection and ‘sustainable management’, most importantly agriculture, fisheries, mining, energy (including geothermal features) and forestry as well as water (from ground water to oceans) and biodiversity (or more general nature protection/conservation). Most legal orders in this analysis have passed acts that link the use, management and enjoyment of these natural features to a sustainability goal. Sometimes, this link is already established by constitutional law, by mentioning areas or resources of increased protection (cf Art 225 (4) BrazC). Some legal orders also include pollution control, waste management162 and land use planning – all of which are activities of the present generation capable of affecting the choices and planning of future generations. Sometimes, sustainability is not explicitly mentioned. Management of environmental resources is rather structured by alternative criteria. One example is ‘best practise’ (gute fachliche Praxis) in German agricultural law, which is perceived as including sustainable agricultural use,163 allowing an ‘optimising process’ with other concepts that pertain to this area of law.
A balancing process is part of the principle of sustainable development in all analysed legal orders, apart from the RMA NZ, which from its outset demands priority of ecological considerations.169 By not referring to sustainable development in general, the RMA NZ deliberately uses a notion that is different from the Brundtland Report – which would include social aspects and global equality. It has a narrower focus on the management of resources and the protection of the environment.170 S 5 RMA171 includes care for future
On the other hand, s 24 SAConst contains an explicit obligation ‘to secure sustainable development and use of natural resources while promoting justifiable economic and social development’, which requires a complicated balancing process between those three aspects. Additionally, all action needs to be ‘for the benefit of present and future generations’. This can be read as highlighting one aspect of sustainability, i.e. intergenerational and intragenerational justice, or as a statement that those aspects of justice are a (maybe even prioritised) goal in the balancing process, not part of sustainable development, meant as a compensation for not including an altruistic obligation of the individuals living today to protect the environment.175 In the African context, Art 24 of the Banjul Charter also plays a role in the interpretation and balancing process, as it guarantees a collective right to a healthy and sustainable environment as well as a right to development, highlighting the close connection between environmental degradation and social and economic development
In most cases, the constitutional and statutory obligations are directed towards state actors rather than private actors and demand foresighted planning and setting of frameworks for sustainable management and development.177 This becomes clear for example by the anthropocentric definition given in s 1 EMA NA:
“sustainable development” means human use of a natural resource, whether renewable or non-renewable, or the environment, in such a manner that it may equitably yield the greatest benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations including the maintenance and improvement of the capacity of the environment to produce renewable resources and the natural capacity for regeneration of such resources.
3.2.2 Ways and Goals of Participation
Common ground in all legal orders in this comparison is the underlying idea (also reflected in international and regional law and the principle of co-operation)178 that decision-making should rest on the three pillars of information, participation in administrative procedures and access to courts.179 The aim is to enable individuals to (altruistically) claim (often) collective or diffuse ecological and social interests, sometimes also in the name of those who cannot participate, like future generations or nature itself. These criteria are understood as an expression of the ideal of deliberative democracy.180 No matter which of these goals are intended to be reached by participation, the basic question for the legislator is: How is participation possible and for whom? A
- –the general public
- –the public concerned/individuals (like neighbours)
- –experts181
- –groups (like indigenous people, local communities,…)
- –associations (like NGO s) with specific goals like the protections of the environment
- –other, especially specific institutions vested with the power to control state action in the area of sustainability.
The analysis is mostly based on the previously mentioned three ways to guarantee participation in environmental matters as established by the Aarhus Convention and the Escazú Agreement.
Participation in administrative procedures (e.g. planning procedures, environmental impact assessment) forms part of statutory law, and is often seen as the way to include different interests and rights in the balancing process. Modelled after US law, the EU Directive on Environmental Impact Assessment,182 and implementing German legislation, define ‘public’ very broadly and try to involve various stakeholders at all levels of the decision-making process.183 Participation as such follows formalised procedures – the legal orders mostly defer on a) who has a right to participate, b) on what stage the participation takes place and c) what impact does the participation have on the result.184 It is stressed that rights are worthless without formalised processes to claim them.
Indigenous and local communities are attributed specific importance to raise awareness and guarantee participation. For example, s 2 (4) (f) NEMA SA contains provisions for public participation in environmental matters, providing guidance for local governance and encouraging local communities and municipalities to get involved in the decision-making process.185 This might
As far as access to justice is concerned, the main obstacle to standing in sustainability cases are legal requirements of either a violation of individual rights189 or of a personal interest. Many legal orders have found ways to address the conundrum that the promotion of sustainable development or sustainability is a collective, diffuse or altruistic interest, often framed under public welfare, common goods or even socio-economic rights and yet, compliance to those provisions needs to be claimed by individuals before courts.190 There are several options on the procedural level: altruistic claims (actio popularis) of individuals, for example in the Netherlands,191 Portugal,192 Pakistan,193 Kenya194 or Brazil (and most other Latin American legal orders),195 a further modification of standing requirements like s 38 SAConst,196 class action or even the possibility for a constitutional actio popularis. The latter can be found in about 30 constitutions,197 however, mostly the fundamental right to a healthy environment as well as constitutional imperatives for sustainable
Finally, a weak constitutional imperative can be found in some of the German state constitutions: Art 39 (8) Constitution of Brandenburg seems to contain a direct right for environmental associations to participate and to gain access to justice, however, this provision is seen as a mere obligation to institute a form of class action on statutory level.200 It shows another trend, namely to attribute access to justice in environmental or sustainability matters to groups or communities, associations (NGO s) or specific institutions (like an ombudsperson or a specific governmental agency, like in Brazil). This can be found in the RMA NZ, where specific rights are granted to the Iwi/Maori, and in the various versions of group action, for example in the German Environmental Appeals Act,201 which implements Art 9 (3) AC. Supranational and international law also incited a change in administrative court procedure by moving towards access to justice for all persons interested, allowing for transindividual
The largest implementation problem seems to be ensuring equality of arms, especially in court decisions due to lack of expertise, insufficient evidence (leading to wrong decisions) and a high cost risk, which might yield a preference for governmental participants by legislators.204 These factors might impede participation, especially by certain groups in society. An implementation deficit of participative democracy, mostly if the political system excludes large parts of the population from efficient participation and if awareness for the importance of sustainable development is low, affects the link to sustainable management by the state and thus the government duty to sustainably manage resources.205
3.2.3. Established Connections and Interdependencies
The last question to be answered is whether there is an intended connection between the two concepts and how this is construed. One example is the Finnish Environmental Protection Act,206 which in s 1 states as its purpose both sustainable development and enhancing public participation in decisionmaking.207 In a similar way, s 3 EMCA Kenya ties environmental litigation to
Also, procedural approaches like environmental impact assessment, public participation by submissions in planning processes for sustainable management209 or involvement of certain groups, who might hold a substantial right in the decision-making process, are used to establish a link between participation and sustainable development, with a certain emphasis on the environmental leg. This procedural approach, which allows a variety of persons and groups the possibility to participate in decision-making, is important in order to concretise the vague concept and to add various interests to the balancing process. Ideally, as a result better informed decisions are reached.210
However, it is doubtful whether public participation leads to an effective promotion of sustainability. This must be attributed to the way the statutes and provisions are constructed, especially if the final balancing of interests is left to the authorities, if public participation is only required in a small amount of proceedings, or if there is no encompassing control by the courts.211 Mostly, individuals participate not out of altruistic sustainability reasons, but motivated by their very personal interests – thus, the outcome depends on whether these interests are aligned with sustainable development or not. Participation often favours rather the protection of individual rights of those involved and not public interests, which do not need to be congruent. This reflects the problems encountered with anthropocentric rather than
4 Conclusions: Best Practises and Communalities
To summarise, in all legal orders in this analysis both concepts had a strong focus on the green leg of sustainable development and mostly materialised in connection with environmental protection laws or the right to a healthy environment. However, mostly in the Global South, the importance of balancing ecological with social and economic interests is emphasised and included in the pertinent legislation. Participation for sustainable development should rather be attributed to collectives like local communities as this might enhance acceptance of decisions taken and likewise lead to more sustainable decisions as individual egoistic interests are watered down. Rights-based approaches that enable trans-individual action and participation seem to have a positive effect on sustainable development, especially if the right gives standing to groups or even individuals.
Finally, the analysis has shown that there is a strong need to concretise vague notions in the constitutions or statutory law – either by governmental plans on a more general basis or on a case-to-case basis by courts. However, general plans seem to be the better solution for sustainable development as they have the potential to guide administrative decision making and individual balancing processes and lead to a more consolidated use of the principle of sustainable development.
Like ‘Pacha Mama’ (now protected by the Constitution of Ecuador from 2008, which also gives constitutional rights to ‘nature’ in Art. 71 et seq.), see Tristan Lefort-Martine, Des droits pour la nature? L’expérience équatorienne (Editions L’Harmattan 2018) at 9ff.
Birgit Peters, ‘The Historical Perspective’ in this book, chapter b.(1).
Which was mostly restricted to economically informed aspects of forestry, see ibid, section II Nr.1.
Gesetz zur Erhaltung des Waldes und zur Förderung der Forstwirtschaft (BWaldG), 2.5.1975, BGBL. I p 1037, last amended by Artikel 112 des Gesetzes vom 10. August 2021 (BGBL. I S. 3436) – Federal Forestry Act.
Diethelm Klippel and Martin Otto, ‚Nachhaltigkeit und Begriffsgeschichte‘, in Wolfgang Kahl (ed), Nachhaltigkeit als Verbundbegriff (Mohr Siebeck 2008) at 53–56. This can also be read into Karen Morrow, ‘Sustainability, environmental citizenship rights and the ongoing challenges of reshaping supranational environmental governance’, in Anna Grear and Louis J Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar 2015) at 203, who claims that the ‘wealth of nuanced and conceptually rich material that had been produced (…) was, perhaps inevitably, reduced to the pervasive and still prevalent media-friendly sound-bite of the “Brundtland definition”’.
This is e.g. reported for the legal order of South Africa (Jan Glazewski, Environmental Law in South Africa (2nd edn, LexisNexis Butterworth 2005) at 12ff) as well as for New Zealand, cf. Klaus Bosselmann, ‘Sustainability and the Law’, in Peter Salmon and David Grinlinton (eds), Environmental Law in New Zealand (2nd edn, Thomson Reuters, 2018) at 75–6.
On this Ivano Alogna, ‘The Circulation of the Model of Sustainable Development: Tracing the Path in a Comparative Law Perspective’, in Volker Mauerhofer (ed), Legal Aspects of Sustainable Development (Springer 2016) at 24–25.
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, OJ L 156, 25.6.2003, p 17–25.
Rio Declaration on Environment and Development, A/CONF.151/26 (Vol I).
For the history of these concepts see Peters, Sustainability through Participation? The Historical Perspective, this volume, section II Nr. 1.
The aim of this book is to abandon the perception that sustainability (and participation) are inextricably interlinked with environmental law. However, domestic legal orders often connect the concepts and therefore, for reasons of space and time, this comparative analysis is focussed on environmental law.
For China see Daniele Brombal, ‘Comparative Administrative Law Perspectives – China’, in this book, chapter c.(2).
This aspect is highlighted by Mark van Hoecke and Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ [1998] ICLQ 495 at 496–97; see also Mark Van Hoecke, ‘Deep Level Comparative Law’, in Mark Van Hoecke (ed), Epistomology and Methodology of Comparative Law (Hart Publishing 2004) at 166–72.
On this function of comparative law see also Francois Venter and Louis J Kotzé, ‘The methodology of environmental constitutional comparison’, in Andreas Philippopoulos-Mihalopoulos and Victoria Brooks (eds), Research Methods in Environmental Law (Edward Elgar 2017) at 248.
Reis Friede, ‘The Protection of the Environment in the Brazilian Supreme Federal Court: Analysis of Real Cases’ [2016] Revista Semioses 78 at 79.
Constituição da República Federativa do Brasil de 1988 (BrazC), 5 October 1988.
Andreas Krell, ‚Die normative Ausgestaltung des brasilianischen Umweltrechts und die Hauptprobleme seiner methodisch abgesicherten Anwendung‘ [2014] 62 JöR 693 at 696.
Erasmo Marcos Ramos, Brasilianisches Umweltrecht als Biosphärenschutzrecht (Shaker Verlag 2005) at 38; Friede, n 15, at 86.
Ramos, ibid at 49; Steffen Kommer, ‘Diffuse Umweltrechte in Brasilien am Beispiel von Kollektivklagen gegen ökologische Schäden durch queimadas‘ [2012] ZUR 459 at 461.
Diàro Oficial, 1990-09-12, núm. 176, pags.1–8, Ley Nr. 8.078, 11 September 1990.
One of the legs of participation according to both Art 8 Escazú Agreement (Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, 4.3.2018) and Art 9 Arhus Convention (Convention on access to information, public participation in decision-making and access to justice in environmental matters, 25.6.1998, ECE/CEP/43).
Art. 5 LXXIII BrazC.
Ley Nr. 7.347, 24 July 1985 (Art. 1, 5).
See also Tito de Andrade, Gláucia Coelho and Gisela Mation, Class/collective actions in Brazil: overview, available at: <https://uk.practicallaw.thomsonreuters.com/9-617-6649?contextData=(sc.Default)&transitionType=Default&firstPage=true (last visited 12/09/2022)>; Sérgio Pinhero Marcal and Lucas Pinto Simao, ‘Brazil’, in Camilla Sanger (ed), The Class Actions Review (3rd edn, Law Business Research 2019) at 14–16.
Ramos, n 18, at 49–50; Krell, n 17, at 698; Kommer, n 19, at 461–62.
Marcal and Simao, n 24, at 16.
Camila D. Ritter et al., ‘Environmental Impact Assessment in Brazilian Amazonia: Challenges and prospects to assess biodiversity’ [2017] Biological Conservation 161 at 164 and 166, especially stressing the technical problems of analysis and the lack of un-biased experts.
This is, at least, claimed by Krell, n 17, at 695–96.
Krell, n 17, at 696–97; Antonio Herman Benjamin and Nicholas Bryner, ‘Brazil’, in Jorge E. Viñuales and Emma Lees (eds), Oxford Handbook of Comparative Environmental Law (OUP 2019) at 87ff.
For example, Constitución de la Republica del Ecuador (Const.), Articulo 10, Art. 71, Art. 83 de octubre de 2008.
Benjamin and Bryner, n 29, at 87–88.
Publicacao Original [Diário Oficial da Uniao de 28/05/2021], p1, col. 1, Lei no 12.651, 25 May 2012.
Supreme Court of Brazil, Resp 1.276.114/MG, 2nd panel, DJe 11 October 2016; see also Benjamin and Bryner, n 29, at 95.
Martin Kment, Die Neujustierung des Nachhaltigkeitsprinzips im Verwaltungsrecht (Mohr Siebeck 2019) at 53.
Resource Management Act 1991 (1991 No 69), Date of assent: 22 July 1991 (<www.legislation.govt.nz/act/public/1991/0069/latest/whole.html#DLM7236258> last accessed 18.10.2022).
Nicola Wheen, ‘A history of New Zealand environmental law’, in Eric Pawson (ed), Environmental histories of New Zealand (OUP 2002), 261–74 at 271: ‘golden thread’.
Grant Hewison, ‘The Resource Management Act 1991’, in Peter Salmon and David Grinlinton (eds), Environmental Law in New Zealand (Thomson Reuters 2018) at 581–82.
Public Act 1993, (1993 No 7), Date of assent: 24/3/1993 (<www.legislation.govt.nz/act/public/1993/0007/latest/whole.html> last accessed 18.10.2022). Len N. Gillman, ‘Assessment of sustainable forest management in New Zealand indigenous forest’ [2008] New Zealand Geographer 57 at 58–59.
Similar ibid at 58; Kment, n 34, at 55; Wheen, n 36, at 269–71.
Sumudu A. Atapattu et al., ‘Intersections of Environmental Justice and Sustainable Development: Framing the Issues’, in Sumudu A. Atapattu, Carmen G. Gonzalez and Sara L. Seck (eds), Environmental Justice and Sustainable Development (CUP 2021) at 4–5. This opinion is also held by the NZ Government, see <www.environmentguide.org.nz/rma/> (last accessed 12/09/2022); see also Kment, n 34, at 63.
North Shore City Council v Auckland Regional Council [1997] NZRMA at 59, 93–94.
Hewison, n 37, at 611ff. These can be found under https://environment.govt.nz/acts-and-regulations/national-policy-statements/ (last visited 12/09/2022).
See Kate Mitcalfe, ‘Valuing our Environment – The costs of the RMA’ [2002] Forest and Bird; Hewison, n 37, at 632ff.
Stephen Kós, ‘Public Participation in Environmental Adjudication: Some Further Reflections’ [2017] Opening Address at the Environment Adjucation Symposium.
Gillman, n 38, at 58.
Wheen, n 36, at 271.
See below 3.1.7. Whanganui River (Te Awa Tupua Act 2017) and Te Urewera (Te Urewera Act 2014). Both Acts are rooted in previous conflicts and negotiations between indigenous peoples and the Crown of New Zealand (Boyd 2017, 134–135).
Nigel Jollands and Garth Harmsworth, ‘Participation of indigenous groups in sustainable development monitoring: Rationale and examples from New Zealand’ [2007] Ecological Economis 716 at 716–17.
Katherine Luketina and Phoebe Parson, ‘New Zealand’s Public Participation in Geothermal Resource Development’, in Adele Manzella, Agnes Allansdottir and Anna Pellizzone (eds), Geothermal Energy and Society (Springer 2019) at 209.
Constitution of the Republic of South Africa No. 108 of 1996.
Anél Du Plessis, Environmental Law and Local Government in South Africa (Juta 2015) at 5 and 9.
Anél Du Plessis, Fulfilment of South Africa’s Constitutional Environmental Right in the Local Government Sphere (Wolf Legal Publishers 2008) at 47.
This becomes clear from the interpretation of s 24 SAConst by the Constitutional Court in Fuel Retailers Association of Southern Africa v Director-General, 2007 (6) SA 4 (CC) para 45 and BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs 2004 (5) SA 124 (W) para 144A-C.
Du Plessis, n 51 at 5–6.
See Jan Glazewski, ‘South Africa’, in Emma Lees and Jorge E. Viñuales (eds), The Oxford Handbook on Comparative Environmental Law (OUP 2019) at 317ff.
National Environmental Management Act 107 of 1998, Gazette 19703 of 29 January 1999.
Du Plessis, n 51, at 18.
S 1 (1) (xxix) NEMA.
Ibid at 18ff.
Glazewski, n 55, at 323.
The National Environmental Management: Biodiversity Act 10 of 2004, Gazette 27161 of 6 January 2005.
This can be gathered from commenting literature, see Glazewski, n 6, at 14ff; Du Plessis, n 51, at 5 and also from the key case, Fuel Retailers Association of Southern Africa v Director-General, 2007 (6) SA 4 (CC).
Further constitutions on the African continent that contain similar obligations are Art 13 Constitution of the Republic of Malawi 1994; Art 39 Constitution of the Republic of Angola 2010; Art 117 Constitution of the Republic of Mozambique 2004.
Oliver C Ruppel and Katharina Ruppel-Schlichting, Environmental Law and Policy in Namibia (2nd edn, Welwitschia Verlag 2013) at 106.
Environmental Management Act 7 of 2007, Government Gazette no. 3966 on 27 December 2007.
Its activities can be found at <https://sdacnamibia.org/> last accessed 18.10.2022.
Anél Du Plessis, ‘Public Participation, Good Environmental Governance and Fulfilment of Environmental Rights’ [2008] PELJ 170 at 183.
Ibid at 185–86.
Du Plessis, n 51, at 6; Du Plessis, n 67, at 185.
Du Plessis, n 51, at 85.
Ibid at 85.
Glazewski, n 6, at 19.
The distinction between law in the books and law in action stems back to Roscoe Pound, Law in the books and Law in action, in ALRev 1910, 12, describing the fact that black letter law must not correspond with the law that is implemented by courts and administrative bodies.
In this direction Du Plessis, n 67, at 190–91.
Treaty on the Functioning of the European Union of 13 December 2007—consolidated version (OJ C 202, 7.6.2016, pp 47–360)
See ECJ, Altrip, Decision, 7 November 2013, C-72/12, EU:C:2013:712, para 28; ECJ, Lünen, Decision, 12 May 2011, C-115/09, EU:C:2011:289, paras 41, 44; ECJ, Slovak Brown Bear, Decision, 8 March 2011, C-240/09, EU:C:2011:125, paras 28ff.
See Fraenkle-Haeberle, Impact of Supranational Conceptions of Participation and Sustainability on National Administrative Law, this volume, section III Nr. 3.
See Christian Calliess, ‘Art 11 EUV’ in Christian Calliess and Matthias Ruffert (eds), EUV/AEUV (6th edn, C.H.Beck 2022), para 13.
E.g. Art 74 Bavarian Constitution dates back to 1947 and there had been plebiscitary elements in the Weimar Constitution of 1919.
See Christoph Popp, Nachhaltigkeit und direkte Demokratie (Mohr Siebeck 2021) at 191ff.
Grundgesetz für die Bundesrepublik Deutschland, (BGBL. 1949, p 1), last modified through Art 1 of the law from 28/06/2022 (BGBL. I, p 968). English translation: <www.gesetze-im-internet.de/englisch_gg/> (last accessed 12/09/22).
Guy Beaucamp, Das Konzept der zukunftsfähigen Entwicklung im Recht (Tübingen 2002) at 168ff; Jörg Tremmel et al., ‘Die Verankerung von Generationengerechtigkeit im Grundgesetz‘ [1999] ZRP 432 at 432; Wilfried Berg, ‘Nachhaltigkeit und Umweltstaat‘, in Wolfgang Kahl (ed), Nachhaltigkeit als Verbundbegriff (Mohr Siebeck, 2008) at 432; Johanna Monien, Prinzipien als Wegbereiter eines globalen Umweltrechts (Baden-Baden 2014) at 163; Joachim Wieland, ‘Verfassungsrang für Nachhaltigkeit‘ [2016] ZUR, 473 at 476.
Cf Eva Julia Lohse in Helge Sodan, Markus Möstl and Klaus Stern (eds), Das Staatsrecht der Bundesrepublik Deutschland, (2nd edn, C.H. Beck 2022), § 26 paras 22–23.
See already Tobias Brönneke, Umweltverfassungsrecht (Nomos 1999) at 204–05.
A full list can be found at Kment, n 34, at footnote 16.
Verwaltungsverfahrensgesetz in der Fassung der Bekanntmachung vom 23. Januar 2003 (BGBl I p 102).
Baugesetzbuch in der Fassung der Bekanntmachung vom 3. November 2017 (BGBl I p ٣٦٣٤).
Ulrich Battis, ‘§1 BauGB‘, in Ulrich Battis, Michael, Krautzberger and Rolf-Peter Löhr (eds), Baugesetzbuch (15th edn, Beck 2022), para 45; Michael Ronellenfitsch, ‚Umwelt und Verkehr unter dem Einfluss des Nachhaltigkeitsprinzips‘ [2006] NVwZ, at 387; Kment, n 34, at 21–22. This seems to be the overarching interpretation by Popp, n 79, at 23.
Also reflected by the use of Nachhaltigkeit instead of nachhaltige Entwicklung. See Kment, n 34, at 34–35.
Dietrich Murswiek, ‘Art. 20a GG’, in Michael Sachs (ed), Grundgesetz (9th edn, C.H.Beck 2021), para 22; mediating: Astrid Epiney,’Art. 20a GG‘, in Hermann von Mangoldt, Friedrich Klein and Christian Starck, Das Bonner Grundgesetz (7th edn, Verlag Franz Vahlen 2018), para 28.
Kment, n 34, at 26ff.
Ley número 7554 del 04 de octubre de 1995, publicada en el Diario Oficial La Gaceta número 215 del 13 de noviembre de 1995. ‚Participación de los habitantes – El Estado y las municipalidades, fomentarán la participación activa y organizada de los habitantes de la República, en la toma de decisiones y acciones tendientes a proteger y mejorar el ambiente.
See analysis by Melissa Bollman and Scott D. Hardy, ‘A multi-level analysis of Costa Rica’s payments for environmental services programme’, in Thoko Kaime (ed), International Climate Change Law and Policy (Routledge 2014) at 183ff.
See also, e.g. – restricted to sustainability – Art 6 French Constitution (développement durable); mention of participatory rights (in the context of environmental law) Art 29 Constitution of Georgia, or Art 128 Constitution of Croatia via the right to municipal self-administration; right to participation in decision-making (not restricted to environmental issues) § 14 Constitution of Finland.
Which has been pointed out by Venter and Kotzé, n 14, at 243.
Ruppel and Ruppel-Schlichting, n 64, at 106, concerning the relation between Article 95 (1) of the Namibian Constitution and the Environmental Management Act, No. 7 of 2007, Government Gazette No. 4878, Notices 28–30 on becoming operational. See also David Boyd, ‘Constitutions, human rights, and the environment: national approaches’, in Anna Grear and Louis J Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar 2015), at 187–88; Albrecht Weber, Europäische Verfassungsvergleichung (C.H.Beck 2010) at 92–93 and 153: ‘adherence to the constitution as central element of western-style liberal constitutionalism’.
Du Plessis, n 51, at 9.
Boyd, n 96, at 177. For a recent overview see <www.iucn.org/news/world-commission-environmental-law/202110/right-a-healthy-environment> (last accessed 12/9/22).
For those aspects see Glazewski, n 6, at 13.
Like Art 24 of the African Charter on Human and Peoples Rights (27 June 1986, UNTS 1520 (p. 217) No 26363), see Lilian Chenwi, ‘The Right to a Satisfactory, Healthy, and Sustainable Environment in the African Regional Human Rights System’, in John H. Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (CUP 2018), at 66–67.
It reads: ‘in the exercise of their respective competences, the Federal State, the Communities and the Regions pursue the objectives of sustainable development in its social, economic and environmental aspects, taking into account the solidarity between the generations.’, available at: </www.dekamer.be/kvvcr/pdf_sections/publications/constitution/GrondwetUK.pdf> last accessed 18.10.2022.
For example, German Federal Constitutional Court (BVerfG), Beschl. v. 24.3.2021 – 1 BvR 2656/18 u.a., BVerfGE 157, 30, paras 183 and 192–93 on Art 20a GG.
Like Art 39 (4) Constitution of the Land Brandenburg (Verfassung des Landes Brandenburg, 20 August 1992, GVBl I/92, 298, available at: <www.landtag.brandenburg.de/media_fast/6/Landesverfassung-BB-Sept2019-englisch.pdf.> (last accessed 12/09/22)).
See Brönneke, n 84, at 202–04.
E.g. Art 39 (8) Constitution of the Land Brandenburg, n 102.
David Boyd, The Environmental Rights Revolution (UBC Press 2012), at 155, assuming that only the insertion of these provisions has changed governmental action in environmental matters.
Ibid at 151–53.
See the analysis by Ritter et al., n 27, at 166; also, more generally, Krell, n 17, at 693.
On this Roberto Caranta, Anna Gerbrandy and Bilun Müller, ‘Introduction’, in Roberto Caranta, Anna Gerbrandy and Bilun Müller (eds), The Making of a New European Legal Culture: The Aarhus Convention (European Law Publishing 2018) at 9–10 and more general Eva Julia Lohse, Rechtsangleichungsprozesse in der Europäischen Union (Mohr Siebeck 2017) at 93ff and 246ff.
Prominently ECJ, Altrip, Decision, 7 November 2013, C-72/12, EU:C:2013:712, para 28; ECJ, Lünen, Decision, 12 May 2011, C-115/09, EU:C:2011:289, paras 41, 44; ECJ, Slovak Brown Bear, Decision, 8 March 2011, C-240/09, EU:C:2011:125, paras 28ff, which have led to several modifications of the Environmental Appeals Act (Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in Umweltangelegenheiten nach der EG-Richtlinie 2003/35/EG, Umwelt-Rechtsbehelfsgesetz in der Fassung der Bekanntmachung vom 23. August 2017 (BGBl. I S. 3290)).
Boyd, n 106, at 96–111.
Ibid, at 96–107.
See Krell, n 17, at 699–700; similar Emma Lees, ‘Adjudication Systems’, in Emma Lees and Jorge E. Viñuales (eds), Oxford Handbook on Comparative Environmental Law (OUP 2019), at 807–08.
Ibid at 805.
Kment, n 34 at 93.
Examples can be found at Lees, n 112, at 769; Ricardo Luis Lorenzetti, ‘Complex Judicial Remedies in Environmental Litigation: The Argentine Experience’ [2017] JEnvL 1 at 1–2; Kommer, n 19, at 463–67.
Boyd, n 96, at 190–91. One clear example is Art 29 Constitution of Georgia, which follows the three elements of participation laid down in the AC (information, administrative decision-making, access to courts) and links it both to a right to live in a healthy environment and ‘sustainable ecological development’.
Like Art 225 BrazilC or s 24 SAConst.
Du Plessis, n 52, at 183–84.
Environmental Management and Co-ordination Act, No 8 of 1999 (Cap 387).
More examples are given at Thomas Gross, ‘Climate change and duties to protect with regard to fundamental rights’, in Wolfgang Kahl and Marc-Philippe Weller (eds), Climate Change Litigation (C.H.Beck 2021) at 91, para 39; Boyd, n 95, at 190–91.
See eg MPDRA or s 2 (4) NEMA, see also Glazewski, n 55, at 323–24.
Krell, n 17, at 696–97; Benjamin and Bryner, n 29, at 87ff. Another example is Art 41 (6) Constitution of Romania (obligation to respect the environment for the proprietor).
On this debate, whether there is a legal duty of the individual to serve the common good or a duty of solidarity towards the community (as was claimed by Rousseau), or whether such an understanding contravenes social contract theory, because the individual cannot be free in this case, see e.g. Peter Saladin, Verantwortung als Staatsprinzip (UTB 1984) at 68–69.
On this see Eva Julia Lohse and Valeria Berros, ‘You cannot have the cake and eat it’, in Vienna Journal of International Constitutional Law Special Issue ‘Climate Change and Social Contract Theory’ (forthcoming 2023).
‘A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.’
It is disputed whether s 24 SAConst is an obligation of individuals, as sustainable development is a social right and a typical state task, see Thomas Heinicke, Umweltschutz im Grundgesetz und in der Verfassung der Republik Südafrika (WiKu-Verlag 2007) at 141 and 368.
See also Boyd, n 96, at 180–81.
See Yann Aguila and Shehana Gomez, ‘United Nations Sustainable Development Initiatives’, in Anthony R. Zelle et al. (eds), Earth Law (Wolters Kluwer 2021) at 426ff; similar Lena Heinämäki, ‘Protecting the rights of indigenous people – promoting sustainability of the global environment?’ [2009] ICLR 3 at 4–5.
Emma Mittrota and Federica Cittadino, ‘The Case of Biodiversity Protection’, in this book, chapter d.(1); Violeta S Radovich, ‘The Law of the High Seas’, in this book, chapter e.(4).
The constitutional recognition of the Treaty of Waitangi lead to many public sector statutes to reference Maori rights or to give them special procedural rights in order to claim their interests, see Philip A. Joseph, Constitutional and Administrative Law in New Zealand (2nd edn, Brookers 2001) at 74–75, many of them with a relation to environmental law or sustainable management. See also Chris R. de Freitas and Martin Perry, New Environmentalism – Managing New Zealand’s Environmental Diversity (Springer 2012) at 80.
On the development see Rodolfo Stavenhagen, ‘Indigenous Peoples and the State in Latin America: An Ongoing Debate’, in Rachel Sieder (ed), Multiculturalism in Latin America (Palgrave Macmillan 2002) at 27ff.
Chenwi, n 99, at 65–67.
Stavenhagen, n 132, at 31–32.
See, e.g. ConstEcuador, which ensures collective ownership of land as well as participation in decision-making in questions affecting the indigenous community.
Deborah McGregor, ‘Indigenous Environmental Justice and Sustainability’, in Sumudu A. Atapattu, Carmen G. Gonzalez and Sara L. Seck (eds), Environmental Justice and Sustainable Development (CUP 2021) at 59–60 for the international perspective. From a regional, Latin American, perspective Patrícia G. Ferreira and Mario Mancilla, ‘Indigenous Environmental Rights and Sustainable Development’, ibid at 165.
McGregor, n 136, at 63.
On this see also the contribution by Louis Kotzé and Paola Villavincencia-Calzadilla, ‘Re-imagining Participation in the Anthropocene: The Potential of the Rights of Nature Paradigm’ in this book, chapter b.(2).
For examples see Gillman, n 38, at 58; Luketina and Parson, n 49, at 203; Ferreira and Mancilla, n 136, at 166; Elizabeth Jane MacPherson, Indigenous Water Rights in Law and Regulation (CUP 2021) at 55ff, 168ff; Stavenhagen, n 131, at 33; Donna Lee Van Cott, ‘Constitutional Reform in the Andes: Redefining Indigenous-State Relations’, ibid, at 47.
On this aspect more generally and recurring to the theories of Nancy Fraser, Eva-Maria Isabell Ehemann, Umweltgerechtigkeit (Mohr Siebeck 2020) at 84ff.
Ferreira and Mancilla, n 136, at 171–72.
Bollman and Hardy, n 93, at 191.
Heinämäki, n 129, at 10.
See Popp, n 80, at 375–76, also referring to further empirical studies in Switzerland by Andreas Glaser and in Austria by Wolfgang Kahl.
Ibid at 376–77.
E.g. s 5 RMA NZ, s 23 NEMA SA or s 2 EMA NA.
For New Zealand see Kment, n 34, at 55ff.
S 3 (1) National Water Act 36 of 1998, 1 October 1998 (Gazette 19269 of 25 September 1998). See also The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), 1 May 2004 (Gazette 26264 of 23 April 2004).
S 2 (c) EMA NA.
Examples are the RMA NZ, or s 23 NEMA SA (integrated environmental management).
See Ritter et al, n 27, at 161.
For German law see Beaucamp, n 82, at 265–66.
For South Africa see Glazewski, n 6, at 142ff.
See Kment, n 34, at 93–94.
Kotzé and Villavincencia-Calzadilla, n 139. ‘Examples are Chapter 7 of the Constitution of Ecuador (2008), further examples can be found at Boyd, n 96, at 182–83.
New Zealand: Whanganui River (Te Awa Tupua Act 2017) and Te Urewera (Te Urewera Act 2014).
See eg Art 71 ConstEcuador: ‘All persons, communities, peoples, and nations can call upon public authorities to enforce rights of nature’.
On this see David Boyd, The rights of nature (EWC Press 2019) at 172ff.
Morrow, n 5, at 203–04.
Aguila and Gomez, n 129, at 403.
See e.g. Part I Art 2, Part III Art 37 (2) (d); Part V Art 47 (1) (2) (e), EMCA 1999 Kenya.
Especially nuclear waste, see EMA NA, but also Art 39 (9) Constitution of the Land Brandenburg (Verfassung des Landes Brandenburg of 20 August 1992, GVBl.I/92, p 2989.)
Silke Klinck, Agrarumweltrecht im Wandel vom Subventionsrecht zum Recht der Umweltdienstleistung (Duncker & Humblot 2012) at 150ff.
Edmund A. Spindler, ‘The History of Sustainability – The Origins and Effects of a Popular Concept’, in Ian Jenkins and Roland Schröder (eds), Sustainability in Tourism (Springer 2013) at 9.
Wheen, n 36, at 271; De Freitas and Perry, n 130, at 66.
Wheen, n 36, at 272–73.
Ronellenfitsch, n 88, at 387.
See also Glazewski, n 6, at 231ff.
See however the mellowing in decisions like Environmental Defence Society Inc v The New Zealand King Salmon Co Ldt [2014] 1 NZLRev 593 para 153.
About the legislative history see Kment, n 34, at 60. On the necessity of the three-pillar-model see Popp, n 80, at 23. For the international trend to align sustainability and development and to address rather general questions of social equity and economic prosperity see Ehemann, n 140, at 117ff. However, stressing the inextricable link between ‘economic development, social development and environmental protection’ in later documents Atapattu et al., n 40, at 3.
‘(1) The purpose of this Act is to promote the sustainable management of natural and physical resources. (2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while (a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.’
On the importance of this aspect see De Freitas and Perry, n 131, at 68 and 79–80; Luketina and Parson, n 49, at 203–04.
Environmental Defence Society Inc v The New Zealand King Salmon Co Ldt [2014] 1 N.Z.L.Rev. 593 para 24, 153.
This result is also reached by Kment, n 34, at 64–65.
This is raised and – as concerns priority – denied by Heinicke, n 126, at 368–69; see also Loretta A Feris and Dire Tladi, ‘Environmental Rights’, in Daniel Brand and Christof Heyns (eds), Socio-Economic Rights in South Africa (PULP 2005) at 260.
Chenwi, n 100, at 66.
See e.g. Glazewski, n 6, at 137.
Thomas Bunge, ‘Information der Öffentlichkeit, Mitwirkung an behördlichen Verfahren und Rechtsschutz in Umweltangelegenheiten‘, in Sabine Schlacke, Christian Schrader and Thomas Bunge (eds), Aarhus-Handbuch (2nd edn, Erich Schmidt Verlag 2019), para 1.
Cf Maria Adebowale et al., Environment and Human Rights: A New Approach to Sustainable Development (2001) at 3; Alan Boyle, ‘Human Rights and the Environment – Where Next?’, in Ben Boer (ed), Environmental Law Dimensions of Human Rights (OUP 2015) at 216–17.
Tim O’Riordan and Susanne Stoll-Kleemann, ‘Deliberative democracy and participatory biodiversity’, in Tim O’Riordan and Susanne Stoll-Kleemann (eds), Biodiversity, Sustainability and Human Communities (CUP 2002) at 88.
For example s 10 (3a) German Federal Immission Control Act (Bundes-Immissions-schutzgesetz in der Fassung der Bekanntmachung vom 17. Mai 2013 (BGBl I p 1274; 2021 I p 123)).
Directive 2011/92/EU of the European Parliament and the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance, OJ L 26, 28.1.2012, p 1.
See e.g. Neil Craik, ‘The Assessment of Environmental Impact’, in Emma Lees and Jorge E. Viñuales (eds), Oxford Handbook on Comparative Environmental Law (OUP 2019) at 890–91.
Federica Cittadino, ‘Public Participation in the Water Framework Directive: A Contribution to Deliberative Democracy?’, in Eva Julia Lohse and Margherita Poto (eds), Best Practices for the Protection of Water by Law (BWV 2017) at 50.
Du Plessis, n 52, at 112.
Glazewski, n 6, at 19 and 332.
For example, Jollands and Harmsworth, n 48, at 722.
Sachverständigenrat in Umweltfragen.
See e.g. s 42 (2) German Administrative Procedure Code (Verwaltungsgerichtsordnung in der Fassung der Bekanntmachung vom 19. März 1991 (BGBl I p 686)).
Ramos, n 18, at 129–30, 137; Kommer, n 19, at 461.
Section 305a of the Dutch Civil Code (class actions of public interest groups), which can also be used for human rights matters (see Gerichtshof Den Haag, decision of 9/10/2018, ECLI:NL:GHDHA:2018:2591, para 45), however so far restricted to living (and not future) generations.
Art 52 Constitution of Portugal (guarantee of an actio popularis as well as a right to address administrative appeals).
Public interest litigation to enable individuals to enforce public interest through court action.
Art 70 Kenyan Constitution.
Ação Civil Pública, see Kommer, n 19, at 461.
It reads: ‘… (c) anyone acting as a member of, or in the interest of, a group or class of persons, (d) anyone acting in the public interest (e) an association acting in the interest of its members’, on this see Glazewski, n 6, at 73–74.
Boyd, n 111, at 71ff.
James R. May, ‘Constituting Fundamental Environmental Rights Worldwide’ [2006] Pace EnvtlLRev., 113 at 134ff; Ramos, n 18, at 128ff.
See the famous Ogoni-Case (AfrCHR, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights (2001), Comm. No. 155/96): ‘which is wisely allowed under the African Charter’. Similar Art 44 ACHR, see Riccardo Pavoni, ‘Environmental Jurisprudence of the ECtHR and IACtHR’, in Ben Boer (ed), Environmental Law Dimensions of Human Rights (OUP 2015) at 93.
See Brönneke, n 84 at 98, 380ff; Steffen J Iwers, ‘Art. 39‘, in Hasso Lieber, Steffen J Iwers and Martina Ernst (eds), Verfassung des Landes Brandenburg (Kommunal- und Schulverlag 2012), paras 3, 9; OVG Frankfurt (Oder), decision of 27 August 1997 – 3 A 37/96, LKV 1998, 490 at 492. In contrast, Art 10 (2) Constitution of Saxony is clearly formulated as a mandate for the legislative to create a group action for environmental associations, SächsVerfGH, decision of 20 April 1995 – Vf. 18-II-93, LKV 1995, 399 at 400; Christoph Degenhart, ‘Die Staatszielbestimmungen der Sächsischen Verfassung’, in Christoph Degenhart and Claus Meissner (eds), Handbuch der Verfassung des Freistaates Sachsen (Boorberg 1997) at 174–75.
Umweltrechtsbehelfsgesetz, Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in Umweltangelegenheiten nach der EG-Richtlinie 2003/35/EG vom 7. Dezember 2006 (BGBl I p 2816).
On this see Christoph Enders, ‘Subjektiv-rechtliche Fundierung des Umweltschutzes: Das Bundesverwaltungsgericht als Motor der Rechtsaktualisierung im Zeichen des Europarechts‘ [2016] ZUR, 387 at 387.
Martin Kind, Umweltschutz durch Verfassungsrecht (Springer-Verlag 1994) at 284; Wieland, n 81, at 480; Felix Ekhardt, ‘Umweltverfassung und “Schutzpflichten“‘ [2013] NVwZ, 1105 at 1107; Michael Kotulla, ‘Verfassungsrechtliche Aspekte im Zusammenhang mit der Einführung eines Umweltgrundrechts in das Grundgesetz‘ [2000] 33 KJ, 22 at 23ff.
Kós, n 44.
Krell, n 17, at 696.
Environmental Protection Act (No. 527 of 2014) Consolidated version of Act No. 527 of 2014 as last amended by Act No. 119 of 18 December 2020.
‘The purpose of this Act is to:
prevent the pollution of the environment and any risk of this, prevent and reduce emissions, eliminate adverse impacts caused by pollution and prevent environmental damage;
safeguard a healthy, pleasant, ecologically sustainable and biologically diverse environment, support sustainable development and combat climate change;
promote sustainable use of natural resources, reduce the amount and harmfulness of waste, and prevent adverse impacts caused by waste;
make the assessment of activities causing pollution and the consideration of the impacts as a whole more effective;
improve the opportunities of citizens to affect decision-making concerning the environment.’
EMCA Kenya s 3 para 5 (a).
Like in Germany or New Zealand, see Hewison, n 37, at 640ff.
For the importance of this connection see Jollands and Harmsworth, n 48, at 724.
See the account by Kment, n 34, at 82–83 for New Zealand and at 28ff for Germany and similar Luketina and Parson, n 49, at 206.
Popp, n 80, at 375ff.
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