A/HRC/28/61
court, which may then shift the burden to the defendant to demonstrate that the suit is not a
SLAPP suit. If the court dismisses the SLAPP suit, it may award damages and attorneys’
fees to the environmental plaintiff.
61.
Ireland has facilitated access to environmental remedies by departing from its
normal rule, according to which the winning party is entitled to recover its legal costs from
the losing party. This rule can have a chilling effect on environmental plaintiffs that have
few resources. Under an act adopted in 2011, plaintiffs bear only their own costs in actions
to ensure compliance with environmental requirements, but they may be entitled to recover
their costs from defendants if they win.
62.
In the United States of America, many national environmental statutes allow
members of the public to initiate lawsuits against alleged violators. Although the cases are
often called “citizen suits”, the plaintiffs need not be citizens. The statutes authorize courts
to order compliance with the law on the basis of citizen suits, and although the plaintiffs are
not authorized to recover damages, they may receive attorneys’ fees.
63.
Another good practice in connection with the obligation to provide effective
remedies for environmental harm is building the relevant expertise of the judiciary. An
example in this respect is the series of judicial symposiums on environmental decisionmaking, the rule of law and environmental justice that have been hosted by the Asian
Development Bank since 2010. A key outcome of these meetings has been the creation of
the Asian Judges Network on Environment, which facilitates the sharing of information and
experience among senior judges in countries belonging to ASEAN and the South Asian
Association for Regional Cooperation. The Network has its own website
(www.asianjudges.org), which provides a database of national environmental laws as well
as information on upcoming events.
64.
The Organization of American States programme on judicial facilitators, which it
has developed in cooperation with various States (including Argentina, Costa Rica, El
Salvador, Guatemala, Honduras, Nicaragua, Panama and Paraguay), is another good
practice in the provision of effective remedies. Judicial facilitators are nominated by local
communities and appointed by judges under whose supervision they work. After they have
received training, they can undertake a number of functions, including providing technical
assistance to individuals in the preparation of claims, providing mediation between parties,
and assisting in the assessment of damages.
65.
Yet another good practice in this area is the use of national human rights institutions
to address environmental issues. For example, the Kenyan national commission on human
rights has increasingly focused on environmental concerns, including by investigating
forced evictions in a protected area, and human rights violations and environmental
degradation occurring at salt manufacturing companies. In Mexico, the national human
rights commission made a number of recommendations concerning environmental
protection even before the Mexican Constitution was amended in 2012 to include a right to
a healthy environment. In Thailand, the subcommittee on civil and political rights of the
national human rights commission found in 2012 that the commission had jurisdiction to
examine alleged human rights violations in a sugar cane plantation in Cambodia owned
indirectly by a Thai company.
66.
The Malaysian national human rights commission (SUHAKAM) has used “national
inquiries” to examine systemic human rights issues. An important recent example of its use
of the national inquiry process in the environmental context was the National Inquiry into
the Land Rights of Indigenous Peoples, undertaken to investigate violations related to the
land rights of indigenous peoples in Malaysia. Between 2002 and 2010, SUHAKAM
received numerous complaints from indigenous peoples, including allegations of
encroachment and/or dispossession of land, and of delays in processing requests for
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