A/HRC/43/54
environmental democracy in Latin America and the Caribbean. On a positive note, judicial
systems in Latin America have pioneered the use of simplified and expedited legal
procedures that have dramatically increased access to justice. These processes have
provided citizens and non-governmental organizations with unprecedented opportunities to
employ the judicial system in pursuit of their right to a healthy environment.
39.
Participants observed that environmental laws in Latin America and the Caribbean
are often strong on paper but weak in reality. The main reasons for this are a lack of
enforcement resources and a reluctance to enforce laws when doing so could adversely
affect economic interests. In some States, the challenge of adequate enforcement is
exacerbated by ineffective, complicated and incomplete laws; officials who lack skills,
training and resources; and the need for extensive technical and scientific expertise. The
implementation and enforcement of environmental laws in the region have also been
constrained by high inflation, regional financial crises, and international agendas relating to
deregulation and privatization. Some countries in Latin America and the Caribbean face
ongoing political turmoil, extensive poverty and dependence on a small number of export
commodities, mainly agricultural products, minerals and energy resources. Latin America is
a major supplier of natural resources to the global economy, at a significant cost to the
regional environment. Another problem is that some States in the region are plagued by
“ultra-presidentialism”, in which the president has extraordinary powers that undermine
both the operation of and respect for the rule of law.
IV. Cross-pollinating ideas: international, regional and national
influences
40.
Participants discussed ways of creating synergies in the promotion and
implementation of the right to a safe, clean, healthy and sustainable environment at all
levels, building upon the previous discussions about good practices and barriers. Four
processes were identified as contributing to the globalization of the right to a healthy
environment, namely transplantation, harmonization, integration and convergence.
Transplantation occurs when one State intentionally copies or adapts significant portions of
laws, regulations or policies from another State. It is clear that this has occurred in the
context of the right to a healthy environment, given that similar language is used around the
world to articulate this right.
41.
For example, the phrase “right to a healthy and ecologically balanced environment”
was first used in the Constitution of Portugal in 1976 and is now found in at least 20 other
constitutions. National courts frequently cite decisions from other national courts. The
decisions of the Supreme Court of India on the right to a healthy environment have
influenced courts in Bangladesh, Kenya, Pakistan, Sri Lanka and Uganda. The Internet
facilitates transplantation by making constitutions, legislation and case law increasingly
accessible. Courts are often interested in decisions from other States, especially involving
cases about human rights because of their universal nature.
42.
Harmonization refers to the process of adjusting and conforming national standards
to meet the requirements of an international system. Integration is the process of linking
national legal systems. Both harmonization and integration are occurring most prominently
in the European Union, where new members must upgrade environmental laws and all
members must comply with European Union-wide environmental directives.
Harmonization will also occur in Latin America and the Caribbean when the Escazú
Agreement comes into force. Convergence describes how distinct legal systems, like
biological species, can evolve to become more similar, not as a result of deliberate acts of
copying but rather as a response to similar external pressures, especially environmental
pressures.
43.
Participants noted that the Escazú Agreement was influenced by the Aarhus
Convention, yet it had evolved to fit its specific regional context with the groundbreaking
addition of provisions to enhance protection for environmental human rights defenders.
Participants asked how these regional agreements could be extended to, or emulated in,
other regions, and how States with constitutional environmental rights could encourage
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