El acceso a la justicia ambiental a partir del Convenio de Aarhuspropuestas para un acceso efectivo a la justicia en conflictos ambientales

Abstract

The research has consisted of a tour of the international legal foundations of access to justice. Since its recognition as the third pillar of "environmental democracy" in the Tenth Principle of the Declaration of Rio de Janeiro in 1992 until its implementation in the recent Escazu Agreement in 2018. Undoubtedly, the most relevant legislative reference is the Aarhus Convention, signed in 1998, which was the first time that Spain and the European Union assumed specific obligations to improve access to environmental justice. The paper analyses how the European Union has assumed the mandates of the Aarhus Convention in its legislation directed not only to Member States but also to their own institutions. This critical analysis exposes the lights and shadows of an incomplete regulatory development and expansive jurisprudence of the Court of Justice of the European Union. There is also a review of the incorporation of the rights and obligations of the Aarhus Convention in Spain, which, in terms of access to justice, results in a certainly insufficient reality, as is demonstrated by specific cases that have been reported to the Compliance Committee of the Treaty itself. The last part of the paper involves an evaluation of the main substantive and economic barriers that arise when citizens turn to the courts in defence of the environment. Following this, and based on experiences in other legal systems, a series of proposals are presented to overcome such barriers. The objectives of the research have been: - To make available to the legal scientific community a detailed analysis of the conditions of access to environmental justice in the Spanish State, following the legal developments resulting from the ratification of the Aarhus Convention by the Kingdom of Spain and the European Union itself. - To present an investigation and an evaluation of the main barriers that occur in the practice of the Courts and of the challenges presented by effective judicial protection of environmental interests. - To provide a catalogue of proposals coming mostly from Comparative Law that could be converted into lex ferenda measures. The methodology arises from the exegesis of legal sources such as legal provisions and resolutions of international and national bodies related to environmental protection and the guarantee of the rights derived from such protection, as well as the critical reading of works of scientific doctrine referred to everything to the subject of Public International Law, Administrative Law and Procedural Law. Given the recent interest in the theme of environmental justice derived from the Aarhus Convention, many of the works consulted come from outside the Spanish State, which requires consulting literature and jurisprudence in English and sometimes in German. Of interest is the consultation of Ibero-American texts for the understanding of the advanced procedural mechanisms that in the field of collective processes are carried out in Brazil, Argentina and Chile. The aforementioned jurisprudence comes not only from national or regional courts, but extends to a large extent to the jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights and even the recommendations of the Compliance Committee of the Aarhus Convention. Among the conclusions or results we can highlight the proposal of measures such as the recognition of "actio popularis" in environmental matters, special regimes for the practice of evidence, precautionary measures, free legal assistance and the costs of the process, as well as the creation of specific environmental courts.