Access to Justice

Legal standing

One of the problems with access to justice in the environmental realm is the question of who has legal standing. Legal standing is the ability of a person to show a sufficient legal interest in a matter to allow him or her to bring a case to court.

When defending individual rights, such as the right to life, to dignity, to liberty, property, etc., the individual must prove that their value or good (life, dignity, liberty, property, etc.) is being threatened or damaged. In this sense, the individual is considered to have just and sufficient cause for defending their right.

In the case of defending third generation rights (such as the right to a healthy environment, the right to peace, the right to non-discrimination, etc.) it is necessary to revise the traditional criteria of legal recourse, namely those granted to individual rights.

Without redefining these legal rights, a judge, for example, who is faced with a citizen´s demand to preserve a native forest, might reject the case, because the citizen can not demonstrate an exclusive and immediate individual interest that brings just cause to save the forest.

These third generation rights are characterized, in some respects, by their collective nature. Thus, in the case of environmental rights, people do not hold individual, immediate or exclusive interests in the environment; the relationship of people with respect to the "environment" that they wish to protect, is one of co-ownership. This signifies that individuals only have a portion of the environmental right, non-exclusive and identical to the rights and interests of other members of the community. These are known as collective rights.

Given this collective nature, access to justice is complicated in environmental matters.

 

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