International legal protection of whistleblowers in the environmental sphere

Abstract

The protection of environmental whistleblowers is one of the most vulnerable and at the same time the least systematically regulated institutions of contemporary law. It lies at the intersection of the right to access information and guarantees of effective judicial protection, but so far it has not received either proper international legal recog­nition or full implementation at the national level. The 1998 Aarhus Convention enshrined three key components of "environmental democracy": access to information, public participation, and access to justice. However, it neglected procedural guarantees (whistleblower immunity, reversal of the burden of proof) and substantive means of protection (protec­tion from prosecution, reinstatement at work). This reduces the effectiveness of its provisions and creates a risk of declarative guarantees in national legal systems. The study is based on a doctrinal and practical analysis of international and national mechanisms for the protection of environmental whistleblowers. At the international level, Directive (EU) 2019/1937, the CM/Rec(2014)7 Recommendation of the Committee of Ministers of the Council of Europe, the case law of the ECtHR (Guja v. Moldova, Bucur and Toma v. Romania), as well as UN Human Rights Council resolutions and special reports are examined. It is shown that these acts establish fundamentally important standards, yet do not form a unified international legal mechanism. The national dimension includes an analysis of the legislation and judicial practice in the United States and Canada, as well as a comparative study of certain European jurisdictions (Germany, France, the Netherlands, Italy), which demonstrate different models of law enforce­ment in the field of whistleblower protection. In the Ukrainian context, the latest case law of the Supreme Court has been analysed in cases related to proving environmental violations, establishing a causal link between harm to the environment and individual rights, as well as balancing the economic interests of business entities and the right to a safe environment. Particular attention is paid to the activities of the National Agency for the Prevention of Corruption in the field of whistleblowing related to the issuance of environmentally significant permits. It has been established that the national legal system maintains the dominance of "corruption reductionism," marginalising the environmental dimension of whistleblowing, which causes an imbalance between international erga omnes obligations in the field of the environment and the domestic level of their normative consolidation and law enforcement. The study results confirm the hypothesis that the absence of a sepatate international legal mechanism for the protection of environmental whistleblowers is a key factor in the fragmentation of guarantees at the national level. The necessity of incorporating into the international legal obligations of the partici­pating states of the complex is substantiated: (a) procedural presumptions (reversal of the burden of proof, procedural immunity); (b) substantive guarantees (protection against SLAPP lawsuits, automatic reinstatement at work); and (c) international moni­toring and protection mechanisms (the Aarhus Conven­tion Compliance Committee, the ECtHR, UN special procedures). Such a combination would ensure the specification of international standards and their effective reproduction in national legal systems, providing environmental whistleblowers with a clear legal status as subjects of "environmental democracy" capable of exercising preventive protection of the environment and the rights of future generations.