Abstract
We are in the third decade of ‘human rights as environmental rights’. Starting points for the engagement may be taken as the Final Report of the UN Sub-Commission on Human Rights and the Environment prepared by Special Rapporteur Ksentini (1994) and the touchstone publication of Boyle and Anderson, Human Rights Approaches to Environmental Protection (1996). The literature, and indeed the practice, of this relationship has since expanded rapidly, across legal sub-disciplines, levels and jurisdictions. As this volume’s table of content elaborates, the scope of human rights to deliver environmental protection includes institutional considerations (Chapter 5), procedural and substantive rights (Chapters 6 and 7), the world of public international finance (Chapter 10), corporate actors (Chapter 11) and so on. In debates that have attended this widening and deepening, Sheldon has been a leading participant and so her collaboration with Anton to survey systematically the range of materials is extremely welcome.
This is a cases and materials book. Each chapter opens with a couple of pages of stage setting, followed by lengthy extracts legal texts (treaties, cases, articles, reports, etc.), which are in turn followed by questions and discussion points and occasional notes. As well as being comprehensive in scope (the 118 pages of Chapter 1: ‘Law and the Environment’ could easily serve as a self-standing textbook for courses on international environmental law), these materials combine to excellent effect, not least because of the pithy, incisive notes – see the discussion on the International Court of Justice (ICJ) Pulp Mills case (pp. 28–30). That said, there could be better internal cross-referencing. For example, the discussion of Pulp Mills makes no reference to the discussion of Environmental Impact Assessments (EIA; pp. 48–52) and vice versa, although the index entry for EIAs does reference ‘customary international law’ at pages 28–30. Especially for students coming to the subject for the first time, clearer flagging would be helpful.
In addition to the book’s 11 chapters, there are ‘five compelling contemporary case studies’ accessible online. That these additional materials are almost impossible to find (they are mentioned en passant in the ‘blurb’ on page i but nowhere else and without a universal resource locator (URL); a little determined googling finds them at the book’s web page on the Cambridge University Press (CUP) site under ‘resources’) does not detract from their quality. The online case study on climate change and human rights contains extracts from the famous 2005 ‘Inuit Petition’ to the Inter American Commission on Human Rights, seeking relief from the impacts of global warming arising from the ‘Acts and Omissions of the United States’. Although rejected by the Commission, this petition has been the fountainhead of considerable academic writing, reports by UN bodies, and case law in jurisdictions as diverse as Australia and Nigeria, all of which are surveyed in the case study. Little of this will be news to scholars working intensely in the climate field, but to advanced students and even scholars of international environmental law, these are invaluable guides to the topography of the subject matter.
Underlying much of this volume is a series of questions about the nature of the human rights/environment relationship. Why should claims relating to the environment be cast in the language of human rights? Once issues are framed in this manner, they take on an elevated position in legal and moral discourse – if rights are to be taken seriously, human rights even more so. One answer is that if human rights serve to guarantee the basic conditions of human flourishing, for rights holders to pursue their goals, we should treat environmental protection as a prerequisite of those basic conditions. One consequence of the protection accorded to rights claims is that they tend to be normatively superior to other legal claims and as such less amenable trade-offs with other values. In both judicial and administrative proceedings, such balancing processes are of course inherent, and the more absolute interpretation of rights and ‘trumping’ may not be suitable for evaluations of complex scientific or technical considerations. A second reason for preferring human rights over other vehicles of securing environmental outcomes goes to the question of access, both to the procedures and remedies, which in the case of human rights can be more advantageous as compared with tort (i.e. nuisance and negligence) or other modes of legal regulation (i.e. licensing and criminal law). That said, human rights enforcement can be problematic, depending on the sensitivity of the matter at hand, as UK prisoners deprived of the vote are currently experiencing. A further advantage of human rights claims is their visibility and the likelihood that they will serve as the focal point for activism, as was the case in before Inuit Petition. Above all, human rights can provide the ‘conceptual link to bring local, national and international issues within the same frame of legal judgment’ (Anderson, 1996: 21).
It is very much this final point that this volume contributes to. As in the case of climate change, each chapter is meticulous in presenting a succession of well-chosen materials that, piece by piece, provide the arguments and basic legal texts to explore, say, humanitarian crises (Chapter 9) or corporate accountability (Chapter 11). In short, this is an excellent book. It is well produced, carefully crafted and provides what must be the benchmark for any book on the subject. It is wide-ranging, comprehensive, intelligent and challenging – a not inconsiderable set of achievements.