Abstract
‘Environmental rights’ is one of the most elusive phrases in modern environmental governance due to the vagueness of content and the breadth of scope. Yet, continuous efforts have been made to translate human rights obligations into more tangible environmental standards. The edited collection, Environmental Rights: The Development of Standards, is therefore an eagerly awaited guide to the many types of standards that have emerged in the field and exploration of the topic is comprehensive and sophisticated. The book addresses not only environmental standards from a specific regime at the international, regional, national and subnational levels but also those related to a particular type of right or initiative. This includes the right to water, rights of nature, free prior and informed consent, and multinational environmental agreements (p. 16).
Composed of 18 chapters, the volume begins with a historical narrative of the development of environmental rights. In the introductory chapter, ambiguities caused by the broad scope of environmental rights are discussed to highlight the need for greater precision in the levels of environmental protection. Specifically, for the substantive right to an environment that is ‘healthy’, ‘safe’ and ‘clean’, uncertainties remain, as legal practitioners question the exact meaning of these objectives. For procedural environmental rights, including the right to information, participation and judicial remedy, there are issues around the precise levels of information disclosure, public involvement and judicial access (p. 2). This book therefore tackles a key question: What are the standards of environmental protection developed within the field of environmental rights?
In developing their answers, all authors make the underlying assumption that human rights instruments are important tools for environmental protection, but that the precise levels of protection conferred by environmental rights demand further clarification. They aim to clarify or provide guidance on the standards of protection relating to environmental rights from various perspectives. Some highlight the specific standards that have developed in international institutions, regional regimes and national constitutions and legislation. Specifically, Atapattu explores how international human rights covenants have developed environmental rights by creatively interpreting existing rights (p. 18), including the right to life, indigenous groups’ right to culture, the right to food and water and the right to health. It is concluded that the Human Rights Committee and the Committee on Economic, Social and Cultural Rights apply flexible yet subjective standards such as ‘effective’, ‘adequate’ or ‘sufficient’ (p. 38). Morrow investigates the standards for triggering judicial intervention in environment-based claims in the European Court of Human Rights. She identifies that the intervention demands a fair balance between individual rights and public interest, the ‘serious harm’ threshold, the ‘direct harm’ requirement, as well as relevant international, regional and domestic standards (p. 58). Interrogating the Aarhus Convention, Ryall examines how the Compliance Committee and the Court of Justice of the European Union develop standards within the context of procedural environmental rights, especially the right of access to justice in environmental matters (p. 116). Moving to the American continent, Grant considers how the Inter-American Commission and Court establish a set of environment-related standards in the context of indigenous communities’ right to property, the right to a dignified life and the right to life and physical integrity. It is noted that these ‘environmental’ standards are mainly procedural, and therefore, further incorporation of substantive standards are required for a fully holistic approach (p. 91). In the context of Africa, Kotzé and du Plessis, by investigating regional and domestic jurisprudence, argue that abstract qualitative standards and a directive nature (expressed as minimum obligations) related to environmental rights are often provided, while measurable quantitative standards may have to be set out in subordinate legislation (p. 109).
In the same direction, standards developed in national constitutions are further explored. By examining the reliance of the right to life provision enshrined in India’s constitution to achieve the environmental purpose, Gill reveals that environmental standards in India are either ‘transplanted’ or developed by domestic agencies, mainly through the regulatory framework and judicial activity. She notes that the judiciary is ‘the first and ultimate forum to resolve environmental conflicts because of the failure of regulatory agencies’ (p. 245). With a constitutionally enshrined right to a healthy environment, Nonna examines how environmental standards are developed under the Argentine constitution, where ‘minimum standards’ of environmental protection is specifically required (p. 268). In combination with an analysis of the courts’ intervention, she points out that despite the constitutional environmental mandate and the related minimum standards legislation, further improvement of administrative and governmental capacity is needed to ensure effective and efficient enforcement (p. 284). In the South African context, Copper interrogates the constitutional rights to a healthy environment and to water. The standards of protection acknowledged through legislation and litigation are ‘significantly limited’, not only by the courts’ adoption of ‘reasonableness’, instead of ‘a minimum core’, as the appropriate approach to socioeconomic rights litigation, but also by their silence in clarifying substantive obligations surrounding the environmental right (p. 307).
In contrast with the more prominent role of the judiciary, standards may also emerge from institutional mechanisms giving effect to constitutional environmental provisions. Aragão investigates standards associated with the environmental rights provisions of the Portuguese constitution, finding that they are ‘left to the government through legislation and regulation’ (p. 249). The development of standards in Portugal higher than that of the EU is attributed to national environmental constitutionalism (p. 264). By referring to the French Charter of the Environment, whose relatively comprehensive environmental rights provisions could be seen as standards in and of itself, Marrani and Turner demonstrate how legal mechanisms facilitate the development of more specific standards for environmental protection that need to be consistent with the constitutional provisions (p. 321). Turner utilises a quantitative standard relating to the level of forest cover included in the Bhutanese constitution. The argument is made that such an approach could contribute to the development of global environmental constitutionalism (p. 341). May and Daly examine environmental standards at the subnational level in Brazil, the United States and Iraq. They argue that subnational environmental constitutionalism holds the potential for providing additional sources of standards (p. 367).
While the above authors’ approach to the development of standards under different regimes is based on geographical locations, others deal with the standards issue from the perspective of relevant rights and environmental agreements. McIntyre explores standards relating to the right to water and sanitation, explaining that a range of normative standards (healthy standards, environmental standards, service standards, affordability, monitoring standards and procedural governance standards) are emerging despite the lack of consensus regarding the formal legal status of the right internationally (p. 172). As an aspect of procedural rights that is particularly central to indigenous and local communities, the concept of ‘free, prior and informed consent’ (FPIC) is analysed by Razzaque, who argues that ‘the infusion of FPIC into environmental law brings the flavour of human rights law into the environmental regime’ due to its facilitation of the minimum standard for a state to guarantee the relevant communities’ rights and to alleviate environmental risks (p. 197). Kauffman and Sheehan explore the nascent standards within the rights of nature in Ecuador, New Zealand and the United States and propose guidelines for development of science-based standards for measuring ecosystem health to ensure nature’s right to flourish, a right arguably going beyond minimum standards (p. 366). Focusing on standards in the procedural rights of multilateral environmental agreements (MEAs), Ognibene and Kariuki conclude that development in this area is ‘only in the early stages’ (p. 194). They explain that MEAs are relevant yet unable to ensure human rights obligations to protect the environment, though they are designed to ‘protect interests that are identified in human rights instruments’ (p. 194).
The work concludes that standards relating to environmental rights have emerged. Different categorisations of standards within the field of environmental rights, together with examples drawn from the evidence in each chapter are provided. It also maps out future research agendas, including the development of minimum substantive environmental standards, standards for compliance and enforcement mechanisms to meet to ensure the realisation of the right to environment, standards for procedural environmental rights, etc. (p. 399).
In general, this is an excellent collection, clarifying the vagueness of environmental rights through the development of relevant standards. Yet, it will not be the last word on standards within the field of environmental rights, as it provides no easy answers, nor a one-size fits all solution, to the multi-faceted relationship between human rights and the environment, a relationship which is continuously deepening. In fact, it brings as many questions as it answers. For instance, while adopting an expansive approach to environmental rights, the collection fails to define the terminology clearly: Are environmental rights anthropocentric or nature-focused; substantive or procedural; collective or individual; independent as ‘environmental’ rights or affiliated to social and economic rights; only concerning the present or rights extending equally to future generations; narrowly understood as the explicit right to a quality environment or inclusive of any related rights whose enjoyment may be affected by degradation of the environment? Or should we admit that environmental rights, as a polycentric concept with multiple dimensions, have to be understood in the specific context? If so, the context-dependent application of environmental rights may indicate that a uniform standard of environmental rights across jurisdictions is unrealistic because interpretations on the content, scope and form of environmental rights are not only related to the reading of relevant provisions but also inseparable from the legal culture and judicial tradition of that particular regime.
It is also considered that the volume might have provided further clarification on the exact scope of ‘standards’. In particular, standards for environmental protection may not necessarily be associated with the protected rights per se, as no rights may be immediately violated despite environmental degradation, or the violation of environmental standards, occurred in a state. Nevertheless, by including standards relating to the level of environmental protection, the collection sheds light on different benchmarks, including those measurable quantitative references, which might help provide guidelines on the contents of environmental rights in the development.
Overall, Environmental Rights: The Development of Standards provides an authoritative guide and excellent discussion. It is, therefore, highly recommended for researchers working in the fields of environmental rights and environmental constitutionalism.