The Global Emergence of Constitutional Environmental Rights

Joshua C. Gellers

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315524399
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Over the past 40 years, countries throughout the world have similarly adopted human rights related to environmental governance and protection in national constitutions. Interestingly, these countries vary widely in terms of geography, politics, history, resources, and wealth. This raises the question: why do some countries have constitutional environmental rights while others do not? Bringing together theory from law, political science, and sociology, a global statistical analysis, and a comparative study of constitutional design in South Asia, Gellers presents a comprehensive response to this important question. Moving beyond normative debates and anecdotal developments in case law, as well as efforts to describe and categorize such rights around the world, this book provides a systematic analysis of the expansion of environmental rights using social science methods and theory. The resulting theoretical framework and empirical evidence offer new insights into how domestic and international factors interact during the constitution drafting process to produce new law that is both locally relevant and globally resonant. Scholars, practitioners, and students of law, political science, and sociology interested in understanding how institutions cope with complex problems like environmental degradation and human rights violations will find this book to be essential reading.

Chapter 1

Constitutions, the environment, and human rights

The heavy monsoon air assaulted my travel-worn body right as I stepped onto the tarmac at Tribhuvan International Airport in Kathmandu, Nepal. It was nearly 10 pm. I shuffled through customs half asleep, alert only enough to notice the modest size of the terminal, the anachronistic use of wood paneling, and my inability to tap into a wireless network on my cellphone. After collecting my checked luggage I headed outside, where a taxi hired by my hotel waited to receive me. The airport seemed an island of light amidst the sea of darkness filling the Nepalese night. A soft rain began to trickle down from the illimitable skies.

Once inside the cab, I felt my fatigue quickly dissolve as a flicker of curiosity ignited my attention. The taxi driver expertly navigated rough roads and tortuous alleyways with a kind of certainty that stood in stunning contrast to my complete sense of alienation. I knew where I was geographically speaking, but that knowledge failed to register any concrete meaning in my present state. I turned my gaze out the passenger window.

The only bits of country accessible to my visual field were those elements crudely illuminated by the yellow headlights of our car. As we zoomed along the dampened streets, panic crept its way up my throat until it formed a knot at the back of my mouth. The external world rendered cognizable only by the small golden spheres constantly being chased by the taxi elicited terror, then disbelief. Multi-story buildings gaped like the skeletal remains of faces blown out by indiscriminant aerial bombing campaigns. Trash and rubble commingled in random elevated patches along the roadways. Feral dogs in search of a late supper zipped up and down saturated heaps of garbage. Upon beholding these unexpected sights I was forced to recall why I had ventured nearly 8,000 miles to this unique country in the first place—because Nepal had recently added environmental rights to its national constitution. Clearly the gulf separating law and practice remained vast, but I didn’t fly to this pivotal pocket of Asia in order to lambaste a developing country for its inability to implement environmental law. I was here to understand why a growing chorus of states echoed a preference for enacting constitutional environmental rights.

Introduction

Over the past four decades, countries throughout the world have adopted human rights pertaining to environmental protection and governance in their respective national constitutions. Such legal provisions are collectively known as “constitutional environmental rights.” Interestingly, states with constitutional environmental rights appear to have little else in common; they vary widely in terms of their geographic location, history, human and natural resources, political system, size, and wealth. At the same time, environmental rights do not (yet) enjoy universal recognition among governing charters across the globe. This observation poses an empirical puzzle for social scientists—Why do some countries have constitutional environmental rights while others do not?

I argue that the phenomenon identified above has occurred as a result of international norms that constrain constitution drafting processes, compelling states to adopt human rights related to the natural environment, and constitute state identities, socializing countries to treat environmental protection as a proper domain of state authority and view environmental quality as fundamentally related to human rights. I also contend that the global emergence of constitutional environmental rights is not driven by individual state calculations regarding opportunities to enhance power or material wealth. The mixed-methods study contained within this book rigorously tests the validity of these two arguments.

But before proceeding to examine the reasons why environmental rights have increasingly found a home in national constitutions across the world, it helps to first understand why these rights are important and how this book contributes to existing knowledge on the subject. To begin, how are environmental rights distinct from other institutional mechanisms intended to address environmental problems? The worldwide spread of environmental rights represents an important development worthy of empirical examination for reasons related to morality, legitimacy, authority, and identity. First, by raising the prerogative of environmental protection to the level of importance afforded human rights, states assign universal moral significance to the task of safeguarding the environment. This formal reconceptualization of the human–environment relationship suggests that environmental rights are fundamental to the wellbeing of citizens, marking a significant shift in constitutional design and legal thinking. Second, constitutional environmental rights add new legitimacy and urgency to the cause of environmental protection. By linking the environment to human rights, environmentalists gain the clout of institutions and resources central to the international human rights movement (Nickel 1993, p.283), potentially resulting in a greater capacity to mobilize support for the resolution of environmental problems. Third, placing environmental rights within a constitution imbues them with the highest level of legal authority available in a society governed by the rule of law (Gravelle 1997, p.635). Incorporating environmental rights into constitutional frameworks avoids placing the onus for environmental protection solely on legislative bodies whose decisions may hinge on a narrow majority, and makes removal of such provisions politically cumbersome (Brandl & Bungert 1992, p.4). Finally, once these rights are formally adopted, they become woven into the fabric of a state’s national identity. Constitutional entrenchment of environmental rights “results in the identification of environmental protection with expressions of national pride and character” (Brandl & Bungert 1992, pp.4–5).

To be sure, the adoption of constitutional environmental rights may produce lasting effects related to the project of environmental governance. Although in general constitutions have a relatively short shelf life (Elkins et al. 2009, p.1), previous iterations may serve as benchmarks for later versions, constraining the decisions of future drafters (Osiatynski 1994). In the near term, constitutional environmental rights may raise the bar for domestic environmental governance and amplify popular expectations about the state’s capacity to safeguard the environment, making it difficult for political leaders to rescind such ambitions later. In short, the act of situating environmental rights within a constitution enhances their institutional “stickiness,” leaving a legacy that may influence reform efforts in the future.

At the same time, one should remain cautious when speculating about the utility of constitutional rights in general. Laws on the books do not necessarily translate to laws in action. The very act of drafting a constitution carries such normative weight that “it is invoked by regimes that make no pretense of submitting to constitutional control” (Ginsburg 2003, p.9). Therefore, while evaluating the efficacy of constitutional environmental rights remains a work in progress (e.g., Boyd 2012; Gellers & Jeffords 2015; Jeffords 2016; Jeffords & Minkler 2016), it stands to reason that environmental rights represent important legal tools that may hold significant promise for addressing issues occupying the nexus between human rights and the environment.

So how does this book augment the current understanding about constitutional environmental rights? This text complements the impressive body of mainly descriptive scholarship on constitutional environmental rights through its application of social science methods to empirical inquiries and its explication of an interdisciplinary approach to explaining the emergence of these provisions. In particular, it presents the first global statistical analysis that systematically tests different theories that may explain why countries adopt constitutional environmental rights. Drawing on political science, sociology, and law, it also provides the first theoretical framework designed to sketch out the mechanisms through which constitutional environmental rights have expanded throughout the international system. In addition, this study offers the first social scientific account of the development of constitutional environmental rights in Nepal and Sri Lanka, contributing a rare comparative study to the “relatively unexplored area” (Khilnani et al. 2013, p.2) of South Asian constitutions (SACs).

The remainder of this introductory chapter proceeds as follows. First, I define environmental rights. Second, I discuss the three forms in which environmental rights appear in legal institutions. Third, I trace the history of environmental rights as they developed through human rights institutions at the international level. Fourth, I examine regional developments associated with environmental rights. Fifth, I describe the development of constitutional environmental rights at the national level. Sixth, I review two of the main controversies surrounding constitutional environmental rights. Finally, I outline the structure and content of the remainder of the book.

Definitions and purpose

“Environmental rights” can be defined in different ways depending on the object or entity to which they apply. To whom are these rights to be bestowed? Environmental rights can be construed as rights held by the environment itself to protect against harm caused by an external force. Ecuador’s 2008 constitution includes an entire chapter devoted to these so-called “rights of nature.” In particular, Article 71 states: “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” (Ecuador Const., tit. II, ch. 7, art. 71 (2008)). However, environmental rights are more commonly understood to mean “the reformulation and expansion of existing human rights and duties in the context of environmental protection” (Shelton 1991, p.117). This definition characterizes such legal provisions as explicitly human centered. The question regarding whether environmental rights should include rights of the environment itself or refer exclusively to rights held by humans remains a subject of considerable debate (e.g., Taylor 1997; Bruckerhoff 2008). I return to this issue later in the chapter.

After identifying the intended referent of the environmental rights, it is important to understand the role of various state and non-state actors in securing these rights. Governments, either at the national or international level, as the main guarantors of rights, are said to possess negative or positive duties to the party being protected. For instance, “governments have negative duties to refrain from actions that generate large risks of damage to human life and health” while they “also have a duty to protect inhabitants of their territories against environmental risks generated by either governmental or private agencies” (Nickel 1993, p.286). In addition, depending on the version of the right articulated, individuals and organizations may similarly “have a duty to refrain from activities that generate unacceptable levels of environmental risk” and, in situations resulting in environmental harm, “a duty to restore the environment and compensate victims” (Nickel 1993, p.286). However, environmental rights signal more than responsibilities; they may also denote certain freedoms. For individuals or groups, environmental rights explicitly or implicitly entail a freedom from environmental damage while some specific environmental rights directly recognize a freedom to obtain justice for environmental wrongs committed. The particular phrasing used in the construction of environmental rights thus indicates who or what is to be protected, by whom, and to what end.

What purpose do environmental rights serve? First, environmental rights seek to unite and advance the protection of human rights and the environment through formal legal means. Neither objective can be fully attained through the pursuit of the other; protecting the environment does not necessarily lead to the fulfillment of human rights obligations, and safeguarding human rights may not produce positive environmental outcomes. Yet, in order to survive, humanity requires an environment conducive to its continued existence. One cannot enjoy the most fundamental human right, the right to life, if the environment in which one lives suffers degradation that seriously imperils human health (Atapattu 2002, p.69). In order to “protect human life, our environmental life support system must be maintained and protected” (Thorme 1991, p.301). Environmental rights thus provide tools through which the goals of safeguarding both human rights and the environment may be pursued simultaneously. Second, environmental rights offer legal mechanisms that enable individuals and groups to redress environmental grievances. In particular, this relatively new set of rights may help vulnerable populations achieve social justice. As “the worst victims of environmental harm tend also to be those with the least political clout” (Dommen 1998, p.3), environmental rights may bolster the ability of poor, marginalized groups to gain access to the legal system in order to pursue corrective, restorative, and compensatory outcomes that bring society closer to a just order. Some preliminary analyses suggest that procedural environmental rights, for example, may increase the likelihood of achieving environmental justice outcomes (Gellers & Jeffords 2015).

Forms of environmental rights

Environmental rights generally appear in one of three forms—procedural, substantive, or solidarity rights. Procedural environmental rights refer to legal provisions that “promote the transparency, participation, and accountability that form the cornerstones of environmental governance” (Bruch et al. 2001, p.135). Such rights guarantee “(1) freedom of association, (2) access to information, (3) public participation in decision-making, and (4) access to justice” in environmental matters (Bruch et al. 2001, p.176).¹ Procedural environmental rights can serve as a means of achieving objectives related to the environment or as an end unto themselves through the promotion of discourse and democracy (May 2013, p.28). According to Boyd (2012), 28 countries have constitutions that feature procedural environmental rights.² As an example, Albania’s constitution guarantees citizens “the right to be informed about the status of the environment and its protection” (Albania Const., ch. IV, art. 56 (2012)). Observers have characterized these rights as among the most important recent developments in human rights law (Boyle 2012) and synonymous with the very concept of environmental rights (Atapattu 2002, p.72).

Substantive environme...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of figures and tables
• List of abbreviations
• Acknowledgments
• 1 Constitutions, the environment, and human rights
• 2 National constitutions in world society
• 3 The global expansion of environmental rights
• 4 The experiences of Nepal and Sri Lanka
• 5 Constitutions for a greener future?
• Appendix: Technical discussion of qualitative research methodology
• Index