From Constitutionalized Environmental Rights to contested Sustainable Development and beyond – developing a 4As approach to substantiating environmental procedural rights

Does the constitutionalization of environmental rights usher in a new sense of optimism, or does the new era of Sustainable Development Goals (SDGs) harbour potential disappointment?

Recent environmental legal research finds cause to celebrate an ‘environmental rights revolution’ (Boyd 2011). Reflecting ongoing research on solidarity in human rights (Khoo 2015) and the right to a healthy environment (CC’s unpublished PhD), this paper argues that the promise of environmental rights can only be fulfilled by moving the common, but differentiated responsibility principle from its current location within environmental law and norms, to fundamentally re-connect human rights and sustainable development through the central human rights principle of solidarity.

Global attention has turned to the Sustainable Development Goals, however, there are worrying accounts of a retreat from rights (Brolan et al 2015). We argue for the recovery of a rights-based development agenda comprising access rights, benefit-sharing and environmental protection. Access rights have been promoted as the route to solving environmental problems. While necessary, information, participation and access to justice are not sufficient to answer substantive claims for environmental resources and redress, nor will they achieve environmental protection on their own. The principle of common, but differentiated responsibility enables the development of concrete arrangements for adequate reparation, benefit sharing and respect for environmental limits.

The paper addresses a perceived gap in current thinking, focusing on an intermediate level of action and rights mobilization – between constitutionalizing environmental rights and globalizing developments. The authors argue that a re-making of Ksentini’s developmentalist interpretation (1994) could be timely and possible, bearing in mind some promising developments from the Latin American and Caribbean region. The paper discusses the limitations to developmentalist state action within the current international system of global competition states. These effects limit existing protections and remedies. As such, these argument provide grounds to critique the Independent Expert, John Knox’s perspective on the global order, and to call for more inclusion, and attention to, bottom-up environmental actors with greater ability to question the global order in the interests of environmental and social justice.

The time has come to reunite democratising, but largely procedural access rights with solidarity rights in the pursuit of sustainable development. From solidarity, understood as common, but differentiated responsibilities, comes a mandate to re-distribute power and resources in order to achieve inclusive, non-discriminatory participation, and to engage in socially just development while maintaining an ecologically safe space for humanity (Pedersen 2010; Leach et al 2013).

This seminar is one of a series of seminars in the 2016 Whitaker Ideas Forum.  Dr Khoo will be representing the Environment, Development, and Sustainability Research Cluster.

References

Boyd, D (2011) The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment. Vancouver: UBC Press

Brolan,C.; Hill, P.S. & Ooms, G. (2015) “Everywhere but not specifically somewhere”: a qualitative study on why the right to health is not explicit in the post-2015 negotiations, BMC International Health and Human Rights, 15:22

Khoo, S-m. (2015). Solidarity and the Encapsulated and Divided Histories of Health and Human Rights, Laws, 4, 272–295

Ksentini, F (1994) Review Of Further Developments In Fields With Which The Sub-Commission Has Been Concerned Human Rights And The Environment EC/CN.4/Sub.2/1994/9

Leach, M., Raworth, K., & Rockström, J. (2013). Between Social and Planetary Boundaries: Navigating Pathways in the Safe and Just Space for Humanity. In World Social Science Report 2013, Paris:ISSC, 84-89

Pedersen, O. W. (2010). Environmental Principles and Environmental Justice. Environmental Law Review, 12, 26-49.