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Sets out the general background and rationale for the central claim of this book, namely, that a right of every individual to an environment adequate for their health and well-being should receive express provision in the constitution of any modern democratic state. Introduces the six general lines of criticism in the order in which they will be addressed in the remaining chapters.

The main question of this chapter is whether the constitutional enhancement of citizens’ environmental rights in affluent states might exacerbate the environmental problems of poorer nations. It is pointed out in response that the environmental interests of the rich are already better protected than those of the poor because the latter have less power to resist the imposition of threats to them. This is largely a result of market forces operating under a regime of rights that is in principle opposed by the right to an adequate environment. The interests of poorer countries do not oppose the development of constitutional environmental rights in richer countries. Rather, their interest is to bring about conditions that it would make it possible to secure those same rights for themselves. Indeed, some of the most important precedents in the field of constitutional environmental rights have been set in poorer states. The conclusion is that constitutionalising environmental rights contributes to rather than detracts from the process of building environmental justice, both domestically and globally.

Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.

Argues that any state that is constitutionally committed to the recognition of human rights ought to constitutionalise a right to an adequate environment. Rebuts

the claim that constitutional provisions relating to the human right to an adequate environment should be made only in the form of a policy statement and not as a fundamental right. Rebuts the further claim that the right to an adequate environment should be placed with those rights of a second order – the ‘social rights’ – rather than among the fundamental rights of a constitution. Problematises the distinction between fundamental and social rights, but also shows why the right to an adequate environment does not resemble a social right.

Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political revision have the effect of pre-empting decisions that might otherwise be arrived at through democratic procedures. To the extent that environmental rights can be taken to embody substantive value commitments, they would appear to be vulnerable to the criticism that the constitutional entrenchment of them is undemocratic. Certain procedural rights, however, are necessary for the very functioning of democracy as such. Can procedural environmental rights be justified on this ground? And what about the substantive right to an adequate environment? Argues that both kinds of environmental rights, in common with some existing and far less controversial rights, can in fact be justified on the very grounds that democracy itself is justified.

This chapter incorporates arguments and observations from earlier chapters into a case for a version of the equal shares approach of equal per capita national emissions allowances, contrasting this approach with the equal burdens model in which costs of mitigation and adaptation are equally assigned. A case is made against several versions of the equal burdens approach (including the Kyoto Protocol and the Bush administration's emissions intensity proposal) as being unjust, and a modified equal shares approach is defended against several anticipated objections. The case is made for instantiating the equal basic access to the earth's atmospheric services as a moral and legal environmental right, drawing upon Shue's distinction between basic and non-basic rights, and comparing this right with the claimed right to develop. Finally, it makes the case for procedural fairness in global climate policy development, urging recognition of this democratic norm for both principled and practical reasons.

This chapter examines the increasing number of international investment disputes where issues relating to environmental rights, sustainable development and foreign investment protection were inextricably intertwined, in order to determine whether arbitrators have approached such interrelationships by taking environmental and sustainable development principles into consideration. It identifies the status and relevance accorded to environmental principles and obligations, either of a customary or treaty nature, in investor-state disputes. The chapter's purpose is to shed into light the extent to which arbitrators are prepared to take into account the obligation of host states to protect the environment and their citizens' right to a healthy environment. The final part of the chapter focuses on the relationship between investment law and the exercise of environmental participatory rights (information, public participation, and access to justice in environmental matters) at the national level.

This chapter focuses on the impact of environmental human rights on foreign investors' operations and the role of intergovernmental organizations in ensuring that such operations respect internationally agreed minimum standards. In the context of international practice related to corporate environmental accountability, the chapter scrutinizes the preventive role of intergovernmental organizations vis-à-vis foreign investors' actual or potential negative impacts on environmental human rights in the country in which they are operating. It explores the growing international practice spearheaded by international organizations of ‘translating’ inter-state obligations into normative benchmarks adapted to the reality of private operators, mainly foreign investors, based upon the interpretation and implementation of a combination of international soft and hard law instruments. The contribution therefore assesses the relevance for foreign investment of corporate environmental accountability.

Environmental justice refers to both a concept and a social movement that originally spun off from the American civil rights establishment in the 1980s. The core idea focuses on the now well-established fact that members of vulnerable population groups tend to experience disproportionately higher levels of exposure to environmental hazards, less access to green amenities, and fewer opportunities to have their environmental concerns heard and remedied compared to their wealthier and whiter counterparts. Environmental justice terminology is deeply embedded in contemporary environmental discourse and governance in multiple countries, but its ability to alleviate real instances of environmental mal-distribution has been strongest at the local level thanks to the concept’s power to mobilize diverse networks of activists around local causes.

This chapter provides a definition of rights and describes the distinction between the categories of positive and negative rights. It first examines the rights movements' campaigns to add education, labor, and environmental rights to state constitutions before discussing the controversy surrounding the positive–negative distinction. It defines positive rights as those that require government intervention in order to protect people from threats that are not directly or solely governmental. In contrast, negative rights are those that require government to restrain itself in order to protect people from threats that stem directly from an overbearing and intrusive state. The chapter suggests that state constitutions and the politics that have surrounded them demonstrate the importance of positive rights as an enduring feature of the U.S. constitutional tradition.

This chapter discusses the innovative approach adopted by the superior courts in South Asia of using existing constitutional provisions to encompass environmental rights, and highlights the pioneering role that the Supreme Court of India has played in the region. Other actors- lawyers and civil society groups - have contributed to this process. The chapter discusses the benefits and limitations of using a human rights framework for environmental issues and notes that further study is necessary to evaluate the impact of public interest litigation in the region. It uses MAPs framework adopted in this volume, discussing the mechanisms and strategies used by actors in the pursuit of change with the ultimate goal of achieving social change and pathways for rights realization.

This chapter explores the links between human rights and environmental law in the Asian and Pacific regions. It discusses the development of a substantive right to the environment and the ways in which this right has been recognized at regional and national levels. It canvasses procedural aspects, including access to information, participation in environmental decisions and access to justice. While most countries in these two regions are members of the global human rights treaties, implementation of those instruments remains underdeveloped. The right to environment is also explored. Despite low levels of implementation of environmental protection in some countries, the courts have been able to achieve significant environmental outcomes by using national constitutional provisions such as the right to life. Progress has been made in the development of closer links between human rights and the environment in the Asia-Pacific region, but the situation remains patchy compared with other regions.

This chapter examines the relationship between religion and environmental rights. It begins with an overview of important thresholds in human rights theory and its intersections with religious thought. It then considers three categories of rights-based responses to environmental problems: those that specify an environmental condition of the human dignity protected in existing rights protections; those that expand the scope of human dignity to include rights to ecological memberships; and those that recognize rights of other-than-human holders. Each category involves projects that use rights to achieve environmental protection as well as projects that promote environmental protection for the sake of protecting human dignity. It also discusses the issue of environmental justice and rights of nature and concludes by asking whether environmental rights harmonize with the received conventions and cultures of human rights, or whether they begin to shift , challenge, and reconstruct rights-oriented moral cultures.

In this chapter, Michael Mason examines information disclosure obligations within the 1998 Aarhus Convention (Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). The chapter demonstrates how the much-lauded “Aarhus environmental rights” express a particular blend of procedural entitlements (and duties) with limited institutionalization of the substantive right to a healthy environment. In historicizing the adoption and functioning of Aarhus environmental rights in Europe, Mason demonstrates that an original democratization impulse underpinning environmental disclosure, in this case intended to promote the spread of democracy in Eastern Europe, is being jeopardized by a concurrent market liberal push for open markets and privatization. Mason concludes that Aarhus environmental rights are limited in their transformative potential partly by the discretion accorded to countries in interpreting such rights, but also by the exclusion of private entities from mandatory disclosure obligations, ensuring that disclosure has few market-restricting effects in this case.

The relationship between human rights and environmental protection in international law is far from straightforward. A new attempt to codify and develop international law on this subject was initiated by the UN Human Rights Council in 2011. The chapter explores three possibilities for codification and progressive development: Procedural rights are the most important environmental addition to human rights law since the 1992 Rio Declaration, and any attempt at codification must take this into account. Second, there is a case for articulating a right to a decent environment in substantive terms, but it should be located within the framework of economic and social rights. Third, the extra-territorial application of existing human rights treaties to transboundary pollution and global climate change remains unresolved. If human rights law is to address such issues it needs to treat the global environment and climate change as the common concern of humanity.

This chapter analyses the tight linkages between human rights and environmental degradation due to substandard corporate conduct. It then proceeds to outline the development of international standards on corporate responsibility and accountability in relation to environmental protection, highlighting the significant level of detail and convergence of international standards for corporate environmental accountability. Against this background, the chapter systematically examines instances in which conceptual and normative developments under international environmental law, and in particular under the Convention on Biological Diversity, have contributed to developing international standards on corporate responsibility to respect human rights. The chapter furthers the understanding of the key concept of benefit-sharing, teasing out its inter-state and intra-state implications, as well as its current and potential applications to private companies. It concludes with some future perspectives on the role of benefit-sharing in the context of the green economy vis-à-vis the environmental and human rights dimensions of corporate accountability

The only social force powerful enough to conserve attitudes conducive to sustainability from one generation to another is culture itself. The downside of a society devoted to sustainability may be a tendency toward conservatism and risk of stagnation. Sustainability in practice must be kept dynamic in order to remain attractive for living. Sustainability to be positive and relevant to people’s own life goals and choices or it will be resisted. The right to health and to health care is recognized internationally and in the Universal Declaration of Human Rights (1948) but is not universally accepted in the United States. “Environmental rights” is the concept of the right to a safe and clean environment and is based on the theory of “material rights.” “Environmental justice” emphasizes ending disparities and discrimination in risk. NIMBY (“not in my backyard”) refers to local movements to resist unwanted land uses (LULUs).

New possibilities for conceiving and articulating the environmental dimensions of human rights require new ways of understanding the intersection between the private sector and environmental norms. This chapter offers a counterweight to visions of environmental law-making that give lopsided attention to states. The key objective is to move beyond predictable normative debates in order to illuminate less-noticed aspects of ‘private’ sector engagement with environmental norms. This attention to some of the less glamorous aspects of private sector activity — due diligence, choices of legal techniques, and strategies for framing knowledge — deepens the prevailing dominant vision about the ‘private’ sector and the environmental dimensions of human rights. Private sector actors do not occupy a separate universe from states, governments, and key institutions. It is time to stop writing our accounts of law as though they do.