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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.

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.

This chapter takes a practical and principled look into the future, exploring whether and how individual sanctions could lawfully and legitimately be adopted under European law. The chapter is structured as follows. Section 1 examines how autonomous sanctions against individuals could be adopted in compliance with procedural rights. Section 2 considers procedural protection from European sanctions giving effect to UN lists. Section 3 addresses the necessary level of judicial control over individual sanctions. It considers the role of the judiciary in determining the line that separates lawful counter-terrorist measures from unjustifiable human rights restrictions. Section 4 discusses the proportionality of individual sanctions.

This chapter compares a system of human rights guarantees of security with libertarian natural rights. Security rights are a solution to a collective action problem that would arise in a state of nature with libertarian natural rights, the internal security problem. To be endorsed by the main principle, a solution to that problem requires guarantees of procedural rights, which have no analog in natural rights. The chapter discusses various problems that have been thought to be fatal to consequentialism: (1) the problem of intentionally punishing the innocent, and the related problem of inadvertently punishing the innocent, which is a challenging one for nonconsequentialists; (2) strict criminal liability; and (3) organ harvesting. The discussion of inadvertently punishing the innocent leads to a consideration of the doctrine of double effect. The chapter concludes the chapter with a comparison of his account with Judith Thomson’s trade-off idea, illustrated by the trolley cases.

This chapter explores some of the more important issues relating to procedural rights. It begins with a brief introduction to rights generally, and to procedural rights in particular. It then moves on to a more detailed analysis of first-order rights in administrative processes, with particular reference to discretionary contexts. It also examines the issue of mistakes; mistakes, that is, arising either from imperfect procedures or from inadequate procedures, the former being inherent in some forms of process, and the latter usually being attributable to insufficient resources. Finally, it provides an outline of various kinds of costs which influence the design of procedures, followed by a brief account of how competing considerations can be dealt with.

Ireland’s Mental Health Act 2001 requires that all involuntary admissions for mental disorder be reviewed within twenty-one days by a three-person Mental Health Tribunal. This chapter focuses on key written judgments of the High Court and Supreme Court reviewing decisions of Mental Health Tribunal. Despite some statements to the contrary, the general picture which emerges is that the courts have not engaged in robust supervision of mental health tribunals. Instead, the general tenor of the case-law has been to endorse decisions of tribunals to affirm detentions, and to limit access to the courts to the most extreme violations of procedural rights. The chapter argues that this is a disappointing outcome, in light of the supposed rights-based focus of the Mental Health Act 2001.

This book focuses on the concepts of justice and fairness in relation to procedures. It provides a general framework for the understanding of procedures and procedural fairness, a framework within which different types of legal processes can be identified and where notions such as procedural rights, process values, the worth of participation, and the problems of costs can be discussed.

This chapter explores the role of the right of access to justice in consumer law. It argues that, although access to justice has been recognized as a human right, consumers still face barriers to enforce their rights effectively, in particular in cases of collective interest, due to high costs, risks, and increasingly complex cross-border procedures. Against this background, this chapter explores how access to justice can be facilitated by collective actions, specific ADR procedures and new funding schemes; among these, the Canadian class action funds and contingency fees.

In “Principle, Policy, Procedure,” Ronald Dworkin poses the following conundrum: In every substantive legal dispute, one party has, as a matter of political morality, a right to win. Yet in procedural law, it looks as though courts routinely strike a utilitarian balance between the benefits and the costs of accurate fact-finding. If so, the court as a forum of principle is threatened by the utilitarian justification of its procedures; moreover, procedural entitlements do not create rights in Dworkin’s sense. Dworkin’s solution is to apply the principle of equal concern and respect so that procedural rules fairly distribute the risk of the “moral harm” of incorrect outcomes. But this solution has a consequentialist spirit that may not succeed in dispelling the conundrum. Some procedural rules are better understood as requiring people to be treated in certain ways directly as a matter of principle, rather than indirectly as calibrating moral harm.

Chapter 5 explores whether a wrongdoer forfeits her right against being punished as soon as she violates someone else’s rights or only after she has been duly convicted of doing so. Governments unquestionably have pressing reasons to design their criminal legal institutions carefully so that no citizen is vulnerable to being wrongly punished, overpunished, or otherwise harassed by government officials, but the chapter argues that these reasons are wholly instrumental. The chapter thus concludes that there are no preinstitutional procedural rights, not even a right against being punished without first being found guilty by a fair and reliable process.

A state’s procedural right to life obligations relate to the circumstances in which a state must conduct an investigation following a death. Procedural right to life obligations also extend to how and when the investigation is conducted, and by whom. This chapter explores these issues in detail and advances a hypothesis in respect of what amounts to a human rights law-compliant investigation that would satisfy a state’s procedural right to life obligations during armed conflict. It also considers the similarities and differences between the requirement to investigate a death pursuant to international humanitarian law and that pursuant to international human rights law.

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 article explores the human right to a clean environment from the substantive and procedural points of view. It analyses the current state of affairs regarding the human right to a clean environment in the area of the United Nations; various courts and tribunals, including the African Commission; the Inter-American Commission/the Inter-American Court on Human Rights; and the European Court of Human Rights. It also analyses the provisions of the Aarhus Convention and its reception within the European Union. The conclusion reached is that the analysing of the existence of the substantive right to a clean environment and overenthusiastic approach to its application by courts and tribunals does not reflect the practice of states. The suggestion is made to focus on the procedural right as enshrined in the Aarhus Convention.

This chapter examines the claim made by numerous legal scholars that the presumption of innocence is a substantive human right, and thus not merely a procedural one. Unlike other basic human rights, the presumption of innocence does not secure one or more of the vital aspects of human agency. This chapter examines numerous arguments to the effect that it is a substantive human right and finds them wanting. A substantive right to be presumed innocent is also not needed to protect the vital interest persons have in their reputations. Finally, accused persons themselves are often eager to waive the right to trial, and with it any presumption of their innocence, in order to receive reduced punishment or get on with their punishment. This fact fits better with conceiving of the presumption of innocence as a procedural right, rather than a substantive one on a par with freedom or privacy.

In the written contribution that it made to the preparation of the Brighton Conference (18–20 April 2012) on the reform of the European Convention of Human Rights (ECHR), the European Court of Human Rights (ECtHR) proposed several amendments to the Convention for states to consider. Three of these were accepted: a change in the age-limit for judges, the removal of the power of the parties to a case to veto relinquishment to the Grand Chamber, and a shorter time-limit of four months for making an application to the Court. The year 2012 was a year of transition and change in the leadership of the institution. From a quantitative perspective, in 2012 the Court delivered 1,093 judgments. All Grand Chamber judgments are of at least high-level importance.

This chapter is a review of the basic arguments against religious arbitration. “One Law for One People” argues that allowing any private law is bad. A second argument is that religious arbitration produces substantive injustice, and a related argument is that religious arbitration produces procedural injustices. Some argue that religious arbitration is often coercive and is used to entrench unjust power relations in religious communities, and others modify that to claim that religious arbitration cannot be adequately policed or regulated in liberal societies committed to religious freedom. Related to this is the claim that secular enforcement of religious arbitration violates disputants’ rights to freedom of religion and maybe even that secular recognition of religious arbitration promotes isolation and non-integration among religious communities.

The past few decades have seen a slow but steady convergence of certain aspects of the realms of environmental law and human rights. A high quality environment is coming to be regarded as a necessary prerequisite for the enjoyment of some of the most fundamental human rights. This introduction summarises the book’s themes: human rights and the environment in the context of the private sector; decisions of the European and Inter-American courts concerning substantive and procedural aspects of human rights and environmental justice; human rights and the environment in the Asia-Pacific region with respect to constitutional, legislative, institutional and judicial developments and the issues of rights associated with various kinds of forced human displacement; and the future directions of human rights and environment law. The United Nations Independent Expert’s reports on the human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment are also canvassed.