Environmental Rights and Wrongs: Implementing Environmental Constitutionalism
Eivind Smith Festschrift, Marius Gulbranson Nordby et al., eds., (University of Oslo Press 2020)
15 Pages Posted: 12 Aug 2020
Date Written: November 01, 2019
Abstract
As of 2018, the UN Environment Programme concludes that 88 countries have constitutionally instantiated an express constitutional right to a healthy environment. At least another dozen recognize a right to a healthy environment as implied by other rights, such as a right to life or dignity. Substantive environmental rights are also reflected at the subnational level in various countries, including Brazil, Germany and the United States. All told, the UN Environment Programme reports that 150 countries have environmental provisions in their constitutions, all contributing to what the current the UN Human Rights Council’s Special Rapporteur on the Right to a Healthy Environment has called an ‘environmental rights revolution.’ Moreover, about 130 nations are also subject to regional agreements that explicitly or by interpretation embody a right to a healthy environment, including the African Charter on Human and Peoples’ Rights (“all peoples shall have the right to a general satisfactory environment favorable to their development”). In addition, there are multi-faceted efforts at international, regional, national and local levels interrogating and explicating how people have fundamental rights to healthy surroundings, including the UN Environment’s Environmental Rights Initiative, appointment of the Special Rapporteur on the Right to a Healthy Environment, and associated proposals for international recognition of a such rights. But what’s unclear is whether and the extent to which recognizing environmental rights is worth the coin, yet, and if so, why it is a better use of time and energy than by, say, protecting other established rights, working to enact and enforce environmental laws, or by implementing other regimes, such as the UN Sustainable Development Goals. The results are mixed, despite a surfeit of good intentions and practices. Accordingly, this chapter invites candid, evidence-based conversation about whether and the extent to which rights to a healthy environment are implemented in general and judicially in particular.
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