Environmental Rights: Recognition, Implementation and Outcomes

Cardozo Law Review, Forthcoming

29 Pages Posted: 11 Sep 2020

See all articles by James R. May

James R. May

Widener University Delaware Law School

Date Written: September 5, 2020

Abstract

The field of human rights engages rights that are thought to inhere to humanness, commonly categorized as either civil and political or social, economic and cultural. Civil and political rights include the right to vote, assemble and participate, as well as to free speech, religion and legal processes. Socioeconomic and cultural rights include dignity, education, health, food, water, sick leave, family leave, and employment, to name a few. A healthy environment occupies the liminality between. But until fairly recently, the human rights oeuvre largely avoided the question as to whether humans are entitled to a healthy environment.

‘Global Environmental Constitutionalism’ has changed that. It explores the constitutional engagement, incorporation, adjudication and implementation of environmental rights, duties, responsibilities, procedures, policies and other measures that promote the twin aims of environmental protection and a right to a healthy environment. As of this writing, the constitutions of at least 84 countries now expressly afford a right to a healthy environment of some sort. Courts in several additional countries have inferred a right to a healthy environment from other established rights, largely to life, dignity or health.

Global environmental constitutionalism involves much more than whether to recognize a right to a healthy environment. Scores of countries have also amended or adopted constitutions to grant rights to information, participation, justice, water, sustainable development and a safe climate; to recognize rights of current and future generations, indigenous peoples, and of nature; to impose (sometimes reciprocal) duties to protect the environment and the climate and engage in environmental assessment; and to promote myriad environmental policies, including sustainability. Environmental constitutionalism shows growth in the areas of climate litigation, rights of nature, procedural rights, application of human dignity under law, water law and sustainability.

The task at hand is to explain how a human right to a healthy environment emerged and, ultimately, encouraged and converged with global environmental constitutionalism, and, to explore the extent to which environmental rights are being implemented and are improving environmental and human health outcomes.

Keywords: Human Rights, Global Environmental Constitutionalism, Right to a Healthy Environment, Constitutions, International Law, Regional Conventions, National Constitutions, Implementation, Court Cases

JEL Classification: K32

Suggested Citation

May, James, Environmental Rights: Recognition, Implementation and Outcomes (September 5, 2020). Cardozo Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3687070 or http://dx.doi.org/10.2139/ssrn.3687070

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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