Category Archives: Democracy

Climate Change and Human Rights (A. Sinden)

Author

Amy Sinden

Keywords

Human Rights, Climate Change, Politics

Abstract

Global warming may well be the most profound moral issue ever to face the human species. Profound moral issues demand a profound response from law, and as we enter the twenty-first century, human rights is (at least at a rhetorical level) the law’s best response to profound, unthinkable, far-reaching moral transgression. More fundamentally, it is the law’s strongest condemnation of the exploitation of the weak by the powerful. As such, it was the law’s response to the moral crises of the twentieth century, and I want to suggest that it may be an appropriate legal response to the moral crisis of the twenty-first century as well. Human rights function to counteract power imbalances in society. By acting as trumps human rights effectively put a thumb on the scale in favor of the weaker party in order to correct for the distorting effects of power. Because the economic model has become the dominant lens through which we view the world, climate change is often analyzed as a market failure brought on by the tragedy of the commons. But market failure is only part of the problem. There is a far more fundamental and intractable problem standing in the way of meaningful action to stem global warming. That is the political failure brought on by the enormous disparity in power and resources between those interests that stand to gain from climate change regulation and those that – at least in the short run – stand to lose. Thinking of climate change as a human rights issue can help us see that it is not just a matter of aggregate costs and benefits, but of winners and losers – of the powerful few preventing the political system from acting to protect the powerless many.

Citation

(2007) 27 Journal of Land Resources and Environmental Law 255

Paper

Climate Change and Human Rights

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The Search for Environmental Rights (J. L. Sax)

Author

Joseph L. Sax

Keywords

environmental rights, fundamental rights, democratic values

Abstract

For nearly two decades, efforts have been made to formulate an environmental right. Among the most prominent examples are the Stockholm Declaration of 1972′ and, more recently, the statement of principles for environmental protection and sustainable development of the United Nation’s World Commission on Environment and Development. Parallel endeavors also have been made in the domestic context. Proposals have been made periodically in the United States for amendments to the federal Constitution, and a number of states have adopted broad-ranging environmental provisions in their constitutions. Putting aside the specific issue of judicial supremacy that arises with the recognition of a constitutional right,’ there remains a pervasive problem that vexes every effort to state principles of environmental protection in the form of legal rights: what is the source of the claim that there is a fundamental environmental right, and how is one to determine its content? Specific rights usually grow out of some core social value. If environmental claims are to be taken as more than rhetorical flourishes or broad aspirational statements and are to be set in the context of rights, it is necessary to ask how they fit into the values underlying other basic rights. I propose here to sketch out a preliminary framework suggesting that while asserted environmental rights at first seem alien to most accepted conceptions of fundamental rights, there is an important link between certain environmental claims of right and baseline democratic values.

Citation

(1990) 6 J. Land Use & Envtl. L. 93

Paper

The Search for Environmental Rights

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Is Access to Environmental Information a Fundamental Human Right? (S. Kravchenko)

Author(s)

Svitlana Kravchenko

Keywords

environmental information, human rights, right of access to information, democracy, disclosure, decision-making

Abstract

Can access to information held by the State be seen as a fundamental right of the individual and a crucial component of democracy? What about access to environmental information? This Article attempts to answer these questions by exploring international treaties and agreements, national constitutions, and national information laws. The Article starts by providing some background and history on the issue of public access to government records. It analyzes the extent of the right of access to information, restrictions on access to information, procedures for obtaining information from governmental agencies, and remedies for violating the right of access to information. It also identifies problems that frequently arise in the field of public access to information and makes recommendations for promoting public access to environmental information, based on examples where such practices are already in place. Access to information allows the public to be aware of governmental decisions that can impact the environment and individual lives. It also allows the public to participate in criticizing, and thereby improving governmental decision-making. This ultimately can help to prevent harmful activities that can cause significant damage to the health of people and the environment. The Article contends that meaningful access to information must include these key principles:

• Maximum disclosure and transparency of governmental files should exist;

• Any exceptions for access to information should be narrowly drawn, with only limited and justifiable exemptions;

• Information should be provided free of charge or at reasonable cost; and

• Administrative or judicial remedies for denial of access to information should be available.

Citation

(2009) 11 Oregon Review of International Law 227

Paper

Is Access to Environmental Information a Fundamental Human Right? 

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Which direction for international environmental law? (Anderson)

Author

Paul Anderson

Keywords

Sustainability, governance, neoclassical economics, distributive justice, democracy, commons

Abstract

An enduring challenge to international environmental law is to facilitate the resolution of environmental problems faster than they are being caused. Prominent among potential foundations for substantive international environmental law to this end are (a) neoclassical economic theory (NET) and (b) distributive justice and deliberative democratic theories. Building upon existing critique, this paper makes two broad arguments. The first is that despite the influence of NET’s market-based prescriptions, solutions lie not in introducing and extending the privatization and pricing of nature, but instead in subsuming markets within an expanded and enriched public sphere that is characterized inter alia by decentralized, deliberative democratic decision-making. This contention suggests a need to reform substantive environmental law that is informed by NET. The second argument made is that limitations, in particular, of the deliberative democratic approach to environmental problems (e.g., prospects of achieving consensus on natural resource use and the efficacy of any consensus that might be reached) may be overcome by combining it with common key resource control – to put it crudely, by combining meaningful political with economic democracy. This revised foundation would offer a potentially viable foundation for IEL. It also offers guidance for incipient efforts to democratize environmental regulation.

Citation

(2105) 1 Journal of Human Rights and the Environment 98-126

Publication

Which direction for international environmental law?

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Explaining the emergence of constitutional environmental rights: a global quantitative analysis (Gellers)

Author

Joshua C Gellers

Keywords

Constitutions, democracy, environmental rights, human rights, international relations, survival analysis

Abstract

While the growing trend towards constitutional enactment of environmental rights has mainly been discussed in normative and descriptive terms, few scholars have endeavoured to explain the phenomenon in a systematic fashion and none have approached the subject from the perspective of international relations (IR). In this article, I seek to correct for this theoretical gap and augment the existing understanding of this global development in constitutional design. Using survival analysis, I examine normative, rationalist-materialist, and domestic politics explanations for the phenomenon observed. I find that the adoption of constitutional environmental rights is significantly associated with international civil society influence, human rights legacy, and level of democracy, and best explained by theories of domestic politics and norm socialization. This research suggests that the emergence of constitutional environmental rights signals a major shift in the international normative arena.

Citation

(2015) 1 Journal of Human Rights and the Environment 75-97

Publication

Explaining the emergence of constitutional environmental rights: a global quantitative analysis

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