Rebecca M. Bratspies
Human rights, environmental norms, legal process
This Article focuses on how international human rights and their associated environmental norms can be useful for deepening the domestic legal process, particularly in the area of public participation in environmental decision-making in an age of global warming. To make this argument, this Article looks at the process by which the United States approved oil leases in the Chukchi Sea, and how that process might have been improved had it been enriched by the international norms that would generally be considered to make up the putative right to a healthy environment. Part II provides a general introduction to the intersection of international human rights and environmental law. Part III offers a brief framework of the relevant domestic laws and then Part IV examines what the United States actually did to implement those laws in the context of the Chukchi Sea leases. Part V shows how interpreting these domestic legal obligations through the lens of the international environmental norms that make up the putative right to a healthy environment would make the domestic regulatory process not only better, fairer, and more legitimate, but also more likely to ensure that the state respects the humanrights of its citizens. At the same time, Part VI points out some key limitations of the anthropocentric human rights approach for achieving environmental ends.
This Article does not argue that there is an international human right to a healthy environment. Nor does it propose that the United States adopt international humanrights as articulated in the Universal Declaration of Human Rights and the International Covenants as domestic law. It is not that I necessarily disagree with either proposition, but both are theoretical matters, and this Article focuses on practicality-on how available tools for “on-the-ground implementation” can make for a better regulatory system. Thus, my argument is more prudential than normative: regulators should incorporate environmentalhuman rights concerns into domestic decision-making processes, not because incorporation of these concerns is mandatory under any existing hierarchy of law, but because it is useful.
(2010) 38 Georgia Journal of International and Comparative Law 649