All too often, rights-based approaches to environmental protection tend to be discussed in terms implying that not only are rights-based approaches inherently progressive, but that ‘the environment’ itself is a relatively straightforward concept – as if its meaning is agreed and stable.
The three articles making up this edition of the Journal of Human Rights and the Environment, in their different ways, deploy various references to human rights, rights-based approaches to environmental protection, and to ‘the environment’ – but even within this single edition, the instability of the ‘environment’ as a referent is richly implied. A range of questions emerge in the articles, concerning the relationship between human rights and ‘the environment’ as a construct (Gellers), the relationship between human dignity and ‘environmental’ protection (including, potentially, using an expanded conception of human dignity to protect ‘the environment’) (Daly and May), and the troubling sense in which ‘protection of the environment’ can be deployed as a legitimation of disciplinary practices of neoliberalism (Dehm).
It is fascinating to read the articles with two particular contemporary critiques of the notion of ‘the environment’ in mind as a background. First, Philippopoulos-Mihalopoulos, introducing Critical Environmental Law as a thought-provoking New Materialist intervention into environmental legal thinking, argues that the term ‘environment’ relates etymologically to the verb envirer in French. 1 This verb suggests something that turns around something else – in this case, the human subject as the mythical stable referent around which ‘the environment’, reduced to a mere objectified context for human agency, revolves. For Luke, on the other hand, the term ‘environment’ signals an even more sinister contemporary encirclement. 2 Drawing likewise upon French etymology and on the history of the deployment of the verb to environ, Luke argues that the verb signals an encircling or beleaguering of space or spaces – originally in a military sense. ‘The environment’, read in this light, is revealed to be a series of sites encircled or carved out for the neoliberal eco-policing of environmental resources: a form of eco-governmentality.
Luke's suspicion concerning the hidden scripts driving the ‘eco-diction’ by which ‘nature’ is ‘made to speak as environment’ and deployed in the service of eco-governmentality is echoed in Julia Dehm's contribution to this edition. In ‘Indigenous peoples and REDD+ safeguards: rights as resistance or as disciplinary inclusion in the green economy?’ Dehm asks whether the REDD+ safeguard regime is – in effect – an operationalization of neoliberal governmentality that produces indigenous peoples as neoliberal green market subjects. Dehm's contribution, moreover, retains a degree of suspicion concerning the ambivalence of rights themselves – an ambivalence well rehearsed in critical human rights literatures, but arguably much less rarely addressed in mainstream environmental rights discourse.
Dehm's extensively researched contribution focuses on an interrogation of discourses and frameworks concerning REDD+ and its management of forest ecosystems – and, in particular, on the extent to which the discourses, frameworks and governance structures visible in the REDD+ scheme function as disciplinary strategies. She explores the convergence in discussions around REDD+, noting that such discussions have operated precisely to marginalize more fundamental questions concerning the very desirability of schemes such as REDD+. Such important questions are marginalized or perhaps even occluded by a discursive convergence focusing on modes of implementation and ways of mitigating potential risks and promoting benefits – arguably a discursive encirclement resistant to questions concerning the need for the scheme's existence in the first place. Focusing on discussions of risks and benefits concerning tenure reform and processes towards free, prior and informed consent (FPIC), Dehm identifies, indeed, a contemporary logic of ‘expulsion’ (a term she draws from Sassen), which ‘hangs as a spectre over REDD+’.
Expulsive logic, however, is not the only pernicious logic at work in REDD+ implementation. Dehm argues that the problem of the social in relation to REDD+ is best understood to be a process of ‘fixing people in place’. By this, Dehm means that REDD+ converts ‘forest peoples into environmental service providers of the “green economy”’. In other words, REDD+ operationalizes the disciplinary appropriation of forest peoples – a strategy freighted, moreover, with particular risk for those appropriated. Risk, indeed, is doubled up, because of a troubling confluence between the volatility of price fluctuation in international carbon markets and the way in which REDD+ has prohibited former livelihood activities or subsistence practices.
It is not difficult to see how such disciplinary appropriation produces and reproduces subjects who are inserted into the so-called global green economy in service of neoliberal scripts and agendas. Dehm notes that tenure reform and processes towards FPIC as safeguards could potentially facilitate resistance to REDD+ schemes, but that they also ensure greater disciplinary inclusion in REDD+ projects. She accordingly argues that ‘promoting more inclusive, participatory and rights-based models of REDD+ implementation can make real material differences for people who may have long histories of economic, social and political marginalization’. Dehm therefore endorses the ‘rights before REDD+’ approaches taken up by communities and advocates, but simultaneously draws attention to neoliberalism's incorporation of techniques and strategies that lock dissent within certain parameters of neoliberalism's own making. Dehm rightly points out that even if rights are realized in REDD+, the ‘broader distributional questions raised by carbon markets and their allocations of differentiated privileges, obligations and responsibilities’ remain unaddressed. She also notes, importantly, that the rights recognition operative in REDD+ is ‘made dangerously conditional on forest peoples taking action in the name of a global “common concern”, even as the responsibility of those with the greatest historical greenhouse gas emissions is obfuscated’.
Dehm's account thus richly suggests the applicability of Luke's critique of ‘environmentality’. It also points to the troubling circularity of neoliberal environmental strategies around a central, privileged subject – in this case, the juridical-market subject produced by neoliberal law and governance strategies driven by an overwhelming ideological commitment to the dominance of market-based approaches.
Such realities signal a troubling ambivalence in environmental governance and rights-based practices with allegedly environmental ends. It is important, therefore, to consider how the vulnerable subjects produced by such strategies are to be defended. It is equally important to consider how the vulnerability (in the sense of the material affectability) of the living order should be addressed in the context of environmental and human rights-based thinking and praxis. Is there a way of thinking about rights and their subjects that brings a more hopeful convergence between human and ‘environmental’ vulnerability? What legal strategies for this might already exist?
For Erin Daly and James May one answer to those questions would surely lie in rights-based constitutionalism. In ‘Bridging constitutional dignity and environmental rights jurisprudence’ Daly and May seek to bring human dignity and environmental quality into an explicit and intimate convergence – or perhaps even, on final analysis, a continuity. For these authors, such an evolution would have the capacity to internalize the protection of ‘nature itself’ within dignity discourse, via a broad conception of environmental human dignity.
Beginning with the observation that rights to human dignity and to environmental quality have significant commonalities, Daly and May note that both rights function as key drivers of modern constitutionalism and yet that, despite this, they predominantly evolve somewhat independently of each other. Daly and May set out to bridge the gap between these rights by questioning and then exploring their separation and potential for convergence. Of particular note, suggest Daly and May, is the fact that notwithstanding the existence of positive correlations between human dignity and the right to environmental quality, constitutional courts have been much more inclined to reason using appeals to human dignity than to constitutionalized rights to a quality environment and that there is a curious relative silence concerning the connection between human dignity and environmental rights jurisprudence. Recognition of the connections between dignity and environmental rights jurisprudence has been slow – and overall, to date, dignity-based reasoning and environmental protection have remained strangely and relatively disconnected.
Daly and May argue, however, that the two fields could productively converge in ways that would be mutually reinforcing. The authors argue that two-way cross-pollination is both possible and desirable, and that ‘those looking to implement environmental rights have much to learn from jurisprudence of constitutionalized rights to human dignity’. Indeed, Daly and May argue that on the basis of their analysis, ‘dignity rights jurisprudence has political, social and economic dimensions that map directly onto environmental rights protection, so it should not come as a surprise that the constitutional right to dignity would be relevant to the development of constitutional environmental rights’.
Addressing the predominant failure of dignity to be deployed in environmental rights discourse, Daly and May argue for ‘a comparative constitutional corrective wherein dignity rights jurisprudence plays a more prominent role in the treatment of environmental rights and embraces environmental constitutionalism more deliberately’. In concluding, Daly and May argue that ‘a healthy environment is an integral part of human dignity’. Equally, they suggest, human dignity ‘resides within nature’ and ‘the question of whether nature itself has (competing) rights, including dignity rights, becomes less pressing because human dignity rights can be used a means for advancing and protecting nature’.
Interestingly, the assumptions operative here tend to recall the stubborn centrality of humanity that Philippopoulos-Mihalopoulos drives at in his critique of the term ‘environment’. Implicit in Daly and May's formulation is the idea that ‘nature’ as a potential rights-subject somehow presents a less pressing concern because human dignity expands to protect nature as an aspect of that self-same human dignity. Human dignity thus remains decisively pivotal (in the sense deployed by Philippopoulos-Mihalopoulos) – and the human subject, necessarily, likewise. On the other hand, there is a sense in which human dignity understood as continuous with ‘nature’ might start to fray the radical separation of the traditional juridical human subject from ‘nature’. And if a decisive epistemic shift were to be embraced, in which a reimagined human being – inhabiting a de-centred ontological plane – were to be joined to an extension of dignity beyond the human, then it might, with skill and careful attention to conceptual nuance, be possible to bring Daly and May's conception of expanded human dignity into productive conversation with emergent modes of celebrating the agency and meaning-making significance of ‘nature’ in a more-than-human-world.
The contestability and fluidity of the term ‘environment’ is given a rather different meaning in the contribution of Josh Gellers to this edition. In ‘The great indoors: linking human rights and the built environment’, Gellers explores the potential for environmental rights to move beyond their predominant focus on ‘the natural environment’ to embrace environments constructed by human beings for human habitation and work. Gellers argues that environmental rights, in conjunction with international human rights concerning the provision of shelter, water and sanitation, and health, converge to make a powerful platform for the protection of rights in the ‘built environment’. Indeed, Gellers goes further to argue that the protection of ‘indoor environmental quality’ is necessary for the ‘full realization of health, housing, water and sanitation and environmental rights’.
Gellers’ methodological strategy is to deploy an analysis of relevant international legal provisions to make his case, suggesting that his argument has three important implications: the enablement of a rights-based mechanism through which victims of ‘indoor environmental harms’ can make claims for redress; support for the inclusion of ‘green building development’ as an important component in environmental protection efforts and agendas; and the provision to policymakers of measurable, attainable steps towards the protection of environmental rights.
Gellers notes that the term ‘environment’ remains fluid. It is clear from the context that Gellers refers to the semantic space in which the term ‘environment’ has to include the built environment. However, Gellers also clearly relates such semantic spaciousness to the possibility of ‘thinking in a more ecological orientation’. This more ecological orientation could provide a wider interpretation of ‘the environment’.
This observation, in a sense, returns us full circle to some of the questions raised at the beginning of this editorial reflection. The ‘environment’ is very much a construct filled with multivalent possibilities, both promising and troubling. The term ‘environment’ seems, on analysis, to be driven by a range of scripts inspired by a range of agendas and values, and, in that sense, remains a site of tension and negotiation (just as human rights does for critical legal theorists). Troublingly, the term ‘environment’ in virtually all of its instantiations in human and environmental rights discourse predominantly circles around the human. Increasingly, in addition, the term is made available for pernicious deployments in modes of neoliberal eco-governmentality. Even in this edition alone, the term ‘environment’ possesses considerable plasticity, stretched as it is to include a reference to ‘nature’ (Daly and May), to the ‘built environment’ (Gellers), to embracing human dignity (Daly and May), and to operationalizing (functionally rationalizing) modes and governance orders of neoliberal appropriation (Dehm). In a sense, all these tensions signal the necessity of remaining critically reflexive about the languages and constructs that jostle for semantic dominance in any given context. These tensions also reflect a broader and deeper set of questions concerning how it might be possible to think about, respond to and act within a more-than-human-world.
Rights-based approaches are central to most attempts to answer such questions, at least in scholarship addressing law and governance strategies. Each of the contributions here reflects, in one way or other, on rights-based strategies. For Dehm, rights-based strategies exhibit an ambivalence (and as noted above, the ambivalence of rights is common ground for a wide range of critical human rights theorizing); for Daly and May rights appear to be, on the face of it at any rate, intrinsically positive tools for environmental dignity, while for Gellers, the ‘logical expansion of the concept of environmental rights [to embrace the built environment] echoes the growing consensus that human rights are indivisible and interdependent in terms of their implementation, importance and content’. For Gellers, such inclusive engagement with human rights and the ‘broader physical environment in which humans live, work and play is crucial to the fulfilment of all human rights, wherever they may be threatened’. And while it is possible, of course, to question the expansiveness of this claim, it is certainly the case that the question of how ‘the environment’, ‘the human’ and the meaning of ‘human rights’ is constructed is incontrovertibly important to a wide range of material outcomes.
A Philippopoulos-Mihalopoulos, '‘Towards a Critical Environmental Law’', in A Philippopoulos-Mihalopous (ed), Law and Ecology: New Environmental Foundations, (Routledge, Abingdon 2011) 18-38.
at 22: the word derives from ‘en’ (in) and ‘virer’ (‘to turn’) – ‘This implies an inside that stands erect and an outside that surrounds us, the dervish-like outside that whirls like a frilly skirt around a stable pivot … not only stable, fixed and unyielding but significantly “central”’.
Anna Grear - Editor in Chief