Chapter 3: The legitimate role of rights-based approaches to environmental conflict resolution
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Rights-based approaches to environmental conflict resolution should be viewed from the wider public law context. For example, Martin Loughlin maps the transition from a liberty-focused constraint on law based on jurisdiction, to a rights-focused approach, to ‘intensive’ judicial review based on legality. This seismic shift away from common law (customary or practical) reasoning adopts a constitutional or statutory approach to describing liberties normatively using the ‘language of rights’, and builds upon the academic tradition that seeks to aid understanding by setting ‘forth the law as a coherent whole’ and ‘reducing the mass of legal rules to an orderly series of principles’. This chapter will explore and critically analyse the effect of these trends on environmental conflict resolution from a trans-national New Zealand perspective. The underlying thesis of this chapter is that the possibilities and tensions experienced by the courts in crafting a principled approach to human rights jurisprudence provides a transparent methodology for determining polycentric issues, and that there is a legitimate role for rights-based approaches to resolving environmental conflict.

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