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  • Series: Research Handbooks in Human Rights series x
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Edited by Robert Kolb and Gloria Gaggioli

This fascinating Handbook explores the interplay between international human rights law and international humanitarian law, offering expert analysis on the increasingly complex issues surrounding their application in conflict areas across the world.
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Sam Adelman

This Chapter discusses dominant views of nature in Western culture, the ways in which these have been exported throughout the world, and their effect on the environment. The central argument is that solutions to the planetary wide ecological crisis and climate crises are impeded by ideologies that fetishize growth and technology, such as developmentalism, extractivism and neoliberalism. These ideologies are buttressed by epistemologies of mastery that reinforce the false assumption that humanity can exercise dominion over nature without repercussions. The first section draws upon the lucid critique offered by ecofeminists such as Lorraine Code and Val Plumwood in order to examine impulses to mastery in patriarchal power and assumptions about human dominion over nature. Section 2 argues that epistemologies of mastery are forms of coloniality, a process of physical and mental colonization. Walter Mignolo’s view that un-thinking such epistemologies of mastery requires decolonial or border thinking is discussed, along with Boaventura de Sousa Santos’s concept of an ecology of knowledges that dethrones science as the acme of Western rationality on the basis that there are many ways of being, knowing and seeing, and that knowledge does not invariably lead to wisdom. The final section begins with a discussion of technological fetishism as the basis for an analysis of geoengineering as a contemporary form of hubris that draws attention away from the humbler but more rational alternative of reducing greenhouse gas emissions. The Chapter argues that geoengineering risks exacerbating human rights already under threat from climate change, including the rights to food, health, property, family life, the benefits of culture, and to peace and security. Seeking ways to engineer the climate suggests that human beings have learned nothing and forgotten nothing.

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Andreas Philippopoulos-Mihalopoulos

If the human can no longer be considered central to the world, how is the question of knowing affected? How does one know when one is thrown into the box of the Anthropocene, where being everywhere cannot be equated to being central to everything? This Chapter connects issues of the posthuman, in terms of methodology and as an ontological position, to the more specific issues of environmental degradation. The path followed is neither one of binarisms (such as anthropo/ecocentrism), nor one of third terms or third spaces which have thus far all too comfortably ‘solved’ the problem of human suprematism. Rather, the text begins in a space of ontological exposure and vulnerability, a space of continuum that is characterized by human/nonhuman indistinguishability. Yet, amidst this space of rapid flows and epochal pauses, human responsibility emerges more powerfully than any other. This is a situated responsibility that requires a deep ethical understanding of the position of each body with regard to the assemblage of which it is part. Finally, the text ends with a description of the main challenges of what I have called Critical Environmental Law.

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Lorraine Code

This Chapter argues for the centrality of ontological questions to analyses of climate change scepticism: questions about ‘who do we think we are?’, uttered provocatively and insistently to contest widespread presumptuous actions in the affluent world that attest to blithe assumptions that ‘we’ are entitled to consume and pollute as we will. With its origins in twenty-first century (mostly white) western feminist ecological thinking, the analysis focuses on practices of ‘we-saying’ to urge deconstructing a tacit belief in human sameness to move toward recognizing the scope and limits – indeed the situatedness – of even the very best ‘factual’ knowledge, urging that these factors matter not just in acquiring knowledge, but in understanding the world in which it claims pertinence.

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Peter D. Burdon

This Chapter presents a constructive critique of environmental human rights. The analysis is ‘constructive’ in the sense that it seeks to reveal the underlying assumptions and preconditions upon which a discussion of environmental human rights rests. Three key critiques are advanced. The first concerns the way environmental human rights embody an anthropocentric logic that abstracts human beings from the environment and from each other. I suggest that this abstraction gets produced and re-inscribed in the political and legal discourse of human rights and in its application to particular circumstances. Second, I describe how contemporary human rights discourse represents a ‘last utopia’ in the political juncture which right wing Hegelian Francis Fukuyama termed ‘the end of history’. Drawing on Samuel Moyn’s recent revisionist history of human rights, I consider how human rights have been used as a tool for repressing ‘radical politics’ and how the language of human rights acts as a ‘colonizing space’ that subsumes other discourses or modes of action. Finally, I draw attention to critical discourses that get displaced by environmental human rights – namely anti-capitalism and other alternatives to the modern market economy that are often presented under the heading of the ‘new economy’. I argue that the egoism of environmental human rights limits their ability to combat market capitalism and that environmental human rights risk being subsumed within a capitalist economic framework.

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Anna Grear

This Chapter suggests that sustained reflection on the patterns and history of climate injustice reveal that the role, function and constitution of legal subjectivity is fundamental to the genesis of the climate crisis: that legal subjectivity operationalizes an assumed order of priority (a socio-juridical hierarchy) between human beings, between human beings and non-human animals, between human beings and the ecosystems – and so forth. The Chapter explores the idea that the climate crisis itself is as much a crisis of human hierarchy mediated by the dominant legal order, as it is a crisis in the ‘natural order’ brought about by anthropogenic human activities.

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Sean Coyle

This Chapter provides an analysis of the relationship between property rights and justice in the context of the international environment. It suggests that the traditional dichotomy of anthropocentric and ecocentric viewpoints sheds no useful light on the question of justice, and that the problem is in reality one which demands to be considered from the perspective of natural law. The main body of the essay represents a gesture in the direction of such an account, as it can be collected from the thought of Aquinas and Grotius.

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Francois Venter

The question posed in this Chapter asks what can be achieved by legal means towards the protection of the environment. More particularly, can the future forfeiture of the benefits of a healthy environment be slowed down by thinking differently about state sovereignty? There is a general perception that centuries of legal and political evolution have produced stable constitutional conceptions, including the state, sovereignty, human rights, the rule of law and constitutionalism. In its various renderings, including internal and external state sovereignty, sovereignty in federations and in supra-national configurations, the notion of sovereignty is the focus of renewed interest. At the same time liberal thinking over recent centuries has promoted the idea of the sovereignty of the individual person. When it comes to human rights of individuals, the reality is that they are primarily enforceable against the state, only peripherally in the interests of the environment, and primarily for the satisfaction of the interests of self-centered individual demands. The protection of individual rights as a means of protecting the environment is a valuable mechanism, but can not be expected to be a panacea, especially because those exposed most directly to the deterioration of an environment on which they depend for sustenance and survival are likely to suffer the consequences long before those who have access to the means for legally enforcing their rights. Although there is much to say for the universalist drive to involve all in the task of turning climate-changing trends in a more hopeful direction, sight should not be lost of the fact that the anthropocentric approach to the preservation and restoration of the environment by means, inter alia, of the employment of the notion of human rights, will primarily be focused on the needs of people. The environment does not have an autonomous existence independent of humanity, but the inherent selfishness of humanity needs to be countered both universally and locally by the community of sovereign states in order to mitigate environmental disasters as best it can, using the law and their governance capacity rooted in state sovereignty. To achieve this is, however, no simple matter. The state’s equipment and responsibilities, including constitutionalism and the protection of human rights, are not optimally configured for environmental protection. Added to this are the realities of human nature and the inherently selfish characteristics of people both as individuals and in collective institutions such as the state with its competitive political and economic ambitions. In the context of environmental protection, the state is therefore required – in many cases contrary to the perceptions of what the ‘national interest’ would demand – to curb the indifference of its citizens towards conservation and rehabilitation. All this leads to the conclusion that it is likely that sovereign states (and the international community) will, with increasing frequency in the future, be forced by circumstances to concentrate on emergency measures in the process of dealing with the anticipated cataclysmic consequences of environmental degradation.

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Louis J. Kotzé

The gradual rise of ‘environmental constitutionalism’ in scholarly debates suggests a deliberate, albeit (still) hesitant, attempt to view anew the human rights–environment debate through a constitutional lens. While this reignited interest seems to depart from a more environment-focused and tailor-made constitutional approach (i.e., environmental constitutionalism), one has to ask: is environmental constitutionalism merely a new label for an old phenomenon (i.e., constitutionalism); or does it actually bring something new to the table? More importantly: is this new scholarly term of art useful to the human rights–environment debate? In an effort to contribute to the young but evolving discourse on environmental constitutionalism, this Chapter seeks to commence a normative-conceptual enquiry focused on answering these questions.