Edited by Anna Grear and Louis J. Kotzé
Chapter 8: Re-imagining the role of the sovereign state and individual rights in mitigating the effects of the deterioration of the environment
AbstractThe 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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