Elgar Encyclopedia of Environmental Law
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Elgar Encyclopedia of Environmental Law

Edited by Michael Faure

The Elgar Encyclopedia of Environmental Law is a landmark reference work, providing definitive and comprehensive coverage of this dynamic field. The Encyclopedia is organised into 12 volumes around top-level subjects – such as water, energy and climate change – that reflect some of the most pressing issues facing us today. Each volume probes the key elements of law, the essential concepts, and the latest research through concise, structured entries written by international experts. Each entry includes an extensive bibliography as a starting point for further reading. The mix of authoritative commentary and insightful discussion will make this an essential tool for research and teaching, as well as a valuable resource for professionals and policymakers.
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Foreword to Volume VII

Human rights is a relatively recent addition to the environmental law agenda. The subject of human rights and the environment is thus one of the newest aspects of the field covered in this Encyclopedia, certainly when compared to more classic approaches such as permitting, environmental liability or environmental crime.

When environmental law originally developed, almost 50 years ago, the relationship between environmental quality and human rights may not have been that obvious. Yet signs of a mutual interest between environmental law and human rights emerge clearly when one asks whether environmental quality and environmental protection could also be considered as human rights; or, alternatively, in analysing whether there is such a thing as a right to a clean environment. Some have strongly advocated the need to incorporate the right to a clean environment at the constitutional level, signalling the importance of environmental protection among other constitutionally guaranteed human rights. However, much controversy has arisen concerning the question of what such a constitutional right to environmental protection would exactly entail. Would it mean anything beyond an important symbolic function? Would it entail a duty for governmental authorities to provide adequate measures to protect the environment or would it even go further? Would it be actionable in a court of law? Scholars have provided strongly divergent answers, often reflecting the varied legal systems involved.

Another important moment came when plaintiffs argued that particular forms of environmental pollution could be so serious that they could be considered as a violation of other specifically-recognized human rights, such as the right to a private family life. Various courts (both in the US, but especially also the European Court of Human Rights) confirmed that (of course, under specific conditions) gross cases of environmental pollution could be qualified as a violation of human rights. This call on human rights to provide environmental protection where other legal and policy instruments often failed was certainly not limited to the North. Indeed, in many developing countries (such as India, the Philippines, but also various Latin-American countries) activist courts used human rights to provide adequate protection against gross cases of environmental pollution.

Still, many questions arose (and to some extent still arise) concerning the specific role and function of human rights in environmental protection and, more broadly, sustainable development: can human rights be considered as a foundation of environmental law or does it merely provide some supplementary protection in cases where other legal and policy instruments would fail? This inevitably leads to the question of whether human rights go hand in hand with environmental protection (and in that sense reinforce environmental law), or whether human rights should be considered as conflicting with environmental law in the case that the latter did not provide adequate protection to victims of pollution?

Legal doctrine and case law also made clear that challenging questions can arise in practice when various human rights conflict. For example, in the case of the constructionp. xv of a dam, the human right to development and food (used by the upstream state to defend the construction of the dam) could conflict with the human right to drinking water in downstream states. Obviously, an important function of international legal and policy instruments (like a UN Watercourse Convention) is precisely to resolve those conflicts through an appropriate weighing of the different interests involved.

Interestingly, many commentators (and increasingly also courts) in some cases go beyond the concept of human rights when referring to environmental protection and also call for the recognition of an autonomous right for the environment, for nature, or for specific animals. Others, staying within the more direct human rights sphere, ask whether the human right to environmental protection only concerns the current or should equally be extended to future generations.

More recently, human rights have been called upon in many different situations of environmental conflict, for example, to justify the importance of community and public participation in environmental decision-making, but also to highlight the importance of indigenous rights. Moreover, various scholars have increasingly called on the corporate world to actively engage in the protection of human rights. Some have considered this a logical consequence of the concept of corporate social responsibility.

This shows that, whereas several decades ago, when environmental law was in its infancy, environmental protection and human rights were not logically linked to each other, nowadays there is a large literature on human rights and the environment, and the subject even has a specialized journal dedicated to the issue. It is, moreover, very likely that human rights will only become more important in the near future when the consequences of climate change become more visible. Not only will climate change lead to important distributional questions concerning environmental justice (more particularly within the North-South divide), but scholars are already cautioning that climate change will lead to the migration of millions of climate refugees whose circumstances have not yet been recognized in international conventions.

The current volume in the Edward Elgar Encyclopedia of Environmental Law series, edited by James R May and Erin Daly, addresses all of those complex aspects of the relationship between human rights and the environment. Moreover, the book goes far beyond a description and analysis of the development of the area of human rights and the environment. The contributors to the book clearly advance current understanding to forecast the future research and policy agenda. The volume editors used a distinctive and challenging methodology: based on a call for chapters, experts in the field were invited to formulate suggestions for different chapters, which were subsequently submitted to review by an editorial board. The result is a highly innovative and forward-looking volume that will be of great importance for the development of this domain.

In Part 1 (Legality) various topics, such as the constitutionalization of environmental rights, human rights to environmental information and access to justice in environmental matters, are critically discussed. Part 2 (Indivisibility) takes a clear normative stand, arguing that human and environmental rights are in fact indivisible. Various chapters address challenging issues with respect to climate change, mobility, gender dynamics and biodiversity. Part 3 (Dignity) is again introduced by the editors who explain that many environmental rights (such as the rights to water and landscape and the rights of indigenous peoples) in fact all relate to human dignity. Finally, Part 4 (Geography) provides an interesting overview of examples of the relationship between human rights and p. xvithe environment, showing that in different ways, whether it is in Sri Lanka, Bangladesh, Jordan, New Zealand or elsewhere, human rights considerations play a central role in environmental protection.

The result is a very rich volume comprising 44 chapters, plus a powerful introduction by the editors James R May and Erin Daly. Through their innovative and original methodology, the editors have been able to produce a volume of truly high quality to which many leading experts in this domain have contributed. I am confident that many of the chapters in this book will set the future research and policy agenda. Many chapters contain stimulating ideas and policy recommendations that, one hopes, will find their way towards implementation.

The editors James R May and Erin Daly have done an amazing job and I am truly proud to present this new volume in the Encyclopedia of Environmental Law.

Michael Faure

General Editor Encyclopedia of Environmental Law