Constitutional Environmental Rights Research Articles

On the temporal effects of static constitutional environmental rights provisions on access to improved sanitation facilities and water sources

Using novel panel data on constitutional environmental rights (CER) for 190 countries from 1990 to 2012, this paper questions if the presence/language of CER provisions provides increased access to improved sanitation facilities and drinking water sources. While implementing statutory laws/regulations derived from CER provisions is a dynamic process, the presence/language of CER provisions is temporally fixed. To capture these dynamics, the presence of a CER and a measure of its legal strength are interacted with its age as explanatory variables within a fixed effects framework yielding: (1) no evidence of an association between the CER measures and access to improved sanitation facilities; (2) a positive statistically significant association between ageing CER provisions and access to improved water sources; and (3) a positive but weakly statistically significant association between the legal strength of ageing CER provisions and access to improved water sources, which is improved upon for countries with British as opposed to French legal origins.

Procedural Environmental Rights and Environmental Justice: Assessing the Impact of Environmental Constitutionalism

The global trend toward the adoption of environmental rights within national constitutions has been largely regarded as a positive development for both human rights and the natural environment. The impact of constitutional environmental rights, however, has yet to be systematically assessed using empirical data. In particular, the expansion of procedural environmental rights — legal provisions relating to access to information, participation, and justice in environmental matters — provides fertile ground for analyzing how environmental rights directly interface with conditions necessary for a functioning democracy. In order to understand the extent to which these provisions deliver on their lofty aspirations, the authors conduct a quantitative analysis designed to evaluate the relationship between procedural environmental rights and environmental justice. The results demonstrate that states with procedural environmental rights are more likely than non-adopting states to facilitate the attainment of environmental justice, especially as it relates to access to information.

The arguments for environmental rights in Niger Delta: a theoretical framework

Purpose– This paper aims to examine the extent to which environmental rights enforcement is currently practiced in Nigeria and the relevant characteristics for the development of a legal framework for the practice of environmental rights enforcement in Nigeria, particularly in the interest of the Niger Delta region of the country. The Niger Delta region of Nigeria is rich with abundant hydrocarbon resources and plays host to numerous multinational oil companies. For over five decades, oil spills and gas flaring from the operations of these companies have polluted water bodies and degraded farmlands on which the inhabitants depend for their livelihood. However, the absence of a legal regime of environmental rights has made it difficult for inhabitants of the region to seek legal remedy against these companies.Design/methodology/approach– This paper examines the extent to which environmental rights enforcement is currently practiced in Nigeria and the relevant characteristics for the development of a legal framework for the practice of environmental rights enforcement in Nigeria, particularly in the interest of the Niger Delta region of the country.Findings– Nigeria does not have constitutional environmental rights. The legal implication of this provision is that it is not justiciable as such no court of law can exercise jurisdiction to hear any matter that is connected with the provisions of that chapter. In other words, even the government’s “constitutional” responsibility to protect the environment cannot be judicially enforced, let alone environmental rights for victims of environmental damage.Originality/value– The original and significant contribution of this paper is to highlight the real issues and address them through substantive and procedural environmental rights provisions either in the constitution or positive legislations.

Environmental Constitutionalism in South Asia: Analyzing the Experiences of Nepal and Sri Lanka

AbstractWhy do some countries adopt constitutional environmental rights while others do not? This article uses qualitative content analysis of interviews conducted in Kathmandu (Nepal) and Colombo (Sri Lanka) to analyze the cases of Nepal, which adopted a constitutional environmental right in the 2007 Interim Constitution, and Sri Lanka, which has not enacted such a right in any of its governing charters. It finds that the presence of a constitutional environmental right in Nepal and the absence of such a right in Sri Lanka can be best explained directly with reference to domestic political conditions and structures, and indirectly in terms of the international normative environment in which the constitution was written. The article outlines a research agenda which focuses on evaluating the impacts of constitutional environmental rights. This research provides important insights into the process of constitutional design in developing states and the translation of international norms in domestic contexts.

Explaining the emergence of constitutional environmental rights: a global quantitative analysis

While the growing trend towards constitutional enactment of environmental rights has mainly been discussed in normative and descriptive terms, few scholars have endeavoured to explain the phenomenon in a systematic fashion and none have approached the subject from the perspective of international relations (IR). In this article, I seek to correct for this theoretical gap and augment the existing understanding of this global development in constitutional design. Using survival analysis, I examine normative, rationalist-materialist, and domestic politics explanations for the phenomenon observed. I find that the adoption of constitutional environmental rights is significantly associated with international civil society influence, human rights legacy, and level of democracy, and best explained by theories of domestic politics and norm socialization. This research suggests that the emergence of constitutional environmental rights signals a major shift in the international normative arena.

Empowerment, Fairness, Integration: South African Answers to the Question of Constitutional Environmental Rights

There are numerous and specific reasons why South Africa is distinctively positioned to advance and influence the use of constitutional rights to protect the environment. As a result of its unique history and constitutional structure, the South African Constitutional Court possesses special capacities to address domestic environmental concerns and impact comparative law discourse regarding constitutional environmental rights. The judiciary has already demonstrated successful, albeit modest, domestic adjudication through its early environmental jurisprudence and it exhibits the potential for even more significant outcomes in the future. Moreover, the Court holds a highly influential position in the field of comparative constitutional law because of its expansive rights protections, permissive jurisdictional rules, hard-wired consideration of foreign and international law, and its unrivaled reputation among academics and jurists. Altogether, this highly influential court is structurally and politically capable of supporting a significant evolution in the field of constitutional environmental rights.

A Rose by Any Other Name? Explaining the Absence of Constitutional Environmental Rights in Sri Lanka

Why do some countries adopt constitutional environmental rights while other do not? The results of a large-N survival analysis indicate that the likelihood that a country adopts a constitutional environmental right is related to at least five factors — GDP per capita, international civil society influence, level of democracy, population density, and protection of civil liberties. However, in order to reveal factors not captured by quantitative techniques and better understand the specific causal mechanisms, a more granular approach to understanding the phenomenon is needed. Therefore, in this paper I offer an analysis of Sri Lanka, a most-likely case (based on the statistical model) which does not have constitutional environmental rights. Through a qualitative content analysis of seven interviews conducted in Colombo and evidence from scholarly literature, I find that constitutional environmental rights were not included in any of Sri Lanka’s governing charters mainly due to the existing capacity of domestic law and policy to address environmental issues, politicization of the constitutional reform process, and the emphasis placed on certain controversies during the drafting of a new constitution. This research provides important insights into constitutional design and how international norms translate into domestic contexts.

Are You Green Yet? On the Diffusion of Constitutionally Protected Environmental Rights

Over the last couple of decades, ever more countries have integrated environmental rights into their constitutions. Drawing on discrete time survival analysis techniques, this paper identifies the determinants of the introduction of such rights. It turns out that a country’s level of democracy, its legal tradition, the sustainability of its tourism sector, and the implementation of major changes to the constitution are statistically significant predictors of an entrenchment of environmental rights in national constitutions. Other plausible explanations can be discarded. Income, affectedness by extreme weather events, citizens’ initiatives, dependence on fossil fuels or agriculture, and stated ecofriendly attitudes or behavior are not associated with a higher propensity for constitutional environmental protection. However, we find robust evidence for a diffusion of constitutional environmental rights among spatially proximate countries.

Expecting the Elephant but Getting the Mouse: Analyzing the Adoption of a Constitutional Environmental Right in Nepal

Why do some conflict-prone countries adopt constitutional environmental rights while others do not? In order to better understand the factors that led to the instantiation of an environmental right in Nepal’s 2006 Interim Constitution, I conducted semi-structured interviews with academics, activists, and politicians in Kathmandu, Nepal during September 2012. The results from this study corroborate the main finding from my larger empirical study — the decision to include an environmental right in the constitution was greatly influenced by the presence of civil society organizations. However, I also discovered that the resulting environmental right was viewed by the activist community as a consolation prize for not having secured the right of local communities to manage their own natural resources. This finding problematizes the notion of a monolithic environmental right and provides unique insights into the internal dynamics of the constitution writing process in a post-conflict country in the throes of democratization. The paper concludes with a discussion of future research directions.

Survival of the Greenest: A Statistical Analysis of Constitutional Environmental Rights

Why do some countries have constitutional environmental rights while others do not? In this chapter I conduct survival analysis using a Cox regression model on UN-recognized countries over the time period 1983-2010 in order to respond to this inquiry. This section proceeds as follows: (1) I review relevant literature and describe theories which may explain state behavior regarding the adoption of constitutional environmental rights; (2) I conduct statistical tests on five independent variables — International Civil Society Influence, Regional Diffusion, Human Rights Legacy, Natural Resources Dependency, and Monetary Incentives — to determine which factors offer the greatest explanatory value for the phenomenon observed; and (3) I summarize results of the analysis and offer conclusions. I argue that norm socialization and transnational activism offer more explanatory purchase than domestic politics and rationalist-materialist considerations in understanding the trend toward constitutionalization of environmental rights. I find that the enactment of constitutional environmental rights is most significantly associated with International Civil Society Influence and Regime Characteristics, a control variable.

Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis

AbstractWhy do some countries have constitutional environmental rights while others do not? In this paper, I conduct statistical analyses to respond to this inquiry. Through studying the impact of intraregional constitutional design, I aim to understand why states adopt environmental rights. I argue that regional isomorphism—i.e., the tendency among states within a region to converge on certain policies—may explain the trend toward constitutionalization of environmental rights. In this paper I (1) define and provide historical background on environmental rights, (2) describe theories which support regional isomorphism as a means of explaining the adoption of constitutional environmental rights, and (3) conduct statistical tests to determine the validity of the regional isomorphism thesis. I find that the enactment of constitutional environmental rights within a region does not increase the likelihood that another state within the same region will include environmental rights within its constitution.

Vindicating Fundamental Environmental Rights: Judicial Acceptance of Constitutionally Entrenched Environmental Rights

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V we suggest modalities for successful constitutional environmental litigation of constitutionally enshrined environmental rights.We conclude that judicial receptivity to fundamental environmental rights provisions embedded in domestic constitutions seems to belie predictable patterns. We also conclude that no single explanation emerges for the relative dearth of cases giving force to these provisions. Although courts have not been as enthusiastic to embrace environmental rights as some activists would have liked, there is noticeable and steady progress toward their growing recognition in courts throughout the world. And as constitutional courts become more aware of what their peers are doing, this momentum is likely to increase. Moreover, even where courts have not accepted the constitutional environmental arguments, the mere fact that such arguments are being made and considered augments the attention that constitutional fundamental environmental rights receive in public discourse. And this, in itself, can meaningfully contribute to the success of environmental claims in the future. The result is that collectively the judiciary will continue to play a necessary if not sufficient role in the vindication of fundamental environmental rights worldwide.

Book Review: Constitutional Environmental Rights

Book Review: Constitutional Environmental Rights

Book Review: Constitutional Environmental Rights

Book Review: Constitutional Environmental Rights

Constitutional environmental rights

Constitutional environmental rights

Moral and Political Reasoning in Environmental Practice

Review: Moran and Political Reasoning in Environmental Practice By Andrew Light and Avner De-Shalit (Eds.) Reviewed by Ryder W. Miller San Francisco, USA Andrew Light and Avner De-Shalit (Eds.) Moral and Political Reasoning In Environmental Practice. Cambridge, MA: The MIT Press, 2003. 357 pp. ISBN 0-262-62164-9 (trade paper). US$27.95 The editors of this book, Andrew Light of New York University and Avner de- Shalit of Hebrew University, have assembled a dozen articles that challenge environmental assumptions and question environmental perspectives. They assert: Our point, though, is that environmental philosophers should jump into these controversies, rather than standing on the sidelines discussing the metaphysical status of the restored forest preserve (p. 18). The arguments are powerful and commanding, and they do not always fall in line with the concerns of environmental activists. The authors categorize environmental concern as intuition; they are not very concerned with the advent of biotechnology; they view domestication as a problem on a par with hunting; they question indigenous people's property rights; and they question the need to restore the damaged environment. The assembled authors show how environmental philosophers can play a role in resolving environmental problems, but they do so in a way that asserts humanity's place in the natural world. Some of the entries challenge entrenched environmental positions and strategy. But the book provides some useful tools to combat environmental problems. In the chapter titled Constitutional Environmental Rights: A Case for Political Analysis Tim Hayward explores the goal of establishing a constitutional environmental right as a means of pursuing environmental protection. William B. Griffith's chapter, Trusteeship: A Practical Option for Realizing Our Obligations to Future Generations? , explores the concept of generational trusteeship of the natural environment. Finn Arler seeks to refine the definition of sustainability in his chapter, Ecological Utilization Space: Operationalizing Sustainability. Alan Holland and John O'Neill explore the framing of ecological history in their article Yew Trees, Butterflies, Rotting Boots and Washing lines: The Importance of Narrative. The philosophers assembled go to great lengths to define terms and explore values and assumptions. They find problems with the bio-centric approach to environmental problems, and provide more human-centered remedies. The work challenges assumptions, is thought provoking, and raises the

Constitutional Environmental Rights: a Case for Political Analysis

Constitutional Environmental Rights: a Case for Political Analysis

Constitutional Environmental Rights: A Case for Political Analysis

‘Constitutional environmentalism’ has not been a prominent topic of political study, but in practice the phenomenon has been developing apace. It has become appropriate to ask, in a UK and European context, as elsewhere, whether constitutional environmental rights are valid, necessary, practicable or desirable. Accordingly, after clarifying the scope of a potentially feasible environmental right I assess the case for it in the light of four critical questions: whether environment protection can be considered a genuinely fundamental right; whether a new right is necessary for achieving that end; whether the right is practicable; and whether pursuing environmental ends by means of rights is democratically legitimate. While presenting arguments for an affirmative answer on each score, I also show that the strength of the case ultimately depends on a number of contextual issues. In the concluding section, I indicate issues which warrant further research by political scientists and theorists.