Tuesday, 20 September 2011

Earth Rights


ISSUE: 2011(1)

A Word from the Editors: Putting the Earth to Rights?

This issue of the IUCNAEL e-Journal invites readers to consider multiple dimensions of the developing application of rights-based claims, in a variety of guises, as they pertain to the environment. The profile and purview of international human rights law and more recently international environmental law are now well established. It is therefore of course not surprising to note the emergence of first human rights-based claims with an environmental dimension and now cross-cutting human rights and environmental claims during the past few decades. Perhaps the only real matter that should take us aback is how long they have taken to do emerge. The debate is however moving on apace and discussion is now shifting the boundaries of the rights debate beyond human rights-holders towards the idea of rights for other species and indeed for nature itself, through ground breaking documents such as the Earth Charter and the Draft Universal Declaration of the Rights of Mother Earth.
The articles published in this edition represent diverse spectrums of opinion on the nature, ambit and content of these new emerging rights and the intersection between them. James May and Erin Daly, in ‘New Directions in Earth Rights, Environmental Rights and Human Rights: Six Facets of Constitutionally Embedded Environmental Rights Worldwide’, examine both the existing and expanding application of human rights-based claims, notably in South Asia and Latin America, with their recognition of the instrumental importance of the environment for human flourishing. Innovative judicial approaches to claims founded on the environment have of course been emerging across the globe, but debate has arguably been in reinvigorated by case law originating in the aforementioned jurisdictions. May and Daly also highlight the emergence of an innovative jurisprudence, which sees claims based on according intrinsic value to the environment insofar as this is possible within the applicable statutory frameworks.
The above developments resonate with Earth Jurisprudence or Wild Law, the growing global movement that seeks to mainstream rights for the environment and its constituent elements within contemporary legal systems. Cormac Cullinan passionately voices the central tenets underpinning this movement in his note titled ‘The Call of the Wild’. This hortatory piece is founded in part on moral considerations attached to the exploitation of nature and the environment, but chiefly on the imperatives imposed by our understanding of the position of humanity in and of the ecosystem, ideas that have proved influential in prompting the drafting of theDraft Universal Declaration of the Rights of Mother Earth.
Peter Burdon, in his article ‘Earth Rights: The Theory’, considers the concept of earth rights in terms of its historical and jurisprudential underpinnings in Western thought. In so doing, he provides a usefully contextualized treatment of, amongst other things, key provisions of theDraft Universal Declaration. His discussion of earth rights includes a critique of the concepts involved and the role of legislation and advocacy in progressing them. It however ranges beyond the purely legal and considers the wider societal influence associated with affording greater recognition to earth rights.
Finally, Michel Prieur in his thought-provoking examination of the principle of non-regression draws the reader’s attention to the hugely significant question of the entrenchment (or lack thereof) of environmental law in modern legal systems. This goes to the heart of the viability of environmental law, a discipline where the need for reasoned concern and consistent long-term action is so often sacrificed in favour of short-term political expediency. He advocates the adoption of a principle of non-regression, founded on the idea that environmental law should not be modified to the detriment of environmental protection. Professor Prieur arguably provides a tool that could protect not only the hard-won fruits of progress to date, but one which may also serve to promote the more ambitious environmental agenda (regardless of its final form) which will have to develop during this century to secure not only the flourishing of our ecosystem, but arguably its very survival.
Following the above articles and notes you will find a diverse array of country reports from scholars situated in 22 different jurisdictions across the globe. These provide an overview of recent legal, policy and judicial developments in these countries. The nature of these develops is exceedingly diverse. What is particularly interesting, in the context of the above substantive articles, is the adoption of new constitutions containing environmental provisions in both Kenya and the Kyrgyz Republic in 2010.
Please note that the theme for substantive articles for inclusion in the next issue of the eJournal is Innovations in Social Justice and Environmental Governance. During the past few decades, much attention has been paid to ‘efficient’ environmental protection, but at what social cost? Market instruments frequently empower the rich. Regulated access is often easier for those who are confident, informed and mobile. Even seemingly benign approaches, such as ‘green investment’, can have dire social consequences for certain sectors of the society. Innovations in environmental law may show the way towards improved environmental governance that simultaneously significantly improves the lot of the least advantaged in society. The editors are particularly interested in articles that demonstrate how environmental law can fulfill its traditional role in pioneering both environmental protection and social justice. The due date for submitting all contributions (articles, notes, country reports and book reviews) for inclusion in the next issue of the e-Journal is 30 September 2011.
In conclusion, we would like to leave readers with Ama Ata Aidoo’s beautifully expressed thoughts which, to our mind, neatly summarise many of the issues that are reflected in the pages that follow:
Each shocking experience
Mother Earth recovers –
That, of course, is true,
But, with some effort
Battered as she is.
It is not bad if we help her
Some of the time.
(’The Plums’ in A. Carter (ed.), Angela Carter’s Book of Wayward Girls & Wicked Women (2010))
Karen Morrow & Alexander Paterson 
( IUCNAELJournal@gmail.com)
You can download the full contents of Issue 2 here or access individual articles and reports under the tabs below.

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