Human, Development & Other Rights-based Legal Approaches to International Environmental Law?
1/5 Concerning the broader rights views like deep ecology and eco-development, ask yourself the following questions:
a. How might “deep” versus “shallow” ecology fit into international environmental law in terms of protected interests (do we have any PETA members in the class?), and what or whose rights seem to be at stake?
b. How might the various stages or levels of eco-development graduated interests (see the Sagasti and Colby Table 5.1 at p. 186-9) fit into international environmental law in terms of protected interests?
c. If views run the gamut from frontier economics to deep ecology, how further do the cited views of the environment work themselves into property law or other protected interests also in domestic law, so what seems to be the hidden rights analysis there (think of current mask wearing disputes in the midst of a pandemic as verging on something close to frontier economics in mask-wearing rights-analysis)?
d. What, if at all, do the above have to do with the “sovereignty” basis of the customary law from which we started our investigation (remember Trail Smelter)?
e. What, if at all, do you think is the domestic law effect of the human rights approach, also in climate change terms, on the example of a social democratically oriented constitutional order like Germany? “Drittwirkung,” or “effect on third parties,” is the technical legal term, for purposes of googling, and human rights are “Grundrechte,” for those attempting a more ambitious googling exercise, via translation software.
2/5 After reading the Marks article on the human right to development, go back and reread Dr. Mahatir’s speech to the developing country government officials in the Unit 1 readings. Was Dr. Mahatir articulating a formal right to development as a legal right or claim, or was he just complaining as a political matter about untoward political shenanigans by perceived political opponents? The difference is that given the proper forum, a legal right presumably can be asserted, meanwhile political demands are the subject of negotiation, where a resolution might never occur. So what do you make of such a distinction, since this is where it matters whether jurists from different countries may differ over legal recognition of second and third generation human rights?
3/5 Now that you have read and reread the 1972 Stockholm Declaration, the 1992 Rio Declaration, and the 2002 Johannesburg Declaration, how would you analyze them in terms of whether they are asserting first, second, or third generation human rights claims in the context of the “human environment,” and what again is the “environment”? Are they statements of aspiration, or are they claims of right, and does it matter from the perspective of developing international environmental law? Do the UN conference declarations reveal any development over time in legal or political terms, and where do you think that comes from? By the way, how would you describe the character of the conference declarations in source of law terms?
4/5 The membership of the Brundtland Commission consisted largely of former Northern European politicians (Gro Brundtland was the former prime minister of Norway) and various developing country politicians who were brought together more or less via the UN, so it was a gathering more like that at Dr. Mahatir’s pep talk in advance of the 1992 Rio Conference, rather than a technical committee. They did officially create the “sustainable development” concept, although ever since there have been questions at a certain level that would tie into the general idea of economic development pursued by developing countries. “Sustainability” is a catchword now, but, these days, are we now looking at sustainability the same way as the late 1980s-early 2000s, when sustainability linked directly to “development”? Does the Brundtland Commission really buy into the idea of a “right to development” in the third generation rights sense, or was “sustainable development” intended rather as a political argument and outcome?
5/5 Could you please offer a legal definition of “sustainable development” as full-fledged international law concept? The “human environment-economic development” concerns in international environmental law are not new. Instead, they have been with us since international environmental law’s foundation in the early 1970s. Meanwhile, concepts like sustainable development are now being written into treaties, so how much of it would you deem “environmentally” oriented, and how much “economic development” oriented? Do you think the perceived balance is the same within government in the average high income industrialized state (think Germany or the US), versus a middle income developing state (think Mexico or Indonesia)? What might those countries’ differing views and approaches be to a rights-based analysis and approach be to a third generation right claimed to be a “human right to sustainable development”? Can you channel Dr. Marks on that one?
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