The fate of Medina Spirit emblemizes modern relations between humans and non-human living beings.Footnote 1 Medina Spirit was an American racehorse, which was sold twice, first for a mere US$1,000 and then again for US$35,000, before finishing first in the 2021 Kentucky Derby. Though Medina finished first, he did not win, as he was later disqualified from the race for failing a doping test. The horse did not live to see his championship revoked. Several months after the Kentucky Derby, Medina collapsed and died shortly after finishing a training session. Medina Spirit was an animal, but he was also human property – an investment, and a cheap one at that. It is likely that his fate was not a freak incident; nor was it the result of a particularly cruel training team. Strict rules on the breeding of thoroughbred horses protect the exclusivity of the breed and thereby also the economic value of the horses. To protect the appeal of the sport to the betting industry, equally strict rules regulate their racing, including regulating the types of substance that can be in their bloodstream on a race day. Their medication and treatment during training, however, is barely regulated, which means that horses can lawfully be subjected to treatment that is devastating, even disastrous for their health and well-being. Medina's fate was therefore a calculated casualty resulting from a legal balancing act between corporate and human interests, on the one hand, and the interests of a non-human animal, on the other.
In her first monograph, Marie-Catherine Petersmann sets out to better understand how this balancing act between human and non-human interests is reasoned. When Environmental Protection and Human Rights Collide presents a comprehensive study of the international and regional rules that govern the relations between humans and their natural environment. The book is based on Petersmann's doctoral dissertation, which she completed at the European University Institute in Florence (Italy) under the supervision of Nehal Bhuta. The book is a timely contribution to a rapidly growing body of scholarship on human–nature relationships.Footnote 2 In addition to the study of the jurisprudence of regional courts, the book also covers the genesis of modern international environmental law and its anthropocentric focus, as well as the emergence of international environmental rights.
The book is divided into two distinct parts. Part I undertakes a remarkably disciplined and extensive review of relevant international and regional law and jurisprudence, paying great attention to the doctrinal nuances that drive relevant developments in both environmental and human rights law. In addition to tackling norm conflicts, this part also engages with norm symbiosis and norm convergence. Part II then traces how decisions on the conflict between environmental norms and human rights were reasoned in the jurisprudence of regional courts, focusing, firstly, on the interpretation of the ‘general interests’ norm and, secondly, on the use of technical and scientific expertise in judicial reasoning.
Chapter 1 retraces the emergence of a three-pronged anthropocentric approach to environmental protection in international treaties and quasi-legal instruments – namely, through (i) the emergence of a human right to a healthy environment; (ii) recognition of environmental protection as a pre-condition for the fulfilment of human rights, and (iii) recognition of human rights protection as a pre-condition for the fulfilment of environmental protection. Chapter 2 then turns to the case law of human rights courts and discusses the advantages and disadvantages of litigating for the protection of nature through the vernacular of human rights. It notes first that the jurisprudence generally suggests that environmental and human rights protection are mutually beneficial for one another, even if there is variation in the substantive rights that are invoked to this end, and include the right to a healthy environment, the right to private and family life, and the right to a sound environment. The chapter highlights two problematic aspects of human rights approaches to environmental protection. Firstly, individual rights-based human rights procedures typically do not lend themselves well to bringing collective or mass claims, which have particular relevance for environmental harm. Secondly, human rights procedures require the violation of rights of human, rather than non-human/more than human, rights holders, thereby reinforcing the anthropocentric conceptualization of the environment.
Chapter 3 offers a brief overview of various scholarly perspectives on the anthropocentrism of environmental protection. It notes that doctrinal scholarship tends to flag the synergetic relationship between environmental protection and human rights. In contrast, a critically oriented strand of legal and philosophical scholarship contests the anthropocentrism of environmental protection and instead advocates a move away from modernist environmental law (as the natural environment of humans) towards ecological law, which conceptualizes nature beyond its relationship with humans. Such approaches include ‘earth jurisprudence’, ‘Earth systems law’, ‘planetary boundaries law’, ‘posthuman legalities’, and ‘wild law’. The chapter concludes with a brief overview of existing contestation proposals. Chapter 4 investigates the epistemological frames through which the human–nature relationship is understood in international human rights and environmental law jurisprudence. It acknowledges that while neither the concept of human rights nor that of nature has stable epistemic and normative meanings, instances of conflict between human rights and environmental protection often result from an epistemological dissonance between hegemonic Western property rights and alternative plural visions of social and special forms of ownership and modes of living. The chapter concludes by challenging the modernist separation of humans from their natural environment.
The second part of the book investigates how regional human rights courts balance individual and collective human rights against environmental protection, in cases where environmental law collides with human rights and fundamental freedoms. Examples of such a collision are found in decisions of the European Court of Human Rights (ECtHR) on the balance between the rights of descendants of Roma peoples to live in caravans on their privately owned lands and landscape protection concerns.Footnote 3 The book identifies epistemological processes by which all parties to judicial proceedings – the parties and the judges alike – make use of the indeterminacy of legal norms by giving weight to specific legal, political, and normative goals (for example, safeguarding biodiversity, protecting the right to property) in an idiom of universality – namely, through justifications in the idiom of ‘universal interests’ or ‘universal truth claims’. To that end, Chapter 5 is dedicated to judicial interpretations of ‘general interest’ of the public. Drawing on Koskenniemi's work on indeterminacy and discursive hegemony, Petersmann argues that by judicially reasoning ‘general interests’, a small number of international judges make determinations on the interface between human rights and environmental protection.Footnote 4 Importantly, this chapter alludes to the capitalist and racialized nature of these determinations, pointing to cases that used the general interest that justifies environmental protection to marginalize Indigenous and Roma people.Footnote 5
Chapter 6 concludes by problematizing the politics of expertise as a universalization strategy in conflict resolution between human rights and environmental law by regional courts. Specifically, the chapter asserts that the ‘authority’ and ‘legitimacy’ of experts are invoked to substantiate the objectivity and impartiality of legal outcomes through the interpretation of indeterminate norms in environmental and human rights law. Petersmann identifies several potential detriments of an ‘expert-based managerial approach’ to resolving conflicts between human rights and environmental protection, as it resolves conflicts between competing interests by a means which has a claim to universal validity. Firstly, human rights courts do not substantially review technical expertise, despite technical expertise having no inherent claim to objectivity. In doing so, expertise-based managerialism conceals the politics of expertise. Secondly, it privileges certain forms of scientific evidence over others, which risks obscuring non-technical or non-scientific concerns.
When Environmental Protection and Human Rights Collide makes three important contributions to disciplinary debates on international law. Firstly and foremost, it provides a thorough doctrinal contribution. The book is detail-oriented and nuanced in its analysis of the relevant case law; as such, it will surely serve as a great point of reference for both scholars and practitioners who are working on the interface between environmental and human rights law. Secondly, the book contributes to scholarship on interpretive and epistemic communities and the politics of expertise in judicial interpretation and legal reasoning. Finally, the book speaks to legal-philosophical inquiries on the possibilities of reconfiguring human–nature relationships in and through law. On this point, Petersmann leaves her readers wondering how her work, which uses the language of systems theory, relates to this body of work.Footnote 6
To this reviewer, one of the book's most significant achievements is that it persuasively dismantles the flawed ideas that underlie modernist human–nature relationships and that continue to be reinforced by international law.Footnote 7 Another remarkable achievement is that the book questions ideas of ‘goodness’ that are associated with both environmental and human rights – namely, by drawing attention to the omnipresence of economic interests in any balancing act between environmental and human rights.Footnote 8
