1.1 Introduction

Environmental law and human rights law have developed rapidly in recent decades. Human rights in the contemporary sense have developed in theory and in practice since the Universal Declaration of Human Rights (UDHR) 1948.Footnote ¹ Environmental law has been a relative latecomer, but since 1972, triggered by the United Nations Conference on Human Rights and the Environment (UNCHE),Footnote ² has developed exponentially. Both fields have largely developed independently and therefore lawyers in these respective areas have generally operated separately from one another. For example experts on issues such as the right to a fair trial and the right to be free from torture exercise a different range of knowledge and skills to those focussing their attention on issues such as climate change, waste management and pollution control. However, it has long been recognised that there are aspects of human rights and environmental law that overlap.Footnote ³ This has been evident in the way that the right to life and the right to health can be negatively affected through the pollution of air and drinking water, for example.Footnote ⁴ Also the civil and political rights that entitle people to engage meaningfully in decision-making processes can be of crucial importance in protecting the environment. It is from these broad connections that much of the theory and practice relating to ‘environmental rights’ has emerged.

The development of the discourse, drafting and practice relating to those human rights used for environmental protection has not been an uncontested journey.Footnote ⁵ One of the questions raised has been whether the rights that were being created for the protection of the environment could be effective as legal mechanisms owing to the fact that they were often drafted in extremely vague terms.Footnote ⁶ Another argument was whether human rights are appropriate legal mechanisms to be used for the protection of the environment, when other legal tools are available which could possibly be more effective.Footnote ⁷ While recent decades have shown that there is definitely a role for environmental rights to play, there are still questions relating to their content and the manner in which they should be used.

It is certainly true that many environmental rights are expressed in broad terms. The type of language that is used in human rights treaties and constitutions will often confer on rights holders the right to live in an environment that is, for example, ‘healthy’, ‘safe’ or ‘clean’.Footnote ⁸ Such terminology places an obligation upon states to realise certain objectives but often leaves judges, lawyers and citizens wondering precisely what is meant by them.Footnote ⁹ Similarly, in terms of civil and political rights, the rights to information, to participate in decision-making and to have access to justice relating to environmental issues leave many questions relating to the precise levels of disclosure, involvement and remedy that citizens are entitled to.

It is here that this book positions itself as it seeks to explore the standards of environmental protection that have emerged within the field of environmental rights. It does this from a number of perspectives. Each of the chapters considers the law itself that is provided for under a particular regime, or in the cases of the right to water, free prior and informed consent (FPIC), multilateral environmental agreements (MEA) and the rights of nature, from the perspective of those type of rights that have emerged through a number of different regimes. It then considers the extent to which specific standards of environmental protection have emerged as a result of that law. Such standards can manifest themselves in a variety of different ways. For example, some constitutionally granted rights have very strong relationships with national legislation that sets specific standards; in other instances the judiciary may take on the role of developing standards, and sometimes agencies that are autonomous or quasi-autonomous of the state are relied upon for the creation and development of associated standards. In certain instances, national constitutions expressly provide for specific standards or expressly create an obligation that requires standards to be developed; sometimes international institutions such as the World Health Organisation and the United Nations play key roles in the development and determination of so called ‘international standards’ that are then used by tribunals as the standard applicable under a particular regime.

As well as considering the different types of standards that are emerging, the book also considers those factors that affect their development or recognition. As such it considers the extent to which standards are desirable or even possible in certain contexts. Therefore, it analyses those instances where human rights regimes have been reluctant to associate very specific standards with environmental rights and why in many cases this can be founded on logic and pragmatism.Footnote ¹⁰ Where precise standards of protection are emerging, it is often the case that they are in nascent stages of development. From this perspective, the book seeks to provide guidance on the possible ways that such standards can be further developed and the options that are available to states and the international community to do this.

To pave the way for the analyses carried out in this book, this opening chapter sets out the historical context from which all of the other chapters can be viewed. It maps the history of environmental rights, and in doing so highlights how each of the chapters in this book have a place in telling the story of the development of standards within the field. As well as mapping the history of the philosophical and legislative developments that have shaped environmental rights, this chapter also considers the instrumental role that the United Nations has played and continues to play in the development of human rights that are used for the protection of the environment.

1.2 Early Scholarly Conceptions of Environmental Rights

The earliest conceptions of environmental rights are difficult to ascribe. However some authorities refer to Aldo Leopold, who identified a relationship between ethics and nature at a time when human rights as we now think of them were still in their infancy. In 1949 he stated that

It was not, however, until the 1960s and 1970s that specific conceptions of environmental rights began to emerge. In 1962, the scientist and pioneer in the field of advocacy for environmental protection, Rachel Carson, argued that the US Constitution’s Bill of Rights should contain a provision that guarantees citizens freedom from lethal poisons.Footnote ¹² In 1972, Christopher Stone put forward the argument that natural objects such as trees could have rights.Footnote ¹³ Subsequently, in 1974, the Nobel Prize-winning human rights lawyer, René Cassin, observed that over the previous twenty years the notion of an environmental right had emerged.Footnote ¹⁴ And in 1976, Professor W. P. Gormley asserted the existence of a new human right that guaranteed a ‘minimum decent environment’.Footnote ¹⁵

These early conceptions of the possibilities of extending human rights protection to environmental issues created fertile ground for thought, understanding and discussion from which more tangible developments in the law have emerged.

1.3 Legal Developments in the Field of Environmental Rights

The earliest global international human rights treaties that provided the potential bases for the protection of the environment are the International Covenant on Civil and Political Rights (ICCPR)Footnote ¹⁶ and the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote ¹⁷ These were established in the mid 1960s, and as such predate most early conversations about environmental rights. However, contained within them are the rights to life,Footnote ¹⁸ healthFootnote ¹⁹ and an adequate standard of living,Footnote ²⁰ all of which have a relationship with the quality of the environment. It is here that the analysis in this book begins.

In Chapter 2 Sumudu Atapattu explores the instances where those particular rights have subsequently been developed or interpreted to encompass environmental protection. This has meant considering relevant complaints heard by the UN Human Rights CommitteeFootnote ²¹ and the UN Committee on Economic, Social and Cultural Rights,Footnote ²² and the effect of the Concluding Observations that these committees have made in their oversight roles. It also considers the way that ‘General Comments’ along with state reports have provided an evolutionary understanding of specific rights. Within this analysis, Prof. Atapattu considers the extent to which ‘standards’ can be said to have emerged, if at all.

In 1972, the United Nations Conference on the Human Environment was held in Stockholm. This was the first time that such a conference had been convened and is regarded by many lawyers as the starting point of contemporary international environmental law. The outcome was the ‘Stockholm Declaration’ that contained a set of principles.Footnote ²³ Principle 1 stated that ‘man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’.Footnote ²⁴ While the Stockholm Declaration represented ‘soft law’, and the language used fell short of declaring the existence of a fundamental environmental right per se, its authority and influence resonated with governments and the international community. One of the ways that it influenced governments was through the manner in which they proceeded to consider the rights and obligations included in their national constitutions.

Indeed, from then on many states, when amending their national constitutions decided to include provisions relating to environmental protection.Footnote ²⁵ The first country to do so was Portugal in 1974, following its peaceful revolution.Footnote ²⁶ The environmental provisions of the Portuguese constitution are now extensive, which means that they are of particular interest in an analysis to determine the relationship that they have with standards. Additionally, as Portugal is a member of the European Union (EU), analysis can reveal interesting insights into the relationship between those national standards that relate to EU law and those which can be linked directly to provisions found in the constitution. Alexandra Arágao explores these issues in depth in Chapter 11.

While many countries have integrated environmental provisions into their national constitutions, the lack of such a provision did not necessarily constrain states from using constitutional rights for the purposes of environmental protection. India to this day does not have a specific actionable environmental provision within its national constitution.Footnote ²⁷ However, its right to life provision has been relied upon for the protection of the environment and is now interpreted as incorporating a right to a healthy environment.Footnote ²⁸ In the early 1980s lawyers began relying on the right to life in the Indian constitution for the protection of the environment.Footnote ²⁹ This led to a significant number of cases and a proactive stance from the judiciary, which has used its authority to order government departments in a range of different types of measures to take action to protect the environment.Footnote ³⁰ Gitanjali Gill in Chapter 10 focuses on the way that this tradition has now developed through the function of the National Green Tribunal (NGT) and the relationship that this has with the development of environmental standards.

The 1980s also saw significant developments taking place at the regional level. In 1981, the African Charter on Human and Peoples’ Rights (ACHPR) was promulgated.Footnote ³¹ This treaty includes a provision that entitles people to live in ‘a general satisfactory environment favourable to their development’.Footnote ³² Insights related to this article of the ACHPR are provided by Louis Kotzé and Anél du Plessis in Chapter 5, which as well as providing an analysis of the inherent limitations relating to the development of rights-orientated standards in the region, considers the broader issue of some of the different types of standards that can be identified within the field of environmental rights.

In 1988, a significant development took place in South America through the Additional Protocol in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador)Footnote ³³ which includes a provision for the protection of the environment,Footnote ³⁴ that added to the treaty obligations under the American Convention of Human Rights.Footnote ³⁵ Until recently, the environmental provision in the Protocol of San Salvador had not been considered to be actionable. Nevertheless, the right to property and the right to life had in certain cases been successfully argued before the Inter-American Court of Human Rights (IACtHR) to protect aspects of the environment in the context of claims brought by indigenous communities. Evadné Grant in Chapter 4 considers these provisions and provides an analysis of the manner in which judgments assist in our understanding of the standard of environmental protection that they afford to rights holders. She also analyses a 2017 Advisory Opinion in which the IACtHR clarified and extended state obligations relating to the environment under the convention, and in doing so has gone some way to further clarifying the standards of protection that they entail.Footnote ³⁶

By the early 1990s considerable momentum had been achieved at the national and international levels relating to environmental protection. This led to the United Nations Conference on Environment and Development (UNCED), which had a number of outcomes, one of them being the Rio Declaration.Footnote ³⁷ Whereas a relatively strong reference to human rights and the environment had been provided in the Stockholm Declaration,Footnote ³⁸ the Rio Declaration did not assert that a human right to a certain substantive quality of environment existed; instead it states that ‘human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life harmony with nature.’Footnote ³⁹ While this appeared to downplay the role that substantive environmental rights might play in future of environmental law and policy,Footnote ⁴⁰ the Rio Declaration made clear that procedural rights should play a major role.Footnote ⁴¹

This role was set out in Principle 10, which affirmed that states should ensure that citizens are able to access information, participate in decision-making and access justice in environmental matters.Footnote ⁴² Such participatory rights are now widely accepted to the point that they can possibly be regarded as customary in many regions of the world, even if their acceptance in theory is not always matched by the quality of governmental implementation. Such is the normative acceptance of procedural rights by states that they are also incorporated in numerous MEAs. As MEAs are not designed to act as human rights instruments, this inclusion is a very interesting development and has the potential to provide further valuable insights. In Chapter 8, Lara Ognibene and Angela Kariuki focus on the way that procedural rights within MEAs have developed their own relationship with ‘standards’ of environmental protection. This relationship includes the association that specialised standard-setting institutions have with MEAs and the way that they can assist in developing and clarifying the standards of protection applicable.

An aspect of procedural rights that is of particular significance to rural communities in developing countries is the concept of ‘free prior and informed consent’ (FPIC). This relates to the obligation that states (and in turn non-state actors) have to consult adequately with communities prior to any significant developments that may affect them or their environment. In certain instances, where relocation might occur, it is possible that the consent of communities is necessary; however, in most instances adequate consultation processes are required to pave the way for some form of consensus as to the manner in which the development will take place. Various international instruments have recognised FPIC, and significantly it was given particular recognition in the 2007 UN Declaration on the Rights of Indigenous Peoples.Footnote ⁴³ While it is doubtful that FPIC can be regarded as a stand-alone human right, it is grounded in the principles and duties that are derived from both human rights law and multilateral environmental agreements. Jona Razzaque analyses FPIC in Chapter 9 and considers what standards of protection are associated with it and the sources from which they are derived.

Naturally, the history and background to environmental rights have in part been shaped by national and global politics. The end of the Second World War led to the advent of the United Nations and the promulgation of the international human rights covenants which ultimately have influenced this field enormously. Other major events on the national level include the end of the apartheid era in South Africa in 1993, which led to a new national constitution.Footnote ⁴⁴ The new constitution included both a specific environmental rightFootnote ⁴⁵ and a right to water.Footnote ⁴⁶ One of the major issues facing South Africa was and continues to be the limited supply and distribution of potable water. This has led to the expression ‘water apartheid’ owing to the disparities of distribution between traditionally rich and poor or black and white areas.Footnote ⁴⁷ This raises particular questions relating to ‘standards’ in terms of both the quality and quantity of water that people are entitled to under the constitution. Nathan Cooper analyses these issues in Chapter 13.

While the Rio Declaration appeared to play down the future role of substantive environmental rights, countries continued to adopt them and incorporate them into their constitutions. One particularly interesting example for the purposes of this volume is that of Argentina, because in adopting an environmental right in its revised constitution of 1994,Footnote ⁴⁸ it also incorporated a provision which required the government to develop minimum standards of environmental protection.Footnote ⁴⁹ This created a special type of environmental right; one which ultimately would be linked to legislation specifying the standards of environmental protection that are required under it. Silvia Nonna explains in Chapter 12 how this right has evolved and the range of different sectors for which associated legislation has been passed. She also analyses the role of the Supreme Court in attempting to give effect to standards of environmental protection.

Meanwhile in Europe the 1990s also bore witness to significant developments within the field of environmental rights. While the European Convention on Human Rights (1950) (ECHR)Footnote ⁵⁰ had not included a provision for the protection of the environment, a number of rights such as the right to life,Footnote ⁵¹ the right to propertyFootnote ⁵² and the right to private and family lifeFootnote ⁵³ gradually became grounds upon which aspects of the environment could be protected. The first case in which this type of claim was successfully argued was that of Lopez Ostra v. Spain (1994).Footnote ⁵⁴ Since then the ECHR has proved fertile territory for such claims, which has led to an interesting body of jurisprudence. As the ECHR is one of the most, if not the most, developed of the regional human rights systems, this is of particular importance in the context of standards of environmental protection. In Chapter 3 Karen Morrow analyses the range of issues that the European Court of Human Rights must take into account in such cases, and as such illustrates the complicated relationship that exists between those treaty provisions that are relied upon and the standards of protection that they ultimately confer.

Another significant development occurred in Europe in 1998 with the signing of the Aarhus Convention, which came into force in 2001.Footnote ⁵⁵ It is a ground-breaking treaty which solely addresses procedural environmental rights, and as such is a far-reaching manifestation of Principle 10 of the Rio Declaration. As well as representing a major development in terms of environmental rights, it has influenced Latin America and the Caribbean region in the adoption of the 2018 Escazú Agremeent which is also dedicated solely to procedural environmental rights.Footnote ⁵⁶ The treaty’s Compliance Committee plays a significant part in articulating the expectations that states must comply with in relation to the convention provisions. In Chapter 6 Aine Ryall focuses on the way that the Compliance Committee treats the right of access to justice, and she also considers the crucial interface that the convention has with EU law. The analysis illustrates the way that broad standards are gradually emerging.

This period demonstrates quite starkly the general disparity of living conditions between developed and developing countries. Access to water and sanitation in many parts of the world, but most notably in sub-Saharan Africa, was (and still is) a critical issue. In 2003, the UN issued General Comment No. 15 which states that Art. 11 of the ICESCRFootnote ⁵⁷ could be interpreted to mean that all citizens have a right to water, and it detailed a set of general obligations relating to it.Footnote ⁵⁸ Owen Mcintyre in Chapter 7 maps out the range of other developments that have reinforced the international recognition of that right. He then explains the different standards of protection that can be associated with the right to water and sanitation and the wide range of sources from which they are derived.

In the 2000s a number of other major developments took place in the field of environmental rights. One of them occurred in 2005 when the French Government incorporated its Charter for the Environment (Charter)Footnote ⁵⁹ into the national constitution.Footnote ⁶⁰ One of the most interesting aspects of this development was the way that the government could use a constitutional mechanism whereby the Charter could be deployed to challenge bills or actual legislation. This raises questions relating to the criteria or standards that legislation must comply with if it is to be deemed consistent with the constitution. David Marrani and Stephen Turner consider the use of the Charter for the protection of the environment in Chapter 14.

By the 2000s, as climate change became more prominent as an issue, the relationship that it has with human rights also became part of scholarly debate.Footnote ⁶¹ In practice, however, although several states have now included mention of climate change within their national constitutions,Footnote ⁶² human rights obligations relating to climate change are in their very early stages of development, and for this reason this volume does not provide an associated analysis relating to possible standards.

Some of the most significant developments that took place during the 2000s within the field of standards in environmental rights have been through national constitutions. Bhutan provides just such an example. The promulgation of Bhutan’s first national constitution in 2008 included an environmental provision which provided that the government has a responsibility to maintain at least sixty percent of the country under forest cover for all time.Footnote ⁶³ As the usual type of standard that is found within environmental rights is qualitative rather than quantitative in nature, this provision is remarkable. Stephen Turner analyses this provision in Chapter 15 to understand the reason for its existence, its justiciabliity and the potential wider significance that it could have.

In South America another significant development that occurred at the national level quite independently in 2008 was the inclusion within the Ecuadorian constitution of the ‘right of nature’ to exist.Footnote ⁶⁴ Whereas Christopher Stone many years previously had contemplated the possibility of natural objects themselves potentially having rights,Footnote ⁶⁵ the Ecuadorian government actually introduced such a right in a bid to change the way that the country treated the environment and to attempt to inculcate approaches to development that recognised the intrinsic importance of all aspects of nature. Bolivia then replicated this progressive step legislatively shortly afterwards.Footnote ⁶⁶ Other countries such as New Zealand have also developed laws based on the same principle.Footnote ⁶⁷ In Chapter 16 Craig Kauffman and Linda Sheehan explore the nascent development of standards within this field and provide a discussion of the scientific challenges that accompany those processes.

To a certain extent, developments that have taken place within national constitutions have been mirrored at the sub-national level within republican systems where provincial states have incorporated environmental rights within their own constitutions. In Chapter 17, Daly and May discuss examples where this has taken place. While experience at the sub-national level is growing and cannot be said to be consistent across all countries, certain developments are of particular note. For example, the concept that natural resources are held on trust for the public has developed at the sub-national level in certain jurisdictions.Footnote ⁶⁸ Additionally, in a similar manner to that noted in relation to the French constitution, there is evidence of a willingness to invalidate state laws where they are found to violate the environmental provisions of the constitution.Footnote ⁶⁹

Throughout all of the developments that have been described, whether at the international, regional or national levels, the influence, of the UN has been ever present. Therefore the next section will consider the role that it has played in the development of environmental rights; this assists in understanding the processes that have led to the development of associated standards.

1.4 The Role of the United Nations

Although at the UN level there have been varied positions adopted by different governments related to the desirability of developing human rights for the protection of the environment,Footnote ⁷⁰ the organisation has nonetheless played a significant role in many of the developments that have taken place in this field. In particular, the UN has facilitated a number of the international instruments that have represented milestones in the establishment of environmental rights such as UNCHE,Footnote ⁷¹ UNCEDFootnote ⁷² and the Aarhus Convention.Footnote ⁷³ It also promoted the recognition of the right to water and sanitation through a General Assembly resolution in 2010.Footnote ⁷⁴ Its human rights treaty bodies have responded to certain complaints that relate to environmental matters and extended the understanding of existing human rights through ‘General Comments’ to incorporate environmental protection.Footnote ⁷⁵ There have also been numerous initiatives that have been developed by its charter-based bodies, and these have increased in intensity as the field has emerged.Footnote ⁷⁶

In 1989, the UN Commission on Human Rights appointed a Special Rapporteur, Ms Fatma Zohra Ksentini, to undertake a five-year examination of the linkages between human rights and the environment.Footnote ⁷⁷ The result of her final report included a draft declaration of principles on human rights and the environment.Footnote ⁷⁸ Although this was not adopted formally by the UN, it reinforced the linkages between human rights and the environment and provided a foundation for further work. The UN Commission on Human Rights appointed other Special Rapporteurs to cover areas that included environmental matters such as the enjoyment of the highest attainable standard of physical and mental health,Footnote ⁷⁹ the right to foodFootnote ⁸⁰ and issues facing indigenous people.Footnote ⁸¹ After the Human Rights Commission was replaced by the Human Rights Council in 2006, further Special Rapporteurs were appointed in areas that included the right to safe drinking water and sanitation,Footnote ⁸² and the situation of human rights defenders.Footnote ⁸³

In 2011, the Human Rights Council made the decision to appoint an Independent Expert in the field of human rights and the environment. This mandate was given to Prof. John Knox in 2012. In 2015, the mandate was extended for a further three years and changed to that of Special Rapporteur.Footnote ⁸⁴ This move by the UN and the work carried out under the mandate resulted in increased attention to the issue of human rights and the environment. In particular, it catalysed further work in the field through the facilitation of multi-level meetings and dialogues. Over the period of Prof. Knox’s tenure, his work focussed on mapping existing human rights obligations that affect the protection of the environment,Footnote ⁸⁵ surveying different practices within different countries to identify ‘good practices’,Footnote ⁸⁶ working with state and non-state partners on the development of implementation of human rights obligations relating to the environment,Footnote ⁸⁷ analysing and making representations relating to the relationship between human rights and climate change,Footnote ⁸⁸ surveying and reporting on the relationship between biodiversity and human rightsFootnote ⁸⁹ and reporting on the responsibilities relating to children in the context of human rights and the environment.Footnote ⁹⁰

The mandate highlighted certain aspects of the developments in the field of human rights and the environment. Firstly, the appointment itself in 2012 was an indication of the relative seriousness with which environmental rights were being considered by the international community and an acknowledgement that many forms of environmental degradation can impact upon and be affected by human rights. Secondly, the breadth of the work that the Special Rapporteur undertook illustrates how debates relating to human rights and the environment, and in some cases the law too, had moved on to encompass issues such as climate change, biodiversity, vulnerable groups and human rights defenders. In fact, one of the individual achievements of Prof. Knox’s tenure was the increased recognition and attention given to the plight of human rights defenders, which hitherto had rarely been formally included in debates and practice relating to human rights and the environment. Finally, his work highlighted the level of sophistication that had started to infiltrate the field. The experience of judges, legislators, academics, civil society and communities were beginning to coalesce in ways which have paved the way towards a more concrete understanding of what the international community expects of states and also non-state actors vis à vis human rights as they relate to the protection of the environment.

Prof. Knox’s final report to the Human Rights Council in 2018 included a set of sixteen ‘Framework Principles’ that were drafted to ‘set out basic obligations of States under human rights law as they relate to the enjoyment of a safe, clean, healthy and sustainable environment’.Footnote ⁹¹ These ‘Framework Principles’ detail a number of human rights obligations that are broadly recognised by the international community. Therefore, as a document it is not drafted to create new obligations, but equally it acknowledges that not all states have formally accepted all of the norms that it contains.Footnote ⁹² The evidence upon which the Framework Principles are based is founded ‘in certain instances on treaties but also on the statements of human rights bodies that have the authority to interpret human rights but not necessarily to issue binding decisions’.Footnote ⁹³

The sixteen Framework Principles themselves relate to key aspects of the ways that human rights intersect with the protection of the environment. The full titles of each of the Framework Principle are lengthy, and therefore for the purposes of brevity abbreviated forms of those titles are given here to capture their general scope. They are as follows:

1. Principle 1. To protect the environment that can affect human rights.

2. Principle 2. To protect those human rights that are required to ensure the protection of the environment.

3. Principle 3. To prohibit discrimination

4. Principle 4. To ensure that human rights defenders remain safe

5. Principle 5. To allow freedom of expression.

6. Principle 6. To facilitate education relating to the environment.

7. Principle 7. To facilitate access to information.

8. Principle 8. To ensure that Environmental Impact Assessments (EIA) are carried out where necessary.

9. Principle 9. To facilitate public participation in decision-making.

10. Principle 10. To provide effective remedies.

11. Principle 11. To establish substantive environmental standards.

12. Principle 12. To enforce environmental standards.

13. Principle 13. To cooperate with other states in relation to transboundary environmental harm.

14. Principle 14. To protect vulnerable individuals and groups.

15. Principle 15. To protect indigenous peoples.

16. Principle 16. To protect human rights in the processes of sustainable development.Footnote ⁹⁴

It is too early to say precisely what influence they will have on the development of environmental rights as the international community moves forward. It has been suggested by Prof. Knox that the UN could issue a General Resolution that expresses recognition of the right to live in a ‘safe, clean, healthy and sustainable environment’.Footnote ⁹⁵

For the purposes of this book a number of the Framework Principles relate directly to aspects that chapters of this book go on to consider. However, of particular relevance are Principles 11 and 12 that refer directly to environmental standards. Therefore, for the purposes of clarity their full titles are provided below:

These references to ‘standards’ within the field of environmental rights are part of the process of translating human rights obligations that are generally written in broad qualitative terms into practical directions for states, businesses, industry, communities and individuals alike. They express important principles such as ‘non-discrimination’Footnote ⁹⁸ and ‘non-regression’,Footnote ⁹⁹ which characterise contemporary expectations of such standards. Importantly, they also specifically iterate the need for states to effectively enforce the standards that they introduce. In this respect the Framework Principles interface directly with the purposes of this book, which is ultimately about understanding with greater precision the standards of protection that are expected as a result of, or represented within, different types of environmental rights.

Whatever comment can be made in relation to the development of environmental rights, one factor appears to be certain, and that is that, at the time of writing, the process of development of ‘environmental rights’ is still underway and is likely to continue long into the future. As Prof. Knox states in his final report as Special Rapporteur,

This point indicates the difficulty of making generalisations relating to the scope of future developments in the field. However, there is little doubt that greater understanding of all of the different aspects of environmental rights can facilitate the improvement of their application in practice.

1.5 Conclusion

This book focuses on specific legal instruments that have developed environmental rights such as the international human rights covenants, regional human rights treaties, national and sub-national constitutions, and in certain instances rights that have emerged not through single legal instruments but through a culmination of different instruments and initiatives such as the right to water, FPIC, MEAs and the rights of nature.

The brief historical narrative provided in this chapter demonstrates that the development of environmental rights has been highly fragmented. However, that fragmentation can sometimes belie the influence that states have on each other, the catalytic influence that international instruments such as the UN’s Rio Declaration can have on states and the international consensus that has coalesced around certain developments such as procedural rights.

In terms of the development of standards, this introduction has given an indication of the different types of standards that have emerged within the field. These standards are discussed throughout the chapters of this book, which provides not only an understanding of the relevant law, legal principles and obligations from which they are derived, but also an indication of the processes through which they are emerging. The concluding chapter will focus on how these different types and sources of standards could potentially be classified, what further work could be done to develop a deeper understanding of the field, and how the understanding of these developments can potentially be put to use in the theory and practice of environmental rights in the future.