Introduction
1. Background = 1
2. Rationale = 5
2.1. The rationale for a constitutional approach to environmental protection = 5
2.2. The rationale for taking environmental protection to be a human rights issue = 9
2.3. Section conclusion = 13
3. Overview of the arguments of the book = 14
1. The Case for a Human Right to an Adequate Environment = 25
1.1. The case for pursuing environmental ends by means of human rights = 27
1.1.1. The scope of an environmental human right = 27
1.1.2. Addressing doubts from an environmental perspective = 31
1.2. A genuine human right? = 36
1.3. A universal moral right to an adequate environment = 47
1.3.1. Why the right to an adequate environment meets the criteria of a genuine human right = 47
1.3.2. Defending the case means critically assessing the relation of rights to duties = 50
1.4. International recognition of a human right to an adequate environment: the precedents = 54
1.5. Conclusion = 58
2. Constitutionalizing the Right to an Adequate Environment: Challenges of Principle = 63
2.1. Why the right to an adequate environment ought to be constitutionalized = 65
2.1.1. Assessing the claim that 'all human rights ought to be constitutionalized' = 66
2.2. Why environmental protection should not be constitutionalized only in the form of a policy statement = 72
2.3. Why a substantive right to an adequate environment should not be provided with lesser constitutional
status than a fundamental right = 78
2.3.1. Why the distinction between fundamental rights and social rights is conceptually problematic = 79
2.3.2. Why environmental rights should be substantive and not merely procedural = 84
2.4. Conclusion = 88
3. The Challenge of Effective Implementation = 93
3.1. The necessary conditions for judicial enforcement of constitutional rights, and claims that these cannot
be fulfilled for the right to an adequate environment = 94
3.2. The peculiar difficulties of enforcing environmental norms = 101
3.3. The institutional and constitutional competence of courts = 110
3.3.1. Specialist environmental courts = 111
3.3.2. The constitutional competence of courts = 115
3.4. The jurisprudence of human rights = 119
3.5. The effectiveness of a constitutional right to an adequate environment = 124
4. Environmental Rights as Democratic Rights = 129
4.1. Are constitutional rights inherently undemocratic? = 131
4.1.1. Undemocratic transfer of powers from legislature to judiciary = 131
4.1.2. Undemocratically binding the future? = 133
4.1.3. Rights proposals have an undemocratic motivational structure? = 135
4.1.4. Internal tensions in the majoritarian critique of constitutional rights = 136
4.1.5. Section conclusion = 138
4.2. Democratic rights = 139
4.2.1. Democracy's 'self-binding' rights: procedural rights = 140
4.2.2. Environmental procedural rights = 143
4.3. Substantive environmental rights as democratic rights = 145
4.4. Environmental rights as negative rights = 149
4.5. The democratic legitimacy of negative environmental rights = 153
4.6. Conclusion = 158
5. Is a Constitutional Environmental Right Necessary? A European Perspective = 159
5.1. Contextualizing the question = 160
5.2. Environmental rights in European Community law = 165
5.2.1. EC policy principles = 166
5.2.2. Directives = 170
5.3. Using human rights for environmental protection = 173
5.3.1. The environmental potential of existing substantive rights in Europe = 174
5.3.2. Procedural environmental rights and the Aarhus Convention = 177
5.4. Conclusion = 181
6. Environmental Rights and Environmental Justice: A Global Perspective = 185
6.1. State constitutions and the permeability of normative orders = 188
6.1.1. The continuing importance of the nation-state = 188
6.1.2. The permeability of domestic and international normative orders = 191
6.2. Constitutional environmental rights viewed from the normative perspective of global justice = 192
6.3. The value of constitutional environmental rights for poorer societies = 200
6.3.1. The need for environmental rights is not nullified by imperatives of development = 200
6.3.2. Illustrations of permeability in practice = 203
6.3.3. Poorer countries in the avant garde of environmental human rights jurisprudence = 205
6.4. Conclusion = 210
Bibliography = 217
Index 229
1. Background = 1
2. Rationale = 5
2.1. The rationale for a constitutional approach to environmental protection = 5
2.2. The rationale for taking environmental protection to be a human rights issue = 9
2.3. Section conclusion = 13
3. Overview of the arguments of the book = 14
1. The Case for a Human Right to an Adequate Environment = 25
1.1. The case for pursuing environmental ends by means of human rights = 27
1.1.1. The scope of an environmental human right = 27
1.1.2. Addressing doubts from an environmental perspective = 31
1.2. A genuine human right? = 36
1.3. A universal moral right to an adequate environment = 47
1.3.1. Why the right to an adequate environment meets the criteria of a genuine human right = 47
1.3.2. Defending the case means critically assessing the relation of rights to duties = 50
1.4. International recognition of a human right to an adequate environment: the precedents = 54
1.5. Conclusion = 58
2. Constitutionalizing the Right to an Adequate Environment: Challenges of Principle = 63
2.1. Why the right to an adequate environment ought to be constitutionalized = 65
2.1.1. Assessing the claim that 'all human rights ought to be constitutionalized' = 66
2.2. Why environmental protection should not be constitutionalized only in the form of a policy statement = 72
2.3. Why a substantive right to an adequate environment should not be provided with lesser constitutional
status than a fundamental right = 78
2.3.1. Why the distinction between fundamental rights and social rights is conceptually problematic = 79
2.3.2. Why environmental rights should be substantive and not merely procedural = 84
2.4. Conclusion = 88
3. The Challenge of Effective Implementation = 93
3.1. The necessary conditions for judicial enforcement of constitutional rights, and claims that these cannot
be fulfilled for the right to an adequate environment = 94
3.2. The peculiar difficulties of enforcing environmental norms = 101
3.3. The institutional and constitutional competence of courts = 110
3.3.1. Specialist environmental courts = 111
3.3.2. The constitutional competence of courts = 115
3.4. The jurisprudence of human rights = 119
3.5. The effectiveness of a constitutional right to an adequate environment = 124
4. Environmental Rights as Democratic Rights = 129
4.1. Are constitutional rights inherently undemocratic? = 131
4.1.1. Undemocratic transfer of powers from legislature to judiciary = 131
4.1.2. Undemocratically binding the future? = 133
4.1.3. Rights proposals have an undemocratic motivational structure? = 135
4.1.4. Internal tensions in the majoritarian critique of constitutional rights = 136
4.1.5. Section conclusion = 138
4.2. Democratic rights = 139
4.2.1. Democracy's 'self-binding' rights: procedural rights = 140
4.2.2. Environmental procedural rights = 143
4.3. Substantive environmental rights as democratic rights = 145
4.4. Environmental rights as negative rights = 149
4.5. The democratic legitimacy of negative environmental rights = 153
4.6. Conclusion = 158
5. Is a Constitutional Environmental Right Necessary? A European Perspective = 159
5.1. Contextualizing the question = 160
5.2. Environmental rights in European Community law = 165
5.2.1. EC policy principles = 166
5.2.2. Directives = 170
5.3. Using human rights for environmental protection = 173
5.3.1. The environmental potential of existing substantive rights in Europe = 174
5.3.2. Procedural environmental rights and the Aarhus Convention = 177
5.4. Conclusion = 181
6. Environmental Rights and Environmental Justice: A Global Perspective = 185
6.1. State constitutions and the permeability of normative orders = 188
6.1.1. The continuing importance of the nation-state = 188
6.1.2. The permeability of domestic and international normative orders = 191
6.2. Constitutional environmental rights viewed from the normative perspective of global justice = 192
6.3. The value of constitutional environmental rights for poorer societies = 200
6.3.1. The need for environmental rights is not nullified by imperatives of development = 200
6.3.2. Illustrations of permeability in practice = 203
6.3.3. Poorer countries in the avant garde of environmental human rights jurisprudence = 205
6.4. Conclusion = 210
Bibliography = 217
Index 229