Constitutional Environmental Rights

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ISBN: 9780199278688 | 0199278687
Cover: Paperback
Copyright: 2/17/2005

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Should the fundamental right to an adequate environment be provided in the constitution of any modern democratic state? Drawing on precedents from around the world, this book provides the first politically-focused analysis of this pivotal issue. Hayward compellingly demonstrates how the right is both necessary and effective, conducive to democracy, and serves the cause of international environmental justice.

Acknowledgements

Introduction

Background

(4)

Rationale

(9)

The rationale for a constitutional approach to environmental protection

(4)

The rationale for taking environmental protection to be a human rights issue

(4)

Section conclusion

(1)

Overview of the arguments of the book

(11)

The Case for a Human Right to an Adequate Environment

(38)

The case for pursuing environmental ends by means of human rights

(9)

The scope of an environmental human right

(4)

Addressing doubts from an environmental perspective

(5)

A genuine human right?

(11)

A universal moral right to an adequate environment

(7)

Why the right to an adequate environment meets the criteria of a genuine human right

(3)

Defending the case means critically assessing the relation of rights to duties

(4)

International recognition of a human right to an adequate environment: the precedents

(4)

Conclusion

(5)

Constitutionalizing the Right to an Adequate Environment: Challenges of Principle

(30)

Why the right to an adequate environment ought to be constitutionalized

(7)

Assessing the claim that `all human rights ought to be constitutionalized'

(6)

Why environmental protection should not be constitutionalized only in the form of a policy statement

(6)

Why a substantive right to an adequate environment should not be provided with lesser constitutional status than a fundamental right

(10)

Why the distinction between fundamental rights and social rights is conceptually problematic

(5)

Why environmental rights should be substantive and not merely procedural

(4)

Conclusion

(5)

The Challenge of Effective Implementation

(36)

The necessary conditions for judicial enforcement of constitutional rights, and claims that these cannot be fulfilled for the right to an adequate environment

(7)

The peculiar difficulties of enforcing environmental norms

101

(9)

The institutional and constitutional competence of courts

110

(9)

Specialist environmental courts

111

(4)

The constitutional competence of courts

115

(4)

The jurisprudence of human rights

119

(5)

The effectiveness of a constitutional right to an adequate environment

124

(5)

Environmental Rights as Democratic Rights

129

(30)

Are constitutional rights inherently undemocratic?

131

(8)

Undemocratic transfer of powers from legislature to judiciary

131

(2)

Undemocratically binding the future?

133

(2)

Rights proposals have an undemocratic motivational structure?

135

(1)

Internal tensions in the majoritarian critique of constitutional rights

136

(2)

Section conclusion

138

(1)

Democratic rights

139

(6)

Democracy's `self-binding' rights: procedural rights

140

(3)

Environmental procedural rights

143

(2)

Substantive environmental rights as democratic rights

145

(4)

Environmental rights as negative rights

149

(4)

The democratic legitimacy of negative environmental rights

153

(5)

Conclusion

158

(1)

Is a Constitutional Environmental Right Necessary? A European Perspective

159

(26)

Contextualizing the question

160

(5)

Environmental rights in European Community law

165

(8)

EC policy principles

166

(4)

Directives

170

(3)

Using human rights for environmental protection

173

(8)

The environmental potential of existing substantive rights in Europe

174

(3)

Procedural environmental rights and the Aarhus Convention

177

(4)

Conclusion

181

(4)

Environmental Rights and Environmental Justice: A Global Perspective

185

(32)

State constitutions and the permeability of normative orders

188

(4)

The continuing importance of the nation-state

188

(3)

The permeability of domestic and international normative orders

191

(1)

Constitutional environmental rights viewed from the normative perspective of global justice

192

(8)

The value of constitutional environmental rights for poorer societies

200

(10)

The need for environmental rights is not nullified by imperatives of development

200

(3)

Illustrations of permeability in practice

203

(2)

Poorer countries in the avant garde of environmental human rights jurisprudence

205

(5)

Conclusion

210

(7)

Bibliography

217

(12)

Index

229

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Constitutional Environmental Rights

Summary

Table of Contents

Supplemental Materials