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Journal of Environmental Policy & Planning

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A rights foundation for ecological democracy

Walter F. Baber & Robert V. Bartlett

To cite this article: Walter F. Baber & Robert V. Bartlett (2020) A rights foundation for ecological democracy, Journal of Environmental Policy & Planning, 22:1, 72-83, DOI: 10.1080/1523908X.2019.1566059

To link to this article: https://doi.org/10.1080/1523908X.2019.1566059

Published online: 14 Jan 2019.

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A rights foundation for ecological democracy Walter F. Babera and Robert V. Bartlettb

aDepartment of Public Administration and Public Policy, California State University Long Beach College of Health and Human Services, Long Beach, United States; bDepartment of Political Science, Vermont College of Arts and Sciences, Burlington, United States

ABSTRACT What would it mean to conceptualize some environmental relationships as bundles of rights, rather than as a good as generally defined by liberalism? Environmental rights are a category of human rights necessarily central to both democracy and global environmental protection and governance (ecological democracy). The world of democratic politics and governance since mid-twentieth century has been transformed by a rights revolution in which recognized rights have come to constitute a ‘global normative order.’ There are several policy spaces in which persuasive environmental rights discourses have been emerging from existing or foreseeable congruences of elite and popular environmental norms, including (1) rights involving access to information and decision-making processes; (2) rights ensuring access to food and water; and (3) rights providing environmental security to all. We analyze these three rights discourses and assess their current and necessary future trajectories. We identify next steps in achieving better understanding and more meaningful establishment of environmental rights and their integration into our thinking about human rights, with attention to how they can be reconciled with the social and cultural diversity of democratic environmental governance in coming turbulent times.

ARTICLE HISTORY Received 19 November 2017 Accepted 3 November 2018

KEYWORDS Environmental rights; human rights; ecological democracy; deliberative democracy; environmental governance

Introduction

Aspects of what constitutes ‘democracy’ continue to be highly contested, but the term can generally be under- stood to denote a system of governing activity that involves choosing leaders or policies or otherwise making collective decisions under conditions of equal and near-universal franchise (right to participate), the active par- ticipation of the citizenry (on the basis of equal citizenship) in politics and civic life, the equal protection of the human rights of all people, and the rule of law in which behavioral standards and requirements apply equally to all citizens. ‘Ecological democracy,’ in turn, denotes a (still only imaginary) system of governing activity that will meet all of these criteria along with the additional demanding expectation that it must functionally, sub- stantively, or procedurally live up to some minimal standard of ecological rationality (see Baber & Bartlett, 2005; Bartlett, 1986; Dryzek, 1987). In both popular and theoretical understandings of democracy generally, as well as in the still very nascent thinking about ecological democracy, there is an emphasis and focus, and already a substantial theoretical and empirical literature, on franchise and participation but considerably less attention to rights and the rule of law. Yet the recognition of a body of human rights that is insulated from popular abridgment by the effective rule of law is absolutely necessary to the continued functioning of any gen- uine democracy and, therefore by logical extension, to any prospective conception (or any eventual perform- ance) of ecological democracy. Ecological democracy has many dimensions, but development of robust theories

© 2019 Informa UK Limited, trading as Taylor & Francis Group

CONTACT Robert V. Bartlett [email protected] Department of Political Science, Vermont College of Arts and Sciences, Burlington, 05405 United States. This article has been republished with minor changes. These changes do not impact the academic content of the article.

JOURNAL OF ENVIRONMENTAL POLICY & PLANNING 2020, VOL. 22, NO. 1, 72–83 https://doi.org/10.1080/1523908X.2019.1566059

and sustainable practical experiments demands that theorists and reformers (and constructive revolutionaries) attend to the rights and rule of law foundation that ecological democracy must have.

This necessary body of environmental rights constitutes an expansive subset of human rights, which as rights must be understood to be categorically different from what are often conceived or imagined by nature writers and moral philosophers as the intrinsic rights of nature, animals, ecosystems, landscape features, or Gaia. The distinction is critical, inasmuch as intrinsic rights are rights that could only ever be realized in an ecological democracy either by universal consciousness or by humans making moral claims through their exercise of recognized environmental human rights.

The real world of democratic politics and governance since the mid-twentieth century has been transformed by a human rights revolution that has emerged in fits and starts, a revolution that has profound implications for both how ecological democracy ought to be conceptualized and its potential for realization. This revolution may be most extensively documented in a few countries, but its reach is global. Issues of enforcement notwithstand- ing, recognized human rights have come to constitute a global normative order. Some of these rights are best understood as background norms or principles. They are widely (although not unanimously) accepted as ‘pub- licly available, critical standards’ to which one may appeal in justifying or criticizing the actions and policy pro- posals of governments. Others are manifestations of norms that are constituted as law-like statements of principle that can be found in domestic law and numerous treaties as well as in long-standing patterns of cus- tomary international practice (Beitz, 2009, pp. 209–210).

This trend may seem like a slender thread upon which to hang humanity’s hopes for a future. But human rights have never been a gift – either from God or from Nature. They have been won but gradually, through ‘concerted and collective action arising from a vibrant civil society, supported by various forms of public sub- sidy. Rights revolutions originate in pressure from below in civil society, not leadership from above’ (Epp, 1998, p. 197). The rights revolution has been characterized by enough setbacks to give anyone pause. But it is evidence of the soft power of humanity – a power that offers the most attractive (perhaps our only) defense against the potential that nationalism, ethnicity, ideology, and the limits of our own empathy have to divide and destroy us (Hunt, 2007, pp. 176–214).

All this presents challenges for analyzing and theorizing, or even just talking, about human rights. It is fre- quently useful to distinguish substantive rights from procedural rights, and we do here, yet many procedural rights are really only elaborations, or manifestations, of substantive rights. Few if any other rights distinctions (negative/positive, primary/secondary, distributional rights/rights of distribution, etc.) are conceptually unam- biguous, mutually exclusive, or collectively exhaustive either, and all tend to break down in use.

Building upon this general perspective, environmental rights can be conceived of as regions in policy spaces – opportunities, channels, and interactions with potential for policy transformation (McGee, 2004, p. 16)– where the well-known democratic deficit in international governance has not resulted in elite processes going ‘off track’ – spaces where political leaders and those they serve have not parted normative company on the subject of the environment. As a result of the existence of at least some congruence of elite and mass attitudes (Baber & Bartlett, 2015), it is increasingly plausible to adopt the term ‘rights’ as a shorthand label for these areas of policy consensus. An emerging trialogue between democratic theory, human rights, and environmental protection has yet to transform either humanity or nature in any obvious way – perhaps because it consists largely of three relatively independent dialogues. But the development of a normative consensus on some basic environmental rights has progressed to the point that the case for environmental procedural rights is all but unanswerable and the moral argument for substantive environmental rights as essential preconditions for democratic decision-making is increasingly unimpeachable (Hayward, 2004; 2016). After all, some level of consensus is necessary for the development of any ‘demos’ whatsoever (Risse, 2014). As Eckersley (2004, p. 137) points out, the putative tension between environmentalism and democracy can readily be dispensed with in light of the fact that environmental rights (both procedural and substantive) are ‘designed to enhance rather than foreclose democratic debate.’ The point is to ‘create an environmental due process that minimizes judicial involvement and broadens democratic participation.’ This developing cluster of rights functions to ‘improve the conditions and inclusiveness’ of the environmental debate by ‘redressing major power imbalances in political communication and representation.’

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The dialogic emphasis brought to bear on environmental rights by Eckersley is particularly useful. It allows us to observe that, in this sense, environmental rights function as a sort of a ‘final vocabulary,’ as Richard Rorty (1989) uses that phrase. These rights give us both a terminology that we no longer feel the need to define or defend and a collection of discourses in which that language allows us (sensibly and plausibly) to engage – in this case, on environmental topics (Fischer, 2003; Hajer, 1995). So we see discussed in the literature on environmental liberalism (but not so much yet in the deliberative democratic literature) the notion of rights as constituting the bounds of legitimate democratic discourse. Meyer (2015), for example, suggests that, although liberalism generally prioritizes the right over the good, it has not been necessary for liberalism to be neutral with respect to different goods or differing conceptions of the good. This partially explains a turn toward liberal environmentalism in the last couple of decades–a turn that Meyer argues has involved efforts to identify how a particular good such as environmental sustainability is consistent with, and likely to be fos- tered by, liberalism. It also suggests a pathway between environmental liberalism and the green republicanism that liberalism’s critics suggest offers the best chance ‘to achieve the triple bottom line of sustainable develop- ment and deal with the connected problems of economic and political inequality and ecological unsustainabil- ity’ (Barry, 2008, p. 10). Along that pathway, concepts of justice originally held by individuals become institutionalized as societal rules, some of which eventually become global norms – with the most influential ultimately finding their way into international law (Sikkink, 2011).

This potential for liberalism to reconcile itself to both environmental and political critics through a more robust regime of environmental rights may be the primary reason that the right to a healthy environment has gone from an idea merely articulated by Rachel Carson to a concept that is legally recognized (in either constitutional or statutory form) by most nations in the world. This development is not only a ‘hopeful sign for the future’ (Boyd, 2012, p. 290); it also establishes a clear and compelling agenda for the completion of the unfinished foundation of global environmental governance (Boyd, 2015). One the hand, the ‘good’ of a healthy environment has ‘found its footing’ as a human right because it is a necessary precondition to other ‘fundamental and widely recognized rights.’ On the other hand, human rights are increasingly understood to be ‘important tools of environmental protection’ in a world where poverty and dispossession force ecologi- cally unsustainable lives on much of the world’s population in pursuit of the goods needed for survival (Conca, 2015, p. 146).

For liberal democrats generally but deliberative democrats in particular, what does it mean to conceptualize the environment as a (at least small) bundle of rights, rather than as a good? Doing so obviously moves environ- mental sustainability (or at least some aspects of environmental sustainability) beyond the category of a good. Yet environmental sustainability as a mere good seems to be an implicit assumption of much deliberative the- orizing, with its focus on method and theory rather than any substantive consensus structures that deliberation might reveal. Some deliberative democracy theorists have focused on substantive consensus structures, but the idea that any such consensus could be fairly characterized as a right (or cluster of rights) is not something delib- erative theorists appear to have claimed.

The reluctance on the part of many deliberative democrats to use the language of human rights derives, per- haps, from the universalizing tendencies such language is thought to have. Deliberative theorists shy away from such universalism almost as if by instinct – worried, apparently, that deliberative consensus and diversity are (or can be portrayed as) mortal enemies (Baber & Bartlett, 2015; Dryzek, 2016). Such resistance is ironic in light of the fact that the deliberative process can be productive of an ecosystemic reflexivity allowing for environmental governance that has the capacity for both diversity and consensus (Dryzek & Pickering, 2017). If one conceives of rights as the basic tools through which a society pursues justice, democracy would seem to be their constant companion in as much as no ‘undemocratic’ agent of justice could ever be worthy of the name (Dryzek, 2016).

Nevertheless this resistance has been the catalyst for some innovative deliberative theorizing. As one example, the dominant position of the theoretical premises of persuasion, argumentation, and identification in Western rhetoric has led some to argue for a more ‘versatile’ theory of deliberation recasting deliberation as a series of formative acts wherein differences are generative and constitutive of relational agency (Lyon, 2015). When focused on paradigmatic human rights struggles, this viewpoint is said to reveal the limits of lib- eral models of democracy and their diminishment of interpretive differences. Re-conceptualizing human rights

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as relationships, it is argued, shows deliberation’s ability to transform our understanding of cross-cultural rights practices. It opens the door for a reconceptualization of justice (as the right to engage in contestation through formative agency) that provides an answer to the otherwise confounding puzzle of how humans can have a right to democracy itself – which is, of course, an essentially contested value (Dryzek, 2016)

So, if deliberative theorists’ own research were to eventually reveal a global public environmental consensus that is broadly based (although narrow in scope), might those results sustain – indeed require – a new rights discourse in global environmental politics, carried out with the same vocabulary that has allowed rights revolu- tions to flourish in democratizing national legal systems? In countries where human rights have been success- fully integrated into the legal order, that success has been the product of support structures in both civil society and the judiciary (Epp, 2011). These necessary support structures are products of a wide range of complex fac- tors, including the development of rights consciousness, a ‘process of social learning ... techniques of organiz- ation and strategic litigation,’ and the presence of financial resources typically available only from wealthy foundations and individuals (Epp, 1998, pp. 201–202). Such social, economic, and political conditions have not emerged automatically from democratization, industrialization, and modernization, but neither have they emerged in their absence. All of these factors are present in liberal societies (at least in some degree), but some or all are missing from illiberal ones. When these factors support the inclusion of an environmental right in a nation’s basic charter, evidence suggests that the result is a greater likelihood of achieving environ- mental justice and environmental protection (Daly, 2012; Gellers & Jeffords, 2018; Hayward, 2005). In one empirical study, ‘factors relating to the promotion of international norms (e.g. presence of INGOs in a country) and domestic politics (e.g. history of human rights practices and level of democracy) proved significant, while factors relating to state self-interest (e.g. ability to attract foreign investment and exploit one’s natural resources) did not.’ Contrary to expectations, ‘the likelihood that a state might adopt a constitutional right was mainly affected by factors internal to the state such as the historical context in which a constitution was written and the perceived capacity of existing legal institutions to effectively address environmental challenges’ (Gellers, 2017, p. 127). A more deliberative (and, therefore, conceptually critical) human rights discourse would be potentially fatal to the corporate conception of the legal person that endangers both humans and their environ- ment (Grear, 2007). In both of these ways, environmental constitutionalism – which even its proponents acknowledge is ‘a nebulous and unwieldly concept’ – is one that people are likely to ‘understand intuitively’ and to accept (Kotzé, 2015, p. 168) as it continues to expand the horizons of both national and international adjudication (Grant, 2015; Kotzé, 2016; May & Daly, 2015).

So, if human rights are to answer the call to environmental protection, that answer will likely be couched (at least initially and, perhaps, uncomfortably) in the familiar rights language of political liberalism. The irony here is hard to miss. If it is by way of the concepts and terminology of free enterprise and the Washington Consensus that we hope to reverse the ecological damage of breakneck industrialization and to avoid the worst environ- mental outcomes of globalization, perhaps we have given up the game before play has even begun. Yet there are a number of areas in which a level of deliberative consensus sufficient to support environmental rights dis- courses is being developed, and evidence of that emergent consensus can be found. Policy spaces in which per- suasive environmental rights discourses are most likely to emerge from the existing or foreseeable congruence of elite and popular environmental norms are multiple, for example those reconciling group and individual rights and those balancing interests in private property and economic equity.

Even brief superficial analyses of a few of these policy spaces might suggest how regions of emerging con- sensus extend the reach of environmental protection norms without either diluting a consensus into meaning- lessness or depriving democratic politics of its critical capacity. We consider and then assess here the current and necessary future trajectories of three exemplary developing environmental rights discourses, those: (1) involving access to information and decision-making processes; (2) ensuring access to food and water; and (3) providing environmental security to all. We consider and assess the current and necessary future trajectories of these environmental rights discourses. How might they be reconciled with the socially and culturally diverse legal traditions in which environmental rights have to be acquitted in the turbulent times of future ecological democracy and governance?

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Access to environmental information and decision making

Success in the areas of environmental and human rights litigation (as in any other) begins with an understand- ing of legal procedure and how to use it. In a plural society there may be more widespread support for pro- cedural rights than substantive ones when it comes to potentially divisive issues. Moreover, a sound procedural footing is useful insurance against falling into the absolutist view of environmental rights in a futile attempt to ‘take them out of the hurly-burly of politics and give them a higher status’ than judges are ever likely to confer upon them (Bodansky, 2012, p. 61).

A second and more specific reason for beginning with the procedural rights of information and access to decision making is that our objective is to find productive ways of relating the emerging field of international environmental rights to the principles and practices of democracy, in particular deliberative democracy. The relationship between deliberative democracy and environmental protection more generally has been explored at both the national and global levels (see, for instance, Baber & Bartlett, 2005, 2009). A prominent feature of this relationship has been a tension between two values that deliberative democrats hold dear – a commitment to rational discourse in search for consensus and a dedication to diversity and inclusion. This tension is per- sistent, and the fact that it can be resolved (Baber & Bartlett, 2015, pp. 57–82) does not mean that it will go away on its own. Affirmative and authoritative actions to satisfy people’s needs for information (in support of discursive rationality) and access (of a universal character) will obviously be part of any strategy for devel- oping politically sustainable resolutions of that recurring tension that might ultimately safeguard environ- mental rights.

Information and access as an area of inquiry has an additional advantage – the availability of a fully devel- oped and formally adopted international agreement on the subject. The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) was signed in 1998 in the Danish city of Aarhus and entered into force in 2001. Currently, it has 47 parties—46 states and the European Union on behalf of all of its 28 member states. The Aarhus Convention recognizes public rights regarding access to information, public participation, and access to justice in governmental deci- sionmaking processes on matters concerning the local, national, and transboundary environment. It focuses on interactions between the citizens and public authorities.

More specifically, the convention requires that every citizen should have the right to wide and easy access to environmental information, that public authorities must collect and disseminate information in a timely and transparent manner, that the public must be informed regarding all environmentally relevant projects and must have the chance to participate during decision-making and legislative processes, and that the public has the right to judicial or administrative recourse procedures in case of violations of existing environmental law or the principles of the Convention itself (Duyck, 2015). Although compliance with the Convention by gov- ernment actors is not uncontested, as one might imagine, finding evidence of serious dissent from the Conven- tion’s purposes and provisions in mass public opinion is nearly impossible. But that does not mean that the Convention’s underlying policy theory enjoys the level of support–either by states or a global public– that it requires.

As with other ‘transparency’ policies, the Aarhus Convention assumes that with adequate information, access to decision making, and effective legal recourse, an enlightened public can exercise the control over its elected and appointed officials that democracy requires. Few would argue with the objective, but there is considerable evidence that each connection of that predictive discourse is subject to being undermined by pub- lic attitudes. For instance, receiving full information regarding public issues (particularly where the information is persistently negative) has the potential to discourage public participation in the policy process (Bauhr and Grimes 2015).

Citizens are often willing to defer to public officials rather than hold them accountable. This pattern persists even in the presence of policy outcomes that are regarded as significantly negative and can be traced to the pop- ular assumption that government officials are possessed of a level of expertise that justifies an attitude of def- erence rather than strict accountability (Gerber, Huber, Doherty, & Dowling, 2011). It is even possible to convince majorities in developed democracies (as result of campaigns promoting judicial retrenchment in

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defense of existing power and privilege) that free and equal access to the halls of justice is a policy problem rather than a solution (Staszak, 2015). So in spite of its attractiveness in principle, Aarhus harbors within its normative foundation a number of potentially serious lacunae. The existing level of consensus that supports the Convention leaves it vulnerable in nation states whose elites are reluctant to bring their domestic procedures into alignment with the principles that Aarhus espouses (Getliffe, 2002).

Eat, drink, and be human – rights to food and water

As a general matter, thinking about rights tends to run strongly in the direction of procedures. But when sub- stantive rights are asserted, they tend to fall into the categories of political rights and property rights – with fewer and less demanding social and economic rights receiving recognition, if they are granted any position at all. This relatively simple and widely recognized fact goes some way toward explaining the confusing state in which the right to food and water is found. There is a patchwork quilt of global, regional, and national docu- ments related in more or less direct and explicit ways to these two fundamental human needs. Together these two emerging human rights discourses have significant potential as grounds for legal advocacy in the cause of environmental protection.

Access to food as a matter of fundamental human right is the product of a cluster of international and regional norm-building efforts. The normative core of this process is not that people should be given food but, rather, that people are entitled to enjoy the preconditions, including environmental, necessary to feed themselves (Kent, 2005). This is the central organizing principle that defines the contours of a justiciable claim on national governments that has both negative and positive dimensions, and that has found its way into both international and regional legal documents such as the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The right became jus- ticiable under the terms of the 2009 Optional Protocol to the ICESCR and the 2012 Food Assistance Convention. The principle is enshrined in more specific international agreements on genocide and the status of refugees and in conventions regarding the rights of women, children, and the disabled – as well as in numerous regional agreements and national constitutional and statutory schemes. At its most ambitious, the principle calls for nothing less than a devolution of food sovereignty that would allow people (and peoples) to reclaim control over this most basic relationship between themselves and their environment (Claeys, 2015). Careful case ana- lyses of how this principle is sustained by practice identify a broad range of legal, political, and economic cir- cumstances that produce widely varying results in developed (Wernaart, 2014) and developing (Riol, 2016) countries alike.

Likewise, the human right to water is a legal discourse with a long and varied pedigree (Salman & McIner- ney-Lankford, 2004). The main international agreements that explicitly recognize a right to water (and the col- lateral right to sanitation) are the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, the 1989 Convention on the Rights of the Child, and the 2008 Convention on the Right of Persons With Disabilities. The right to water would seem to be an essential condition imposed by any of the documents men- tioned above regarding the right to secure one’s own food. As with the right to food, the discourse concerning the right to water relies upon states to attend to any obligations that the right might impose, which necessarily must include protecting the environment. As one might expect, that process relies as much (if not more) on national constitutional and statutory schemes of water rights as it does on international agreements.

As is obvious from even this brief account, the right to water exists under international law but in a more differentiated and multi-level manner than is commonly recognized. The right is neither singular nor compre- hensive, neither truly international nor entirely local. It should be understood as a composite discourse carried on at different levels of governance and in different policy arenas. It derives from separate rights to health, life, and an adequate standard of living, and is supported by an array of regional and national rights. As a conse- quence of its multi-level and multi-sectoral character, the right to water can only be acquitted in practice by a multi-pronged legal approach. That approach will necessarily involve (at a minimum) independent inter- national monitoring, national level enforcement directed at the private sector, and further progressive

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realization at the international level (Thielborger, 2014). The same is true of the right to food discourse. Both discourses pose significant challenges for advocates of international environmental protection.

With respect to the ecological issues associated with efforts to secure the right to food, such efforts may come into conflict with other concerns for environmental protection. The environmental consequences of the Green Revolution are a case in point. Ecological damage was sometimes the direct result of new hybridization, ferti- lizer, and pest control technologies. But also policies often promoted injudicious use of agricultural inputs and the expansion of production into marginal areas that could not support high levels of agricultural exploitation (Perry, 2016). A human rights approach can set up conflicts, pitting food provision, environmental protection, and other human interests against each other in local and international versions of the same divisive and dama- ging arguments that play out in national political arenas.

Even when rights discourses do not lead to conflicts between environmental protection and other human interests, they have the potential to distract us from the underlying problems that should concern us most. Technophobia is one manifestation of this kind of distraction. Another is the tendency of rights discourses to raise distributional issues. The multiplicity of discourses involved in the human right to water is a prime example. The dominant discourse in this area involves the wide-ranging implications of such a right for the distribution of water. Examining these implications requires putting the right to water into the broader context of different water uses, and also requires analyzing its linkages to (and competition with) other human rights – many of which depend on water for their realization. This focus is a natural consequence of the fact that water allocation is a highly political issue reflecting societal power relations, with existing dis- tribution patterns often benefitting the privileged and powerful. But human rights, broadly speaking, require prioritizing the most basic needs of all people. The right to water obviously has the potential to address these underlying structural causes of the lack of access. Rooted in inequalities and poverty, people can be empow- ered to hold the state accountable to live up to its human rights obligations and to demand that their basic needs are met (Winkler, 2012). A justifiable focus on distributive injustice in water allocation also runs the risk of delaying pursuit of (or even distracting us from) the equally important issues of environmental injus- tice in the distribution of water pollution impacts and the water needs for ecosystem maintenance, as well as the even broader issue of the water rights problems associated with climate change. Similarly, although a right to clean water could have a positive impact on environmental pollution problems, and a right to water could help to protect people in the face of climate-induced drought, it also has the potential to be harmful by prior- itizing immediate human needs for water use over longer term ecosystem maintenance and preservation needs.

Environmental security in an insecure age

The assertion of the general entitlement to a healthy environment as a right in itself – to environmental security, as it were – ‘does not enjoy widespread recognition in international law,’ in spite of the fact that it ‘sits at the intersection of a two-way instrumentality’ (Conca, 2015, p. 146). On occasion, international human rights law has addressed the right to a healthy environment directly (UNEP 2014). Yet the plodding international progress toward a right of environmental security has not prevented at least 92 nations from incorporating an explicit general environmental right into their constitutions or the high courts of twelve other nations from ruling that such a right is implicit in other provisions of their fundamental law (Boyd 2012, p. 279).

Before celebrating the intrepidity of national governments for having stepped in where international actors fear to tread, it is worth observing that the actual application of these environmental security provisions con- tinues to be a hit-and-miss affair. As with environmental protection generally, compliance with these rights- based rules has been complicated by the presence of actors who could meet their legal obligations if they wished, but do not, and those who wish to meet their obligations, but cannot. More interesting for our purposes, there is an important similarity across the cases where national courts have taken firm action to enforce a general right of environmental security.

Two standout cases have arisen in the Philippines and in India – involving actions to force water quality improvements in Manila Bay and to clean up motor vehicle pollution in Delhi. In both instances, the country’s

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high court took definitive action – based at least in part on general environmental security provisions of the sort we have been discussing (Boyd, 2012; pp. 168–169; 175–182). In each case the court was asked to apply a gen- eral and open-ended right in a specific and limited way. Both cases presented claims involving spatial and sec- toral limits. Neither asked the court to mandate nation-wide remedies to secure for the population vital environmental goods or services or impose omnibus regulations to protect the country at large from environ- mental harm. This suggests that even where broadly worded substantive environmental rights are adopted, at least early on they are likely to be applied by courts in limited doses to address specific ailments. Whether such limited therapy can address the underlying causes of environmental rights violations, much less stem the global pandemic of environmental degradation, is far from clear, as is the prospect of courts engaging in broader, more robust applications.

Next steps

This survey of potential arenas for engaging environmental rights discourse in ecological democracy leads to four conclusions that constitute essential tasks going forward. First, we need to know in significantly more detail what international support exists for these rights in international law. In the years since the landmark 1972 Stockholm Declaration, ‘more than half of the world’s nations have recognized the constitutional right to a healthy environment’ as an element of their legal orders (Boyd, 2012, p. 279). Yet much (and more careful) empirical and interpretive work remains to be done if we are to understand the actual impact of these devel- opments on the attitudes and behavior of environmental actors and find ways to expand the reach and effec- tiveness of what appears to be a promising secular trend. There have been notable recent attempts to advance an omnibus substantive environmental rights regime, falling into two categories. One is aspirational, a proposed framework regime consisting of proposed changes to the existing international legal architecture intended to better protect the environment and human environmental interests (Turner 2013). The other category is more analytical than aspirational, comprising the development of legal principles intended to reflect actual or emerging international human rights law (Knox 2018). The ultimate intention is certainly progressive, but the immediate objective is to ‘restate’ the law as it is and to describe such trends in its development as can readily be discerned.

Second, we must determine (insofar as we can) whether or not sufficient popular support for progress in these areas exists (or can be developed) at the global level. As an example, the energizing effect of the United Nations General Assembly’s finding a human right to water for rights-based approaches to water-related Mil- lennium Development Goals has been significant (Conca 2015). More careful and comprehensive analysis of this phenomenon (and the political processes that produce it) is required if its impact is to be sustained and that success replicated in other areas.

Third, a way must be found to determine whether such congruence as we can discover in elite and popular opinion actually constitutes a consensus. Is the level of agreement great enough to sustain international action, and is it actually agreement about the same normative propositions (or merely about terminology being used to conceal persistent dissent)? Human rights evolve, and new rights emerge, but not merely because they are socially constructed or because experience demonstrates the need for them – important as those aspects of the process are. Equally, if not more important, is that ‘human rights grow and evolve as the human relationships from which they emerge change the ways in which we relate to each other, our politics, and our natural world’ (Hiskes, 2009, p. 146). Therefore, deeper understanding how those involved in rights-related environmental actions understand themselves and their own narratives will be increasingly critical.

Finally, we need to try as best we can to anticipate how emerging environmental rights will be received by humanity’s varying legal traditions (and their constituent administrative institutions). How will any normative consensus we think we may have found play–in Peoria (and Phuket, and Petrozavodsk, and Pretoria, and Port- au-Prince)? These questions are far too involved to be explored even a sketchy way here, but explore them, eventually, we must.

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Environmental rights as a subject within, and a constituent element of, the human rights context

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, has been characterized as a declaration of interdependence (Glendon 2001). In this view, the Declaration, when read as a whole as it was meant to be, is ‘an integrated document that rests on a concept of the dignity of the human person within the human family’ – that it is, in substance as well as form, a declaration of the ‘inter- dependence of people, nations, and rights’ (174). This is consistent with the argument of those most closely associated with its creation that the Declaration’s separation of human rights into four categories – rights to life, liberty, and personal security (Articles 3–11), rights in civil society (Articles 12–17), rights in the polity (Articles 18-21), and economic, social, and cultural rights (Articles 22-27) – is not in any way an ordinal, pri- ority, or hierarchical arrangement. The Declaration does not view one category of rights as more fundamental, as more necessarily human. Nor does it allow for other distinctions between human rights (procedural v. sub- stantive, negative v. positive, primary v. secondary) to carry much analytical weight – or, indeed, to survive much past the limits of their pedagogical utility. To pursue such distinctions very far is (from the perspective of the Declaration) to court one Procrustean dilemma after another.

Therefore, introducing environmental rights into the context of the Declaration should not, cannot, be viewed as simply adding another action item to the category of economic, social, and cultural rights. The Declaration itself doesn’t partition the human experience into such neat packages and, if that kind of view were ever environmentally warranted, it certainly no longer is. Humans are no longer mere survivalists strug- gling to adapt to their natural environment (although many are still doing that, in part). As a species, our impact on the earth has caused changes that are far outside the range of natural variability, equivalent to such major geological disruptions as ice ages. Scientists are increasingly of the opinion that we are in an entirely new epoch in planetary history: the Anthropocene. In this era of planet-wide anthropogenic transformation, no element of the non-human world is immune to human influence and no human interest can be pursued in isolation from ecological considerations (Bierman 2014). It is difficult to escape the conclusion that we need a new model for planet-wide environmental politics, ultimately a ‘hyper-reflexive geopolitan democracy’ for earth systems gov- ernance (Eckersley 2017). But if this is going to be a truly democratic politics, every structure exercising gov- ernance powers needs to have a complementary system of rights – preferably, coextensive with the system of powers that it modifies and guides.

The ubiquity of concern for environmental rights in governance processes generally is suggested by the pro- nounced trend toward the inclusion of environmental rights in the constitutions (or basic laws) of nations around the world (Boyd 2012; Gellers 2017). The total number of nations with at least one such provision now numbers over 130, and at least one nation every year since 1971 has added an environmental provision or strengthened one that it already had (Boyd 2015). But even our early experience with these new provisions counsels caution. It is becoming increasingly clear that substantive environmental rights without complemen- tary procedural components usually fail to protect human interests (often due to a lack of justiciability) and that procedural environmental rights (by themselves) guarantee nothing more than that ecologically disastrous decisions will be made after due process. The early difficulties encountered in translating these environmental rights into the language of international law, even in a world where the vast majority of national languages already contain the necessary vocabulary, shows that scalability is a more daunting problem than mutual incomprehension (Morrow 2015).

Perhaps no better example of a fundamental, and environmentally dependent, human right can be imagined than the right to food of adequate quantity and quality, discussed earlier. This topic will clearly appear near the top of most people’s list of economic concerns. Yet the number of people worldwide who suffer from food inse- curity is approximately one billion, and every five seconds a child dies from hunger (Leib 2011). No wonder, then, that the right to food was explicitly mentioned in the Universal Declaration (Article 25) and in many sub- sequent international documents. The common understanding of this right is that it embraces ‘accessibility to food, its quality, its sustainability, and its cultural suitability’ (Leib 2011, p. 147). But the right to food is far from being a simple economic right. Myriad connections tie this concern back to the rights of humans in their polity

80 W. F. BABER AND R. V. BARTLETT

(disenfranchisement in food governance), in civil society (respecting cultural food preferences and prohibi- tions), and the life, liberty, and security concerns that contribute so significantly to human dignity (as when starvation becomes a tool of systematic repression, or even genocide). Food insecurity is clearly implicated in a range of other environmental and human rights concerns. For instance, food insecurity is an important nexus between the problems of global climate change, one the one hand, and forced migration and ongoing refugee crises on the other (McAdam 2012).

So, if we take the Universal Declaration of Human Rights as our touchstone and fundamental guide to what our species should aspire to (as its authors hoped), perhaps we will need to make more explicit its declaration of interdependence. We cannot preoccupy ourselves with the procedural versus the substantive, the negative ver- sus the positive, the local versus the global, or the human versus the environmental. Not only are people, nations, and rights mutually interdependent, all three stand in a relation of interdependence with the non- human environment. Neither our fate as a species nor our dignity as persons can be disentangled from the impact we have on the only ecological niche we have ever had – or are likely ever to have in the foreseeable future.

Conclusion

Real-world ecological democracy without an effective system of environmental rights, in any circumstances remotely similar to modernity, is impossible. As is often the case when environmental governance develop- ments over recent decades are assessed, reasons can be found to be hopeful (although certainly not enough to justify optimism). An international and increasingly global consensus about certain fundamental environ- mental rights has emerged in recent decades as a continuation of a broader rights revolution. Although devel- opment has been greater in some areas than others, and such rights are still largely observed in the breach, much more has been established than is generally appreciated, and it likewise has been more consequential. We can expect that efforts will continue to be made to extend the environmental reach of that revolution, although we can be confident that its path and speed will never be smooth, with neither its direction nor impacts ever especially predictable. Reversals, as is true of human rights generally, are undoubtedly possible. But if something approximating ecological democracy is ever to be realized in the human environment—some- thing beyond the imaginings of theorists and utopian fiction writers–then it will be necessary for a significant body of environmental rights to be universally recognized, and for governance arrangements to be created that will give them substantive impact via an extended rule of law. In the Anthropocene, life itself (in all its forms) is threatened by perversely managerial forms of democracy (Wolin 2004) and by increasingly totalitarian politics untempered by the genuinely political (Wolin 2008)–circumstances in which environmental rights become ever more essential, not simply to redress environmental wrongs but also to frame environmental obligations. To successfully contest the Janus-faced process of ecological despoliation and human exploitation, real ecological democracy must rely on established, embedded, robust configurations of environmental rights to clearly ident- ify ‘those who should not have done what they did, those who should have done what they didn’t, and those who must act now because of what others did and didn’t do’ (Walzer 2007, p. 262).

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Walter F. Baber is professor in the Environmental Sciences and Policy Program and the Graduate Center for Public Policy and Administration at California State University, Long Beach.

Robert V. Bartlett is the Gund Professor of the Liberal Arts in the Political Science Department and the Environmental Program at the University of Vermont.

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