The Global Emergence of Constitutional Environmental Rights

Over the past five decades, many scholars have debated the normative pros and cons of granting legal recognition to the right to live in a healthy environment, a relative newcomer to the library of human rights. Since 1976, this right has spread rapidly across the world, securing constitutional protection and being incorporated into environmental laws in more than 100 nations, and gaining recognition in regional treaties ratified by at least 135 nations (Boyd 2012).Despite this unprecedented convergence of human rights law and environmental law, few scholars have explored the factors influencing the emergence of these remarkable legal developments, or the practical consequences for people and ecosystems. Joshua C. Gellers, with his slim but idea-filled book, The Global Emergence of Constitutional Environmental Rights, is at the forefront of an exciting new wave of empirical scholarship.Constitutions are the highest form of law in all contemporary legal systems, and also serve, at least in theory, as an important reflection of a nation’s most deeply cherished values. Meanwhile, the world faces profound ecological problems caused by human activities. For these reasons, Gellers’ focus on the processes, factors, and players involved in constitutional recognition of environmental rights is eminently justified. At its heart, the book seeks to answer a simple but significant question: “Why do some countries have constitutional environmental rights while others do not?” (p. 2).To answer this question, Gellers develops a model, which he calls the “world cultural framework,” drawn from theories in political science, sociology, and law. This framework suggests that an international normative context (based on individualism, rationalization, and universalism) exists and is drawn upon by actors (bureaucrats, lawyers, judges, policy-makers, and activists) to influence outcomes at the national level.To test the utility of his proposed framework for analyzing constitutional environmental rights, Gellers skillfully employs a combination of quantitative and qualitative research methods. On the quantitative side, he uses various global data sources to test a series of hypotheses, drawn from the international relations literature, about the factors leading states to incorporate environmental rights in their constitutions. His results indicate that constitutional environmental rights are more likely to be found in countries with higher numbers of international civil society organizations, higher levels of democratic governance, and poor human rights records. Thus the emergence of constitutional environmental rights appears to validate his model, as it is significantly influenced by both international norms and domestic political concerns.This quantitative global analysis is complemented by qualitative assessments of the emergence of constitutional environmental rights in Nepal and Sri Lanka, two nations selected for their demographic similarities. Through country visits and interviews with lawyers, activists, academics, and government officials, Gellers compares the processes and factors that led Nepal to include the right to a healthy environment in its 2007 constitution (and modified in 2015) and that resulted in Sri Lanka not doing so. Again, the results are consistent with his hypothesis that constitutions are determined primarily by the influence of domestic factors, but within an international normative context.In Nepal, environmental issues enjoyed a prominent public profile and the active support of civil society, leading to the adoption of environmental rights by constitutional drafters. In Sri Lanka, little attention was paid to the environment during the original constitution drafting process during the 1970s or in a subsequent process that led to a draft constitution in 2000, which was never adopted. Political debates in Sri Lanka focused on devolution of power and other issues perceived as pressing problems, with less emphasis on either human rights or environmental issues.Interestingly, in both Nepal and Sri Lanka, courts followed a series of judicial precedents from India’s Supreme Court, ruling that even when the right to a healthy environment is not explicitly mentioned in a constitution, it is implicit in other fundamental rights, such as the rights to life and health. The Nepalese court decision not only predated the inclusion of the right to a healthy environment in the 2007 constitution, but the judge responsible for the decision later chaired the committee making decisions about the content of the constitution. While Gellers identifies this judge’s role as “of no small consequence,” it perhaps deserved greater attention, as it suggests the critical role that specific influential individuals may play in constitutional drafting processes.In the Sri Lankan case study, Gellers depicts the judiciary’s recognition of an implicit constitutional right as part of a broader set of legal developments (a long history of environmental law, robust legal framework, and judicial openness towards environmental litigation) that diminished the perceived importance of establishing an explicit right to a healthy environment in the constitution.Overall, this book is a significant contribution to the growing literature on constitutional environmental rights. Gellers’ empirical, mixed-methods approach sets the bar high for other scholars seeking to tackle the many remaining questions in this field. Gellers closes with useful recommendations both for governments implementing these rights and for scholars studying the emergence and effects of these rights

Constitutional law · Environmental law · Environmentalism · Human rights · International human rights law · International law · Law and economics · Normative · Political science · Politics · Scholarship · Sociology · Environmental law and policy · Human Rights and Development · International Environmental Law and Policies · Law

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