The Foundations of the Aarhus Convention: Environmental Democracy, Rights and Stewardship 9781509915279, 9781509915293, 9781509915262

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THE FOUNDATIONS OF THE AARHUS CONVENTION Environmental law is dense with monolithic concepts, from ­environmental democracy to intergenerational justice, from sustainable development to stewardship. Each concept generates its own mythology about what environmental law should aspire to. Sometimes these ideas become so big that we lose hold of their meaning and therefore what we allude to when we describe environmental law in such terms. No more so is this true than in relation to the Aarhus Convention – an ambitious instrument of environmental law that promotes public participation and access to justice in relation to the environment. Since its inception it has been revered in glowing terms, and praised variously for its contribution to citizenship, environmental responsibility and democratic legitimacy. But how are we to know whether these descriptions are mere puffs or genuine statements about the Convention’s character? This important monograph digs deep into the foundations of the Aarhus Convention, examining its ambitious potential through the lens of three foundational purposes – environmental democracy, rights and stewardship. In so doing, it offers an innovative analysis of the Convention and contributes to how we understand these three important ideas that inhabit environmental law, unravelling and reassembling them to build meaning into our broad-brush descriptions.

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The Foundations of the Aarhus Convention Environmental Democracy, Rights and Stewardship

Emily Barritt

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Emily Barritt, 2020 Emily Barritt has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Barritt, Emily, author. Title: The foundations of the Aarhus Convention / Emily Barritt. Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020.  | Includes bibliographical references and index. Identifiers: LCCN 2020023048 (print)  |  LCCN 2020023049 (ebook)  | ISBN 9781509915279 (hardcover)  |  ISBN 9781509915262 (ePDF)  |  ISBN 9781509915286 (Epub) Subjects: LCSH: Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters (1998 June 25)  |  Environmental law.  | Environmental justice.  |  Environmental protection.  |  Freedom of information.  | Environmental law, International. Classification: LCC K3583.31998 .B37 2020 (print)  |  LCC K3583.31998 (ebook)  |  DDC 344.04/6—dc23 LC record available at https://lccn.loc.gov/2020023048 LC ebook record available at https://lccn.loc.gov/2020023049 ISBN: HB: 978-1-50991-527-9 ePDF: 978-1-50991-526-2 ePub: 978-1-50991-528-6 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

In memory of my parents – George and Philomena

vi

Acknowledgements

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hen I finished my PhD, I neglected to write an acknowledgments page. In the final sleepless three-day writing marathon (necessary so that I could complete before I was liable for a looming tuition fee bill) the courteous recognition of all those who had aided the endeavour did not make it into the final PDF sent to the patiently waiting printers. What did make it was a humiliating array of typographical errors (including in the title page), which one examiner euphemistically referred to as the ‘literary presentation’ of my thesis. Despite its dishevelled state, both examiners persevered and engaged seriously with my work. I therefore most sincerely thank Maria Lee and Stephen Stec for their generous, partial blindness and Liz Barrett for averting a similar disaster here. Now that I am able to prepare this manuscript without the fear of financial ruin, it has brought me great pleasure to remember and acknowledge all the people I have to thank for its completion. First thanks must go to Liz Fisher, for inviting me to sit on the blue sofa of her office as a nervous 18-year-old at interview, and then again ten years later to sit in the matching chair opposite, as I covered her teaching during her sabbatical leave. The faith she has had in me has felt undeserved but it has always been greatly appreciated, most especially in the final anxious stages of writing this book. I also want to thank Lucia Zedner, for the second chance that she and Liz gave me to study at Oxford and the inevitable opportunities such a privilege opens up. Not the least the opportunity to meet so many wonderful friends who have shared the pleasures and pitfalls of the scholarly life, Andreas Televantos, Joanna McCunn and Jane Sancinito, all of whom have generously read and offered comments on parts (or, in the case of Jane, all) of this book. Being at Oxford also meant that I was taught by Eloise Scotford, who later became my supervisor. Her relentless confidence in the project and clear-sighted insights on my early drafts were fundamental to this final text. In recent years I have been fortunate to meet some of the most wonderful colleagues and friends any scholar could wish to know. Colm McGrath, my blackhearted tort law friend, who spent significant parts of summer 2019 reading the outlandish musings of an environmental lawyer. Ann Mumford, for performing a similar feat before I submitted my PhD. My Teaching Fellow comrades, Judith Skillen, Natalie Pratt and David Foster, for dubious Postman Pat pictures, cardboard box cars, and for bringing unbridled joy during one of the most difficult periods of my life. Ashwini Vasanthakumar, for just being there even though she is all the way back home in Canadia now. Jamie Lee and Ben Bowling, for taking a chance on me. The climate women and fellow mermaids of KCL, Megan Bowman and Leslie-Anne Duvic-Paoli for their perseverance in the good fight

viii  Acknowledgements for environmental justice and their impeccable taste in champagne. Melanie Murcott and Emily Webster, IUCN babes and fellow adventurers. Melanie is also to thank for invaluable insights on environmental rights. Jodi Gardener, and her wonderful family, Seb, Eleanor, Maggie, Trixe and Rosalyn for open hearts and tender encouragement. Carrie Bradshaw and Kim Bouwer for ­helping to grow our generation of environmental law scholars. Priya Gupta and Peer Zumbansen for being that rare London creature, a true neighbour. To other KCL colleagues, former and current, Katherine Wade, Eva Pils, Nicola Palmer, Stephen Levett, Shaila Pal and Hannah Quirk for all the encouragement they have each given me. There are others who have enabled me to bring this project to being, who deserve thanks, despite what has since passed between us. The Edwards family and their dogs, The Fonz and Pip, for so generously allowing me to stay in their lovely home on Holy Island, Anglesey, to finish my PhD. Gregory, for sitting up with me in the final stages of writing my PhD, proof-reading and formatting in an equally sleep-deprived state. Miles Jackson, for the template book proposal and gentle reminders to me to write and send it. I did … Beyond this there are many who of have carried me through some incredibly difficult periods during the course of this project. First and foremost my best friend, Rosie. There is far more to thank her for than can be written in an acknowledgments section of an academic monograph; she truly is my best bud. (Rosie and her husband Nas, were also my first reviewers, helping shape my fledgling contributions to scholarship.) Caz, Andy and Cath for their financial support when I was a PhD student in London and Ellie and Dave for enabling me to keep my beautiful home in the aftermath of a divorce. Nikki, Tom, Claire, Amy, Emma, Sarah, David, Sammie and other members of St Michael’s Church who have supported me in the vicissitudes of life and the journey of faith. Lyn and Chris, and Susan and David for all the love they have shown my family. Noreen, for all that she did for my mother, her sister, to care for her, bringing laughter in the midst of unimaginable suffering. And to Dermot, Anne-Marie and Kathleen for their support and love despite the ocean that is between us. Finally, to those I love and have loved most dearly. My parents, both now residing in a storage container in south Birmingham. My brothers, Sammy, for his wit and courage and Chrisy, for all he has done to hold our family. Eddy, mon cœur, merci de m’avoir montrer qu’il est encore possible d’aimer. And to you, my tiny one, your playful dancing has been an excellent reminder of the urgency of finally finishing this book.

Table of Contents Acknowledgements��������������������������������������������������������������������������������������vii Introduction��������������������������������������������������������������������������������������������������1 1. The Philosophical Scope of the Aarhus Convention����������������������������������5 I. Introduction������������������������������������������������������������������������������������5 II. Constructing the Convention�����������������������������������������������������������8 A. The Three Pillars���������������������������������������������������������������������10 B. Unveiling the Foundations��������������������������������������������������������12 III. Understanding the Aarhus Convention�������������������������������������������15 A. Methodological Approach�������������������������������������������������������16 B. Containing Complexity and Contestability������������������������������17 IV. Conclusion������������������������������������������������������������������������������������20 2. The Three Purposes�������������������������������������������������������������������������������21 I. Introduction����������������������������������������������������������������������������������21 II. A Purpose-Driven Approach����������������������������������������������������������22 III. The Ambition of Environmental Democracy����������������������������������26 IV. The Ambiguity of Environmental Rights����������������������������������������29 V. The Air of Environmental Stewardship������������������������������������������33 VI. Conclusion������������������������������������������������������������������������������������37 3. Environmental Democracy���������������������������������������������������������������������39 I. Introduction����������������������������������������������������������������������������������39 II. The Narrative of Democracy���������������������������������������������������������41 A. Scrambling through the Thicket�����������������������������������������������42 B. Boundary Markers of Democracy��������������������������������������������46 III. The Complexities of Environmental Decision-Making�������������������50 IV. The Dimensions of Environmental Democracy������������������������������55 A. The Normative Dimensions of Environmental Democracy�������56 B. The Structural Arrangements of Environmental Democracy�����62 V. Conclusion������������������������������������������������������������������������������������72 4. Environmental Rights����������������������������������������������������������������������������74 I. Introduction����������������������������������������������������������������������������������74 II. Rights Territory����������������������������������������������������������������������������77 A. The Character of Rights����������������������������������������������������������78

x  Table of Contents . The Special Character of Human Rights����������������������������������81 B C. Conclusions�����������������������������������������������������������������������������84 III. Environmental Ground������������������������������������������������������������������84 A. Environmental Rights as Substantive Human Rights�����������������85 i. Historical Foundations�����������������������������������������������������86 ii. Moral Framing����������������������������������������������������������������89 iii. Legal Development����������������������������������������������������������93 iv. Conclusions���������������������������������������������������������������������98 B. Procedural Environmental Rights���������������������������������������������99 C. Rights of Future Generations������������������������������������������������� 103 IV. Conclusion���������������������������������������������������������������������������������� 105 5. Environmental Stewardship����������������������������������������������������������������� 107 I. Introduction�������������������������������������������������������������������������������� 107 II. Environmental Stewardship, An Artist’s Impression���������������������� 110 III. Elements of Stewardship�������������������������������������������������������������� 114 A. Object of the Stewardship Duty��������������������������������������������� 117 B. Beneficiaries of the Stewardship Duty������������������������������������� 120 C. Holder of the Stewardship Duty��������������������������������������������� 123 D. Nature of the Duty: Relationships and Values������������������������ 127 i. Custodial Stewardship��������������������������������������������������� 128 ii. Managerial Stewardship������������������������������������������������� 130 iii. Proprietorial Stewardship����������������������������������������������� 133 iv. Spiritual Stewardship����������������������������������������������������� 135 IV. Conclusion���������������������������������������������������������������������������������� 138 6. Interpretive Possibilities����������������������������������������������������������������������� 140 I. Introduction�������������������������������������������������������������������������������� 140 II. The Purposive Approach�������������������������������������������������������������� 141 III. Environmental Democracy in the Context of the Aarhus Convention������������������������������������������������������������ 143 A. The Environmental Democracy Purpose of the Aarhus Convention���������������������������������������������������������������������������� 145 B. Interpretive Consequences of the Environmental Democracy Purpose��������������������������������������������������������������������������������� 151 C. Conclusions��������������������������������������������������������������������������� 153 IV. Environmental Rights in the Context of the Aarhus Convention������������������������������������������������������������ 154 A. The Environmental Rights Purpose of the Convention������������ 154 i. Solution I: The Moral Right������������������������������������������� 155 ii. Solution II: The Emerging Legal Right��������������������������� 159 B. Interpretive Consequences of the Rights Purpose�������������������� 160 C. Conclusions��������������������������������������������������������������������������� 162

Table of Contents  xi V. Environmental Stewardship in the Context of the Aarhus Convention������������������������������������������������������������ 162 A. The Environmental Stewardship Purpose of the Aarhus Convention���������������������������������������������������������������������������� 164 B. Interpretive Consequences of the Stewardship Purpose����������� 168 C. Conclusions��������������������������������������������������������������������������� 170 VI. Conclusion���������������������������������������������������������������������������������� 170 7. Conclusion������������������������������������������������������������������������������������������ 172 I. Introduction�������������������������������������������������������������������������������� 172 II. Negative Capability��������������������������������������������������������������������� 173 III. An Affair to Remember��������������������������������������������������������������� 174 Index��������������������������������������������������������������������������������������������������������� 177

xii

Introduction

T

his is a love story. Be assured, a manuscript from Bloomsbury’s romance offering hasn’t been published between the covers of one of Hart’s legal texts; this is still a legal work, but it doubles as a story of my enduring love affair with the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (referred to variously as the Aarhus Convention, the Convention or Aarhus).1 When we fall in love, we embark on the seemingly endless endeavour of discovering as much as we can about the one who holds our affection. We trace their lines, observe their habits and lose ourselves in their intimate complexities. We watch, we study, we absorb. Sometimes, we have moments of glorious clarity when we deeply understand something about our beloved and long to articulate that understanding to those around us as a proof of love. Sometimes we grow frustrated with our inability to understand them or angry when they do not conform to our expectations; in these moments the story can become tormented. Sometimes we simply grow tired and restless, and we dream of drifting away. In uncovering the foundations of the Aarhus Convention, I have done all of these things. In my favourite love story in literature, Nicole Krauss’ The History of Love, there is this exquisite line: ‘Once upon a time there was a boy who loved a girl, and her laughter was a question he wanted to spend his whole life answering’.2 Although the Convention does not laugh, it does provoke in me the wish to ask and answer questions that go to the very core of what the Convention seeks to achieve, questions that will undoubtedly shape the rest of my scholarly life and challenge the choices I make as an inhabitant of this fragile planet. In this book I embark on answering some of those questions, unravelling the possibilities of the Convention as an ambitious instrument of environmental law. 

I was first introduced to the Convention whilst studying environmental law as an undergraduate. It was love at first sight. Aarhus seemed to me to be a uniquely wonderful legal instrument: it was deeply committed to the pursuit of justice and had a bright vision of environmental democracy. Naïvely, I thought its adoption would be incontrovertible and its implementation straightforward. 1 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 38 ILM 517 (Aarhus Convention). 2 N Krauss, The History of Love (Penguin, 2005) 11.

2  Introduction It was not until I had completed my degree and was invited to undertake a research internship at a barrister’s chambers that I saw how wrong I was.3 Part of the work I undertook involved a case called Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change.4 It was a case brought by a grass roots environmental group in South Wales, the Coedbach Action Team (CAT), who were worried that permission would be given to build a biomass power generator in the Gwendraeth Valley, on a site known locally as the Coedbach Washeries. Concerned about the environmental impact of biomass power generators, CAT made representations to the planning inspector, objecting to the development at the site, and to another located at the Kings Dock in Swansea, some 18 miles away. Planning permission was denied. Naturally, the developers appealed these decisions by way of a local inquiry. Before the appeals were fully heard, permission was given for a similar generator over the border at Avonmouth Docks in Bristol. CAT feared that the decision to grant planning permission in Bristol would set a planning precedent that would be followed in South Wales and so they sought a quashing order for the planning consent granted to the Avonmouth project. However, in order to do this they needed an assurance that they would not be expected to bear the eye-watering costs of the Secretary of State should their judicial review claim be unsuccessful. They therefore applied for what was then called a protective costs order (PCO). PCOs, a means by which to cap the level of a future costs order, had recently received an environmental gloss in R (Garner) v Elbridge Borough Council & Others, inspired by the obligation under Article 9 of the Aarhus Convention that access to justice should not be ‘prohibitively expensive’.5 CAT were therefore hopeful they would be granted a PCO. That was until the Intervening Party in the case, the developer, made a last-minute objection to the PCO application on the basis that CAT did not have standing to challenge the Avonmouth decision, because they were inhabitants of South Wales, not southwest England. The preliminary hearing on the costs order effectively became a substantive hearing about the merits of the case, and the claimants lost. From my perspective, and of the members of CAT, this was a clear injustice. Coedbach seemed to be paradigmatic of the sort of case that the Aarhus Convention was intended to support, and yet it had failed to come to the aid of a group worried about the environmental impacts, both locally and globally, of biomass power stations. This disappointment was in part the result of an embarrassing assumption about how influential the Convention was for other people, including members of the judiciary, but it was also an example of how we can place the things we love on pedestals that they inevitably fall from. Embarking 3 Thanks for which should go to Richard Kimblin QC of No5 Barristers’ Chambers. 4 Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin). 5 R (Garner) v Elbridge Borough Council & Others [2010] EWCA Civ 1006.

Introduction  3 on a PhD a few months after this case was appealed, and lost, I decided to use the opportunity to understand the fascination that the Convention held for me. Like any well-written protagonist in a love story, the Aarhus Convention is a complex and compelling creation. One of the things that makes Aarhus so compelling is its ambitious vision. In the face of profound environmental challenges, the Convention seeks to achieve environmental education, democratic accountability and intergenerational justice, to name but a few of the far-reaching goals that inhabit the Convention’s foundations. Foremost, it seeks to do all of these things by empowering all people, regardless of ‘citizenship, nationality or domicile’ to assist in the mammoth task of stewarding our natural environment.6 In a film celebrating the Convention’s twentieth anniversary, Salina Abraham, Global Landscapes Forum Youth Coordinator and Connect4Climate Youth Ambassador, summarises this in verse: we can be participants, act with significance, treated with equivalence, in our democracy7

Grappling with the foundational concepts that inspire the ambitious vision of the Convention is the central endeavour of this book, focusing on a powerful trinity of foundational aims: environmental democracy, environmental rights and environmental stewardship. Chapter 1 opens by introducing the Convention more formally, narrating its development, describing its main provisions and further detailing its ambitious scope. In this first Chapter I also explain the methodological and intellectual approaches that guided the development of this book. In Chapter 2 I go on to explain my purposive approach and choice of the three candidate purposes that I examine, explaining why together I consider them to form part of the foundations of the Aarhus Convention. Identifying their genesis in the text of the Convention and its accompanying explanatory material, I show why each is integral to a deep understanding of the Convention. In Chapters 3, 4 and 5 I take each of the candidate purposes in turn, inspecting them like a jeweller appraising a diamond, seeking to identify and describe their colour, cut and clarity. The activity of these chapters is not focused on producing a definitive portrait of each the three candidate purposes. Rather, through them, I seek to ‘illuminate understanding – casting light on legal complexity and much else besides’ of these three foundational purposes of the Aarhus Convention.8 6 Aarhus Convention (n 1) Art 3(9). 7 S Abraham, ‘Environmental Democracy’ (Connect4Climate 2018), available at www. connect4climate.org/video/environmental-democracy, accessed 8 April 2020. 8 E Fisher, ‘Back to Basics: Thinking About the Craft of Environmental Law Scholarship’ in OW Pedersen, Perspectives on Environmental Law Scholarship: Essays on Purpose, Shape and Direction (Cambridge University Press, 2018) 53, 37.

4  Introduction Chapter 6 then uses the work of the three chapters to reflect on how these foundational purposes should be understood in the context of the Convention. In so doing, I hope to find the place ‘where imaginings and actualisation cohere’ in respect of the three purposive ambitions of the Convention that I identify.9 Once this place is located, I make some illustrative suggestions as to how these foundation purposes might influence the way in which the Convention is interpreted and implemented. Whilst the book is primarily an exploration of the philosophical scope and foundational values of the Aarhus Convention, the three concepts that I examine stretch well beyond the realms of the Convention. They have meaning for how we understand environmental law, as well as our political, legal and moral rights and obligations more generally. 

In her Love Trilogy, bell hooks described the work as ‘a love song to a nation’, a song the nation would do well to listen to.10 This far more modest work is my love story for Aarhus, and so I punctate each chapter with references from hooks’ elegiac body of work that capture aspects of my journey of discovery. Romanticising the Convention in this way is more than just a vacillation between literary aspirations and legal scholarship; it speaks to the methodological ‘model of understanding’ that motives my work: ‘understanding … aims to describe and examine how environmental law constructs our imagination and therefore how environmental law constructs the world we occupy’.11 Casting the Convention as a character in a love story conveys something of what it has meant to try to understand it. 

Those who write love stories often invite their readers to fall in love with their characters. In this book, I invite you to do the same. Whilst the Convention is of course no work of my imagination, I hope that by unveiling the depth, variety and texture of its character, you too will come to develop deep affection for the Aarhus Convention.

9 D Cooper, Everyday Utopias: The Conceptual Life of Promising Spaces (Duke University Press, 2014) 13. 10 bell hooks, All About Love: New Visions (Harper Perennial, 2001). 11 D Bonilla Maldonado, ‘Environmental Law Scholarship: Systematization, Reform, Explanation and Understanding’ in Pedersen (n 8) 53.

1 The Philosophical Scope of the Aarhus Convention Understanding knowledge as an essential element of love is vital because we are bombarded daily with messages that tell us love is about mystery, about that which cannot be known.1

I. INTRODUCTION

T

he Aarhus Convention was the first of its kind: an environmental agreement primarily concerned with the obligations that Parties have towards the public, rather than simply those between Parties (as is the pattern of other multilateral environmental agreements).2 Aarhus therefore has a dual identity; it is both an environmental agreement and a human rights one.3 Mirroring the form of Principle 10 of the Rio Declaration, the Convention is composed of three pillars that correspond to three rights – access to environmental information, public participation in environmental decision-making and access to justice in environmental matters. Like Principle 10, the Convention is predicated on the consensus view of international environmental law, that ‘environmental issues are best handled with the participation of all concerned citizens’.4 At the time it was drafted,5 and for a long time afterwards, the Aarhus Convention was ‘the most impressive elaboration of Principle 10’ in international law and represented the high watermark of good environmental decisionmaking.6 Central to the ethos of the Aarhus Convention is the recognition 1 bell hooks, All About Love: New Visions (Harper Perennial, 2001) 94. 2 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 38 ILM 517. 3 The Aarhus Convention: An Implementation Guide (2014) ECE/CEP/72/Rev.1 (Implementation Guide, 2nd edn) 15. 4 United Nations Rio Declaration on Environment and Development (13 June 1992) 31 ILM 874 (1992) Principle 10. 5 The Convention has now been joined by the Escazú Agreement, a similarly ambitious Principle 10 treaty developed specifically for Latin America and the Caribbean: Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean Escazú, 4 March 2018, LC/CNP10.9/5. 6 The Aarhus Convention: A Implementation Guide (2000) ECE/CEP/72 (Implementation Guide, 1st edn) Foreword.

6  The Philosophical Scope of the Aarhus Convention that the profound environmental challenges of our times – climate change, pollution, biodiversity loss, food insecurity etc – require a transnational, transpolitical and transcommunity effort. Animating the three pillars of the Convention are a number of far-reaching purposes which inform how the Convention should operate.7 These purposes range from the establishment of international legal standards on individual environmental rights,8 to the advancement of environmental citizenship.9 They are ambitious and wide ranging, and accordingly the Convention’s foundations have an expansive ‘philosophical scope’.10 However, because the Convention’s aims are ambitious, relating to high ideals, they are also ambiguous.11 Many of the Convention’s purposes correspond to complex and contested concepts that do not give rise to straightforward definitions. Take, for example, the Convention’s aspiration to improve government legitimacy: legitimacy could simply mean ‘social credibility and acceptability,’ but this straightforward definition can have pragmatic, moral and cognitive dimensions.12 As Julia Black highlights, legitimacy ‘can differ significantly across time and space, and between actors, systems and contexts’.13 How these various purposes influence the ways in which the Convention should be interpreted is, accordingly, unclear and it is not enough to simply say that the Convention improves government legitimacy, without first defining legitimacy. To understand these purposive ambitions of the Convention, and their interpretive consequences, it is necessary to take a step back from nitty gritty challenge of its implementation and to reflect on what it is the Convention is aspiring to. Birthdays are always a good opportunity to do this, and in the twentieth year of the Convention’s adoption, there was a significant degree of meditation on the impressive vision that inspires the Aarhus Convention.14 In this book, I reflect on a part of that vision by isolating and examining three animating purposes – environmental rights, environmental democracy and environmental stewardship. In so doing, I hope to better understand the ambitious scope of the Convention. 7 UN Secretary-General’s message to second meeting of the Parties to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, Almaty, 27 May 2005. 8 M Pallemaerts, ‘Introduction’ in M Pallemaerts (ed), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law (Europa Law Publishing, 2011) 3. 9 J Wates, ‘The Future of the Aarhus Convention. Perspectives Arising from the Third Session of the Meeting of the Parties’ in Pallemaerts (n 8) 408. 10 Ibid, 408–409. 11 M Lee and C Abbot, ‘The Usual Suspects? Public Participation Under the Aarhus Convention’ (2003) 66 Modern Law Review 80, 86. 12 J Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’ (2008) 2 Regulation & Governance 137, 144. 13 Ibid, 145. 14 Key Messages from the Rome Anniversary Event to Celebrate 20 Years of the Aarhus Convention (15–16 May 2018, Rome) 1.

Introduction  7 Discerning these purposes is both a challenging and enjoyable task. There is a significant body of explanatory material that surrounds the Convention and thus an extensive range of possible purposes to explore. The preamble is a rich narrative of the Convention’s scope, as are its travaux préparatoires, Implementation Guides15 and Strategic Plans.16 More recently, additional narrative materials have been produced as part of the twentieth anniversary celebration, all of which contribute to the folklore of the Convention. On the UNECE website for the Aarhus Convention there are a total of 33 different publications all elaborating aspects of the Convention’s character. Further, given its compelling nature, there is also a vast and revealing academic commentary on the Convention, often drafted by those intimately connected with its development and delivery.17 There are, therefore, plenty of explanatory resources to draw on in analysing the Convention’s philosophical scope. Selecting only three purposes to study, although necessary to make this book manageable, was a challenge. The first purpose I consider, environmental democracy, is the purpose that dominates the chronicles of the Convention. From the Foreword to the first edition of the Convention’s Implementation Guide, where Kofi Annan described it as the ‘most ambitious venture’ in environmental democracy,18 to the 2017 Budva Declaration on Environmental Democracy for Our Sustainable Future, the call of environmental democracy on the Convention is loud and clear.19 Environmental rights, the second purpose, relates directly to the Objective of the Convention contained in Article 1. Article 1 commits the Convention and its three pillars to contributing to the protection of the ‘right of every human being both now and in the future to an environment adequate to human health and well-being’. This purpose is critical because it is an explicit animating purpose found in the main text of the Convention. However, as a purpose it is frequently misunderstood, and one of the key messages from the Rome Anniversary Event was that this objective ‘is often forgotten’.20 The final purpose, environmental stewardship, is neither made explicit in the Convention’s text nor is it proclaimed boldly as a purpose of the Convention. Instead, it is a soft but persistent whisper that runs throughout the entirety of the Convention, breathing life into the three pillars and balancing the other two purposes on the edge between human needs and environmental responsibility. Unpacking these three purposes is the principal activity of this book, but before embarking on their examination, there are number of things I need to do prepare the ground. The first is to say something about how and why the 15 Implemention Guide, 1st edn (n 6); Implementation Guide, 2nd edn (n 3). 16 Decision III/8 on the Strategic Plan for 2009–2014 (ECE/MP.PP/2008/2/Add.I); Decision V/5 on the Strategic Plan for 2015–2020 (ECE/MP.PP/2014/2/Add.I). 17 See, for example, Pallemaerts (n 8). 18 Implemention Guide, 1st edn (n 6) Foreword. 19 Report of the Joint High-level Segment, Environmental Democracy for Our Sustainable Future, 14 September 2017 ECE/MP.PP/2017/CPR.3–ECE/MP.PP/2017/CPR.1 (Budva Declaration). 20 Key Messages from the Rome Anniversary Event (n 14) 1.

8  The Philosophical Scope of the Aarhus Convention Convention was developed. Understanding the history of the Convention’s development is important both for identifying the philosophical scope of the Convention and for explaining why some of its purposes are so complex and at times controversial. This is particularly so for the environmental rights purpose, which was the subject of heated disagreement in the early stages of the Convention’s creation. Second, I scratch the surface of the Convention’s philosophical scope, showing both how wide ranging the purposive ambitions of the Convention are, but also how important they are for understanding how the Convention is used and interpreted. I will come back to this in Chapter 2, where I explain in more detail how and why each of the three purposes was selected for examination. For now, I simply draw attention to the life that stirs in the foundations of the Convention. Third, I switch gears from doctrinal scene-setting to explaining my intellectual approach. Principally, I am concerned with deeply ‘understanding’ the Convention and its animating purposes; that is ‘to describe and analyse’ them ‘in order to comprehend’ both the three candidate purposes and the Convention itself.21 However, as these purposes correspond to complex and contested concepts, much of the book is a tumultuous theoretical tour of conceptual complexity. In order to navigate this tumult, I take a systematic approach, ‘elucidating the content’ of each purpose whilst maintaining its essential dynamism.22 This approach requires a careful methodology and thoughtful explanation, which I will clarify in section III below, situating my work within an intellectual tradition that embraces conceptual dynamism.23 II.  CONSTRUCTING THE CONVENTION

The Aarhus Convention was adopted on 25 June 1998 at the Fourth Ministerial Conference of the ‘Environment for Europe’ process and it entered into force on 30 October 2001. To date it has been adopted by 47 parties within the United Nations Economic Commission for Europe (UNECE) region, including the European Union. The Convention is founded on three related pillars: access to information; public participation; and access to justice in environmental matters. Although the negotiation of the Convention officially began in 1996, its inception can be traced back to an ECE draft charter of environmental rights and obligations prepared in 1990.24 Although this charter was never endorsed, in 21 D Bonilla Maldonado, ‘Environmental Law Scholarship: Systematization, Reform, Explanation, and Understanding’ in OW Pedersen (ed), Perspectives on Environmental Law Scholarship: Essays on Purpose, Shape and Direction (Cambridge University Press, 2018) 52. 22 Ibid, 42. 23 See, for example, the work of D Cooper, Everyday Utopias: The Conceptual Life of Promising Spaces (Duke University Press, 2014); M Davies, Law Unlimited: Materialism, Pluralism and Legal Theory (Routledge, 2017). 24 UNECE Draft Charter on Environmental Rights and Obligations (1990) ENVWA/R.38, Annex I.

Constructing the Convention  9 part because of a lack of consensus associated with the inclusion of a substantive right to a healthy environment, its influence can be detected in how the Aarhus Convention was eventually drafted.25 At the Second Environment for Europe Ministerial Conference in 1994 a Task Force on Environmental Rights and Obligations was established.26 This Task Force was appointed to draw up a set of draft guidelines that focused on the merits of procedural rights in environmental matters, steering clear of the more controversial proposal related to the substantive right to a healthy environment. The new draft reflected the procedural approach advocated in Principle 10 of the 1992 Rio Declaration on the Environment and Development.27 These guidelines – the ECE Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-making (the Sofia Guidelines)28 – were endorsed at the Third Environment for Europe Ministerial Conference in October 1995 and were a significant ‘stepping stone’ on the ‘road to Aarhus’.29 It was after the Third Environment for Europe Ministerial Conference that an Ad Hoc Working Group was established to prepare a convention on access to information and public participation in environmental matters.30 Once the ‘draft elements’ of the Convention had been drawn up, negotiations began in earnest in June 1996. Negotiation of the Convention was in keeping with its participatory ambitions, thus in addition to the participation of various member states of the UNECE there was an ‘unprecedented level’ of participation by non-governmental organisations (NGOs), including a coalition of environmental citizen organisations established specifically for the purpose of drafting the Convention.31 At the time, the Aarhus Convention was endorsed as a ‘new kind of environmental agreement’ not just because of the participatory nature of its negotiation but also because, instead of implementing substantive environmental obligations between states, it implements procedural obligations between the Parties to the Convention and the public.32 Indeed it was the first international environmental law instrument that gave citizens’ rights that are directly enforceable as against the relevant Contracting Parties.33 These ‘vertical’ obligations are supported by a compliance procedure which enables members of the public

25 M Déjeant-Pons et al, Human Rights and the Environment (Council of Europe Publishing, 2002) 17. 26 Ibid, 17. 27 Rio Declaration (n 4) Principle 10. 28 UNECE Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-making, 17 January 1996, ECE/CEP/24 (Sofia Guidelines). 29 Implementation Guide, 2nd edn (n 3) 17. 30 Ibid, 16. 31 Ibid, 16. 32 Ibid, 15. 33 Déjeant-Pons et al (n 25) 17; S Kravchenko, ‘The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements’ (2007) 18 Colorado Journal of International Environmental Law & Policy 1; Implemention Guide 1st edn (n 6) 1.

10  The Philosophical Scope of the Aarhus Convention to directly report non-compliance by the Parties to the Aarhus Convention Compliance Committee, thus enabling them to enforce their rights under the Convention.34 Further, these obligations have ‘diagonal’ effect, because not only do the obligations apply between the Parties and their own public, they also apply between the Parties and all members of the public.35 This is because the Convention contains a provision which states that the rights of access to information, public participation and access to justice should apply to all without ‘discrimination as to citizenship, nationality or domicile’.36 In these ways, therefore, the Aarhus Convention truly is a new kind of environmental agreement, as it takes the shape of a human rights instrument rather than that of a purely environmental agreement.37 A.  The Three Pillars The obligations that the Convention places on the Parties, in respect of the public, correspond to three pillars which guarantee the three procedural rights of access to information, public participation and access to justice in environmental matters. The first right – access to environmental information – is contained in Articles 4 and 5 of the Convention. This right is composed of a ‘passive’ and an ‘active’ component.38 The passive right enables the public to request environmental information from public authorities and to have their request granted in accordance with certain requirements. For example, Article 4(2) states that information requests should be fulfilled within one month (two months if the information is complex or voluminous) and Article 4(3) and (4) sets out the limited circumstances when requests may be refused. Alongside this passive right to access information, Article 5 makes provisions for active access to information. This means that public authorities have an active obligation to collect and disseminate environmental information to the public even when it has not been requested.39

34 Aarhus Convention, Art 15. 35 This is what Elena Petkova and Peter Veit term the ‘horizontal accountability’ of the Convention (emphasis in original): E Petkova and P Veit, Environmental Accountability Beyond the Nation-State: The Implications of the Aarhus Convention (World Resources Institute, 2000), available at www.wri. org, accessed 8 April 2020; J Knox, ‘Diagonal Environmental Rights’ in M Gibney and S Skogly (eds), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press, 2010). 36 Aarhus Convention (n 2) Art 9(3). 37 A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 The European Journal of International Law 612, 621–22; E Louka, International Environmental Law: Fairness, Effectiveness, and World Order (Cambridge University Press, 2006) 129. 38 Implementation Guide, 2nd edn (n 3) 19. 39 Since the Convention came into force, Art 5 (in particular Art 5(9)) has been extended by the Protocol on Pollutant Release and Transfer Registers, which was adopted at an extraordinary session of the Meeting of the Parties at the Fifth Environment for Europe Ministerial Conference held in Kyiv in May 2003. This means that public authorities must now establish pollution inventories or registers, in addition to the more general requirement to collect and disseminate environmental information required by Art 5.

Constructing the Convention  11 The second pillar of the Convention relates to public participation in environmental decision-making. The most muscular article in this pillar is Article 6, which grants the public concerned the right to participate in decisions on specific activities (those listed in Annex 1 of the Convention or those that are deemed to have a significant effect on the environment). Article 7 relates to participation in respect of ‘plans, programmes and policies relating to the environment’ and Article 8 to ‘the preparation of executive regulations and/or generally applicable legally binding normative instruments’. However, unlike the right to participate in respect of specific decisions, these articles are ‘vague and permissive’.40 For example, Article 8 states that parties ‘shall strive to promote effective participation’, which leaves a great deal of flexibility as to how that participation should manifest.41 The final pillar of the Convention relates to the right of access to justice in environmental matters. This right serves two purposes. In the first place it supports the other two pillars of the Convention – it grants access to a review procedure to those who have had their request for environmental information ignored or wrongfully refused and where there has been an act or omission contrary to Article 6. Second, the Convention also allows members of the public to challenge acts or omissions contrary to environmental law. Article 9 has a wide approach to standing such that all those with a ‘sufficient interest’ should have access to a review procedure before a court of law.42 Another significant feature of Article 9 is that it also includes a provision which states that the review procedure should be ‘fair, equitable, timely and not prohibitively expensive’ and that there should be ‘adequate and effective remedies, including injunctive relief’.43 These details within the access to justice provisions therefore go a long way to ensuring that access to justice is meaningfully available to all who are concerned to protect the environment, irrespective of their financial background. Taking up the theme of Principle 10 of the Rio Declaration, the Convention is therefore an elaborate version of the three procedural rights envisioned by that Principle. The variation of Principle 10 arrived at in the Aarhus Convention is by no means the only way in which the three rights of access to information, public participation and access to justice could have been imagined – indeed, the arrival of the Escazú Agreement in Latin America and the Caribbean illustrates that other iterations were possible.44 Nevertheless, there can be no doubt that 40 Lee and Abbot (n 11) 81. 41 Aarhus Convention (n 2) Art 8. 42 Ibid, Art 9(2). 43 Ibid, Art 9(3). 44 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean Escazú, 4 March 2018, LC/CNP10.9/5 (Escazú Agreement); E Barritt, ‘Global Values, Transnational Expression: From Aarhus to Escazú’ in V Heyvaert and L-A Duvic-Paoli (eds), Research Handbook of Transnational Environmental Law (Edward Elgar, forthcoming); S Stec and J Jendrośka, ‘The Escazú Agreement and the Regional Approach to Rio Principle 10: Process, Innovation and Shortcomings’ (2019) 31 Journal of Environmental Law 533.

12  The Philosophical Scope of the Aarhus Convention the Convention was a serious attempt to carefully articulate these rights, showing how Principle 10 might be practised. However, the Convention, like Principle 10, is light on substantive environmental obligations. Whilst the three pillars are central to understanding what it is the Convention is designed to achieve, these pillars are supported by deep foundations that represent an ambitious vison of how the procedural rights of the Convention should be used. For example, the access to information provisions might be used by a corporate entity wishing to gather information relevant to some commercial endeavour.45 This may be a technically correct application of the Convention, but it would be far from the spirit of what the Convention is trying to achieve. In order to understand the full nature of the Convention, it is therefore necessary to dig into the foundations, rather than simply observe its pillars. B.  Unveiling the Foundations Revealing the foundations of the Convention is not itself an arduous exercise. Much has been written about the ideas and ambitions that animate the Convention. As a result, there is plenty of explanatory material surrounding the Aarhus Convention to help to elaborate its foundational aims, and this material is a rich source of possible purposes.46 The more difficult exercise, however, is isolating a manageable number of possible purposes to address in one single book. The Convention’s Implementation Guide, for example, contributes to a grand narrative of how the Convention should be interpreted and understood. In the Guide’s introduction its authors say this of the Convention: It links environmental rights and human rights, acknowledges that we owe an obligation to future generations and establishes that sustainable development can be achieved only through the involvement of all stakeholders. It links government accountability and environmental protection. It focuses on interactions between the public and public authorities in a democratic context and is forging a new process for public participation in the negotiation and implementation of international agreements. The subject of the Aarhus Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement, it is also an agreement about government accountability, transparency and responsiveness.47

45 S Whittaker et al, ‘Back to Square One: Revisiting How We Analyse the Right of Access to Environmental Information’ (2019) 31 Journal of Environmental Law 465, 479–80. 46 Wates (n 9) 414. 47 Implementation Guide, 2nd edn (n 3) 15.

Constructing the Convention  13 This is a wide-ranging and ambitious vision of the Convention, which highlights several important foundational purposes that influence how the procedural tools of the Convention should be applied – to promote government accountability and improve transparency, for example. This narrative is developed further in subsequent explanatory documents, for example the two Strategic Plans set out a variety of different objectives for the Convention’s implementation, expansion and development. The 2009–2014 Strategic Plan shows that the Convention is intended to be a far-reaching legal instrument in a number of ways: Objective I.6 states that the Convention should lead to an ‘open administrative culture’; and Objective I.13 states that it should ‘advance both environmental protection and good governance’. The second Strategic Plan 2015–2020 for the Convention continues this elaborate vision. It highlights the role the Convention can play in ‘promoting effective governance and green economy’ (sic)48 and explains how the technical vision and mission for the Convention to achieve full implementation is ‘part of our broader aspiration to achieve a more equitable world and a better quality of life for all’.49 Alongside these supporting documents, academic commentary also contributes to the story that surrounds the Convention: Marc Pallemaerts, for example, has suggested that the main purpose of the Convention is ‘the full engagement of civil society in environmental policy-making’;50 Derek Bell regards the Convention as promoting sustainability through democratisation;51 and Áine Ryall describes it as a ‘ground-breaking instrument that links environmental rights and human rights’.52 All of this contributes to an expansive picture of what Jeremy Wates has described as the ‘lofty aims’ of the Aarhus Convention.53 As anyone who had the pleasure of choosing buttons at a haberdashery as a child will probably understand, identifying just three purposes from the shining array of possible aims has commanded considerable self-restraint. Illustrating the difficulty of identifying only a few purposes to attribute to the Convention was an activity undertaken during the Convention’s twentieth anniversary celebrations. Country and NGO delegates were asked to reflect on the Aarhus Convention and identify three words that captured what it stood for.54

48 Strategic Plan for 2015–2020 (n 16) para 1. 49 Ibid, para 9. 50 Pallemaerts, ‘Introduction’ (n 8) 3. 51 D Bell, ‘Sustainability Through Democratization? The Aarhus Convention and the Future of Environmental Decision Making in Europe’ in J Barry et al (eds), Europe, Globalization and Sustainable Development (Routledge, 2004). 52 Á Ryall, ‘The Aarhus Convention: Standards for Access to Justice in Environmental Matters’ in SJ Turner et al (eds), Environmental Rights: The Development of Standards (Cambridge University Press, 2019) 116. 53 Wates (n 9) 414. 54 UNECE, ‘3 Words – What the Aarhus Convention Stands for in Your Opinion’ (May 2018) www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/20thanniversary-of-the-adoption-of-the-aarhus-convention/3-words-what-the-aarhus-conventionstands-for-in-your-opinion.html, accessed 8 April 2020.

14  The Philosophical Scope of the Aarhus Convention Most participants dutifully identified their three purposes, from ‘transparency, democracy and rights’55 to ‘empowerment, inclusiveness and respect’.56 Others, however, exceeded the word limit in the difficult task of condensing the Convention to three words.57 This is a struggle that I sympathise with. Trinities may be elegant, but they can also force you to make difficult choices. This challenge of isolating only three purposes of the Convention has two dimensions. The first relates to the sheer number of ambitious purposes that animate the Convention. Alongside the three purposes isolated for study in this book, the Convention is inspired by the need to promote environmental citizenship, intergenerational justice, government legitimacy, sustainable development, environmental education, and more besides. The foundations of the Convention are abundant with possible purposes to analyse and understand. Choosing just a few is therefore difficult, particularly for one prone to intellectual gluttony. The second dimension relates to the nature of those purposes. Each purpose corresponds to a complicated theoretical idea that is often hotly contested and highly ambiguous. Citizenship and intergenerational justice, for example, are not simple concepts. And whilst the Convention, its explanatory materials and its commentary are verbose in terms of attributing certain purposes to the Aarhus Convention, they are generally silent when it comes to elaborating the nature of these purposes. This is problematic because a significant number of the purposes that are attributed to the Convention are not self-evident. A prime example of this is the environmental democracy purpose of the Convention. There is no shortage of material identifying environmental democracy as a purpose the Convention, but very little of that material engages with what environmental democracy actually means. As I will show in Chapter 3, environmental democracy is understood variously as public participation in environmental decision-making, an enhanced form of representative government, and a discursive dialogue that includes active listening to nature – a diverse vision indeed. Understanding how the purposes of the Convention influence its interpretation therefore requires one to engage with the complexity inherent in these ambitious concepts. This is a theoretical rather than simply a doctrinal exercise. Each of the three purposes selected for exploration represents complicated theoretical concepts that do not lend themselves to simple definitions. Therefore, in order to understand what it means to say that the Convention is a tool for environmental democracy, or that it promotes environmental rights and environmental stewardship, it is first necessary to examine what exactly these concepts mean. Engaging with the meanings of these purposes is the core activity of this book, requiring a careful, methodological approach to their articulation.



55 Representative

from Armenian, Yererna Aarhus Centre. from Malta. 57 Representatives from Women Engage for a Common Future and Azerbaijan. 56 Representative

Understanding the Aarhus Convention  15 III.  UNDERSTANDING THE AARHUS CONVENTION

Throughout this project I have been guided by two models of environmental law scholarship: systematisation and understanding.58 These two models have been developed by Daniel Bonilla Maldonado as part of an indicative scheme intended to capture the diverse ways that environmental scholars approach their object of study.59 Whilst scholarship will always resist strict categorisation, thinking about the pattern or ethos of our work can help to organise and clarify what it is that we are trying to do. Fundamentally, this book is about understanding. It is a long, soul-searching stare into the heart of the Convention in order to understand some of its interpretive possibilities. Just as when we get to know a person, we discover the values and philosophies that influence them, I look to the values and philosophies that influence the Convention in order to deeply understand it. Focusing on the three normative concepts – environmental rights, environmental democracy and environmental stewardship – I build a picture of the character of the Aarhus Convention, taking a purposive, rather than positivist, approach to understanding the Convention. However, the joy of deeply understanding is not a superficial exercise; often it only comes from careful study and persistent investigation. Necessarily therefore, a substantial portion of this book is devoted to the systematic articulation of the three foundational purposes I identify. Systematising in this context is not intended to be synonymous with ordering. In fact, my aim is the opposite. I work to systematically reveal the disorder and intrigue of the three candidate purposes, not to tidy it away. What I do in each of the three purposive chapters, therefore, is to unpick and display the inner workings of each idea, presenting three carefully-labelled dissections. To switch the metaphor from biology to music, I listen to and transcribe the ‘polyphony’ of each concept.60 This messiness is intentional, as Eloise Scotford writes, ‘it is the careful methodological treatment of environmental law issues, rather than the taming of environmental law into coherent legal submission, that is the priority of environmental law scholarship’.61 In examining and elaborating the three foundational ideas of the Aarhus Convention, I am aiming for careful methodological treatment of each purpose, that recognises and respects, rather than tames, their dynamism. Before continuing with the systematic examination of the three candidate concepts, I therefore want to say something about the methodological treatment I give to each of them and to explain my intellectual approach to systematising their conceptual complexity.

58 Bonilla Maldonado (n 21). 59 Ibid, 41. 60 Davies (n 23) 47. 61 E Scotford, Environmental Principles and the Evolution of Environmental Law (Hart Publishing, 2017) 64.

16  The Philosophical Scope of the Aarhus Convention A.  Methodological Approach As should be clear by now, the central idea of this book is that the Aarhus Convention ought to be interpreted in light of its various stated and implied purposes.62 Methodologically, therefore, this book is an example of expository research: it offers an account of how the Aarhus Convention should be understood.63 In developing this purposive account of the Convention I employ a series of different methodological techniques that can be broken down into the five different steps corresponding to different methodological techniques. The first step is doctrinal – the text of the Convention and its explanatory materials are identified and examined in order to pull out the various purposes that are within the philosophical scope of the Convention and to select the purposes that will be examined in this book.64 But it is only partially so because, as I claim in this book, the Convention cannot be adequately understood or interpreted without a deeper understanding of its purposes. This deeper understanding of its purposes can only be achieved by looking at the theoretical ideas that underpin them. Therefore this first doctrinal step is the first part of what Nigel Duncan and Terry Hutchinson describe as the ‘two-part process’ of doctrinal research – identifying the sources of law.65 The second part of interpreting and analysing the text occurs in a cursory way in this first methodological step and is only really undertaken after the second and third methodological steps have been completed. Having identified the various sources that will be used to understand the Convention and in turn selected the purposes that I explore, the second methodological step is a deep dive examination of the three purposes – environmental rights, environmental democracy and environmental stewardship – as concepts independent of the Convention. The examination conducted in respect of each purpose is expansive. This is because the three concepts considered relate to bodies of theory that are vast, incredibly dense and interdisciplinary, relating as they do to concepts that have political, philosophical, moral and theological iterations.66 Environmental democracy for example, is an inherently political concept that cannot be understood in purely legal terms, and environmental stewardship has its roots in theology. Given that the Convention aspires ‘to achieve a more equitable world and a better quality of life for all’, such an expansive exploration is inevitable.67 This expansive review is then used as the 62 For a similar approach in respect of libel law see D Howarth, ‘Libel: Its Purpose and Reform’ (2011) 74 Modern Law Review 845. 63 See Arthurs’ taxonomy: HW Arthurs, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada (Consultative Group on Research and Education in Law, 1983) 63–71. 64 T Hutchinson and N Duncan, ‘Defining and Describing what we do: Doctrinal Legal Research’ (2012) 17 Deakin Law Review 83, 101. 65 Ibid, 101. 66 E Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, 237. 67 Strategic Plan for 2015–2020 (n 16) para 9.

Understanding the Aarhus Convention  17 basis for the third methodological step – the development of three theoretical frameworks that correspond to each of the candidate purposes. The three frameworks developed in this book are novel and are developed for the specific task of producing a purposive interpretation of the Convention.68 The fourth methodological step is a return to the doctrinal analysis of the first step. This step represents a completion of the two-part process of doctrinal analysis described by Duncan and Hutchinson: interpreting and analysing the text of the Convention and its explanatory materials. However, this doctrinal analysis is conducted in light of the theoretical frameworks developed in relation to each of the three purposes selected for examination in this book. The final methodological step is a brief reflection on how each candidate purpose ought to influence the way in which the specific terms of the Convention are interpreted. This final reflective step, whilst brief, is an essential element of this analysis of the Convention because it helps to demonstrate how the purposive analysis of the Aarhus Convention adopted in this book aids an interpretation of the Convention. This almost mathematical explanation of my methodological approach may seem excessively rigid – stirring up memories of the scientific experiments many of us conducted in school, where the fun of sticking glass beakers over the live flame of a Bunsen burner was tempered by the discipline of writing out a neat report that detailed method, results and conclusions. Far from being a ‘mechanical enterprise’, however, these steps represent a careful distillation of the struggle to understand the Aarhus Convention over a long period of time.69 B.  Containing Complexity and Contestability The most labour-intensive part of the book has been in trying to understand the nature of the three purposes identified (the second and third methodological steps). Partly this is a function of how complex the three ideas are – entire libraries could be filled with works that have been written on the subject of rights, for example. It also stems from a scholarly commitment to capturing without constraining the inherent complexity of each of the three purposes. Indeed, this book could be considerably shorter if I was content to present neat definitions of each of the three purposes. Instead I have opted to retain their complexity and contestability, presenting a dynamic portrait of each of the three concepts. Denying the conceptual ambiguity and complexity of big ideas like democracy or rights by presenting a single best definition, is to subscribe to a form of 68 Although it would be possible to use these three frameworks for examining other aspects of environmental law. 69 E Fisher, ‘Back to Basics: Thinking About the Craft of Environmental Law Scholarship’ in Pedersen (n 21) 38.

18  The Philosophical Scope of the Aarhus Convention scholarly hubris that I am uncomfortable with. Certain ideas have now reached such mythological status that it is difficult to contain them in a single narrative. As Christine Swanton explains, ‘one of the more intractable problems of political theory is the highly contested nature of central concepts – such as justice, democracy, rights, freedom and power’.70 Walter Gallie described these ideas as being ‘essentially contested’, explaining that some ideas will always resist easy definition.71 The wisdom (or curse) of Gallie haunts this book, because in attempting to isolate and understand the purposes of the Convention, I am engaging with three essentially contested concepts – rights, democracy and stewardship. Each idea has a long history of scholarly contestation over its proper meaning and correct definition. In elaborating these ideas, I resist the temptation to wade into this contestation, waving my definitional flag, not because I am fearful of claiming a definition, but because I recognise that claiming a single definition of each idea is neither possible nor desirable. The weight of each idea rests in part on the fact that it can contain a diverse range of possibilities. Instead, therefore, I embrace the philosophy of scholars like Davina Cooper and Margaret Davies, who advocate a dynamic approach to defining concepts – one which recognises their oscillations.72 As Davies explains, concepts are not universally fixed ideas, they are ‘experimental explanations’.73 In order to remain faithful to the essential contestability of each purpose, this notion of ‘experimental explanations’ guides my approach to defining them. Given this commitment to definitional dynamism over absolutism, you might be forgiven for concluding that essentially contested concepts can mean whatever the beholder chooses; that the democracy of the despot is equal to the democracy of a citizen’s assembly. This assumption would be wrong. A commitment to dynamism does not amount to permissive relativism where there can be no wrong answers; it is simply a recognition that there are no perfect answers. In addressing the three candidate purposes of the Convention, my aim therefore is ‘to accommodate complexity, diversity and uniqueness’74 but to do so ‘within a structured schema’.75 The structured schema that is offered is one that has been described by social historian Cam Grey as a ‘constellation of the possible’.76 Therefore, rather than isolating a single arbitrary definition, I serve a slice of the firmament that captures the depth and diversity represented by each of the three purposes.

70 C Swanton, ‘On the “Essential Contestedness” of Political Concepts’ (1985) Ethics 811, 811. 71 WB Gallie, ‘Essentially Contested Concepts’ (1955) 56 Proceedings of the Aristotelian Society 167. 72 Cooper (n 23) 37. 73 Davies (n 23) 14. 74 C Grey, Constructing Communities in the Late Roman Countryside (Cambridge University Press, 2015) 24. 75 Ibid, 2. 76 Ibid, 24.

Understanding the Aarhus Convention  19 In order to develop this structured schema, I take inspiration from Grayson Perry’s 2013 Reith Lectures, broadcast on Radio 4 in 2013.77 Through the course of his lectures Perry sought to produce a workable definition of art;78 art being one of the concepts Gallie considers to be essentially contestable, this was no easy task.79 As Perry explains, ‘we live in an era when anything can be art’.80 Although the challenge faced by Perry was slightly different to the one faced here – he was trying to set boundaries in a world (art) where boundaries are anathema, rather than expand them in a world (law) where boundaries abound – his approach is nevertheless helpful for defining inherently complicated ideas.81 In developing his definition of art, Perry was inspired by the ancient ritual of ‘Beating the Bounds’: … that used to go on way back in Anglo-Saxon times, before the advent of accurate maps. When a parish wanted to make sure that everybody knew where the end of their parish was, a group of kids and young parishioners would walk the boundaries of the parish with a priest, to pass on the knowledge of where they lay. They would march round them in a very ceremonial way. And when they reached an important point or marker stone, they would beat the boys with a whip, to ensure they had a strong emotional memory of that exact location. Because that’s how we remember things. Our emotional remembering is very powerful.82

My reliance on Perry here is not to do with the barbarism of the practice or the emotional memory that it was intended to generate. Instead, I am drawn to Perry’s approach because of his use of boundary markers rather than boundary lines to set the limits of his definition. Boundary markers allow for conceptual fluidity in a way that strict lines do not.83 Using these intellectual boundary markers, I therefore seek to chart the character and limits of each of the three concepts in a way that balances clarity with complexity. Of course, as Fisher reminds us, ‘maps are not neutral’, even if drawn using markers rather than lines.84 In mapping the three concepts as I do here, there will be implicit or indeed explicit choices that do not fully capture all the possibilities of each idea, that in ‘imploding time and geography the way maps compress the world into a two-dimensional piece of paper’ aspects of each of the three concepts will be lost or overstated.85 However, by providing

77 Grayson Perry, ‘Beating the Bounds’ (Reith Lectures, 2013) available at downloads.bbc.co.uk/ radio4/transcripts/reith-lecture2-liverpool.pdf, accessed 8 April 2020. 78 These lectures were later developed into a book: G Perry, Playing to the Gallery (Penguin, 2014). 79 Gallie (n 71) 167. 80 Perry (n 78) 41. 81 Ibid, 41. 82 Ibid, 43. 83 Whilst I adopt Perry’s definitional approach most explicitly in relation to my definition of democracy that is shaped in Chapter 3, his idea of intellectual boundary markers helped me to craft the other two purposive chapters, although his influence is less explicit. 84 E Fisher, Environmental Law: A Very Short Introduction (Oxford University Press, 2017) 3. 85 M Ondaatje, The English Patient (Bloomsbury, 2018) 171.

20  The Philosophical Scope of the Aarhus Convention sufficient texture and depth to each concept, the maps will at least be authentic, capturing the ‘life’ of each of purpose.86 Guided by these scholarly commitments and my methodological practice, I reveal a rich and expansive picture of the Aarhus Convention that is faithful to its immense vision. As Rebecca Salter, the Royal Academy of Arts Keeper, has explained, ‘Drawing is revelatory and adventurous. It challenges, it instructs, it uncovers the wonderful’.87 The same is of course true of scholarship. In drawing my portraits of each of the three concepts that animate the Aarhus Convention, I embark on an extensive scholarly adventure, uncovering the wonderful in each of the three purposes and in the Convention itself. IV. CONCLUSION

In the 22 years of its existence, significant hard work has been done in figuring out the minutiae of how the Convention operates in practice: what are reasonable costs in public interest environmental cases? Who should have standing to bring an Aarhus case? How is public participation achieved at all levels of environmental decision-making? In this book, I offer the opportunity to take a step back from these practical problems of implementation, to remember why these battles over the fine detail are so important, and to rediscover the rich motivating ideas that run through the Convention. What follows is, therefore, a meditation on the Convention to allow those who are weary with the hard work of making the Aarhus Convention function ‘to be inspired [anew] by the principles behind it’.88



86 Davies

(n 23) 15. Salter, ‘At the Drawing Board’ (2019) 145 Royal Academy of Arts Magazine 91, 91. 88 Wates (n 9) 414. 87 R

2 The Three Purposes Genuine love is rarely an emotional space where needs are instantly gratified. To know love, we have to invest time and commitment …1

I. INTRODUCTION

I

n uncovering the foundations of the Aarhus Convention, I am embarking on a purposive interpretation of its provisions. Purposive interpretation helps to resolve ambiguity, ensures that an instrument takes account of contemporary conditions, and seeks to produce an authentic understanding of a legal text. By examining the three candidate purposes – environmental democracy, environmental rights and environmental stewardship – I seek to build a rich and responsive picture of how the Convention can and should be understood. In this chapter I set out my reasons for choosing these three purposes from the elaborate philosophical scope of the Convention, locating the references to each of these concepts in the preamble and main body of the Convention, its travaux préparatoires, supporting materials such as the Convention’s Implementation Guide2 and Strategic Plans3 and in scholarly commentary on the Aarhus Convention. This is not to pre-empt the purposive analysis of the Convention that follows in Chapters 3–6, rather it is to show that the purposive approach I take to the Convention is necessary. Before embarking on this treasure hunt of the Convention’s philosophical scope, I first want to say something about why I undertake a purposive approach at all. After all, the text of the Convention should supply sufficient meaning to allow those reading it to understand and interpret its provisions. To illustrate why this is not necessarily the case, let me take an example from Article 2 of the Convention, which supplies the definitions for the Convention. Deciding who is to be regarded as ‘public concerned’, for example, should be a straightforward

1 bell hooks, All About Love: New Visions (Harper Perennial, 2001) 114. 2 The Aarhus Convention: An Implementation Guide (2000) ECE/CEP/72 (Implementation Guide, 1st edn); The Aarhus Convention: An Implementation Guide (2014) ECE/CEP/72/Rev.1 (Implementation Guide, 2nd edn). 3 Decision III/8 on the Strategic Plan for 2009–2014 (ECE/MP.PP/2008/2/Add.I); Decision V/5 on the Strategic Plan for 2015–2020 (ECE/MP.PP/2014/2/Add.I).

22  The Three Purposes exercise in reading the plain text of the definition offered in Article 2(5) of the Convention. Reading the definition reveals, however, that this not such an easy exercise. The provision refers to ‘the public affected’ and those ‘having an interest in’: these are ideas which require some further degree of interpretation. Recalling the purposes of the Convention can, therefore, help to supply meaning where meaning is left unresolved. To continue with the example of ‘the public concerned’, if the Convention is concerned with promoting environmental stewardship, for example, those ‘having an interest in’ the outcome of an environmental decision might be those who take their obligations as environmental stewards seriously, and so ‘the public concerned’ should be read to include such individuals. Identifying and examining the purposes of the Aarhus Convention consequently helps to resolve the textual ambiguities present in the text. Furthermore, the purposive approach allows for the values that influenced the drafting of the Convention to also influence its implementation, ensuring that the implementation of the Convention is true to the grand vision of its mothers and fathers.4 II.  A PURPOSE-DRIVEN APPROACH

A purposive or teleological approach to interpreting law considers the purposes and objectives that animate a legal instrument. Thus, it allows those interpreting a text to look beyond the black letters of the law to the ideas that motivate and inform it. In other words, it is a ‘value based’ form of interpretation that is guided by the search for, and articulation of, the values that inspired the drafters.5 Purposive interpretation is neither a straightforward nor an uncontroversial exercise.6 I am conscious, therefore, that my purposive approach to understanding the Aarhus Convention may raise some objections. In this section, I show that as an instrument of international law, and as an agreement that identifies as a human rights one, a purposive approach is both necessary and appropriate to fully understanding what the Convention aims to achieve.7 I also draw on the work of international lawyers to say something about the process of interpretation more generally. In seeking to explain what it means to interpret law, a number of international lawyers have turned to the work of literary theorist and legal scholar

4 Key Messages from the Rome Anniversary Event to Celebrate 20 Years of the Aarhus Convention (15–16 May 2018, Rome). 5 J Burrows, ‘The Changing Approach to Interpretation of Statutes’ (2002) 33 Victoria University of Wellington Law Review 981, 981. 6 O Ammann, Domestic Courts and the Interpretation of International Law: Methods and Reasoning Based on the Swiss Example (Brill/Nijhoff, 2019) 212. 7 Implementation Guide, 2nd edn (n 2) 15.

A Purpose-Driven Approach  23 Stanley Fish.8 For Fish, it is the reader and not the text that creates the meaning.9 This is not a licence for ‘interpretive anarchy’ that allows a reader to find any meaning in a text that they might fancy.10 Instead, Fish’s approach is an invitation to participate in the ‘interpretive community’ that surrounds a text; thus interpretation is a collective practice. It is the collaborative endeavours of the ‘interpretive community’ that help to build the meaning of a text. Anarchy is avoided because the interpretive community is guided by certain rules of engagement that are broadly understood by the whole community and thus the community provides stability as to meaning.11 This reader-led approach to interpretation might seem to be counter to the purposive approach that I am advocating. However, because members of the interpretive community ‘share reading strategies, values and interpretive assumptions’ (emphasis added) the values that inform the purposes of a legal instrument are probably understood and shared by the reader.12 In the context of international law, the interpretive community includes both those directly involved in the negotiation and drafting of a treaty, and the international lawyers and academics who contribute to their understandings to a particular text.13 Together, this community shares common ideas about the values that influence an instrument, and thus contributes to an understanding of how that instrument should be interpreted and understood. Hence, a purposive interpretation of a text is arrived at as part of a continued, communal effort. The formal rules of engagement that guide the interpretive communities of international law are set out in the Vienna Convention on the Law of Treaties 1969 (the Vienna Convention).14 As the Aarhus Convention is an international treaty (although regional in scope) these rules steer how the Convention ought to be interpreted. Article 31(1) of the Vienna Convention states that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.15 This confirms, in its third clause, that a purposive approach to interpreting international law is possible, albeit creating some anxiety about what

8 E Papastavridis, ‘Interpretation of Security Council Resolutions Under Chapter VII In the Aftermath of the Iraq Crisis’ (2007) 56 International & Comparative Law Quarterly 83; M Swart, ‘Is there a Text in this Court? The Purposive Method of Interpretation and the ad hoc Tribunals’ (2010) 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 767. 9 S Fish, Is there a Text in this Class? The Authority of Interpretive Communities (Harvard University Press, 1980) 152 10 Ibid, 172. 11 Ibid, 171. 12 Swart (n 8) 776. 13 I Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’ (2003) 14 European Journal of International Law 437, 450. 14 The Vienna Convention provides guidance on the proper way to interpret the provisions of international treaties: The Vienna Convention on the Law of Treaties [1969] 1155 Treaty Series 331, Arts 31–32. 15 Ibid, Art 31.

24  The Three Purposes exactly the ‘object and purpose’ of a treaty is.16 Broadly speaking, the object and purpose of a treaty relate to ‘a unitary concept referring to the goals that the drafters of the treaty hoped to achieve’.17 A teleological approach is, therefore, one that seeks to identify and define those goals in order to understand how they inform the text. Human rights treaties are particularly apt for a purposive approach, because they are concerned to ensure the best protection possible for individual human rights.18 As Mia Swart explains, ‘because human rights treaties confer rights on individuals, human rights bodies strive to interpret treaties in such a way that the protection offered to individuals is real’.19 Making that protection real requires an interpretation that faithfully reflects the broad purpose of human rights. As the European Court of Human Rights explains: In interpreting the Convention [that is the European Convention on Human Rights (ECHR)] regard must be had to its special character as a treaty for the collective enforcement of human rights … an interpretation of the rights and freedoms guaranteed must be consistent with the ‘general spirit of the Convention, as an instrument designed to maintain and promote the ideals and values of a democratic society’…20

Thus, the special quality of human rights, and their connection to important values, means that human rights are interpreted purposively. Furthermore, this purposive approach is attuned to how these values develop in society and the international legal order. It is for this reason that the ECHR, for example, has been described as a ‘living instrument’.21 Francis Jacobs describes this approach as an ‘emergent purpose’ approach, because it ‘regards the creation of the parties as having acquired a separate existence’ that needs continued explanation and understanding as time goes on.22 If the Aarhus Convention truly is to be understood as a hybrid environmental-human rights agreement, then it should be interpreted in the way that other human rights instruments are, recognising that its meaning grows and adapts to the evolving values of the legal order.23 This understanding is confirmed by Áine Ryall, who describes the

16 DS Jonas and TN Saunders, ‘The Object and Purpose of a Treaty: Three Interpretive Methods’ (2010) 43 Vanderbilt Journal of Transnational Law 565, 566. 17 Ibid, 578. 18 D Mzikenge Chirwa, ‘African Regional Human Rights System: The Promise of Recent Jurisprudence on Social Rights’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, 2008) 338. 19 Swart (n 8) 783. 20 Soering v United Kingdom (1989) 11 EHRR 439, para 87. 21 Tyrer v United Kingdom (1978) 2 EHRR 1, para 31; A Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) 5 Human Rights Law Review 57, 60. 22 FG Jacobs, ‘Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of Treaties before the Vienna Diplomatic Conference’ (1969) 18 The International and Comparative Law Quarterly 318, 320. 23 Alan Boyle makes a strong case for regarding the Aarhus Convention as a human rights treaty: ‘Anyone who doubts that Aarhus is a human rights treaty should bear in mind three points. First, it builds upon the long-established human right of access to justice and on procedural elements that

A Purpose-Driven Approach  25 Convention as a ‘dynamic international treaty’ particularly in connection to the delivery of environmental rights.24 Accordingly, the Convention can and should be interpreted in light of the purposes and emerging purposes that animate it. In order to ensure that the purposive approach to interpretation is not an entirely imaginative exercise, the Vienna Convention offers some guidance on how to find the relevant purpose and object of a legal instrument. Articles 31 and 32 of the Vienna Convention identify a number of relevant sources for discerning the purpose of an international treaty. A treaty’s purpose and object can be derived from a treaty’s preamble, its context and contemporary background and from its explanatory materials such as the travaux préparatoires.25 A further interpretive source in relation to the Aarhus Convention specifically, is the Convention’s Implementation Guide, which is now in its second edition. The Grand Chamber of the Court of Justice of the European Union has stated that the Implementation Guide ‘may be regarded as an explanatory document, capable of being taken into consideration, if appropriate, among other relevant material for the purpose of interpreting the Convention’.26 Further, given the human rights character of the treaty, I also look to documents that contribute to understanding the emerging purposes of the treaty, for example its two Strategic Plans and materials generated as part of the twentieth anniversary celebration commentary.27 These materials represent the most recent iterations of the purposive ambitions of the Convention, as expressed by the Contracting Parties, and thus contribute to the idea of the Convention as a living instrument.28 Additionally, I draw on the academic commentary on the

serve to protect the rights to life, health, and family life. Secondly, it confers rights directly on individuals and not simply on states. Unusually for an environmental treaty the most innovative features of the “non-confrontational, non-judicial and consultative” procedure established under Article 15 of the Convention are that members of the public and NGOs may bring complaints before a noncompliance committee the members of which are not only independent of the parties but may be nominated by NGOs. The committee has given rulings which interpret and clarify provisions of the convention and a body of case law is emerging. In all these respects it is closer to human rights treaty monitoring bodies than to the non-compliance procedures typically found in other multilateral environmental agreements’. See A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 The European Journal of International Law 612, 622–23. 24 Á Ryall, ‘Beyond Aarhus Ratification: What Lies Ahead for Irish Environmental Law?’ (2013) 20 Planning and Environmental Law Journal 19, 19. 25 The Vienna Convention (n 14) 32. 26 However, it should be noted that they also went on to say that the observations in the guide have no binding force and do not have the normative effect of the provisions of the Aarhus Convention’ (emphasis added): Case C 279/12 Fish Legal, Emily Shirley v The Information Commissioner et al [2014] QB 521, para 38. 27 Strategic Plan for 2009–2014 (n 3); Strategic Plan for 2015–2020 (n 3); Report of the Joint Highlevel Segment, Environmental Democracy for Our Sustainable Future, 14 September 2017 ECE/ MP.PP/2017/CPR.3–ECE/MP.PP/2017/CPR.1 (Budva Declaration); Key Messages from the Rome Anniversary Event (n 4). 28 A further interpretive source for the Convention is the jurisprudence of the Aarhus Convention Compliance Committee, particularly when they are endorsed by the Meeting of the Parties. However, given the breadth of this jurisprudence, for reasons of scope it is not considered in this

26  The Three Purposes Aarhus Convention. Much of this commentary has been written by those who have been, and continue to be, instrumental in the creation and operation of the Convention, and are accordingly those who might be described as authoritative members of the Convention’s interpretive community.29 Through an evaluation of these various sources I can start to identify and investigate the three candidate purposes of the Convention, paving the way for the more detailed elaboration of the purposes in the rest of the book. III.  THE AMBITION OF ENVIRONMENTAL DEMOCRACY

The democratic purpose of the Aarhus Convention is the most ubiquitous of the three purposes considered. As a consequence, it is the easiest of the three purposes to discern. The three pillars represent rights that are associated with democratic values, such as legitimacy, accountability and transparency and the context in which these rights are applied, environmental decision-making, suggest the ‘environmental’ modifier to democracy. Added to these general indicators, commentary on the Convention is rife with references to the role it plays in relation to environmental democracy. Kofi Annan, for example, described it as ‘the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations’,30 and the Strategic Plan 2009–2014 describes the Convention as having ‘emerged as a uniquely effective international instrument promoting environmental democracy’.31 Nevertheless, the term ‘environmental democracy’ does not appear in the text of the Convention, neither in its main articles nor in its preamble, and the term ‘democracy’ appears only once in the Convention’s preamble.32 Identifying environmental democracy as a purpose of the Convention is inevitably something of an intuitive exercise, identifying aspects of the Convention that seem to point to the idea of environmental democracy. In this investigation of the clues that point to environmental democracy as a purpose of the Convention, I am necessarily relying on a very general idea as a form of democratic decision-making directed at environmental protection. I will develop this initial idea in Chapter 3,

book: Á Ryall, ‘The Aarhus Convention: Standards for Access to Justice in Environmental Matters’ in SJ Turner et al (eds), Environmental Rights: The Development of Standards (Cambridge University Press, 2019) 127. 29 For example, Jonas Ebbesson, Jerzy Jendrośka, Marc Pallemaerts, Áine Ryall, Stephen Stec and Jeremy Wates. 30 It is interesting to note that whilst the first edition of the Implementation Guide contained only Kofi Annan’s reference to environmental democracy, the second guide now contains 15 references to specifically environmental democracy: Implemention Guide, 1st edn (n 2) Foreword. 31 Strategic Plan for 2009–2014 (n 3) 1. 32 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 38 ILM 517, 21st preambular recital.

The Ambition of Environmental Democracy  27 but for now, in order to demonstrate that environmental democracy is worth investigating as a purpose of the Convention, it guides my search for traces of this purpose. First, I consider the references in the preamble of the Convention that hint at the environmental democracy ambitions of the Convention. Second, I show how the rights of the Convention can be regarded as promoting environmental democracy. Finally, I conclude by surveying the commentary on the Convention that refers to the democratic ambitions of the Convention. Although the preamble does not make reference to environmental democracy per se, it does refer to democratic values and to environmental protection goals independently. In relation to the democratic values identified, the preamble recalls the importance of accountability and transparency in government33 and states that the Convention will contribute to ‘strengthening democracy in the region of the United Nations Economic Commission for Europe’.34 Accordingly the procedural rights should be viewed as furthering these democratic ends. For example, allowing the public access to information, held by public authorities, increases transparency and accountability. Added to this is a reference to a duty to protect and improve the environment for the benefit of present and future generations. This duty is attached to the procedural rights, suggesting that the democratic ambitions of the Convention are broadly aimed at promoting environmental ends. Thus, the preamble can be seen to hint that the Convention has environmental democracy aspirations. In terms of the main body of the Convention, it implements three procedural environmental rights – the right to environmental information, the right to participate in environmental decision-making and the right of access to justice in environmental matters. On a very elementary understanding of the concept, these rights can be regarded as promoting environmental democracy because they facilitate and protect democratic expression in the context of environmental decision-making. The most directly democratic right is the participation right contained in Article 6, which guarantees the right of the public to participate in decisions about whether to permit certain environmental activities deemed environmentally harmful or listed in Annex I of the Convention. Importantly, this right requires public participation to occur early on in the decision-making process so that they can have a meaningful influence on the outcome of decisions, and requires decision-makers to take into account the public’s contributions. Thus, it would appear that there is some form of participatory democracy promoted in the Convention. There are two further Articles (7 and 8) that constitute the participation pillar – participation in respect of ‘plans, programmes and policies’ and ‘executive regulations and/or generally applicable legally binding normative instruments’ – which also contribute to some notion of environmental democracy.



33 Ibid, 34 Ibid,

10th preambular recital. 21st preambular recital.

28  The Three Purposes Although the participation right is the most overtly democratic, the rights of access to environmental information and access to justice are important facilitative rights. As Maria Lee and Carolyn Abbot explain, information is ‘a crucial element of far more basic elements of a democratic society – the right to vote, the right to free speech’,35 because access to information helps citizens to formulate their opinions in respect of certain activities. Accordingly, where access to information is guaranteed, participation is likely to be better informed and more authentic. The right of access to justice is also essential, because it provides citizens with a legal remedy when their other procedural rights are violated – an important democratic protection. In addition to the procedural rights, the Convention also references a substantive right to an environment adequate to human health and well-being (although the legal status of this right is ambiguous).36 The substantive right also facilitates democracy because it protects a minimum degree of environmental quality to ensure that when individuals exercise their democratic rights they do so from a position of genuine choice.37 Although only a rough sketch of the Convention, the ‘connections between environmental goals, participative democracy and individual rights’ seem to intimate that the Convention is intended to promote environmental democracy.38 The idea that environmental democracy is a potential purpose of the Convention is confirmed in its supporting materials and in academic and political commentary on the Convention. The Ministerial Declaration made at the time of ratification stated: ‘We regard the Aarhus Convention, which provides recognition for citizens’ rights in relation to the environment, as a significant step forward both for the environment and for democracy’.39 And, as has already been remarked, former UN Secretary General Kofi Annan described the Convention as the ‘most ambitious venture in “environmental democracy” so far undertaken under the auspices of the United Nations’.40 This was reiterated by the next serving Secretary General, Ban Ki-Moon,41 and at subsequent Meetings of the Parties.42 Following the Meeting of the Parties in 2017 in Montenegro, Contracting Parties drafted the Budva Declaration on Environmental Democracy for Our Sustainable Future, in which they reaffirmed their ‘strong commitment to promote environmental democracy and its key components,

35 M Lee and C Abbot, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 Modern Law Review 80, 88. 36 See section IV below and Ch 4. 37 M Saward, ‘Must Democrats be Environmentalists?’ in B Doherty and M de Geus (eds), Democracy and Green Political Thought (Routledge, 1996) 95. 38 J Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem-Solving Approach’ (2001) 3 Oxford Journal of Legal Studies 415, 419. 39 Ministerial Declaration (ECE/CEP/41) para 40, Annex II. 40 Implemention Guide, 1st edn (n 2) 1. 41 Ibid, 2. 42 Resolutions in Appendix II of the Implementation Guide, 2nd edn (n 2) 251–64.

The Ambiguity of Environmental Rights  29 access to environmental information, public participation and access to justice’.43 Indeed, all of the declarations adopted since the ratification of the Aarhus Convention mention it as a tool of environmental democracy.44 Environmental democracy has also been confirmed as a purpose in academic commentary on the Convention. Tim Hayward describes the Convention as being conceived with the express aim of promoting democracy.45 Further, commentators have variously described it as a ‘symbol’,46 a ‘driving force’,47 a ‘flagship’48 and a ‘bold experiment’49 of environmental democracy and Jerzy Jendrośka and Stephen Stec regard the Convention as ushering in a ‘new era’ in environmental democracy.50 It seems, therefore, that environmental democracy does indeed represent ‘a set of ideas which transcend the detail of the actual obligations under the Convention’.51 Thus, whilst environmental democracy is not defined within the Convention, through this cursory examination of the text, its supporting materials and academic commentary there is sufficient cause to investigate environmental democracy as a purpose of the Aarhus Convention. IV.  THE AMBIGUITY OF ENVIRONMENTAL RIGHTS

The second purpose I consider is the environmental rights purpose of the Convention. Unlike the other two purposes, environmental rights are front and centre in the text of the Aarhus Convention. Its three pillars correspond to three rights (information, participation and justice) and the Convention opens with its objective ‘to contribute to the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing’ (emphasis added). As a result, the Convention has attracted a great deal

43 Budva Declaration (n 27) para 2. 44 Report to the Meeting of the Parties, 21–23 October 2002 ECE/MP.PP/2/Add.1 (Lucca Declaration); Report of the Second Meeting of the Parties, 25–27 May ECE/MP.PP/2005/2/Add.1 (Almaty Declaration); Report to the Third Meeting of the Parties, 11–13 June 2008 ECE/MP.PP/2008/2/ Add.1 (Riga Declaration); Report to the Fourth Meeting of the Parites, 29 June–1 July 2011 ECE/ MP.PP/2011/2/Add.1 (Chisinau Declaration); Report of the Joint High-level Segment, Transparency as a Driving Force for Environmental Democracy, 2 July 2014 ECE/MP.PP/2014/27 Add.1-ECE/ MP.PRTR/2014/2 Add.1 (Maastricht Declaration). 45 T Hayward, ‘Environmental Rights as Democratic Rights’ in B Minteer and B Pepperman Taylor (eds), Democracy and the Claims of Nature: Critical Perspectives for a New Century (Rowman & Littlefield Publishers Inc, 2002) 246. 46 J Wates, ‘The Future of the Aarhus Convention. Perspectives Arising from the Third Session of the Meeting of the Parties’ in M Pallemaerts (ed), The Aarhus Convention at Ten (Europa Publishing, 2011) 389. 47 Ibid, 389. 48 M Pallemaerts, ‘Introduction’ in Pallemaerts (n 46) 11. 49 S Stec, ‘EU Enlargement, Neighbourhood Policy and Environmental Democracy’ in Pallemaerts (n 46) 37. 50 J Jendrośka and S Stec, ‘The Aarhus Convention: Towards a New Era in Environmental Democracy’ (2001) 9 Environmental Liability 140. 51 Wates (n 46) 389.

30  The Three Purposes of attention from those interested in framing environmental needs and values in terms of human rights, some even suggesting that the Aarhus Convention contains the clearest statement in international law of a substantive right to a healthy environment.52 However, others assert that the Convention is at most an aspirational expression of such a right,53 and does little to change the role that environmental rights play in international environmental law.54 There is, then, an interpretive dilemma at the heart of the Convention’s ‘overarching objective’.55 In order to open this dilemma up to further interrogation, in Chapter 4 I examine the history and nature of environmental rights in the context of the Convention in order to facilitate the deeper analysis of this purpose. The ambiguity that plagues the rights purpose of the Convention is no accident, it is the product of a protracted negotiation over whether or not the final text should unequivocally recognise the right to a healthy environment. When the idea of a treaty along similar lines to the Aarhus Convention was first conceived, an individual, legally enforceable right to a healthy environment was to be included in the text.56 However, the inclusion of a substantive right was controversial and it garnered insufficient consensus to remain in the text and was hence dropped. The focus turned instead to procedural environmental rights, in line with the developments in international law prompted by Principle 10 of the Rio Declaration, which shifted the focus from the right to a healthy environment (found in the Stockholm Declaration) to procedural environmental rights to facilitate good environmental decision-making.57 During the eight years of the formal process of drafting the Convention, the drafters struggled to agree on the proper status and formulation of the right that would protect substantive interests relating to the environment.58 The language

52 A Fabra Aguilar and NAF Popovic̀, ‘Lawmaking in the United Nations: The UN Study on Human Rights and the Environment’ (1994) 3 Review of European Community & International Environmental Law 197; S Giorgetta, ‘The Right to a Healthy Environment, Human Rights and Sustainable Development’ (2002) International Environmental Agreements: Politics, Law and Economics 173; M Déjeant-Pons et al, Human Rights and the Environment (Council of Europe Publishing, 2002) 18. 53 OW Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review 73, 99. 54 A Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’ in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, 1996). 55 Ryall (n 28) 116. 56 Report of the Ad hoc Meeting on Environmental Rights and Obligations (UN Doc ENVWA/ AC.7/2, 10 July 1991) para 10; Déjeant-Pons et al (n 52) 17. 57 Déjeant-Pons et al (n 52) 17. 58 The Belgian delegation was instrumental in ensuring that some form of substantive environmental right was included in the Convention. Their first proposal met with mixed responses from the other delegations, some suggesting that the proposal ought to be strengthened, and others arguing that it was inappropriate given the nature of the Convention. In the sixth session the Belgian delegation, with the support of Italian and Danish delegations, put forward an amended proposal that met with more general agreement and was partially adopted in the finalised Convention: ibid, 17.

The Ambiguity of Environmental Rights  31 that was eventually adopted in respect of this right thus reflects a carefully negotiated compromise, resulting in significant ambiguity as to the status of the right to an adequate environment. The finally agreed wording is contained in Article 1 of the Convention and reads as follows: In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention. (emphasis added)59

The objective references two types of right: the substantive right to an environment adequate to human health and well-being; and the aforementioned procedural rights (access to information, public participation and access to justice in environmental matters). Both types of right are introduced using a very different formulation. The procedural rights are framed using unequivocal language, indicating that they should give rise to specific, legally enforceable obligations that ‘each party shall guarantee’. These rights are elaborated in subsequent articles of the Convention so that their scope, beneficiaries, respondents and the duties which they give rise to, are mapped out in greater detail. Further, the Strategic Plans keep the focus of the ‘long-term vision’ of the Convention on securing these rights within Europe and beyond.60 In contrast to the language used in respect of the procedural rights, the language used to introduce the substantive right, ‘to contribute to’, is vague and as a result, the ‘status’ of the right is unclear. Article 1 appears to presume the existence of a substantive right, as if it were referencing a right that is already in existence. Further, the non-binding preamble includes the following recital: Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations … (emphasis added)

The Implementation Guide describes this paragraph (and not Article 1) as ‘the first express recognition of the right to a healthy environment in an international instrument in the European region’.61 Accordingly, this preambulatory recital contributes to the ambiguity surrounding the substantive right because it demonstrates the type of language that the Convention’s drafters could have adopted had the intention been to establish a fully-fledged, legally enforceable, substantive right, rather than simply to acknowledge one.



59 Aarhus

Convention (n 32) Art 1. Plan for 2009–2014 (n 3) Objective I.6. 61 Implementation Guide, 2nd edn (n 2) 17. 60 Strategic

32  The Three Purposes This seems to suggest that the substantive right is intended as an aspiration and thus should not be seen as giving rise to ‘substantive obligation[s]’.62 This interpretation of the right was emphasised by the United Kingdom when they ratified the Convention.63 At the time, the United Kingdom issued a statement asserting that the right was ‘aspirational’ and not legally enforceable.64 However, in spite of this reservation, the choice of words used in Article 1 is significant, as it implies that the Parties to the Convention acknowledged that the procedural rights were not a complete alternative to a fully articulated substantive right.65 Thus, Article 1 establishes a nexus between the substantive right and the procedural rights. This relationship is suggestive of the idea that the Convention is aiming to do more than just guarantee procedural rights. The eighth preambulatory recital to the Convention seems to support such an approach: Considering that, to be able to assert this right [that is the substantive right] and observe this duty, citizens must have access to information, be entitled to participate in decisionmaking and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights …

The Implementation Guide claims that this paragraph is included to underpin the procedural rights with a substantive aim.66 Thus, it is implied that Article 1 aims to do more than simply guarantee three procedural rights. Indeed, the procedural rights do not seem to make sense as ends in themselves but are meaningful because they are ‘means towards the end of protecting the individual’s substantive right to live in a healthy environment’.67 More recently, the key messages from the Rome anniversary event point towards renewed interest in what has been described as the ‘often forgotten’ objective of the Convention, ie the right to a healthy environment.68 In the first key message, the authors emphasise the visionary nature of the Convention in respect of Article 1 and its reference to a fundamental right for people both now and in the future, and in their second message they agree that more needs to be done to reach the objective. Whilst these messages have no legal force, 62 Déjeant-Pons et al (n 52) 18. 63 In public international law generally, such statements of reservation are pertinent when interpreting ambiguity in international law: S Fatima, Using International Law in Domestic Courts (Hart Publishing, 2005) 4.5.8. 64 The statements is as follows ‘The United Kingdom understands the references in article 1 and the seventh preambular paragraph of the Convention to the “right” of every person “to live in an environment to his or health and well-being” express an aspiration which motivated the negotiations of this Convention and which is shared fully by the United Kingdom, The legal rights which each Party undertakes to guarantee under article 1 are limited to the rights of access to information, public participation in decision-making and access to justice in environmental patters in accordance with the provisions of this Convention’ (emphasis added): ‘Declarations and Reservations’ available at treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=XXVII-13&chapter=27&lang=en#EndDec, accessed 13 April 2020. 65 Déjeant-Pons et al (n 52) 18. 66 Implementation Guide, 2nd edn (n 2) 19. 67 Déjeant-Pons et al (n 52) 18. 68 Key Messages from the Rome Anniversary Event (n 4) 1.

The Air of Environmental Stewardship  33 they at least suggest that the reference to a healthy environment is more than a mere rhetorical flourish; that the right was intended to have some practical consequences. All of this serves to confirm that environmental rights in the context of the Convention merit greater exploration and explanation than they have thus far been treated to. V.  THE AIR OF ENVIRONMENTAL STEWARDSHIP

Environmental stewardship is the final purpose considered in this book. Of the three purposes explored, stewardship is the least explicit because it is never expressly referred to as an aim of the Convention in either the Convention itself, its explanatory materials or indeed in academic commentary on the Convention. Nevertheless, environmental stewardship represents a distinct, moral imperative that runs through the text and provisions of the Convention. This moral imperative intimates that the procedural rights guaranteed by the Convention ought to be used in a way that serves to protect the environment for the benefit of present and future generations. Thus, the stewardship purpose underpins the entire Convention and, not only does it animate the individual provisions of the Convention, it also animates the other two purposes of the Convention. As I did with my survey of the environmental democracy purpose, I rely on a very general idea of environmental stewardship, as care for and responsibility towards the environment, as a way to help guide my initial search for hints that the Convention is indeed animated by a concept of environmental stewardship.69 Therefore, in order to show that the Convention is underpinned by a moral dimension that should be identified as stewardship, I focus on the references to ‘protect, preserve and improve’ the environment. The preamble suggests that these references are key aims of the procedural rights of the Convention – aims that are at the very least redolent of the concept of stewardship. Examining this moral dimension is important because it ignites the full potential of what the Convention is intended to achieve as an instrument of international environmental law. It shows that the Convention does more than just impose a number of legal obligations on the Parties in respect of the three procedural rights; it also implies a moral obligation that all members of society ought to help with the effort of environmental protection. The stewardship purpose is particularly important in the context of this book because it is this moral dimension which stirs the two other purposes of the Convention. For example, the rights purpose of the Convention, whilst ostensibly concerned with bestowing procedural environmental rights upon citizens, is permeated with at least a minimal idea of stewardship. Thus, the procedural rights are imbued with a requirement to protect the environment of present and future generations.



69 R

Barnes, Property Rights and Natural Resources (Hart Publishing, 2009) 155.

34  The Three Purposes Similarly, environmental democracy is a practical manifestation of the idea of stewardship (or at least stewardship values). As I will show in Chapter 3, for environmental democracy to be distinct from other forms of democracy it must have some environmental motivation that inspires citizens to exercise their democratic rights in a way that promotes their moral obligations in respect of the environment. In this way, stewardship should be seen to reflect and inform the normative underpinnings of both the rights and the democratic purpose of the Aarhus Convention, as well as the Convention itself. Although there is no explicit indication that stewardship should be regarded as being within the philosophical scope of the Convention, and thus one of its aims, the preamble to the Convention makes references to ideas and values that are akin to stewardship ideas and values. On this basis, the notion of stewardship appears to be advocated in the very first preambulatory recital of the Convention. It recalls Principle 1 of the Stockholm Declaration on the Human Environment which regards humans as bearing ‘a solemn responsibility to protect and improve the environment’ (emphasis added).70 The values that permeate Principle 1 of Stockholm are repeated in other preambulatory paragraphs of the Convention71 and, in broad terms, the requirements to ‘protect’, ‘preserve’72 and ‘improve’ place a duty on individual citizens and the Parties to act in a way that at least resembles environmental stewardship.73 Additionally, the preamble advocates responsibility towards the environment which, based on the initial definition adopted, is a foundational idea of environmental stewardship. The Convention has indeed been described as representing ‘a significant shift towards an environmentally responsible society’,74 a view which is reiterated at numerous points in both Strategic Plans.75 Thus, there are sufficient indications suggesting that stewardship is an implicit purpose of the Convention. Alongside the emphasis on responsibility towards the environment, the preamble also refers to the importance of sustainable development.76 These references are seen to ‘embody a set of values’ which encourage a better account to be taken of the impact of development on the natural environment.77

70 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc A/CONF.48/14/Rev.1 (Stockholm Declaration) Principle 1. 71 Aarhus Convention (n 32) 3rd, 5th and 7th preambular recitals. 72 This additional requirement is added by the 5th preambular recital. 73 A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471, 476. 74 Professor Laszlo Miklos, Slovak Minister of the Environment, quoted in D Bell, ‘Sustainability Through Democratization? The Aarhus Convention and the Future of Environmental Decision Making in Europe’ in J Barry et al (eds), Europe, Globalization and Sustainable Development (Routledge, 2004) 95. 75 See, for example, Strategic Plan for 2009–2014 (n 3) Objective I(8); Strategic Plan for 2015–2020 (n 3) para 4. 76 Aarhus Convention (n 32) 5th preambular recital. 77 Implementation Guide, 2nd edn (n 2) 26.

The Air of Environmental Stewardship  35 The important role that the Convention plays in relation to sustainable development is reiterated by Ban Ki-Moon in his Foreword to the second edition of the Implementation Guide.78 This connection between the Convention and sustainability values is a further suggestion that the idea of stewardship is present in the Convention, particularly as, on a theoretical level at least, stewardship and sustainability are linked ideas.79 Thus, the preamble to the Convention gives a first impression that the Convention is in some way concerned with promoting environmental stewardship. This first impression of stewardship being a motivating idea behind the implementation of the Convention is carried forward into the General Part of the Convention. As discussed in section III above, Article 1 states that the Convention’s objective is to ‘contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’. Protecting this right implicitly requires protection of the environment itself. Thus, if the objective is taken seriously, some form of environmental responsibility (ie stewardship) should be seen to motivate the entire Convention. In addition to this, the Convention requires the Parties to educate their citizens so that they can be more environmentally responsible – in other words, so that they can be better stewards. Article 3(3) of the Convention obliges the Parties to ‘promote environmental education and environmental awareness among the public’, which, as the Implementation Guide suggests, is included as way of encouraging the modification of citizens’ behaviour towards the environment.80 This view, echoed in the Strategic Plan 2009–2014 by Objective II(9)(d), suggests that environmental education ‘promotes active and responsible behaviours among the public as regards the environment, including the exercise of rights guaranteed by the Convention’.81 One important implication of Objective II(9)(d) is that the rights guaranteed by the Convention ought to be exercised in a way that promotes environmental responsibility, suggesting that the three pillars of the Convention are strengthened by the notion of stewardship. This theme is returned to in the Strategic Plan 2015–2020, where the Parties recognise ‘the cornerstone role of civil society in protecting the environment and sustainable development’.82 Accordingly, it is suggested that those exercising their rights under the Convention ought to do so in a way that promotes stewardship values. Thus, the three pillars of the Convention can also be seen to promote the notion of stewardship. As the Convention requires the Parties to implement certain mechanisms which empower and enable citizens to act as environmental stewards, individual



78 Ibid,

3. Ch 5. 80 Ibid, 64. 81 Strategic Plan for 2009–2014 (n 3) 4. 82 Strategic Plan for 2015–2020 (n 3) 2. 79 See

36  The Three Purposes citizens can actively ‘protect’, ‘preserve’ and potentially even ‘improve’ the environment.83 Articles 4 and 5, which relate to environmental information, enable citizens to better understand the state of the natural environment. By making environmental information available to members of the public, the public are being encouraged to act as environmental stewards, since they are made more aware of the state of the natural environment.84 For example, Article 5(8), which requires ‘sufficient product information to be made available to the public’, enables the public to better govern their consumptive habits through better information about the products that they buy. Thus, the Convention appears to be requiring the Parties to ‘nurture pro-environmental values among local participants [in order to] effect change in behaviour by engaging people as stewards in [the] care of their local ecosystem’.85 The public participation pillar also promotes some idea of stewardship. It empowers citizens to participate in decisions likely to have a significant impact on the environment and thus gives citizens the opportunity to act as environmental stewards in relation to such decisions. This is because their participation is not dependent on any particular personal interest, thus citizen participation seems to be motivated by collective responsibility for the environment rather than simply the individual’s benefit from participation in environmental decisions. Finally, ideas of stewardship are apparent in the access to justice requirements of Article 9. By ensuring that members of the public have access to an independent tribunal to challenge the state’s failure to adequately implement the other pillars, and the ability to challenge contraventions of national environmental legislation, individuals are given powerful tools with which to exercise their stewardship duties.86 The requirement that the standing rules should be relaxed and costs should be reduced is an implicit indication that the motivation of the Convention is not simply about benefits for individuals but collective responsibility for the environment – in other words, environmental stewardship. In conclusion, there are strong suggestions that the Convention promotes some notion of good stewardship of the environment. In particular, the procedural rights guaranteed in the Convention appear to be motivated by a general idea of stewardship, as they are not ‘intrinsically valuable’, nor do they appear to be designed with the sole purpose of furthering individual interests.87 However,

83 Aarhus Convention (n 32) Art 3. 84 CM Roach et al, ‘Ducks, Bogs and Guns: A Case Study of Stewardship Ethics in Newfoundland’ (2006) 11 Ethics and the Environment 43, 50. 85 The authors of this paper are referring not to the Aarhus Convention but to the Municipal Wetland Stewardship program of Newfoundland, however the aims of both are strikingly similar as they are both concerned with engaging all members and levels of society in environmental protection: ibid, 44. 86 Aarhus Convention, Arts 9(1), 9(2) and 9(3). 87 Bell (n 74) 95.

Conclusion  37 the idea of stewardship – responsibility towards the environment – that informed this initial survey of the Convention, is a very limited and impoverished way of understanding the concept; stewardship is an expansive concept that can manifest in a variety of different ideas. Without a more extensive analysis of the concept, the stewardship purpose of the Convention cannot be sufficiently understood.88 VI. CONCLUSION

The textual sources I identified in section II above were indeed helpful for tracing and identifying some of the purposes of the Aarhus Convention. The problem they do not resolve is the meaning of those purposes. A purpose, by its very nature, is a value-laden concept that defies straightforward explanation. My purpose in life is composed of a complex set of desires and ambitions. For an outsider to try to discern it they would need to familiarise themselves with my family, my background, my education, my spiritual influences and my significant relationships. The same is true for the purposes identified of the Convention. Take environmental democracy, for example: it is not a simple idea; it can and does have multiple meanings. Claiming environmental democracy as a purpose of the Convention does not easily resolve how the Convention should be understood. A purposive approach to interpretation must necessarily go beyond simply identifying the relevant purpose. A purposive approach requires some deeper consideration of what that purpose means and what it might entail. To continue with the example of environmental democracy, the many references to environmental democracy in the context of the Convention are made without any explanation as to what environmental democracy actually is. And I imagine that many of those claiming that environmental democracy is a purpose of the Convention would be surprised to learn that on some accounts, environmental democracy involves listening to plants.89 This secondary purposive activity may not be possible, if we rely solely on the formal sources of interpretation I identified above (the travaux préparatoires, Implementation Guide, Strategic Plans etc). As Kate Tokeley explains, a purposive approach requires ‘a wider search for meaning’.90 This book represents that

88 Roach et al (n 84) 47. 89 J Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford University Press, 2000) 149. 90 K Tokeley, ‘Interpretation of Legislation: Trends in Statutory Interpretation and the Judicial Process’ in D Carter and M Palmer (eds), Essay in Roles and Perspectives in the Law: Essays in Honour of Sir Ivor Richardson (Victoria University Press, 2002) 967.

38  The Three Purposes wider search for meaning as it applies to the Aarhus Convention. In this way, I enter into the ‘international interpretive community’ that encloses the Convention, offering a rich and expansive interpretation of the Convention’s purposive possibilities.91 Thus having identified the clues that point to each of the three purposes of the Convention, I now turn to the diverse scholarly conversations that can bring meaning to these purposes.

91 Fish (n 9); Johnstone (n 13); O Schachter, ‘The Invisible College of International Lawyers’ (1977) 72 Northwestern University Law Review 217.

3 Environmental Democracy A good definition marks our starting point and lets us know where we want to end up. As we move toward our desired destination, we chart the journey, creating a map.1

I. INTRODUCTION

E

nvironmental democracy is an idea that can tend towards the bombastic. Prefixing the ideology of environmentalism to the behemoth that is democracy sounds appealing but the implications of this alliance are ambiguous. Is environmental democracy a prosaic commitment to producing collective environmental decisions under the moral authority of democracy? Is it a fantasy of campaigning slugs, voting trees and a parliament of badgers, lions and sea horses? Or is it an oxymoron – democracy representing a commitment to open-ended decision-making, environmentalism a commitment to specific environmental outcomes? In truth, it is all of these things. Each partner in the alliance represents a powerful mythology and when brought together they coalesce and collide in multitudinous ways. Care therefore needs to be taken in articulating the meaning of environmental democracy, in order to understand the nature and implications of the partnership. This is particularly so in relation to the Aarhus Convention because, of the three purposes I consider in this book, environmental democracy is the most ubiquitous: references to environmental democracy are rife in commentary on the Convention and it has been treated as the poster child of environmental democracy (see Kofi Annan’s description of the Convention as ‘the most ambitious venture in environmental democracy’). Defining environmental democracy is, therefore, critical to understanding the Convention. Environmental democracy is a challenging idea because it combines two complicated concepts: democracy and environmentalism.2 Collective decisionmaking is difficult because human beings will always have conflicting opinions



1 bell 2 M

hooks, All About Love: New Visions (Harper Perennial, 2001) 14. Mason, Environmental Democracy (Earthscan, 1999) 1.

40  Environmental Democracy about what constitutes the good life. This is especially so for environmental issues3 because, as John Dryzek has said, ecological systems are complex and human ones are complex and so when the two collide these complexities are exacerbated.4 Even an environmentally conscious philosopher king, or ‘monomaniac dictator’5 would struggle to select the best course of action in respect of environmental goods because the question of ‘what constitutes a decent environment is a value judgement, on which reasonable people will differ’.6 Finding the democratic path through those conflicts is no easy task, and it is made harder because there is disagreement even on what the democratic path is. Environmental democracy is thus a difficult concept to understand and define, in part because democracy is difficult to understand, but also because it is not easy to predict what environmentalism might do to democracy. Before defining environmental democracy therefore, sections II and III of this chapter consider the constituent parts of environmental democracy independently of each other: the narrative of democracy (section II); and the complexities of environmental decision-making (section III). Doing so helps to identify what these two elements bring to the relationship, and how their individual complexities shape the concept of environmental democracy. In section II below, I start by explaining the different methodological and ideological choices that are made when defining democracy, and identify seven boundary markers of democracy that I regard as fundamental to any conception of democracy. This exposition of democracy highlights the essential democratic features of any putative theory of democracy and thus is intended to provide a foundation for explaining specifically environmental democracy. In section III I identify four features of environmental decision-making that can make it difficult: the volume and diversity of environmental interests; the plurality of environmental values; the uncertain nature of environmental knowledge; and the complex nature of environmental risk. This is a necessary step in explaining the concept of environmental democracy, because identifying these complex features helps to show how a concept of democracy might be designed in order to address them, which in turn further helps to identify what a specifically environmental conception of democracy might look like. On the basis of this groundwork, I turn in section IV to an examination of the concept of environmental democracy. Given the complex nature of democracy and environmental decision-making, there are many different theoretical manifestations of environmental democracy – from modified versions of representative democracy to radical forms of deliberative democracy. There is 3 G Smith, Deliberative Democracy and the Environment (Routledge, 2003) 6. 4 J Dryzek, The Politics of the Earth: Environmental Discourses (Oxford University Press, 2005) 8–9. 5 CT Reid, ‘Pitfalls in Promoting Environmental Rights’ in S Bogojević and R Rayfuse (eds), Environmental Rights in Europe and Beyond (Hart Publishing, 2018). 6 A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 The European Journal of International Law 612, 626.

The Narrative of Democracy  41 no single or definitive way to understand environmental democracy. In order to organise these different theoretical accounts of environmental democracy, section IV divides environmental democracy into its essential normative elements and its various structural manifestations. This section should, therefore, be viewed as an assortment of the various normative dimensions (eg a broad conception of the common good and the prioritisation of long-term generalisable interests) and structural elements (eg deliberation and environmental rights) of environmental democracy. This then provides a usable framework for interpreting the environmental democracy purpose of the Convention. As is the pattern in each of the three purpose chapters, the picture that I create captures the range of ideas and approaches that are contained within the concept of environmental democracy. I intentionally refrain from providing a constrained definition, because doing so offers artificial clarity. Neat definitions are comforting and perhaps easier to work with, but they also hide the depth and breadth of an idea. This is particularly so in relation to an idea like democracy. Democracy represents a compelling narrative about how to make collective decisions that has garnered a near universal consensus, attaining for itself a mythological status. Distilling democracy into a neat definition like ‘rule by the people’, whilst etymologically correct, masks the folklore that now surrounds democracy, and in so doing fails to capture its potency. Instead, therefore, I chose to explore the full scope of what environmental democracy is – its ‘constellation of possibilities’.7 Offering up this ‘slice of chaos’ is laborious, but ultimately fruitful because it allows us to understand the full scope and complexity of an idea.8 II.  THE NARRATIVE OF DEMOCRACY

In order to develop an understanding of environmental democracy, I begin by considering the ‘narrative’ of democracy more generally, surveying the many different editions and translations of the story.9 I do this in order to refine the central principles – or, as I will call them, boundary markers – of democracy, creating a foundation for the exposition of environmental democracy that follows in section IV below. Laying this foundation is not a simple task – democracy is an enormous idea,10 or as Robert Dahl has put it, ‘an impenetrable 7 C Grey, Constructing Communities in the Late Roman Countryside (Cambridge University Press, 2015). 8 P Hallward, Out of this World: Deleuze and the Philosophy of Creation (Verso, 2006) 141. 9 Saward uses the term narrative to denote the ‘incomplete and open-ended’ nature of the concept of democracy. As the aim here is to identify the general ideas about democracy, ‘narrative’ is the most accurate way to describe the work of this section: M Saward, Democracy (Polity Press, 2003) 32–33. 10 From its origins as a way of enabling citizens to make decisions in Athenian society, it has grown into a global standard for organising modern, liberal societies. As it has developed it has lost the clear lines of the original concept of democracy as ‘direct democracy’ and is now a concept replete with different versions and ways of approach. Democracy thus attracts a mythology worthy of Zeus.

42  Environmental Democracy thicket of ideas’.11 Democratic theory is abundant with contested scholarly conceptions, with different ambitions for and approaches to explaining exactly what democracy is. Given the enormity of the subject matter, it is difficult to do more than offer a general picture of democracy in the context of this chapter. However, too general a picture risks rehearsing clichés about democracy that do little to elaborate the concept. In an attempt to fall into neither of these traps, instead I identify the different ways that democracy can be defined, the different methodological and ideological approaches to democratic theory, the different ambitions of democratic scholars, and the different rationalities that motivate them. This survey is intended to demonstrate the impenetrability of the thicket, and thus the need to find a path around, rather than through it. Once I have identified these differences, I ‘beat the bounds’ of democracy to suggest seven boundary markers that underpin most, if not all, accounts of democracy: fallibility; political equality; autonomy; popular control; legitimacy; rights and justice.12 Identifying these boundary markers of democratic theory shapes my development of the concept of environmental democracy that will follow in section IV. Although I am concerned with relaying something of the narrative of democracy, rather than trying to define it, in order to show what it is the boundary markers are being laid out for, I propose an initial working definition of democracy: ‘democracy is a political concept’ concerned with how to make ‘collectively binding decision about the rules and policies of a group, association or society’.13 This definition conveys some essential elements about democracy: first, that it is about collective decision-making in a group context; and second, that the decisions have binding effect on the group and this binding quality requires justification. The discussion that now follows sets out the parameters of this concept and identifies the different ways that this basic conception can be fleshed out, thus revealing the complexity of democracy (and by implication environmental democracy) whilst helping to identify how a concept of environmental democracy might be constructed with the aid of the proposed boundary markers. A.  Scrambling through the Thicket Democracy is a thicket both because of the rich jurisprudential ideas that inform it (rights, justice, fairness) but also because scholars disagree about how best to define and approach a definition of democracy. This difficulty arises because 11 R Dahl, On Democracy (Yale University Press, 2000) 37. 12 This is not a normative argument that these ideas ought to constitute a theory of democracy or that they in some way justify a theory of democracy. They are selected because they are observed manifesting in most theories of democracy and therefore can be regarded to constitute boundary markers for the theory of environmental democracy. 13 D Beetham, ‘Key Principles and Indices for a Democratic Audit’ in D Beetham (ed), Defining and Measuring Democracy (Sage, 1994) 28.

The Narrative of Democracy  43 even the use of relatively simple terms open up myriad possibilities about how to define democracy. Take, for example, James May’s definition of democracy as ‘responsive rule’ – it is linguistically simple but theoretically complex because the term ‘rule’ is ambiguous, as is the idea of responsiveness.14 The etymological definition of democracy as ‘rule by the people’ is another example of a simplistic definition containing hidden depths of complexity – not only because the meaning of ‘rule’ is not obvious, but also because the meaning of ‘people’ is unclear.15 Definitions of democracy therefore have multiple layers of meaning and understanding, requiring the unfolding of these different elements. Even the allegedly simple, initial idea of democracy proposed at the beginning of this section is vulnerable to the uncertainty inherent in the basic terms it relies on.16 This vulnerability of democracy to seemingly unending layers of meaning has caused some scholars to reject approaches to democracy that are grounded in theory, preferring instead a descriptive approach. Rather than construct an abstract definition of what democracy is (or what it should be), Joseph Schumpeter, for example, chooses instead to base his definition of democracy on observations of actual institutions labelled as ‘democratic’.17 This approach unveils the first point of divergence within democratic theory – it invites a variety of methodological approaches. Definitions of democracy are variously descriptive, scientific, explanatory, semantic, etymological and normative, and there is ‘interpenetration’ between these approaches, resulting in a multitude of methodological approaches to defining democracy.18 For example, Schumpeter’s approach, which might be styled as descriptive or scientific, also draws normative and explanatory conclusions.19 Thus, the different methodological approaches to defining democracy, result in different accounts of the concept. Related to these differing methodological approaches, there are also different ideological approaches. Some scholars think that a definition of democracy should be light on values, whereas others view values as vital to the concept of democracy. Broadly speaking, these methods can be split into thick and thin approaches to democracy.20 For example, Schumpeter’s descriptive approach 14 May, however, argues that in comparison to other neat definitions of democracy (rule of the people, sovereignty of the people etc) responsive rule is ‘remarkably clear. Its terms do not themselves cry out for definition’: JD May, ‘Defining Democracy: A Bid for Consensus’ (1978) 26 Political Studies 1, 2. 15 D Held, Models of Democracy, 3rd edn (Polity Press, 2006) 151. 16 Beetham (n 13) 28. 17 JA Schumpeter, Capitalism, Socialism and Democracy (Routledge, 1976) 269–83; F Cunningham, Theories of Democracy: A Critical Introduction (Routledge, 2002) 11; Saward rejects the descriptive approach to democracy as a ‘definitional fallacy’: Saward (n 9) 6. 18 Frank Cunningham describes these different methodological approaches in terms of a ‘triangle of orientations’; theories of democracy – according to Cunningham – variously address the meaning of democracy, the value of democracy and observe and report the conduct of institutions of democracy: Cunningham (n 17) 11. 19 Ibid, 12. 20 L Diamond, The Spirit of Democracy: The Struggle to Build Free Societies Throughout the World (Henry Holt and Co, 2008) 21.

44  Environmental Democracy amounts to a thin vision of democracy because it eschews the inclusion of idealised values in the concept of democracy.21 Some examples of thin definitions of democracy include describing it as a system of ‘free and fair elections’;22 or as ‘an institution for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for peoples’ vote’.23 Thus, according to the thin approach, values (democratic or otherwise) play a minimal role. Only those that are necessary to constitute the minimum content of democracy are included. Thick conceptions of democracy, on the other hand, incorporate many more values and normative goals – transparency, accountability, freedom of speech, pluralism of information, a vibrant civil society and freedom from torture or interference with citizens’ personal lives (to give a flavour of some of the values suggested by Larry Diamond).24 Accordingly, thick conceptions of democracy have an inevitable normativity, as they draw on values for how democracy can best function. A third source of divergence within democratic theory results from the different ambitions of democratic theorists. Some scholars accept that democracy lacks a ‘fixed or fixable meaning’.25 As Dahl claims ‘… there is no democratic theory – only democratic theories’.26 On this view, democracy is a concept capable of maintaining different interpretations and definitions. Accordingly, there is no single standard by which to judge the accuracy of a particular theory of democracy, and thus democracy is a concept open to inclusion of a variety of values depending on each scholar’s particular political project. Others, however, advocate a definitive conception of democracy and thus favour a thin approach. Michael Saward, for instance, argues that it is possible to build a ‘single-best’ theory of democracy that avoids recourse to any one particular political approach (socialism, anarchism, environmentalism etc).27 According to this approach, there exists a single ideal version of democracy, and thus a standard to which all institutions claiming to be democratic ought to aim. Such an approach is partly dependent on the methodological choice made. For example, a descriptive theory of democracy is likely to be proffered as one of many possible theories of democracy (because there are many different institutional arrangements describing themselves as democratic), whereas a normative account of

21 His thin version of democracy is a direct result of his preferred methodological approach: Cunningham (n 17) 12–14. 22 L Diamond, ‘Toward Democratic Consolidation’ in L Diamond and M Platter (eds), The Global Resurgence of Democracy, 2nd edn (The Johns Hopkins University Press, 1996) 21. 23 Diamond (n 20) 269. 24 Ibid, 22. 25 WB Gallie, ‘Essentially Contested Concepts’ (1955) 56 Proceedings of the Aristotelian Society 167, 168. 26 R Dahl, A Preface to Democratic Theory (University of Chicago Press, 1956) 1. 27 M Saward, ‘Must Democrats be Environmentalists?’ in B Doherty and M de Geus (eds), Democracy and Green Political Thought (Routledge, 1996) 79.

The Narrative of Democracy  45 democracy is more likely to be one that is intended to be a ‘single-best’ theory of democracy (as this would represent the ideal-type that all democratic institutions ought to aim for). One final point of divergence within democratic theory relates to the presumed or desired form of rationality that motivates the proposed form of decision-making. Typically, the presumption within liberal democratic theory is that an individual acts to promote their own interests – ie their decisions are motivated by instrumental rationality. Accordingly, democratic structures are designed in order to allow individuals to exercise their autonomy in order to promote their individual interests. However, some theories of democracy either take another form of rationality as their starting point or attempt to promote a different form amongst citizens through the democratic structure proposed. For example, Dryzek (following Jürgen Habermas) rejects instrumental rationality as undemocratic, repressive and ‘ineffective when confronted with complex social problems’.28 As an alternative to instrumental rationality, he advocates communicative rationality which encourages participants in a democratic process to engage with the interests and needs of the collective rather than simply their own interests.29 It follows that the rationality that democracy is based on can have implications for even the structural elements of the democratic vision proposed. This swift tour of democratic scholarship serves to demonstrate why democracy is so difficult to define. Like other ‘essentially contested concepts’, democracy is so powerful an idea that it strains at the edges of any attempt to contain it.30 And like these other contested concepts, the challenge of containing it is a compelling one; democracy thus generates a multitude of scholarly interpretations, resulting in a mythology that is so densely populated that it is difficult to penetrate. Reversing the refrain of the children’s story We’re Going on A Bear Hunt, ‘if we can’t go through it, we’ve got to go around it’, I instead trace the contours of democracy, rather than attempting to crash through its centre.31 In going around the thicket of democracy I tread a path carved by artist Grayson Perry in his attempt to define art. Confronted with the challenge explaining what art is, Perry uses the device of boundary markers, as way to demarcate a space for art, whilst still retaining some flexibility as to how the boundaries are drawn. This approach recognises the difficulty of directly locating the core of a complex concept, preferring instead to identify the shape of an idea.

28 J Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford University Press, 2000) 4–7. 29 Ibid, 22. 30 Gallie (n 25) 168. 31 M Rosen and H Oxenbury, We’re Going on a Bear Hunt (Margaret K McElderry Books, 1989).

46  Environmental Democracy B.  Boundary Markers of Democracy ‘Beating the Bounds’ was an Anglo-Saxon ritual whereby the parish territory was demarcated annually with a procession to each of the boundary stones of the parish, at which point, the older members of the parish would beat the younger members as a way to instil a memory of where those boundary stones were.32 Barbaric as this practice was, it served as a powerful mechanism to delineate the boundaries of the parish, without the need for physical walls. What is illustrative about the custom is that although the focus was on select markers rather than on strict lines, there was nevertheless clarity about what was and was not parish ground. Therefore, rather than draw strict lines as to what constitutes democracy, I identify seven boundary markers of democracy (fallibility of human knowledge, political equality, individual autonomy, popular control, legitimacy, rights and justice). These boundary markers offer points of consensus but also give a flexible indication of the contours of the concept. Identifying these boundary markers will then help to shape the concept of environmental democracy and in turn the analysis of the Convention. This is because whether these ideas manifest in the Convention or not will be indicative of whether the Convention is promoting some form of democracy. The first boundary marker that underpins democracy is the presumption that human knowledge is fallible.33 As Charles Sanders Peirce so poetically describes it, human knowledge and understanding ‘swims in a continuum of uncertainty and indeterminacy’.34 This is not to say that all knowledge claims are necessarily wrong; rather, that it is never possible to be certain that such claims are not mistaken and accordingly it is not possible to justify acting as if anyone has perfect knowledge.35 Thus in the context of collective political decision-making: ‘no one person can rightly claim to have sufficiently broad or perpetual superior knowledge of either (a) the rightful course for a political community, or (b) the totality of a given citizen’s interests’.36 Accordingly, democracy represents the best system of collective decision-making because no one person can make a perfect decision. As Michael Saward argues, if no one person can have ‘superior knowledge about political rightness’, then it must be that all citizens should have an opportunity to express their own view about the common good.37 This position inspires three further boundary markers of democracy: political equality; autonomy; and popular control.

32 G Perry, Playing to the Gallery (Penguin, 2014) 43. 33 JS Mill, On Liberty (Penguin, 2010) Ch II; C Sanders Peirce, Philosophical Writings of Peirce: Selected Writings (Justus Buchler ed, Routledge & Kegan Paul, 1955); K Popper, In Search of a Better World: Lectures and Essays from Thirty Years (Taylor & Francis, 2012); T Thorson, The Logic of Democracy (Holt, Rinehart and Winston, 1966). 34 Sanders Peirce (n 33) 356. 35 Saward (n 27) 81; Popper (n 33) 4; Thorson (n 33) 123. 36 Saward (n 9) 13. 37 Ibid, 9.

The Narrative of Democracy  47 Political equality38 (the second boundary marker) is based on two moral judgements about human beings: that they are intrinsically equal; and that they all deserve equal consideration of their interests.39 Accordingly, everyone should be ‘free and equal in the determination of the conditions of their own lives’.40 The moral ideal of political equality, combined with the presumption of fallibility, leads to what Dahl calls ‘civic competence’, which is a political expression of the moral principle of human autonomy.41 Autonomy (the third boundary marker) corresponds to the belief that individuals should be regarded as the best judges of their own interests and that their ability to make choices about their own interests should be protected within the context of collective decision-making.42 This leads to the fourth boundary marker: ‘popular control’.43 Popular control represents the idea that it is the ‘rightness of the many, and not the few’ that counts as the sole justifiable form of political system’.44 To summarise the implication of these four formative ideas, no one person can know, or be treated as if they do know, better than any other about how society ought to be governed45 and thus democracy is proposed as the ‘the only reasonable path to choose’46 because it gives each person an equal opportunity to make decisions in respect of the group.47 The fifth boundary marker in democratic theory is legitimacy.48 Democracy is proposed as a mechanism for popular control over collective decisions that seeks both to maintain the political equality and autonomy of humans whilst also mitigating the consequences of the fallibility of human knowledge on those

38 Within the Athenian context (direct or classical democracy) political equality pertained to citizens only. Accordingly, those who were not citizens, women, slaves, non-nationals, were not deemed to have political equality. In modern society some categories of people are not regarded as being politically equal. For example individuals under a certain age, those lacking a required standard of mental capacity and in some states prisoners: Dahl (n 11). 39 Even if the validity of these moral judgements is not absolute, ‘in the absence of a secure ground upon which to rank moral preferences, the only reasonable course to adopt is an assumption of equality’: Saward (n 27) 83; see also C Sunstein, ‘Constitutions and Democracies’ in J Elster and R Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, 1988); R Dworkin, Taking Rights Seriously, 2nd (paperback) edn (Bloomsbury, 2013); for a detailed discussion of political equality see Dahl (n 11). 40 Held (n 15). 41 Dahl (n 11) 97. 42 Ibid, 75. 43 Beetham (n 13) 28. 44 Saward (n 27) 81. 45 The platonic concept of ‘guardianship’ is rejected. There is no morally justifiable reason for treating these individuals as having more authority than any others: Dahl (n 11) 69–73; Saward (n 27) 8. 46 Saward (n 27) 82. 47 How that ‘equal opportunity’ manifests can be quite different across theories of democracy. For example, representative democracy is about an equal opportunity in free and fair elections, whereas deliberative democracy is about an equal opportunity to take part in the deliberations. 48 Legitimacy is almost as complicated a concept as democracy is. For example, there are descriptive and normative accounts of legitimacy. For present purposes it is not appropriate (or necessary) to elaborate on these complexities. For further discussion on legitimacy and democracy see A Buchanan, ‘Political Legitimacy and Democracy’ (2002) 112 Ethics 689.

48  Environmental Democracy decisions. Legitimacy relates to acceptability and credibility of those decisions.49 For example, as Margaret Levi claims, ‘the basis of a government’s democratic legitimacy resides partly in the expectation of citizens that it will fairly represent and consider all interests’.50 But legitimacy is ‘a complex and multi-dimensional beast’; it relates variously to the procedural justice of collective decision-making, the substantive quality of democratic outcomes and to the justifiable exercise of the coercive power necessary to enforce them.51 Legitimacy also alters between forms of democracy. For example, within deliberative democracy, the legitimacy of the decision derives from the authenticity of the discussion that produces democratic decisions, whereas the legitimacy of representative democracy may be conferred by the number of voters who participated in the election of representatives.52 It is, therefore, possible to construct legitimacy, like democracy, in multiple ways.53 However, as my purpose here is to examine democracy rather than legitimacy, it is not possible within the scope of this book to unpack these related concepts. Crucially, as will be seen with the final two boundary makers, the inherent complexity of legitimacy illustrates how the lines of democracy oscillate around its boundary markers – tethering without entirely fixing its meaning. The final two boundary markers – rights and justice – are complex ideas on a scale equivalent to that of democracy. Again, I do not propose to resolve this complexity here. Instead, I simply acknowledge it as a feature of the dynamic model of democracy that I am developing. Rights are an important boundary marker of democracy because they help to secure the proper exercise of democracy by protecting certain essential interests and actions that are necessary for full democratic expression. For example, freedom of speech is a democratic right because it protects the ability of citizens and associations to express their preferences about how society ought to be organised.54 Thus, certain democratic rights are placed out of reach of popular control in order to secure the proper functioning of democracy. As Ross Harrison explains, ‘those things necessary for its proper exercise can be secured against itself. So, we may properly have democratic rights which may not be removed by the vote of the majority’.55 49 J Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’ (2008) 2 Regulation & Governance 137, 144. 50 On the view of Jürgen Habermas, ‘legitimacy means that there are good arguments for a political order’s claim to be recognised as right and just’: J Habermas, Communication and the Evolution of Society (T McCarthy tr, Beacon Press, 1979) 178. 51 E Fisher et al, Environmental Law: Text, Cases and Materials (Oxford University Press, 2013) 370. 52 J Dryzek and C List, ‘Social Choice Theory and Deliberative Democracy: A Reconciliation’ (2003) 33 British Journal of Political Science 1, 1. 53 See in particular the work of Julia Black: Black (n 49). 54 Democratic rights are ‘stabilising devices to prevent all issues being up for grabs by simple majority voting all the time’: J Elster, Deliberative Democracy (Cambridge University Press, 1998) 130; see also T Hayward, ‘Environmental Rights as Democratic Rights’ in B Minteer and B Pepperman Taylor (eds), Democracy and the Claims of Nature: Critical Perspectives for a New Century (Rowman & Littlefield Publishers Inc, 2002) 238–47. 55 R Harrison, Democracy (Problems of Philosophy) (Routledge, 1993) 230.

The Narrative of Democracy  49 These democratic rights are essential to democracy, because without the protection of certain basic rights, democracy cannot function.56 The seventh and final boundary marker of democracy is justice. Whilst there is something hackneyed about the circularity of democracy and justice, that democracy produces just decisions and justice requires democracy, the two concepts are nevertheless ‘inextricably intertwined’57 and ‘mutually reinforcing’.58 This is because democracy is concerned with the imposition of ‘fair and impartial procedures’ for collective decision-making that respect the political equality and autonomy of individual citizens. In other words, democracy is concerned with the creation of just collective decision-making.59 Further, justice represents the baseline normative standard for assessing the outcomes of democratic decision-making.60 Although the seven boundary markers considered above represent common strands within the overall picture of democracy, they too represent ideas that are independently complex, particularly in relation to the final three boundary makers. Thus, the interpretation of these individual formative ideas results in different conceptions of democracy. For example, a concept of environmental justice might be seen to influence a conception of environmental democracy.61 And, although the broad concepts represent points of unity within democratic theory, they are further sources of complexity because of the different ways that the broad terms can be interpreted. These individual ideas add to the richness of the concept of democracy. Much like a Venn diagram, whilst the overall coverage is increased by reference to these different conceptual boundary markers, consensus provided by the overlaps helps to delineate what democracy is. However, whilst the seven boundary markers offer some strong points of consensus, they do not achieve a fixed definition. Indeed, how the boundaries are actually drawn can differ, sometimes in quite a dramatic way.62 Democracy is a rich idea, subject to various scholarly approaches and informed by many complex jurisprudential concepts. As a result, democracy has many guises, from the Athenian conception of democracy as direct democracy, to the liberal theory 56 Democratic rights ‘do not exhaust the total set of legitimate possible rights, but they do exhaust the rights which citizens must have by virtue of democratic citizenship’: Saward (n 27) 83–84; Dahl (n 11) 48. 57 K Dowding et al, ‘Introduction: between justice and democracy’ in K Dowding et al (eds), Justice and Democracy: Essays for Brian Barry (Cambridge University Press, 2006) 23. 58 K Bosselmann, ‘Ecological Justice and Law’ in BJ Richardson and S Wood (eds), Environmental Law for Sustainability: A Reader (Hart Publishing, 2006) 146. 59 Dowding et al (n 57) 6. 60 B Barry, Theories of Justice (University of California Press, 1989) 127; for a further analysis of their relationship see Dowding et al (n 57). 61 S Stec, ‘EU Enlargement, Neighbourhood Policy and Environmental Democracy’ in M Pallemaerts (ed), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law (Europa Law Publishing, 2011) 54. 62 For example a visiting alien observer might not be able to identify representative democracy and deliberative democracy as belonging under the same umbrella, given that they are structurally very different.

50  Environmental Democracy of representative democracy that has dominated democratic thought, to newer conceptions of ‘radical’ democracy,63 democracy is kneaded and stretched to its edges in pursuit of many different goals.64 Importantly, for my purposes, this essential malleability of democracy means that the boundary markers can be arranged in such a way that there is scope for environmental versions of democracy. This is particularly so given that the formative ideas of democracy, like rights and justice, also find expression in environmental terms. Thus, it is possible to interpret these constituent aspects of democracy in order to arrive at a conception of environmental democracy. Accordingly, I use the boundary markers identified here, shaped by the particular challenges of environmental decision-making, to inform the conception of environmental democracy I develop in section IV below. III.  THE COMPLEXITIES OF ENVIRONMENTAL DECISION-MAKING

Having set out the narrative of democracy, demonstrating that there is scope within that narrative for an environmental form (or forms) of democracy, I now consider the site of democratisation – the environment – and how it might shape particular conceptions of democracy. I do so by identifying four complicating features of environmental decision-making: the volume and diversity of environmental interests; the plurality of environmental values; the nature of environmental knowledge; and the nature of environmental risk. Each of these complicating features informs how environmental democracy can be understood. Crudely speaking, democracy is a method of decision-making; thus it follows that environmental democracy is – at the very least – a method of environmental decision-making. Identifying these four complex features of environmental decision-making helps to highlight the specifically environmental complexion of environmental democracy. Environmental democracy is thus a form of democracy shaped by the particular difficulties associated with making environmental decisions.65 To illustrate this point, consider how the democratic boundary markers of political equality and autonomy might be shaped in an environmental context – environmental decisions affect a wide range of interests, including those of future generations, so it might be the case that environmental democracy protects the political equality and autonomy of future generations as well as the present. 63 E Laclau and C Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Verso, 2001). 64 I Shapiro and C Hacker-Cordón, ‘Outer Edges and Inner Edges’ in I Shapiro and C Hacker-Cordón (eds), Democracy’s Edges (Cambridge University Press, 1999). 65 Walter Baber and Robert Bartlett describe the relationship between environmentalism and democracy as a symbiotic one; accordingly, ‘democracy can gain from its newly won environmentalism’: W Baber and R Bartlett, Deliberative Environmental Politics: Democracy and Ecological Rationality (MIT Press, 2005) 4.

The Complexities of Environmental Decision-Making  51 A further purpose is served by the identification of these four features of environmental decision-making within the context of this chapter. If, as I claim, they shape environmental democracy, the extent to which the Aarhus Convention addresses these features will provide a preliminary indication of whether the Convention is promoting environmental democracy. These features therefore serve as an environmental democracy litmus test, indicating whether the Convention is indeed the flagship of environmental democracy. To take the previous example, if the Convention protects (or at least attempts to protect) the political equality and autonomy of future generations, then that would give an indication that the Convention might be promoting environmental democracy. To this end, the first complicating feature of environmental decision-making is the diverse number of interests affected by environmental decisions – the needs of present generations, the integrity of ecosystems, or the survival of future human communities, to take a few examples. Environmental problems are ‘interconnected and multidimensional’66 and thus they do not adhere to human borders, whether they are borders created by private ownership, community responsibility, national jurisdiction or those that exist between species or generations.67 Democratic decisions, on the other hand, are normally those that are made within the boundaries of a particular democratic polity.68 However, the nature of environmental problems is such that the decision to take an environmental risk or cause an environmental harm can impact (sometimes in quite devastating ways) those who would not normally be considered within the context of democratic decision-making (future generations, non-nationals, animals, etc).69 Deciding between these interests can be an incredibly difficult task – as Raymond Plant, seemingly in desperation, asks, ‘to which moral community across space and time should the calculation of consequences over interests range?’70 Added to this, the nature of these interests also varies. Interests can be basic, economic, social, political, spiritual as well as environmental, and these types of interests are frequently in conflict with each other. Juggling between competing interests is not an unusual feature of democracies (indeed democracy is necessary because interests do compete) but it is the combination of the different types of interests with expanded categories of interest holders that makes environmental decision-making distinctively difficult.

66 Dryzek (n 4) 8; see also G Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. 67 See Andrew Dobson’s discussion of the ‘principle of affected interests’ and the various examples he cites, eg the acidification of Scandinavian lakes caused by British industry: A Dobson, ‘Representative Democracy and the Environment’ in W Lafferty and J Meadowcroft (eds), Democracy and the Environment: Problems and Prospects (Edward Elgar, 1996) 124–25. 68 Dryzek (n 28) 152. 69 R Eckersley, ‘Liberal Democracy and the Environment: The Rights Discourse and the Struggle for Recognition’ in F Mathews (ed), Ecology and Democracy (Frank Cass, 1996) 167. 70 R Plant, Modern Political Thought (Blackwell, 1991) 181; Smith (n 3) 5.

52  Environmental Democracy Alongside the broad range of interests come attendant values that colour what priority is given to them and how they ought to be balanced against each other. Value pluralism, the second complicating feature, is an important aspect of environmental decision-making.71 Graham Smith goes so far as to claim that to some extent ‘value conflict is at the heart of environmental politics’.72 It arises not just between those who advocate the primacy of environmental values and those who do not (eg those who favour economic rather than environmental motivations), but also between those who can be broadly described as environmentalists.73 As Aldo Leopold wrote in A Sand County Almanac, ‘equally [environmentally] contentious citizens’ can hold opposite views.74 Value pluralism represents a particular problem for environmental decision-making because of the two ideas that constitute it: the incompatibility of values and the incommensurability of values.75 The incompatibility of environmental values occurs because many values, decisions or principles cannot be fulfilled at the same time – they are not ‘soluble without remainder’.76 For example, building a wind farm leads to a choice between the aesthetic value of the proposed site and the value attached to sustainable energy generation.77 When building a wind farm there is no way to preserve the landscape as it was, but without them the sources of sustainable energy are reduced – therefore only one value can be fulfilled. This leads to the second aspect of environmental pluralism – the incommensurability of values. Incommensurability refers to the fact that there is no common standard by which to judge different values, decisions or principles.78 This incommensurability occurs in the face of non-environmental values, for example economic values, because environmental goods cannot accurately be reduced to economic standards.79 But it also occurs in relation to specifically environmental considerations. For example, the aesthetic value of a wetland site cannot be judged by the same standards as its scientific value.80 The lack of a single standard by

71 Smith (n 3) 7–28. Value pluralism is not unique to environmental values and decision-making, see B Williams, Moral Luck: Philosophical Papers 1973–1980 (Cambridge University Press, 1981) 77; J Raz, Morality of Freedom (Clarendon Press, 1986) 329; J Raz and J Griffin, ‘Mixing Values’ (1991) 65 Proceedings of the Aristotelian Society 65, 86. 72 Smith (n 3) 1. 73 See, for example, the debate between the preservationist and conservationist ethics: ibid, 2. 74 A Leopold, A Sand County Almanac: and Sketches Here and There (Oxford University Press, 1949) 168. 75 Smith (n 3) 21. 76 Williams (n 71) 179. 77 Smith (n 3) 21–22. 78 Ibid, 22. 79 Cost-benefit analysis is frequently derided as an inadequate mechanism for assessing the worth of environmental goods, because it relies on purely economic values: Smith (n 3) 29–51. 80 J O’Neill, Ecology, Policy and Politics: Human Well-Being and the Natural World (Routledge, 1993) 107–109; J O’Neill, ‘Value Pluralism, Incomensurability and Institutions’ in J Foster (ed), Valuing Nature: Economics, Ethics and Environment (Routledge, 1997) 75–77.

The Complexities of Environmental Decision-Making  53 which to judge the validity and strength of different environmental values makes environmental decision-making an especially difficult exercise. Third, environmental decision-making is difficult because environmental knowledge claims are complex. This complexity arises for a number of reasons. In the first place they are often vulnerable to scientific uncertainty; therefore the basis on which knowledge claims are founded is unstable.81 As Elizabeth Fisher points out, this uncertainty can have very many sources – from the uncertainties in experiments and samples, technological limitations, methodological, epistemological problems and the problem of indeterminacy.82 Environmental decisions are made in the shadow of this uncertainty. Second, environmental knowledge claims are complex because they are the product of both technical and value judgements.83 This mixed quality arises because of the difficulty of mixing scientific claims with political decisions. As Jürgen Habermas explained, ‘as soon as specialised knowledge is brought to politically relevant problems, its unavoidably normative character becomes apparent’.84 Further, as environmental knowledge is often uncertain ‘value judgments fill gaps in knowledge’.85 Environmental decisions are therefore based on uncertain or complex knowledge claims, and their mixed fact/value nature means that it is not possible to prioritise expertise in environmental decision-making.86 Finally, environmental decisions are complex in nature because they involve the assessment and evaluation of environmental risks,87 which are characterised by ‘high levels of complexity and uncertainty’.88 As with environmental knowledge, risks are uncertain because they are based on estimates of likelihood, severity and detectability; as Fisher explains, ‘there are no firm probabilities’.89 Human behaviour is unforeseeable, and sometimes unthinkable, and this makes estimating the likelihood difficult.90 Further, it is not easy to discern the severity of environmental risks because they are culturally sensitive and ‘deeply interwoven

81 S Jasanoff and B Wynne, ‘Science and Decision Making’ in S Rayner and E Malone (eds), Human Choice and Climate Change Volume 1: The Societal Framework (Battelle Press, 1998); E Fisher, ‘Risk and Environmental Law: A Beginner’s Guide’ in BJ Richardson and S Wood (eds), Environmental Law for Sustainability: A Reader (Hart Publishing, 2006) 118; R Grundmann, ‘Climate Change and Knowledge Politics’ (2007) 16 Environmental Politics 414. 82 E Fisher, ‘Drowning by Numbers: Standard Setting in Risk Regulation and the Pursuit of Accountable Public Administration’ (2000) 109 Oxford Journal of Legal Studies 109, 115. 83 Mason (n 2) 50. 84 J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press, 1996) 351. 85 M Lee and C Abbot, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 Modern Law Review 80, 84. 86 U Beck, Ecological Politics in an Age of Risk (Polity Press, 1995) 158–84. 87 Saward (n 27) 85. 88 Michael Mason also argues that the complicated nature of environmental risk ‘renders incomplete our current understanding of biological systems’. Thus the complexities of environmental knowledge and environmental risk are linked: Mason (n 2) 23. 89 E Fisher, Risk Regulation and Administrative Constitutionalism (Hart Publishing, 2007) 7. 90 Ibid, 7.

54  Environmental Democracy within broader societal arrangements’.91 Thus what one society regards as an acceptable environmental risk, another might regard as unconscionable. Detecting the nature of environmental harm is complex – it is ‘notoriously diffuse’92 and ‘only in rather extreme cases are there strong, recognisable, and calculable harms to concrete human interests’ and further, harms often only emerge long after the event.93 More broadly, environmental risk is ‘often distributed in a socially stratified or class-specific way’; the adverse impacts of environmental risk are more often felt by those who are already vulnerable due to factors relating to income, gender, race, education or social standing.94 When making environmental decisions, therefore, there is a need to navigate a landscape of complex risk, with reference to uncertain factual claims, a scheme of values with no obvious hierarchy and a vast array of different types of interests. A further implication of environmental risks is that they have the potential to give rise to a crisis of legitimacy. This is particularly so in relation to risks that are typically involuntarily experienced by the public – risks such as those associated with toxic pollution, genetically modified organisms, nuclear technology and biotechnologies. As Ulrich Beck argues, such risks decrease confidence in the authority of scientists and governments alike,95 thus reducing the legitimacy of these supposed experts in decisions made in relation to these risks.96 In light of these complicating features of environmental decision-making and the examination of the concept of democracy from section II above, I draw three conclusions that will inform the concept of environmental democracy I develop in section IV below. First, there can be no definitive account of environmental democracy. If, as the work of section II indicates, there are different ways to conceptualise democracy, there must also be different ways to conceptualise environmental democracy; adding the term ‘environmental’ in front of democracy does not stabilise its meaning; rather, it adds to its complexity. This is particularly so given the difficulties of environmental decision-making. Thus, environmental democracy, like its umbrella concept, is susceptible to different scholarly interpretations and approaches – it too is ‘essentially contestable’.97 This first conclusion serves to affirm the purpose of this chapter, because if, as is claimed here, there is no single way to understand environmental democracy, then in order to make the claim that the Convention is promoting environmental democracy, scholars must also set out the particular view of environmental democracy they have in mind. Second, if environmental democracy 91 Ibid, 7. 92 Eckersley (n 69) 207. 93 J Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem-Solving Approach’ (2001) 3 Oxford Journal of Legal Studies 415, 425. 94 Mason (n 2) 48. 95 Beck (n 86) 37. 96 J Dryzek and P Dunleavy, Theories of the Democratic State (Palgrave Macmillan, 2009) 253. 97 Gallie (n 25).

The Dimensions of Environmental Democracy  55 is to take account of the interests of all those affected by environmental decisions, then the concepts of rights, political equality, autonomy and justice must be expanded to include environmental considerations. Third, environmental democracy ought to find some way to apply the democratic presumption of the fallibility of knowledge to environmental knowledge claims that are inherently fallible and partially dependent on a particular normative approach. With these conclusions in mind, I turn finally to an exposition of the concept of environmental democracy, thus creating a framework for assessing the environmental democracy purpose of the Aarhus Convention. IV.  THE DIMENSIONS OF ENVIRONMENTAL DEMOCRACY

Environmental democracy is a concept laden with the essential contestability of its foundational idea (democracy) and the inherent complexity of its modifier (environmental). Appreciating this challenging lineage is essential to understanding an amorphous concept that is difficult to contain. Environmental democracy, like its ancestor, has abundant manifestations, from modest accounts of environmental democracy that develop environmental rights within existing democratic systems, to ambitious accounts that attempt to incorporate direct feedback from natural systems, environmental democracy is a big idea.98 However, within these wide-ranging manifestations of environmental democracy there runs a common normative concern that collective environmental decisions ought to be made with account taken of the wide variety of interests and values that are affected and engaged in relation to the natural environment. Ultimately, environmental democracy is a normative concept, and although there are certain structural arrangements that are normally associated with environmental democracy (participation, deliberation, environmental rights), they only constitute conceptions of environmental democracy insofar as they facilitate its normative agenda.99 In order to understand what the term environmental democracy is intended to convey, it is first necessary to understand what the normative requirements of environmental democracy are. In turn, it is these normative ideas that suggest and inform the structural aspects of environmental democratic thought. There is an inevitable blurring of the normative

98 Saward (n 27); Dryzek (n 28) 149. 99 The normative/structural divide adopted in this chapter corresponds to a division proposed by Brian Doherty and Marius de Geus who argue that there are two kinds of environmental democracy envisaged: democracy that is defined in terms of specific rights and procedures necessary to achieve the aim of responsive rule in an environmental context (the structural form); and democracy that depends on particular positive values, such as justice and autonomy and that the definition of these principles regarding nature will influence the form of that democracy (the normative from). It is the contention of this chapter that environmental democracy is both of those things and that the first idea in particular does not make sense without the second: B Doherty and M de Geus, ‘Introduction’ in Doherty and de Geus (n 27) 7.

56  Environmental Democracy and the structural components of environmental democracy – for example, the structural arrangement that attaches environmental rights to members of future generations relates to normative ideas about the autonomy of future generations. However, the normative/structural divide I adopt here is intended to distinguish the essential qualities of environmental democracy from the various democratic arrangements intended to embody them. This section is therefore split into two: section A provides an account of the normative dimensions of environmental democracy, followed in section B by an explanation of the various structural arrangements that are suggested by those normative dimensions. The normative component of environmental democracy is composed of four imperatives that together drive the structural elements of environmental democracy. On a normative understanding of the concept, environmental democracy must promote environmental protection, develop a broader conception of the common good, give moral priority to long-term generalisable interests and improve the legitimacy of environmental decisions. These four normative dimensions inform and influence different structural arrangements of democracy, for example the establishment of environmental rights, or deliberative and participatory decision-making structures. How these normative elements manifest can alter according to different values that influence them; for example, some versions of environmental democracy can be more anthropocentric, whereas others can be more ecocentric. I then use these normative and structural dimensions in Chapter 6 in order to analyse the environmental democracy purpose of the Convention. A.  The Normative Dimensions of Environmental Democracy Environmental democracy is inevitably normative because it is composed of two inherently normative ideas: democracy and environmentalism. Each idea ‘relate[s] to justifiable ideologies’ – democracy to the most just way of making collective decisions, and environmentalism to the need to maintain a certain degree of environmental quality.100 An account of environmental democracy must, therefore, contain the normativity of each of these concepts, allowing the requirements of each idea to shape a distinctive form of democracy. Defining environmental democracy thus involves distilling the essential normative ideas of each and figuring out how they function together in order to find the ‘common normative space’ that democratic governance and environmental justification occupy.101 In sketching out this conception of environmental democracy, I identify and detail this common normative space that is created by the essential requirements of the component ideas of environmental democracy.



100 Mason 101 Ibid,

1.

(n 2) 1.

The Dimensions of Environmental Democracy  57 Once identified, these normative overlaps between democracy and environmentalism suggest particular structural arrangements that can promote the idea of environmental democracy. The first normative dimension represents a purely environmental ambition, ie that environmental democracy ought to aim towards environmental protection or, as Jenny Steele puts it, ‘environmental goals’.102 The second dimension is that environmental democracy requires a broad understanding of the common good, that views individuals as part of a community and includes the interests of those who would not normally be represented in democratic decision-making but who nevertheless suffer from the imposition of environmental harms and risks. The third dimension is that long-term generalisable interests need to be given moral priority or privilege in democratic decision-making. This is not to dictate specific outcomes (something contrary to a democratic approach) but it is to ensure that the consequences of environmental risks, which do not always materialise at the time a decision is made, are properly considered. The fourth dimension is that environmental democracy must strive towards improving the legitimacy of environmental decision-making because of their wide-ranging impact. In the rest of this section, I elaborate on each of these dimensions. Unlike the other normative dimensions, this first one – environmental protection – does not arise from the overlap of environmentalism and democracy but is purely a function of its environmental nature. Indeed, this particular normative ambition can be seen as counter to the requirements of democracy, as it appears to prescribe the end, rather than leaving it open to popular control. However, this would be to fail to appreciate that the goals of environmental protection cannot be easily dictated and that there is no definitive way to protect the environment. This dimension is about resolving the complex problems of environmental protection in as just a way as possible, taking into account the various interests and values associated with environmental decision-making. Thus, environmental protection relates to a very broad ambition to maintain a viable habitat that need not detract from the requirements of democracy. Although this normative dimension does not arise from the overlap between environmentalism and democracy, it nevertheless shapes some of the boundary markers of democracy – political equality, autonomy, rights and justice – in order to give them an ecological complexion. For example, Robyn Eckersley suggests that an essential requirement of environmental democracy is an expansion of the concepts of autonomy and justice, and ultimately rights, in order to include non-human interests.103 And both John Barry and Stephen Stec argue that an account of environmental democracy requires a complementary account

102 Steele (n 93) 419. 103 R Eckersley, ‘Greening Liberal Democracy: The Rights Discourse Revisited’ in Doherty and de Geus (n 27) 14; see also A Dobson, ‘Democratising Green Theory: Preconditions and Principles’ in Doherty and de Geus, ibid.

58  Environmental Democracy of environmental justice.104 The development of each of these jurisprudential ideas in environmental terms is necessary because there is a risk that if they do not advance at the same pace (and in the same direction) they will come into conflict with each other, rather than reinforcing the common project of environmental protection. The rationality that motivates democratic decision-making also requires an environmental make-over in order to advance the normative agenda of environmental protection. As stated above, the concept of rationality that informs existing democratic processes is a form of individualist, instrumental rationality that does not take into account environmental and communal goods. As Dryzek and Dunleavy explain, if multiple self-interested actors within a democracy make choices that are best for themselves without considering the collective and ecological dimensions, they end up destroying public goods, which inevitably has an adverse impact on their individual goods.105 In allowing instrumental rationality to dominate democratic decision-making, particularly in the environmental context, there is a failure to arrive at a decision that suits everyone. Decisions in the environmental context, therefore, require a ‘broader conception of rationality’106 and in order to advance this dimension, decisions ought to be motivated by ‘ecological rationality’.107 In its simplest terms (and talk of rationality can become highly complex), ecological rationality relates to the ability of human and ecological systems to sustain themselves.108 As John Barry argues, ecological rationality ‘captures the essence of ecological sustainability’.109 Indeed it is possible to suggest that ecological rationality is a rationality infused with an ethic of stewardship. This is because there is a protective element to this form of rationality. Central to ecological rationality is the idea that ‘everything is connected to everything else’110 (what Walter Baber and Robert Bartlett term the ‘principle of biogeophysical interdependence’). Ecologically rational decisions, therefore, are those that maintain and protect all of these interdependent features.111 104 Stec (n 61) 53–54; see also ‘the remedy therefore is more justice as well as more democracy’: Dobson (n 103) 22; J Barry, ‘Sustainability, Political Judgment and Citizenship: Connecting Green Politics and Democracy’ in Doherty and de Geus (n 27) 127. 105 Dryzek and Dunleavy (n 96) 246–47. 106 Baber and Bartlett (n 65) 15. 107 An additional implication of the ecological rationality argument is that it is necessary for all other forms of rationality to exist and function, and thus ecological rationality ‘has absolute priority over all other forms of rationality’: ibid, 19. It is possible to view the argument for ecological rationality as a form of preconditions argument as ‘ecological health, like individual health, is ultimately an essential precondition for most other projects’: V Plumwood, ‘Inequality, Ecojustice and Ecological Rationality’ in Y Hudson (ed), Technology, Morality and Social Policy (Edwin Mellen Press, 1998) 81. 108 An ‘ecologically rational society would be sustainable to the extent that its corrective capacities enable it to make consistently good ecological decisions that maintain its ecological relationships’: Plumwood (n 107) 79. 109 J Barry, Rethinking Green Politics (Sage, 1999) 108. 110 B Commoner, The Closing Circle: Nature, Man, and Technology (Knopf, 1971) 33. 111 Baber and Bartlett (n 65) 19.

The Dimensions of Environmental Democracy  59 What is important to note, is that however ecologically rationality is to be defined, it demands a deeper form of democracy.112 Recognising the need for ecological rationality to infuse environmental democracy is also critical to the second normative dimension – that it demands a richer, more holistic understanding of the common good and thus must facilitate a process that more adequately divines what the common good is. This is in part a rejection of the tendency within many democratic systems to equate the common good with ‘the sum of all the various individual goods’.113 Such a calculation produces an inaccurate understanding of the common good because it fails to treat individuals as part of a community, which includes their environment.114 Thus the value of certain goods can be lost within the context of aggregative collective decision-making. Environmental democracy, therefore, requires a less atomistic approach to democracy. By isolating individuals from their environmental and communal context, the value that shared goods (environment, community etc) play in forming the common good is lost, or at least inadequately recognised. A richer understanding of the collective good is also important, so that the interests of those outside of the common spheres of democratic influence and consideration – non-nationals, future generations and non-humans (the new environmental constituencies) – are taken into account in respect of democratic decisionmaking.115 Acknowledging this leads to two further conclusions. The first is that the boundaries that normally contain democracies are not appropriate in the context of environmental democracy, for example non-nationals could be given democratic rights in respect of environmental decisions. The second is the need to develop a stronger concept of citizenship so that the needs and interests of the new constituencies are given due consideration in spite of their lack of traditional suffrage. In order to include the interests of the new constituencies in calculations of the common good, environmental democracy ought to eschew boundaries that normally contain democracies116 – geographical, temporal and species – because environmental problems do not obey them. As Brian Doherty and Marius de Geus argue, ‘the nature of ecological problems suggests a need to consider a redefinition of the form of the democratic community’.117 Environmental democracy 112 ‘Shallow forms of democratic politics provide only weak forms of ecological rationality’: Plumwood (n 107) 91. 113 In particular that is more ‘than the sum of all the various individual goods’: N Fraser, Unruly Practices: Power, Discourse, and Gender in Contemporary Social Theory (University of Minnesota Press, 1989) 80. 114 Dryzek and Dunleavy (n 96) 246–47. 115 Dobson (n 67) 124. 116 As John Dryzek claims ‘for most theories of democracy … boundaries are important’: Dryzek (n 28) 152; Dryzek and Dunleavy (n 96) 258; see also Dobson (n 67); Eckersley (n 103). 117 Doherty and de Geus (n 27) 7; see also Barry (n 109) 214; the premise of green democrats is the idea that those affected should be considered as the relevant demos: R Eckersley, ‘Environmental Rights and Democracy’ in D Bell et al (eds), Political Ecology: Global and Local (Taylor & Francis, 1998).

60  Environmental Democracy should not be a form of democracy that is limited territorially, temporally or anthropocentrically.118 As a normative proposition, it demands that all those who are affected by environmental harms and who bear the burden of environmental risks ought to be given a voice (whether their own or that of a proxy) within a democratic process. An important aspect of environmental democracy is, therefore, the political recognition of the new environmental constituencies and their inclusion within democratic decision-making processes.119 Underlying this expansion of the democratic community is an expansion of the moral community, so that non-nationals, future generations and non-humans are regarded as deserving moral consideration that corresponds to proper consideration of their interests in the context of collective decision-making.120 Expansion of the moral community is important because it is a practical reality that members of these constituencies cannot represent their own interests. Expanding the moral considerations to include these new constituencies helps to ensure that they feature in democratic decision-making. This is something that might be fixed structurally – appointing representatives for future generations and the natural world, or increasing the democratic rights of environmental organisations – but it also requires a normative expansion through the development of what Hannah Arendt describes as an ‘enlarged mentality’.121 That is citizens, within an environmental democratic vision, ought to be better able to appreciate what the interests of others might be; in particular those of the new constituencies. The development of this enlarged mentality is necessary for two reasons. In the first place, the enlarged mentality helps to facilitate the representation of the interests of those otherwise unrepresented in democratic processes. Second, enlarging the mentality of citizens helps to facilitate a better understanding of ‘how others value the environment’.122 This ‘cultivation’ of an enlarged mentality is foundational to the ideas of ecological citizenship,123 an ecological ethos and also an ethic of environmental stewardship, all of which in turn help to shape the concept of environmental democracy.124 The third normative requirement of environmental democracy is that ‘moral priority’ is given to long-term generalisable interests.125 This is in contrast to the way that short-term interests are privileged within parliamentary democracies.126

118 P Christoff, ‘Ecological Citizens and Ecologically Guided Democracy’ in Doherty and de Geus (n 27) 151. 119 Contemporary non-nationals, future generations and non-human nature: Eckersley (n 103) 214. 120 Doherty and de Geus (n 27) 7. 121 H Arendt, Lectures on Kant’s Political Philosophy (University of Chicago Press, 1982) 42–43. 122 Smith (n 3) 26. 123 Ibid, 64. 124 B Barry, ‘Sustainability and Intergenerational Justice’ in A Dobson (ed), Fairness and Futurity (Oxford University Press, 1999). 125 Mason (n 2) 48–51. 126 Normally corresponding to election periods: Eckersley (n 69) 168.

The Dimensions of Environmental Democracy  61 As Eckersley laments, within democratic systems ‘the urgent, seemingly, replaces the important’.127 Thus environmental democracy requires collective, future interests to be protected within collective decision-making. This is not to say that the outcomes are prescribed and that long-term generalisable interests will always be prioritised. But it is a necessary guide to decision-making to ensure that long-term interests are given more serious consideration in democratic procedures than they are at present. In this way, environmental democracy infuses the concept of democracy with the concept of sustainability. Thus, sustainability is an essential value of environmental democracy. This prioritisation of longterm generalisable interests is an important aspect of enlarging the mentality of democratic citizens. Citizens, as part of the development of environmental democracy, must develop ‘a sense of shared interest over the long term, or of the group as a continuing entity’.128 The final normative dimension of environmental democracy coalesces with the fifth boundary marker of democracy – legitimacy. From a democratic perspective, legitimacy derives from ‘the capacity of those affected by a collective decision to deliberate [or participate] in the production of that decision’.129 In representative systems that may be through voting, or in a participatory system through participation. However, as environmental decisions are those that have far-reaching consequences both in terms of time and geography, and therefore impact constituencies unable to participate or deliberate, environmental democracy necessitates an alternative basis of legitimacy. The consequences of environmental decisions are imposed on future generations, non-nationals, animals and the natural world without their consent. Therefore, in order to maintain the legitimacy of, or achieve some standard of, democratic legitimacy in relation to environmental decision-making, there needs to be another source of that legitimacy – for example, a strengthened position for proxies to represent the interests of these democratically excluded constituencies, or higher level of scrutiny of environmental decisions. These proxies would provide what Julia Black describes as an ‘accountability relationship’ as a way to improve the legitimacy of environmental decisions. There is a second reason why environmental decisions need to be more legitimate because, as explained in section III above, values play a significant role in environmental decision-making, particularly in relation to environmental knowledge and environmental risk assessment.130 As there is no objective standard for judging which values are to be preferred in respect of environmental decisions, the adoption of certain values over others must be democratically legitimated. Identifying these four normative features of environmental democracy gives a sense of what specifically environmental democracy entails. However, relying

127 R

Eckersley, The Green State: Rethinking Democracy and Sovereignty (MIT Press, 2004) 349. (n 93) 434. 129 Dryzek and List (n 52) 1. 130 Hayward (n 54) 237. 128 Steele

62  Environmental Democracy only on the normative dimensions does not fully explain what environmental democracy entails and, for my purposes, does not provide a sufficiently detailed definition to fully interrogate the Convention. Therefore, it is necessary to be a little more descriptive about the possibilities of environmental democracy, by identifying the possible structural arrangements that can promote the normative ends of the concept. B.  The Structural Arrangements of Environmental Democracy Environmental democracy can manifest in various structural arrangements and devices that facilitate the normative goals of environmental democracy: environmental rights; alternative spheres of democratisation; representative democracy; participatory democracy; deliberative democracy; and associative democracy. Not all of these elements are constitutive of environmental democracy, rather, they are possible arrangements that can promote the normative goals that underpin environmental democracy. These different structural arrangements are important because they influence the realisation of the normative dimensions of environmental democracy.131 They should not be taken as essential to the concept of environmental democracy; instead, they represent a range of possible democratic arrangements that promote its normative ends. In relation to the Aarhus Convention, this means that a failure to institute all of the suggested structural aspects of environmental democracy does not immediately constitute a failure of the environmental democracy purpose of the Convention. On the other hand, if these structural elements are present, it would be indicative of the environmental democracy purpose. The first of the structural features of environmental democracy are environmental rights, in all their different guises: eg the right to a healthy environment; the right to access environmental information; the right to access to environmental justice, etc.132 Environmental rights are an effective device for achieving these normative requirements because they are a legal or political tool to protect certain interests or choices – for example, those of future generations or nonhumans – within the democratic context, without diminishing the democratic nature of environmental democracy. As I explained in section II above, rights represent a democratic boundary marker because certain rights are the ‘selfbinding commitments’ of democracy that secure its proper functioning.133

131 Dryzek (n 28) 144. 132 Environmental rights could also have been dealt with in the normative account of environmental democracy as they involve a normative judgement that environmental interests are worthy of rights protection. However, as there are a number of different ways of conceiving and using environmental rights within an account of environmental democracy, they are best dealt with as part of the structural arrangements of environmental democracy. 133 Hayward (n 54) 244; M Saward, The Terms of Democracy (Polity Press, 1998) 87–103.

The Dimensions of Environmental Democracy  63 This is equally true for environmental democracy, where certain values and interests need to be protected in order for a specifically environmental vision of democracy to flourish. Thus, environmental rights provide stabilising devices that facilitate the normative aims of environmental democracy. In Chapter 5 I will explain that there are two broad approaches to conceptualising environmental rights: procedural rights tied to environmental protection, for example access to environmental information; and substantive rights to a particular quality of environment. This division is also relevant for understanding the different manifestations of environmental democracy. For example, procedural environmental rights can be incorporated into a thin or liberal conception of democracy, so as to lightly colour existing democratic arrangements with an environmental hue. Substantive environmental rights, however, particularly when conceived in their fullest form as the rights of future generations and of nature, are an important component of a more expansive reform of democratic institutions and arrangements that aims for legal protection of non-human interests, as well as moral consideration. I elaborate on how these two approaches can be understood as part of environmental democracy in what follows. Procedural rights in general (the right to vote, or freedom of speech etc) are ‘functionally necessary for democracy’.134 If these activities are not protected by rights, then they are vulnerable to abuse, and where they are abused the political system in question ceases to be a democracy.135 Thus, procedural rights are integral to the concept of democracy. It follows, therefore, that procedural environmental rights play a vital role in the exercise of environmental democracy. For example, participatory rights allow citizens to directly contribute to environmental decisions, and access to environmental information allows citizens to make informed choices. An important aspiration behind procedural environmental rights is that facilitating citizen participation nurtures good environmental citizenship and stewardship, in turn enlarging the mentality of participants.136 Thus, not only are more views brought to bear on environmental decisions, but the process of participation itself is intended to develop increased environmental consciousness and contentiousness. Procedural rights, therefore, have the potential to fulfil the normative ambitions of environmental democracy. Likewise, substantive environmental rights can be regarded as ‘necessary preconditions for the effective functioning of a democratic regime’.137 This is because they maintain the basic environmental conditions necessary for the exercise of other democratic rights.138 Their democratic legitimacy derives not from their democratic nature (as with the



134 Hayward

(n 54) 245. (n 103) 142. 136 Hayward (n 54) 246. 137 Ibid, 247. 138 Eckersley (n 69) 187. 135 Dobson

64  Environmental Democracy procedural rights) – rather, it derives from the fact that they protect the ‘material requirements for the effective functioning of a fully developed democratic regime’ (emphasis added).139 Simply put, without a certain level of environmental quality, no democratic rights can be exercised and democracy itself is threatened.140 Substantive environmental rights also serve another democratic purpose because they protect ‘genuine choice’ – an essential aspect of autonomy.141 Ensuring that choices are genuine is also important for ensuring the legitimacy and the justice of collective decision-making. Without adequate material conditions, citizens may be compelled to make harmful decisions when presented with the right to participate.142 As Joseph Sax explains, ‘poorer citizens may “assent” to a heightened risk of environmental harm’ in order to maintain their livelihood.143 For systems of collective decision-making to be truly democratic, therefore, they must ensure that their citizens’ choices are genuine.144 Part of protecting this genuine choice is in ensuring a minimum level of environmental quality, which can be achieved through substantive environmental rights.145 Including substantive environmental rights as part of the complement of democratic rights also serves as a counterpoint to the socially stratified way in which procedural environmental rights can fall. As Sumudu Atapattu explains, ‘poor and marginalised communities’ are often not ‘afforded the opportunity to participate in the necessary decision-making process’.146 The same is true for non-nationals, future generations and nature. Although as a matter of aspiration, procedural rights generate good citizenship, there is nothing to prevent the democratically privileged taking advantage of procedural rights in a way that unduly impacts marginalised or disenfranchised groups. Protecting a basic level of environmental quality for these groups is, therefore, an important mechanism for ensuring that ostensibly democratic decisions are just. Substantive environmental rights therefore help to balance the inequalities that can surround procedural rights. Environmental rights can also protect the new environmental constituencies – future generations, non-nationals, nature – constituencies who are normally democratically excluded. The degree to which these communities are extended

139 Hayward (n 54) 247. 140 This is what Dryzek calls the ‘ecological preconditions for democracy’: Dryzek (n 28) 142; Hayward and Dobson, however, are both critical of this approach, because even an autocratic regime requires a certain level of environmental quality to function: Hayward (n 54) 247; Dobson (n 103) 138. 141 JL Sax, ‘The Search for Environmental Rights’ (1990) 6 Journal of Land Use and Environmental Law 93, 97; see also Hayward (n 54) 252. 142 Hayward (n 54) 253. 143 Sax (n 141) 97. 144 Ibid, 97. 145 Hayward (n 54) 253. 146 S Atapattu, ‘The Significance of International Environmental Law Principles in Reinforcing or Dismantling the North-South Divide’ in S Alam et al (eds), International Environmental Law and the Global South (Cambridge University Press, 2015) 107.

The Dimensions of Environmental Democracy  65 rights reflects differing forms of environmental democracy. For example, future generations might also be protected even within a neutral or light green vision of democracy, as Saward argues, ‘democracy’s worth [applies] to future generations every bit as much and for the same reasons as it applies in the present’,147 whereas the expansion of the rights community to include nature advances a more strongly ‘green’ approach to environmental democracy.148 Extending rights to these groups also serves to reduce the impact of human borders (political, geographical etc), for example, procedural environmental rights need not be attached to citizenship and so a non-national could participate in an environmental decision, particularly where the decision has an impact on their living conditions. This leads to the second structural dimension of environmental democracy: that it can and should operate in spheres other than the nation state. This is important, because the borders that contain democracies do not contain environmental problems. As Dryzek explains, ‘few if any, ecological problems coincide with the state’.149 Therefore, in relation to environmental democracy, the impact of these borders should be reduced to better reflect the nature of environmental problems. This can be done in a number of ways: increasing the opportunities for non-nationals to participate in decision-making, granting environmental rights to members of the new environmental constituencies and by strengthening the democratic power of representatives for these new constituencies. One further response is to facilitate democratisation outside of the state, ie to encourage environmental democracy to operate within different spheres, amongst civil society or ‘public sphere’,150 globally151 or possibly in terms of bioregions.152 Increasing the role of democracy at these different levels does not automatically mean a decreased role for the state in respect of democratic environmental decision-making. Eckersley, for example, argues that the state ought to encourage greater democratisation across different spheres of decision-making,153 in so doing opening up a new role for the state, ‘that of an ecological steward and facilitator of transboundary democracy rather than

147 Saward (n 27) 88. 148 M Mills, ‘Green Democracy: The Search for an Ethical Solution’ in Doherty and de Geus (n 27) 101. 149 Dryzek (n 28) 156. 150 According to Dryzek, ‘the public sphere can be considered a repository of authentic democratic communication, a source of critique of public policy’: Dryzek and Dunleavy (n 96) 265. 151 ‘It is apparent that all dimensions and concerns for the environment in a transboundary setting cannot be dealt with only government-to-government. The issues, dimensions, interests and concerns are simply too many, too complex and too diverse to be satisfactorily managed by governments alone’: Dryzek (n 28) 255; see also N Douglas Lewis, ‘The Constitutional Implications of Participation’ in D Campbell and N Douglas Lewis (eds), Promoting Participation: Law or Politics? (Cavendish, 1999) 14–15. 152 Dryzek (n 28) 157. 153 Eckersley (n 127) 85–87.

66  Environmental Democracy a selfish actor jealously protecting its territory and ignoring or discounting the needs of foreign lands’.154 Although the different structural arrangements that I detail here are intended to be flexible, given the strong overlaps between the first two elements and the normative ambitions, there is a strong sense in which each of these two arrangements is important for the functioning of environmental democracy. How strongly each of these approaches is conceived will depend on the countervailing ambitions for the project of environmental democracy: for example, a strongly ecocentric version of environmental democracy might involve bioregional decisions with rights protection for nature. However, the next four dimensions of environmental democracy – representative, procedural, deliberative and associative – are very much included as alternative and overlapping ways to achieve environmental democracy. Each corresponds to an independent democratic method and they are included here in so far as they are able to facilitate the normative ambitions of environmental democracy. Although environmental democracy generally encourages a shift towards alternative forms of democracy (participatory, deliberative, and associative), this does not mean that the common liberal model of democracy, representative democracy, should be abandoned. In fact, representative democracy can have a crucial role to play in achieving environmental democracy. As Eckersley claims, environmental democracy ‘necessarily contains a representative element’.155 Indeed, it is this representative element that ensures that members of the new environmental constituencies can have their interests adequately and systematically represented in the context of democratic decisions where their interests are likely to be affected. Representation is used here not in the formal sense of elected representatives; rather, representation refers to the way in which members of civil society ‘come to internalise the interests of each other and indeed the larger world’ and thus begin to express their democratic choices in a way that includes the interests of others.156 Of course, it may not be enough to rely on the moral inclinations of civil society to protect the interests of future generations, non-humans, disadvantaged minorities, and non-nationals. Representation can, therefore, also be used in a more formal sense through official representation of these interests: through proxies,157 specialised forums158 and including non-nationals in national processes.159 In these ways it is possible to

154 Ibid, 3 and 20. 155 Ibid, 132; see also Cass Sunstein, who argues that deliberative democracy also necessitates representative elements: C Sunstein, ‘Deliberation, Democracy and Disagreement’ in R Bontekoe and M Stepaniants (eds), Justice and Democracy: Cross-Cultural Perspectives (University of Hawaii Press, 1997) 94. 156 R Goodin, ‘Enfranchising the Earth, and its Alternatives’ (1996) 44 Political Studies 835, 843–44. 157 Dobson (n 67). 158 D Thompson, ‘Democratic Theory and Global Society’ (1999) 7 Journal of Political Philosophy 111, 121–22. 159 Eckersley (n 127) 187.

The Dimensions of Environmental Democracy  67 incorporate the normative elements of environmental democracy through the structures of representative democracy. Participatory democracy, an approach that favours active citizen participation over expert decision-making, is deeply entrenched in environmental politics.160 Participation is a particularly valuable structural arrangement for environmental democracy because it aids in problem-solving in relation to complex problems.161 Increasing the variety of interests, values and understandings ‘provides decision-making resources’162 as well as a response to ‘actual and perceived failures of expert regulation by the public administration’.163 Further, increasing participation increases the number of perspectives available for assessing risks, since assessing them is ‘no longer regarded as a uniquely scientific role’.164 Where non-governmental organisations (NGOs) in particular are permitted to participate, they can contribute ‘pertinent knowledge and insight’ to democratic processes.165 Thus, increasing participation increases the problem-solving and risk assessment potential of environmental decision-making processes. Participation also contributes to the legitimacy and the justice of those decisions, because it opens up opportunities for those likely to be negatively impacted by an environmental decision to express their views on that decision.166 Increasing participation in environmental decision-making can mitigate the uneven distribution of environmental risks that tend to result when decisions are made by expert decisions-makers, thus making decisions more just, and in turn lending decisions legitimacy. Where NGOs are allowed to participate, they can play a representative role for the new environmental constituencies, and in so doing provide some accountability for their interests. Naturally there are limitations with this approach, and participatory approaches can tend to privilege the already privileged. Nevertheless, participatory democracy represents a structural arrangement that is well suited to achieving the normative ambitions of environmental democracy. A more elaborate form of participatory democracy is deliberative or discursive democracy. Deliberative democracy goes further than simple participation because it requires participants to do more than just contribute a particular view: it requires them to discuss and deliberate that view, as well as those of the 160 ‘Environmental democracy is strongly participatory’: Mason (n 2) 9; ‘Greens have been among the most radical advocates of participatory democracy on the 1980s and 1990s’: Doherty and de Geus (n 27) 4–5; R Paehlke, ‘Environmental Challenges to Democratic Practice’ in Lafferty and J Meadowcroft (n 67) 1996) 18. 161 Steele (n 93) 433; Lee and Abbot (n 85) 81. 162 Steele (n 93) 430. 163 Lee and Abbot (n 85) 81. 164 Steele (n 93) 426. 165 J Ebbesoson, ‘The Notion of Public Participation in International Environmental Law’ (1997) 8 Yearbook of International Environmental Law 51, 68. 166 L Solum, ‘Procedural Justice’ (2004) 78 Southern California Law Review 181, 275; Baber and Bartlett (n 65) 39; Lee and Abbot (n 85) 81; Ebbesoson (n 165) 63.

68  Environmental Democracy other participants. It therefore fosters a collaborative decision-making process, where the interests and values represented and considered produce a decision that is more than just the sum of the participants. Critically, deliberative democracy has a unique ability to ‘transform’ rather than simply collect preferences.167 From an environmental perspective, deliberative democracy allows the reconciliation of ‘strong democracy and demanding environmentalism’.168 In part this is because the discursive process coordinates and assimilates the complex values, unevenly distributed risks and uncertain scientific knowledge claims characteristic of environmental decision-making. It is also because the discursive process contributes to a deeper understanding between participants, enlarging their mentality and in so doing strengthening concepts of environmental citizenship and stewardship.169 The transformative, or educative, quality of deliberative democracy is important to environmental democracy, because it encourages participants to take an ‘other regarding’ approach. Whilst this can mean simply understanding the perspective of another participant, there is also potential within a deliberative process for participants to gain a greater understanding of the interests of non-participants (non-nationals, future generations and even non-humans).170 But what really makes deliberative democracy distinctive is the animating idea that by seriously encountering the views and needs of others, participants will arrive at a decision that more accurately and fairly represents the common good. From the perspective of environmental democracy, this might mean that participants are more risk averse and thus guard against the unfair displacement of risk, ensuring that those unable to participate democratically are not subjected to risks they might otherwise have objected to.171 As Smith suggests, in encouraging a greater understanding of the perspective of other citizens, deliberative democracy encourages participants to be more attuned to different environmental values of others, and thus values as well as interests can be interrogated within a democratic context.172 The ‘deliberative turn’173 in environmental democratic theory also provides a solution to the complexities of environmental decision-making. Deliberative decisions give space to the plethora of values and interests, complex knowledge claims and risks associated with environmental decision-making to be fully interrogated.174 Accordingly, environmental decisions are not based on the 167 Mark Warren argues ‘democracy works poorly when individuals hold fast to particular preferences and make judgments in isolation from one another’: M Warren, ‘What Should We Expect from More Democracy?’ (1996) 24 Political Theory 241, 242; Eckersley (n 103) 217; J Dryzek, Rational Ecology: Environment and Political Economy (Blackwell, 1987) 228. 168 Baber and Bartlett (n 65) 12; Eckersley (n 127) 115. 169 Barry (n 104). 170 Eckersley (n 69) 175. 171 Eckersley (n 127) 116. 172 Smith (n 3) 26. 173 Dryzek (n 28) 1. 174 Mason (n 2) 51.

The Dimensions of Environmental Democracy  69 untested, initial preferences of citizens (as with a purely participatory model) or the potentially fallible claims of experts (as with a technocratic or even representative system of decision-making). Further, by encouraging the interrogation of those different interests as well as the different values, risks and scientific knowledge claims involved, the likelihood of the right decision being produced is increased.175 Increasing the variety of interests, values and understanding also ‘provides decision-making resources’176 and, thus, deliberative democracy is ‘multiplicatively’ valuable because deliberations can lead to solutions that would not have been contributed by the participants individually.177 Deliberation is also an appropriate means of mediating the different values involved in environmental decision-making because it ‘fosters a reasoned form of communication about values, distinct from mere compromises between clashing interest and competing preferences’.178 Deliberation also enables participants to interrogate complex environmental knowledge claims. As I explained in section III above, environmental decision-making is rife with a blend of technical, scientific and value claims that can easily alienate non-expert citizens. In ordinary democratic process citizens are not encouraged to engage with this technical material, nor are scientists required to ensure that citizens understand the information that they are putting forward. In a deliberative context, however, there can be higher level of scrutiny as citizens are given an opportunity to interrogate the claims made by experts.179 Further, a deliberative approach helps to address the ‘unavoidably normative character’ of scientific knowledge.180 Citizens, as opposed to scientific experts, are better able to address this normative quality and assess the meaning and implications of scientific claims.181 A deliberative process allows citizens to make critical judgements about what conclusions should be drawn from scientific claims, in a way that they would not otherwise be able to do within a participatory or representative process. Third, deliberation increases the legitimacy and acceptability of environmental decisions – something that is necessary if environmental decisions are to actually result in environmental protection. Leading on from this, if citizens are able to challenge and test the claims of scientists about the environment, then they are more likely to accept those claims. Greater acceptance of these decisions leads to them being more likely to be perceived as legitimate. The increased legitimacy and acceptability of

175 Andrew Dobson goes so far as to claim that deliberative democracy is the form of decisionmaking most likely to produce the right answers: Dobson (n 103). 176 Steele (n 93) 430. 177 J Fearon, Deliberative Democracy (Oxford University Press, 1998) 50. 178 Steele (n 93) 423. 179 U Beck, Risk Society: Towards a New Modernity (Sage, 1992) 229. 180 Habermas (n 84) 35. 181 J Habermas, The Theory of Communicative Action, vol 2: Life World and System (Beacon Press, 1987) 11; J Bohman, Public Deliberation: Pluralism, Complexity and Democracy (MIT Press, 2000) 64.

70  Environmental Democracy environmental decisions made through deliberative processes goes beyond the legitimation of scientific claims – it also legitimates specific value and interest choices. Dryzek and List argue, ‘the essence of democratic legitimacy is the capacity of those affected by a collective decision to deliberate in the production of that decision’.182 Citizens are not merely deferring to authority or expertise; they themselves are responsible and accountable for decisions made. Legitimacy is enhanced, as citizens are better able to understand and accept decisions in relation to the environment, even if there are disagreements about the final result.183 As deliberative democracy allows citizens to be instrumental in this decision-making they are able to feel a greater sense of ownership over the decision and therefore the decision is more likely to be considered legitimate. Finally, deliberative democracy has the rare potential to enable humans to communicate more directly and actively with nature.184 On this view, ‘democracy can exist not only among humans, but also in human dealings with the natural world’.185 If nature is regarded as having ‘agency’,186 participants in a deliberative process can ‘listen to signals emanating from the natural world with the same sort of respect we accord communication emanating from human subjects’.187 The extension of the deliberative democratic process in this way emphasises the importance of effective listening.188 Although nature cannot deliberate with human participants, human participants can pay attention to the signals generated by nature and include them as part of their deliberations with human participants.189 This is a fairly radical approach to democracy but is another example of how the basic normative requirements of environmental democracy can manifest in more or less strongly environmental ways. Deliberative democracy is an ambitious account of democracy. However, given the grave consequences of a lack of uptake of environmentally desirable behaviour, a democratic model that increases the likelihood of environmentally positive decisions being embraced by civil society has strong problem-solving potential, and can potentially incorporate direct communication with the natural world, it is

182 Dryzek and List (n 52) 1. 183 Dryzek (n 28) 95–96; D Miller, ‘Deliberative Democracy and Social Choice’ (1992) 40 Political Studies Special Issue: Prospects for Democracy 54, 60; see also T Forsyth, Critical Political Ecology: The Politics of Environmental Science (Routledge, 2003) 267; Baber and Bartlett (n 65) 11. 184 As John Dryzek argues: ‘nature is not passive, inter, and plastic … nature “speaks”’. It should be noted that this is a view promoted by John Dryzek and is not echoed in all accounts of environmental democracy: Dryzek (n 28) 146–49. 185 Dryzek’ s view is influenced by James Lovelock’s Gaia Hypothesis which ‘implies that the stable state of our planet includes [humans] as a part of, or partner in, a very democratic entity’: ibid, 145–46. 186 There is a connection here with Eckersley’s arguments about recognising the autonomy of non-humans, although she does not go so far as to regard nature as capable of communicating its ‘wishes’ in a deliberative democratic process. 187 Dryzek (n 28) 149. 188 S Bickford, The Dissonance of Democracy: Listening, Conflict, and Citizenship (Cornell University Press, 1996). 189 Dryzek (n 28) 149.

The Dimensions of Environmental Democracy  71 understandable that deliberative democracy features so prominently in accounts of environmental democracy. The final form of democracy considered as amongst the possible structural arrangements of environmental democracy is associative democracy. Associative democracy is a form of democracy that envisions a particular role for selforganising associations; in so doing, the role the state plays, in respect of collective decision-making, is reduced.190 Within an associative democratic vision, interests and values collect in terms of the associations, and thus associations, rather than individuals or the state, manifest the plurality of views that are present in civil society.191 On this view, associations are in a stronger position than isolated individuals to bargain within society and represent their shared values and goals. Associations are regarded as a counterbalance to the majoritarianism of aggregative democracy and the dominance of economic forces and corporations within modern states.192 Further, within the associative democratic vision, as citizens are encouraged to join in groups that are collectively responsible for social decisions, a stronger sense of citizenship can emerge.193 Thus, as with participatory and deliberative democracy, associative democracy seeks to foster a strong conception of citizenship and a greater understanding of the needs and values of others.194 Associative democrats Joshua Cohen and Joel Rogers, in particular, have sought to emphasise the environmental potential of associative democracy.195 The key contribution of associative democracy is in its purported ability to strengthen civic consciousness, or to ‘enlarge the mentality’ of citizens, thus increasing the chance that the interests of the new environmental constituencies will be represented in democratic decision-making processes.196 As Bronislaw Szerszynski claims, ‘associational activity in society can help foster the cultural conditions … in which individual and institutional action in defence

190 There are two broad approaches that both endeavour to achieve this basic premise. The first is that of Joshua Cohen and Joel Rogers and envisages a state that actively encourages the growth of associations and enhances their capacity and ability to affect governance. The second is presented by Paul Hirst, and is a ‘bottom-up’ approach, whereby associations take the initiative in forming and taking control of social decisions, such as welfare: J Cohen and J Rogers, ‘Secondary Associations and Democratic Governance’ (1992) 20 Politics and Society 393; J Cohen and J Rogers, Associations and Democracy (Verso, 1995); P Hirst, Associative Democracy: New Forms of Economic and Social Governance (Polity Press, 1994). 191 W Achterberg, ‘Sustainability and Associative Democracy’ in Lafferty and Meadowcroft (n 67) 167. 192 Ibid, 168. 193 For an in-depth consideration of the concept of citizenship in relation to the environment see A Dobson, Citizenship and the Environment (Oxford University Press, 2003); Barry (n 104) 122–27. 194 Or as Achterberg terms it, ‘civic consciousness’: W Achterberg, ‘Sustainability, Community and Democracy’ in Doherty and de Geus (n 27) 177. 195 Cohen and Rogers (n 190) 426, 436–37. 196 Achterberg (n 194) 177; see also O’Neill who regards associations as contributing to the establishment of an ecologically rational society: J O’Neill, Ecology, Policy and Politics: Human Well-Being and the Natural World (Taylor & Francis, 2002) 41.

72  Environmental Democracy of the environment can better flourish’.197 Second, as ‘associations serve specific interests’, the interests of future generations, non-nationals, and non-humans can be represented by specific associations which contribute to the process of democratic decision-making.198 Third, as associative democracy encourages the collecting together of those who hold similar value positions, those holding similar values in respect of the environment can join together to represent their views more effectively in democratic processes. Although modest, associative democracy can have a role to play in the context of environmental democracy and should be regarded as one of the various structural elements that could be used to conceptualise environmental democracy and shed light on this purpose of the Aarhus Convention. By identifying six possible structural arrangements for environmental democracy, I show that environmental democracy has many different guises. As a normative project it is possible to produce a coherent and broadly consistent picture of what environmental democracy is aiming towards but understanding precisely what it looks like and how it functions is less straightforward. As with any environmentally-driven project, there are different shades of green that reflect the spectrum of values between anthropocentric and ecocentric approaches. For example, a strictly anthropocentric approach might facilitate the consideration of the needs of future generations and non-nationals, whereas a more ecocentric approach would lead to the development of the rights of nature and include ‘effective listening’ to nature as an important aspect of deliberative democracy. Sometimes these distinctions are made through precising a difference between environmental (pale green) and ecological (deep green) but this is not always the case. This means that it is not necessarily clear what is meant when something is described as being emblematic of environmental democracy. It is my hope, therefore, that by dissecting and displaying environmental democracy in this manner, it is possible to better understand the possibilities that are contained in the concept. V. CONCLUSION

My central purpose in developing this dynamic definition of environmental democracy was to facilitate the examination of the environmental democracy purpose of the Aarhus Convention in Chapter 6 and to thus reflect on how this purpose should influence its interpretation. This is particularly important given how frequently and emphatically the Convention is described as the embodiment of environmental democracy. Such a claim is difficult to evaluate, however,

197 B Szerszynski, ‘Voluntary Associations and the Sustainable Society’ (1997) 68 The Political Quarterly 148, 149. 198 Achterberg (n 194) 169.

Conclusion  73 because the idea that is being referred to is so broad and multifaceted. Democracy is a complicated theoretical idea and environmental decision-making is a challenging task; combining these two ideas in the concept of environmental democracy therefore requires a methodical and detailed approach. Through the labour of this chapter, it is now possible to speak more precisely about what environmental democracy is, and how it can be understood in the context of the Convention. Opening my examination of environmental democracy with the narrative of democracy more generally identified why precision is needed when referring to environmental democracy. Democracy can be conceptualised according to many different definitional, methodological and ideological approaches, that can result in very different definitions of the concept. This is partly because of the multiple layers of meaning that are attached to basic elements of definitions of democracy, eg ‘rule’ and ‘the people’, but also because democracy is constituted by other complex ideas such as justice and legitimacy. Distilling democracy to its essential boundary markers therefore helps to identify the essential democratic ideas that should underpin environmental democracy. Similarly, by considering the four complex features of environmental decision-making, I was able to show how environmentalism shapes a particular form of democracy. The capacity of an account of democracy to manage these complex features of environmental decision-making gives a good indication as to whether it is ‘environmental’ or not. Articulating the concept of environmental democracy, as I have done, in terms of its normative elements and structural arrangements, helps to bring together the complex normative projects of environmentalism and democracy in an inclusive and expressive way. This anatomical approach embodies my conviction that when dealing with monolithic concepts such as rights or democracy, it is foolhardy to aim for single best definitions. Just as it is hard to describe art or beauty in simple terms, it is rarely possible to describe these big ideas neatly. This of course makes working with these definitions more complicated. The elegance of terms like ‘responsive rule’ are difficult to deny, but elegance masks much of the complexity. In pulling apart environmental democracy, as I have done here, it becomes less straightforward to describe Aarhus as an instrument of environmental democracy. But fully articulating environmental democracy like this allows for a more nuanced appreciation of what the Convention is doing, identifying the realities as well as the aspirations of environmental democracy.

4 Environmental Rights The practice of love offers no place of safety. We risk loss, hurt, pain.1

I. INTRODUCTION

D

eep in the heart of the Aarhus Convention is an elusive riddle about the nature of environmental rights as envisaged by the Convention. This intrigue stems from the mysteriously worded Article 1:

In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.2

Opening, as the Convention does, with a statement about the rights of present and future generations to a healthy environment creates the impression that the Convention is concerned with offering legal protection for substantive environmental rights.3 However, this first impression requires deeper interrogation. It is indeed a reference to a substantive right to a healthy environment, contained in a legally binding agreement, but the wording regarding the status of that right is very ambiguous: the guarded language used to refer to the substantive environmental right (‘in order to contribute to the protection of’); the division between substantive and procedural rights; the United Kingdom’s declaration upon signing that the Convention is emphatically not about substantive environmental rights; and the significant background debate concerning the status

1 bell hooks, All About Love: New Visions (Harper Perennial, 2001) 153. 2 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 38 ILM 517, Art 1. 3 A Fabra Aguilar and NAF Popovic̀, ‘Lawmaking in the United Nations: The UN Study on Human Rights and the Environment’ (1994) 3 Review of European Community & International Environmental Law 197; S Giorgetta, ‘The Right to a Healthy Environment, Human Rights and Sustainable Development’ (2002) International Environmental Agreements: Politics, Law and Economics 173; M Pallemaerts, ‘The Human Right to the Environment as a Substantive Right’ in M Déjeant-Pons et al (eds), Human Rights and the Environment: Compendium of Instruments and Other International Texts on Individual and Collective Rights Relating to the Environment in the International and European Framework (Council of Europe, 2002) 18.

Introduction  75 of environmental rights in international law. Each of these factors contributes an air of mystery about how the Convention views and promotes environmental rights. Resolving this rights riddle is critical to understanding how the environmental rights purpose of the Convention is to be understood, and thus how the Aarhus Convention itself is understood. In my pursuit of an answer to this rights riddle, I was driven by a suffocating compulsion to interrogate the entire complicated romantic past of rights theory, and as a result my love affair with the Convention began to sour. As the affair dragged on, book after book after book was published, meticulously charting the nature, history, role, and shape of environmental rights in all their glorious forms (not to mention the ever-expanding body of work on rights more generally).4 I scoured this material, searching for an answer, and yet, despite the abundance of environmental rights scholarship, the Aarhus rights riddle remained unsolved. What’s more, many serious scholars overlooked the puzzle entirely in their coverage of the Convention. They were too ready to assume that the Aarhus Convention offered a clear example of the right to a healthy environment in a legally binding international agreement. For example, in his survey of national environmental rights, David Boyd includes ratification of the Aarhus Convention as evidence that a jurisdiction had explicitly recognised the right to a healthy environment.5 Similarly, Louis Kotzé regards the Aarhus Convention as expressly recognising a substantive environmental right, albeit within a limited geographical area.6 These assumptions betray a misunderstanding of the text of the Convention, attributing legal clarity where there is none, thus affirming the need for a more nuanced analysis of the rights purpose of the Aarhus Convention. In what follows, I assess the nature, function and form of environmental rights, drawing on the language and rituals of analytical rights scholars, in order to try to understand what Article 1 might possibly be directed towards. Grounding my exploration of the rights purpose of the Convention in the ambiguity of Article 1, means that the activity of this chapter is slightly different to that of the other two purpose chapters. I am not simply analysing an overarching descriptive

4 A Boyle and M Anderson (eds), Human Right Approaches to Environmental Protection (Oxford University Press, 1996); C Miller, Environmental Rights (Routledge, 1998); T Hayward, Constitutional Environmental Rights (Oxford University Press, 2005); SJ Turner, A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers towards the Environment (Wolters Kluwer, 2009); A Grear and LJ Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar, 2015); S Bogojević and R Rayfuse (eds), Environmental Rights in Europe and Beyond (Hart Publishing, 2018); JH Knox and R Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press, 2018); SJ Turner et al (eds), Environmental Rights: The Development of Standards (Cambridge University Press, 2019). 5 DR Boyd, ‘Catalyst for Change: Evaluating Forty Years of Experience in Implementing the Right to a Healthy Environment’ in Knox and Pejan (n 4) 18 and 23. 6 LJ Kotzé, ‘In Search of the Right to a Healthy Environment in International Law: Jus Cogens Norms’ in Knox and Pejan (n 4) 140–41.

76  Environmental Rights ambition of the Convention, like environmental democracy or environmental stewardship; I am interrogating a particular provision which is instrumental for the interpretation of Aarhus – the Convention’s objective as contained in Article 1. Whilst this focus changes the tone and approach of this chapter, it also has a significant practical advantage by providing some conceptual limitations that make navigating the territory of rights in general, and environmental rights in particular, less overwhelming. The first limitation is that it dictates the nature of the rights holder. The Aarhus Convention is directed at human beings only and this means that I do not need to engage with the vast, although profoundly interesting, debate about rights of nature.7 Human environmental rights may offer some ‘spill over’ benefits for nature, but dedicated nature rights are outside of the scope of the Aarhus Convention.8 We will see, in relation to the stewardship purpose, that there is scope for a more ecocentric approach to the Convention, but the language of Article 1 makes the rights purpose explicitly anthropocentric. The second conceptual limitation is that Article 1 focuses the nature of the substantive good claimed to ‘an environment adequate to … health and well-being’. Although there is of course more to say about what exactly an environment adequate to human health and well-being looks like, the detail of this right does mean that other more restrictive formulations like the right to a ‘safe environment’9 or a ‘minimally decent’10 one are not envisaged by the Convention. Within the confines of these two conceptual limitations, I pick at the theoretical dimensions of environmental rights in order to arrive at a deeper understanding of the environmental rights purpose of the Convention. In order to do this, in section II below, I briefly survey the territory of rights jurisprudence, identifying the relevant analytical questions and theories that contribute to a discussion of rights, and examining the special quality of human rights. In section III I narrow my focus to specifically environmental rights. As a starting point, I consider the historical, moral and legal dimensions of the substantive right to a healthy environment, in order to determine the character and status of this elusive right. Second, I unpack the theoretical basis of procedural rights, grounding them in substantive moral claims about environmental quality. Third, I address the intergenerational dimensions of environmental rights in order to 7 For those interested in this debate, the following provide a good starting point: C Redgwell, ‘Life, the Universe and Everything: A Critique of Anthropocentric Rights’ in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, 1996); CD Stone, Should Trees Have Standing? Law, Morality and the Environment, 3rd edn (Oxford University Press, 2010); DR Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press, 2011); RS Abate, Climate Change and the Voiceless (Cambridge University Press, 2020). 8 Redgwell (n 7) 87. 9 J Nickel, ‘The Human Right to a Safe Environment: Philosophical Perspectives on its Scope and Justification’ (1993) 18 Yale Journal of International Law 281. 10 M Saward, ‘Must Democrats be Environmentalists?’ in B Doherty and M de Geus (eds), Democracy and Green Political Thought (Routledge, 1996).

Rights Territory  77 explain how the rights of future generations can be conceptualised. In Chapter 6 I use this theoretical work to examine how Article 1 and the environmental rights purpose of the Convention might be properly understood, thus unlocking the rights riddle of the Convention. II.  RIGHTS TERRITORY

The territory of rights is hotly contested. Scholars can and do spend their life’s work moulding and defending their theory of rights. And although many scholars write under the banner of rights, the conversations surrounding rights can be very different. Take, for example, the difference between analytical or legal philosophy accounts of rights and normative or political philosophy ones.11 Analytical accounts claim to study rights in isolation from any political or social agenda, imagining them as purely theoretical creatures. In contrast, normative accounts are concerned with articulating rights in specifically human rights terms and thus tend to pursue some kind of political or social goal. Therefore, although both approaches are concerned with rights, they can operate on very different planes.12 Whilst these two approaches are ‘more a matter of emphasis than a fundamental intellectual watershed’, the hyperbolic imagery of two different planes of analysis serves to emphasise the vastness of rights discourse as well as its tendency to operate within silos.13 The territory of rights is thus difficult terrain to traverse. Environmental rights scholarship tends to operate within the normative plane because it is focused on identifying legal instruments, like the Aarhus Convention, and following legal trends, to detect real and emerging environmental rights in international, transnational and domestic law. Questions considered as part of this discourse include: assessing whether environmental rights can qualify as human rights; assessing the appropriate standards of human rights; and mediating the tension between the individualised focus of human rights and the communitarian or ecological demands of environmental protection.14 Less attention is paid to the analytical plane. Therefore, environmental rights scholars have, for the most part, not engaged with many of the customs and questions of legal philosophy, for example articulating environmental rights in terms of Hohfeldian correlatives or interrogating the theoretical basis of procedural rights.15

11 N Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights, 2nd edn (Sweet & Maxwell, 2002) 256. 12 W Edmundson, An Introduction to Rights, 2nd edn (Cambridge University Press, 2012) xi. 13 Simmonds (n 11) 256. 14 A Grear, ‘Editorial: Where Discourses Meet’ (2010) 1 Journal of Human Rights and the Environment 1. 15 Tim Hayward is a notable counterexample. Whilst his approach to environmental rights is predominantly a political/human rights one, he does seriously engage with more jurisprudential aspects of the issue: Hayward (n 4).

78  Environmental Rights This absence is understandable. The environmental rights project coalesces around political and social questions about whether rights can and should be utilised for environmental protection, and is primarily concerned with the careful doctrinal tracing of environmental rights across different regimes. It is not an exercise in pure theory. The protracted analytical debates about the nature of rights can, therefore, seem unhelpful or irrelevant to the project of environmental rights. Nevertheless, some of the elemental questions asked and answered by analytical scholars are helpful for better understanding the nature of environmental rights, as well as unpacking the enigmatic rights purpose of the Convention. Unravelling the theoretical dimensions of environmental rights requires a focused identification of relevant analytical inquiries that will help support my analysis of the Convention. To do this, I briefly summarise the questions and frameworks of rights jurisprudence, arranging them into two categories. In the first category are the questions that are concerned with locating the character of rights, eg their basic form and function. These questions represent some of the fundamental questions of a legal philosophy. In the second category, I consider the specific character of human rights, to start to unpack the criteria and shape of these special rights. This framing, as with all framing, is imperfect, but it provides a neat way to comprehend the array of possible analytical considerations.16 Once I have organised the territory of rights, I move on in section III to mark the ground that is occupied by specifically environmental rights, using the analytical frames to build my interpretation of the rights purpose of the Aarhus Convention in Chapter 6. A.  The Character of Rights Rights are a special order of entitlement that hold certain claims above the furore of everyday competition between interests, choices and needs. It is understandable, therefore, that, like the swinging cats of Disney’s The Aristocats, every interest wants to be a right. Rights, however, ‘are notoriously difficult to define’17 and distinguishing the interests that should be elevated to the status of ‘right’, and those that are just a ‘square with a horn’ requires careful consideration.18 As a starting point, I describe the fabric, form and function of rights, in order to capture something of their unique quality so that I can later examine the nature of environmental rights. Unlike cats, however, pinning down the je ne sais quoi of rights is not quite as easy as spotting specifically feline features like a swishing tail and quivering whiskers. 16 S Bogojević and R Rayfuse, ‘Environmental Rights in Europe and Beyond: Setting the Scene’ in Bogojević and Rayfuse (n 4) 16. 17 Ibid, 4. 18 F Huddleston and A Rinker, Everybody Wants to be a Cat (1996).

Rights Territory  79 Rights can be conceived as both moral and legal entitlements.19 Moral rights derive their normative force from morality. They can either be contained within particular moralities or cultures – for example the moral right that a British person has to their place in a queue – or they can be of a more fundamental or universal nature, such as the right not to be held in servitude.20 Legal rights are those that ‘reflect the special force of established rules’.21 Thus they derive their normative force from laws, rules or institutions.22 Although legal and moral rights are cut from different cloth, they can operate in a similar way because both legal and moral rights are performing the same kind of task within their respective normative architectures. For example, my moral right to my place in the queue serves to prevent you cutting in line (assuming you respond to the social stigma of being a queue jumper), just as my legal right to my garden prevents you from cutting across my lawn. This general understanding of rights gives us some clues as to the form and function of rights but it is not very precise. Indeed, rights are ambiguous creatures that can operate in different ways; for example, the right to vote is doing something quite different to the right to life.23 Private law scholar Wesley Hohfeld sought to unpick these differences and to understand more carefully how duties operate by producing an atomistic framework of the different forms that a right can take:24 claim right

privilege

power

immunity

no-claim right

duty

disability

liability

Within the diagram the top line refers to the different types of rights and the bottom to the obligation of the duty holder.25 The lines signify the relationships between them: the vertical lines denote jural opposites, which represent what

19 Unless you are Jeremey Bentham, who described moral rights as ‘nonsense upon stilts’: P Schofield et al (eds) J Bentham, Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings of the French Revolution (Oxford University Press, 2002) 317. 20 These more universal moral rights are usually associated with the language of human rights. 21 Simmonds (n 11) 263. 22 J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, revised edn (Clarendon Press, 1995) 225. 23 HM Hurd and MS Moore, ‘The Hohfeldian Analysis of Rights’ (2018) 63 The American Journal of Jurisprudence 295, 297. 24 Whilst acceptance of his approach is not unanimous, Hohfeld’s schema provides a helpful vocabulary for thinking carefully about what rights do and how they do it: MacCormick and Raz, for example, reject the external complexity of Hohfeld’s analysis in favour of one that views rights as internally complex: N MacCormick and J Raz, ‘Voluntary Obligations and Normative Powers’ (1972) 46 Proceedings of the Aristotelian Society 59. 25 For these purposes I prefer to use the more elegant arrangement proposed by Heid M Hurd and Michael S Moore: Hurd and Moore (n 23) 301.

80  Environmental Rights the right is not (for example, if I have a privilege, then I am free from a duty to act in a particular way); and the diagonal lines denote jural correlatives, which represent the corresponding actions (ie a claim right gives rise to a duty). Although developed in order to understand how trusts work, ie in the context of private law rights, Hohfeld’s approach has been extended by other scholars to cover legal and moral rights more generally.26 Hohfeld’s high-precision vocabulary thus allows for greater clarity in relation to rights talk, helping to reveal what is going on under the surface of rights, and demonstrating that rights can be composed in more or less complex ways. For example, title to property in land might be composed of a claim-right against trespassers, a privilege to use it as you choose and a power to sell or transfer the title, whereas the right to vote is a power which imposes a liability on the state to ensure that citizens have access to that power. Understanding the substance and shape of rights gives some indication of what they do but it does not tell us everything about the function of rights. This task is taken up by two opposing theories of rights – the will (or choice) theory of rights and the interest (or benefit) theory of rights.27 To elaborate: according to the will theory, rights protect choices, for example the ability to enforce or waive the correlative duty to a right. In this way they give the holder control over another person’s duty. For the interest theory, rights are intended to protect some aspects of the right-holder’s situation that it would be beneficial for them to have protected.28 In sum, the will theory of rights is concerned with freedom and the interest theory of rights with well-being.29 Which conception is closest to the ordinary meaning of the term ‘right’ remains controversial.30 Whilst the interest versus will debate represents a substantial portion of analytical rights scholarship, not all theorists agree that these are the best or only descriptions of the function of rights, nor do they agree that all rights need one single function.31 Indeed Hart, a leading proponent of the will theory, concedes the possibility that for some rights their core is ‘neither individual choice nor individual benefit but basic or fundamental individual need’ (emphasis added).32 Whilst many questions about the character of rights remain largely unresolved, this brief introduction to analytical rights thinking points to the sorts

26 J Clayton Thompson, ‘The Rights Network: 100 Years of the Hohfeldian Rights Analytic’ (2018) 7 Laws 28, 29. 27 D Frydrych, ‘The Theories of Rights Debate’ (2018) 9 Jurisprudence 566. 28 M Kramer, ‘In Defence of the Interest Theory of Right Holding: Rejoinders to Leif Wenar on Rights’ in M McBride (ed), New Essays on the Nature of Rights (Hart Publishing, 2017) 49. 29 L Wenar, ‘The Nature of Rights’ (2005) 33 Philosophy and Public Affairs 223, 223. 30 For a detailed overview of the debate see Frydrych (n 27). 31 D Réaume, ‘Groups, and Rights to Public Good’ (1988) 38 The University of Toronto Law Journal 1. 32 HLA Hart, ‘Bentham on Legal Rights’ in AWB Simpson (ed), Oxford Essays in Jurisprudence (Clarendon Press, 1973) 201.

Rights Territory  81 of considerations that inform how we should think about environmental rights: for example, whether environmental rights are moral or legal claims, and whether they protect individual choices or individual well-being – questions I shall return to in due course. Thus, I use the vocabulary and grammar of analytical rights scholars to help resolve the riddle of environmental rights in the Aarhus Convention. In the next section I consider the special character of human rights. B.  The Special Character of Human Rights Human rights are generally regarded as being rights of the ‘highest order’33 or of ‘paramount importance’.34 Thus, ‘the characterisation of a specific goal as a human right elevates it above the rank and file of competing societal goals, gives it a degree of immunity from challenge and generally endows it with an aura of timelessness, absoluteness and universal validity’.35 This quality of absoluteness is in part a product of their ‘sociohistorical genesis’,36 but it also results from certain moral convictions about the nature of human beings – such as the importance of human dignity,37 autonomy,38 equality, liberty, moral agency – and the relational nature of human identity.39 As with rights more generally, human rights have both legal and moral variations, which can attract competing theoretical ideas about what qualifies as a human right. On one view, human rights are purely a legal creation, whose existence is contingent on their ‘concrete recognition … in real institutional practices’.40 On another, they are simply the rights that human beings claim by virtue of their humanity.41 Thus, they come from a particular moral conviction and can exist whether or not they are legally recognised. For some scholars, there is no necessary relationship between these two conceptions, so that it is possible to view human rights in a purely positivist sense or in a purely moral

33 J Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 1989) 12. 34 M Cranston, ‘Are There Any Human Rights?’ (1983) 112 Daedalus 1, 12. 35 P Alston, ‘Making Space for New Human Rights: The Case for the Right to Development’ (1988) 1 Harvard Human Rights Yearbook 3, 3. 36 Hayward (n 4) 44. 37 E Daly, Dignity Rights Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania Press 2012). 38 W Felice, Taking Suffering Seriously: The Importance of Collective Human Rights (State Universty of New York Press, 1996) 17; RP Hiskes, The Human Right to a Green Future (Cambridge University Press, 2009); J Feinberg, ‘The Rights of Animals and Unborn Generations’ in J Fineberg, Rights, Justice and the Bounds of Liberty (Princeton University Press, 1980). 39 Hiskes (n 38) 29. 40 Hayward (n 4) 37. 41 The ‘moral’ conception of human rights is one that is attributed to the tradition of natural law and natural rights: J Donnelly, ‘Human Rights as Natural Rights’ (1982) 4 Human Rights Quarterly 391; Donnelly (n 33) 12; A Gewirth, ‘The Epistemology of Human Rights’ (1984) 1 Social Philosophy and Policy 1, 1.

82  Environmental Rights sense,42 whereas others regard the two forms as being intimately connected.43 Thus, human rights are a combination of a moral conviction about certain values of human nature, and a positive legal statement.44 The special quality attributed to human rights means that the nomenclature is jealously guarded45 and various criteria have been developed in order to ‘quality control’ how the designate ‘human right’ is used.46 Philip Alston, for example, proposed a procedural approach to doing this, ie seven steps to which a putative claim ought to be subject to before it could be classified as a human right.47 Most criteria, however, are substantive,48 including the General Assembly guidelines that were developed in response to Alston’s formative piece.49 The array of possible criteria for quality-controlling putative human rights are varied: for example, genuine human rights are required to protect human dignity,50 be ‘an effective, socially manageable claim on others’,51 and be ‘broadly shareable’.52 I will return to the question of criteria in section III below, when I determine whether the right to a healthy environment is a genuine human right. For now, I briefly highlight some of the ways that human rights are categorised to help explain the different ways in which environmental human rights can be understood. Reflecting the approach of the Hohfeld schema, human rights are variously described as either positive claims or negative liberties.53 Negative rights are those which prevent the duty holder from acting in a particular way (a Hohfeldian privilege or immunity). For example, the right to dignity prevents others from interfering with your dignity. Positive rights, on the other hand, entitle the rights holder to a particular good or action (a Hohfeldian claim or power). For example, the right to education might give rise to a duty on the state to ensure that

42 T Pogge, World Poverty and Human Rights, 2nd edn (Polity, 2008) 52; A Sen, ‘Human Rights and the Limits of Law’ (2006) 27 Cardozo Law Review 2913, 2918. 43 T Nagel, Concealment and Exposure & Other Essays (Oxford University Press, 2002) 33l; J Habermas, ‘Kant’s Idea of Perpetual Peace: At Two Hundred Years’ Historical Remove’ in C Cronin and P DeGreiff (eds), Inclusion of the Other: Studies in Political Theory (MIT Press, 1998) 191. 44 Hayward (n 4) 46. 45 J Tasioulas, ‘Saving Human Rights from Human Rights Law’ (2019) 52 Vanderbilt Journal of Transnational Law 1167. 46 P Alston, ‘Conjuring up New Human Rights: A Proposal for Quality Control’ (1984) 78 The American Journal of International Law 607. 47 Ibid. 48 For some illustrations of the types of substantive criteria available see M Cranston, ‘Human Rights, Real and Supposed’ in DD Raphael (ed), Political Theory and the Rights of Man (Indiana University Press, 1967); Boyd (n 7) 21; J Griffin, On Human Rights (Oxford University Press, 2008) 38; Pogge (n 42) 32–56; Nickel (n 9) 288–95. 49 General Assembly Resolution 41/120 (4 December 1986). 50 Boyd (n 7) 21. 51 Griffin (n 48) 38; Pogge (n 42) 38. 52 Pogge (n 42) 32–56. 53 This distinction is not without its critics: A Gewirth, The Community of Rights (University of Chicago Press, 1996) 36; see also J Waldron, ‘Participation: The Right of Rights’ (1998) 98 Proceedings of the Aristotelian Society 307, 307–308; Hiskes (n 38) 28.

Rights Territory  83 there are adequate school facilities, adequate numbers of trained teachers, and that children are sufficiently nourished to be able to participate in their education. The difference between these two forms is significant because the nature of the burden that is owed differs: a positive right would impose a heavy burden to provide a certain good, whereas a negative right only requires the duty holder to refrain from behaviour that risks infringing the right. Overlapping the positive/negative understanding of human rights is the distinction that is made between substantive and procedural rights. Substantive rights are those which guarantee the rights holder a good or value, for example the right to life or freedom from torture. Procedural rights are those that either guarantee access to a process or mechanisms (for example the right to a fair trial) or allow for participation in civic life (for example the right to vote). Procedural rights can be further broken down into adjudicative (norm applying) and legislative (norm determining) procedural rights, thus distinguishing the spheres of participation. Although frequently considered as distinct types of rights, there are significant overlaps between these two forms, for example, the right to a fair trial is based on a commitment to human dignity and freedom. There is, therefore, disagreement as to whether procedural rights are an independent type of right, or whether they are in fact ‘components’ of substantive rights.54 A third distinction that is made in relation to human rights is between individual and collective rights. Traditionally, rights are understood as individualised claims that secure individuals’ access to individual goods, like liberty or property.55 Collective rights, however, are understood either as a tool of collective agents, for example the state or corporations, or, from a human rights perspective, as a right that protect certain collective goods like language or culture.56 In relation to collective rights, there is a significant degree of scepticism, because rights are deemed to operate as a protection against the collective; grounding rights in the collective is therefore counter to this aim.57 This is particularly the case if one adopts the will theory of rights. If rights are assumed to protect choice, individual choice can be lost in the context of the group.58 The resistance to collective rights, however, relies on the assumption that individuals are ‘atomic entities existing independent of social ties’ rather than members of a community who are all intimately connected to one another.59 Despite this scepticism, the existence of collective rights has become an increasingly important issue in international human rights law, particularly in relation to the rights of

54 L Alexander, ‘Are Procedural Rights Derivative Substantive Rights?’ (1998) 17 Law and Philosophy 19, 19. 55 N MacCormick, Legal Rights and Social Democracy (Oxford University Press, 1982) 126. 56 L Green, ‘Two Views of Collective Rights’ (1991) 4 Canadian Journal of Law and Jurisprudence 315. 57 J Waldron, ‘When Justice Replaces Affection: The Need for Rights’ (1988) 11 Harvard Journal of Law & Public Policy 625, 645. 58 M Freeman, ‘Are there Collective Human Rights?’ (1995) XLIII Political Studies 25, 34. 59 Gewirth (n 53) 1; Y Mokgoro, ‘Ubuntu and the Law in the South’ (1998) 4 Buffalo Human Rights Law Review 15.

84  Environmental Rights Indigenous communities.60 It is also a question that is of pressing importance to environmental rights, because the environment has both individual and collective dimensions. C. Conclusions Treading lightly across the territory of these ancient debates about the nature and role of rights is not easy; the ground is densely populated and often highly contested. But this light-touch approach has been necessary in order to take from the debate what will be analytically useful for understanding the rights purpose of the Convention, without falling foul of its many snares. A fuller analysis of this discourse is beyond the scope of this work. This section has thus laid the groundwork for understanding what the environmental rights recognised by the Aarhus Convention are. I will return to these questions in more detail in the rest of the chapter and in my analysis of the Convention in Chapter 6. This section hence operates as a key for the more focused discussion of environmental rights that follows. III.  ENVIRONMENTAL GROUND

When we speak of environmental rights, we are saying that there is something about our interaction with the natural world that ought to engender the special status bestowed by rights. This something arises because of the severe consequences of environmental degradation on humans, both now and in the future, and on nature itself. Environmental rights are, therefore, principally founded on fundamental needs, rather than interests or choice.61 Whilst it is certainly possible to show that environmental rights protect both choices and interests, the moral core of environmental rights is that humans, future generations, animals and ecosystems need an environment of a particular quality for their survival.62 There can be little doubt that the Aarhus Convention is compelled by the moral pull of environmental rights: its reference to the right of every human being – both now and in the future – to an environment adequate to human health and well-being, and its call to recognise Principle 1 of the Stockholm Declaration, make this claim unimpeachable. The challenge, however, is to understand the exact nature of the environmental rights purpose of the Convention, for example whether the rights are moral or legal, or whether they are claims or powers.

60 Green (n 56) 315. 61 Hart (n 32) 201. 62 C Rodríguez-Garavito, ‘A Human Right to a Healthy Environment? Moral, Legal and Empirical Considerations’ in Knox and Pejan (n 4) 157.

Environmental Ground  85 In order to resolve the Convention’s rights riddle, I focus on three frames of environmental rights: environmental rights as substantive human rights; procedural environmental rights; and rights of future generations, unpacking the conceptual questions that relate to each of these types of right. The first frame helps to unpack the burning question at the heart of Article 1 about whether it truly does represent the first statement of a substantive human right to a healthy environment in international law.63 The second allows me to explore the nature of the three procedural rights that are central to the text of the Aarhus Convention. The final frame recognises that a particularly intriguing feature of the Convention is its call to ‘contribute to the protection of the rights of future generations’, alongside those of the present generations.64 Whilst my analysis of environmental rights will show the three frames of analysis inevitably overlap, they provide a necessary starting point for untangling the ambiguity of Article 1.65 A.  Environmental Rights as Substantive Human Rights Human rights provide a powerful normative architecture that can be deployed to protect the environment and deter or prevent environmental degradation.66 The language of human rights has a ‘certain weightiness’ that signals the moral significance of any particular claim.67 Casting environmental rights in the nomenclature of human rights68 can, therefore, help ward off the relativity of moral rights claims, because human rights universalise them, elevating them above the rank and file of other rights claims.69 Framing environmental rights in human rights terms thus ‘implies that the moral horizon it draws its justification from is not one of a plurality of moralities, but a morality that applies to everyone everywhere’.70 It is understandable, therefore, that in the face of mounting ecological pressures environmental lawyers have turned to human rights as an ‘extra tool’ for enforcing environmental obligations.71

63 See text to n 2. 64 Aarhus Convention (n 2) Art 1. 65 Bogojević and Rayfuse (n 16) 16. 66 S Douglas-Scottt, ‘Environmental Rights: Taking the Environment Seriously?’ in C Gearty and A Tomkins (eds), Understanding Human Rights (Mansell Publishing, 1996) 423. 67 Hayward (n 4) 38. 68 This framing, however, opens them up to criticisms of speciesism or anthropocentrism. Such criticisms are understandable: environmental interests are not just shared communally – they are also shared across the natural world. Privileging human claims over those of other interests may have ‘spill over’ benefits, but it is a clear moral statement about the superiority of the needs of human beings. Whilst the species chauvinism of environmental human rights is an important challenge to the discourse, it is not one that I can respond to in this book, given the focus of the chapter. 69 R Cruft et al, ‘The Philosophical Foundations of Human Rights: An Overview’ in R Cruft et al (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015) 5. 70 Hayward (n 4) 38. 71 OW Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review 73, 74.

86  Environmental Rights One approach to the power of human rights for protecting environmental claims has been the ‘greening’ of established rights like the right to life, or the right to privacy to accommodate environmental concerns.72 However, simply demonstrating that there is a contingent relationship between environmental interests and existing human rights is insufficient to show that environmental rights themselves are human rights.73 Another approach, therefore, has been to recognise that there is something about our interaction with the environment that should be recognised as a privilege, giving rise to the special force of human rights, identifying the criteria for establishing a genuine human right and then showing that an environmental right can be said to satisfy them.74 There are a multitude of criteria available for establishing whether a claim qualifies as a human right or not. Criteria can be substantive, providing a set of qualitative requirements for assessing whether something ought to amount to a human right: procedural, setting out particular safeguards ‘to govern the formation of new human rights’;75 empirical; and even historical. In this section, I want to show that as a matter of history, theory and practice, substantive environmental human rights can be said to exist as legal and moral entities. In so doing, I provide context for understanding the reference to the right to an environment adequate to human health and well-being in Article 1 as it applies to the present generations. In section B below I consider the human rights implications of specifically procedural rights and in section C the human rights of future generations. This layered approach is necessary in order to account for the complex character of environmental rights.76 i.  Historical Foundations Human rights are partly an historical creation: they are descendants of natural rights, and many well-established human rights have their historical genesis in the natural law tradition.77 For example, the Lockean rights to life, liberty and property are all present in modern human rights treaties. By contrast, environmental rights are generally regarded as a modern creation,78 assigned to the less 72 A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 The European Journal of International Law 612, 614; see also Pedersen (n 71) 75–76; R Desgagné, ‘Integrating Environmental Value into the European Convention on Human Rights’ (1995) 89 The American Journal of International Law 263, 266; S Collins-Chobanian, ‘Beyond Sax and Welfare Interests: A Case for Environmental Rights’ (2000) 22 Environmental Ethics 133, 135; L Rajamani, ‘The Right to Environmental Protection: Many a Slip between the Cup and the Lip?’ (2007) 16 RECIEL 274, 277. 73 Boyle (n 72) 626–33. 74 Hayward (n 4) 36–47. 75 Alston (n 46) 614. 76 Hayward (n 4) 46; see also Griffin (n 48) 29; Rodríguez-Garavito (n 62) 155. 77 Hiskes (n 4) 26. 78 The Stockholm Declaration is generally cited as the trigger for connecting environmental interests with human rights on an international scale: M Soveroski, ‘Environmental Rights versus Environmental Wrongs: Forum over Substance?’ (2007) 16 Review of European Community & International Environmental Law 261, 261.

Environmental Ground  87 worthy category of the third generation of rights.79 Indeed, the environmental crisis that has invoked the need for environmental rights is – relatively speaking – a recent one,80 leading scholars like Joseph Sax to lament that there is no historical basis for an environmental right.81 However, the problem of dividing natural, commonly held, resources between individuals is an ancient one, and value systems across the globe recognise the importance of safeguarding environmental goods. Whilst the focus of this discussion is on Western legal history, this does not discount the existence of moral and historical foundations for the protection of the environment in other cultures, and indeed I will explore other normative frameworks, such as Indigenous value systems and religious imperatives, in relation to environmental stewardship in Chapter 5.82 For now, I identify the ancestors of modern environmental rights in the influential legal traditions of both Roman law and natural law, given their direct historical connection to modern human rights law. Whilst it would be wrong to say that Justinian or Hobbes, for example, were concerned about the right to an environment that supported human health and well-being, it is also wrong to say that there is no historical genesis for environmental rights.83 Thus, in this section I show that there is some historical support for claiming that environmental rights are human rights.84

79 Karel Vašák first set out his ‘systematic theory’ of the three generations of rights in his inaugural lecture to the Tenth Study Session of the International Institute of Human Rights in 1979: K Vašák, ‘A 30-year Struggle (The Universal Declaration of Human Rights)’ (UNESCO Courier, Strasbourg, November 1977); ‘… the second and third generation are often conceived as new, and are often targets of attack’: Cruft et al (n 69) 23. Relegating environmental rights to the third generation can, therefore, be perceived as derogatory, diminishing the importance of environmental rights. However, the classification of rights into generations has been critically received: P Alston, ‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?’ (1982) 29 Netherlands International Law Review 307; P Macklem, ‘Human Rights in International Law: Three Generations or One?’ (2015) 3 London Review of International Law 61; and in any event environmental rights can find expression in each generation of rights: Bogojević and Rayfuse (n 16) 17. 80 DK Anton and DL Shelton, Environmental Protection and Human Rights (Cambridge University Press, 2011) 118. 81 JL Sax, ‘The Search for Environmental Rights’ (1990) 6 Journal of Land Use and Environmental Law 93, 94. 82 I will consider this further in Chapter 5 on environmental stewardship. 83 Hobbes describes how natural resources were shared among the Israelites: ‘The Children of Israel, were a Common-wealth in the Wildernesses; but wanted the commodities of the Earth, till they were masters of the Land of Promise; which afterward was divided among them, not by their own discretion, but by the discretion of Eleazar the Priest, and Joshua their General’: T Hobbes, Leviathan (E White and D Widger (eds) Project Gutenberg, 1651) Ch XXIV. 84 Jean-Jacques Rousseau even went so far as arguing for natural rights for animals: ‘By this method also we put an end to the time-honoured disputes concerning the participation of animals in natural law: for it is clear that, being destitute of intelligence and liberty, they cannot recognise that law; as they partake, however, in some measure of our nature, in consequence of the sensibility with which they are endowed, they ought to partake of natural right; so that mankind is subjected to a kind of obligation even toward the brutes. It appears, in fact, that if I am bound to do no injury to

88  Environmental Rights Although environmental rights were not specifically recognised in the ancient Western legal systems, both the Romans and the Greeks recognised the harmful effects of environmental degradation, from industrial pollution to soil erosion, from overgrazing to wildlife depletion.85 Roman law also recognised that certain goods were common resources, ‘the following things are by natural law common to all – the air, running water’ and that adequate access to such resources was essential to human existence.86 Justinian, the Byzantine emperor who developed the codes of Roman jurist Gaius, developed two legal concepts to protect access to the basic goods of human survival: the ‘usufruct’ (the right to the use and fruits of property not one’s own)87 and the bare use right (similar in practice to the usufruct but of a different legal character).88 These two legal structures entitled individuals, in particular vulnerable members of society like widows, to the use of natural resources in relation to a piece of land, and were regulated in order to prevent over-exploitation. Individuals were only allowed to use the resources ‘without impairing the substance of that property’.89 Whilst these rights are not the same as modern day conceptions of environmental rights, as they were not concerned with preventing exploitation for the sake of the environment, they at least point to the idea that there is something inherently fundamental about an individual’s right to access resources vital to their survival.90 Similarly, at the heart of the natural rights tradition was the recognition that human beings had the ‘fundamental right to sustain themselves’.91 Thomas Hobbes went so far as to say that in order to achieve this ‘every man [sic] has a Right to everything; even to one another’s body’.92 Enlightenment era natural rights scholars were more modest in their framing. Hugo Grotius, for example, recognised that individuals have a common right to the ‘things that are essential to the existence or convenience of life’,93 an idea that was replicated in the work

my fellow-creatures, this is less because they are rational than because they are sentient beings: and this quality, being common both to men and beasts, ought to entitle the latter at least to the privilege of not being wantonly ill-treated by the former’: J-J Rousseau, Discourse on the Origin of Inequality (P Coleman (ed), B Constant and M Mauldon (trs), Oxford University Press, 1994) 18. 85 D Hughes, Pan’s Travail: Environmental Problems of the Ancient Greeks and Romans (John Hopkins Press, 1994). 86 Justinian’s Institutes translated with an introduction by Peter Birks & Grant McLeod with the Latin text of Paul Krueger (P Birks and G McLeod (eds), Duckworth, 1987) Book II, Title I.1. 87 Ibid, Book II, Title IV. 88 Ibid, Book II, Title V, ie a person with a use right could remain so long as they were not an inconvenience to the owner; they were entitled to only those things necessary to their survival and were not entitled to transfer their right to a third party. 89 In relation to the usufruct: Caesar Flavius Justinian, Institutes of Justinian (JB Moyle (tr), Project Gutenberg, 1913) Book II, Title IV. 90 This idea of a use right was the basis of the seventeenth century scholarship on the concept of property rights. 91 S Coyle and K Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart Publishing, 2004) 23. 92 T Hobbes, Of Man, Being the First Part of the Leviathan, vol 34 (C Eliot (ed), The Harvard Classics, 1900–1914) Ch XIV.4. 93 H Grotius, De Jure Belli ac Pacis (AC Campbell (tr), London, 1814) II.2.i, II.2.xiii and II.2.xvii.

Environmental Ground  89 of Samuel von Pufendorf and John Locke.94 Sean Coyle and Karen Morrow have characterised this seventeenth-century right as a liberty, thus bearing the shape of a modern negative human right.95 Grotius laid the ground for a further parallel with a modern conception of an institutionalised environmental human right, because he understood it to be a right that was ‘interwoven with the very frame of human society’ in order to counteract the claims of civil society and private property.96 Thus although describing the right to common resources as an environmental right is a redoubtably modern phenomenon, the core idea of this right is one that has a long lineage. There is, then, something misleading about relegating environmental rights to the third generation of rights, as if they correspond to an exclusively modern ill. ii.  Moral Framing Having identified an historical basis for environmental human rights in Western thought, I now turn to the theoretical criteria that have been developed to establish what constitutes a ‘genuine human right’.97 This is primarily a moral inquiry about the type of claims that can be recognised as human rights but it is also guided by consideration of what is conceptually necessary for a legal enforceable right to a healthy environment. Drawing on the work of Tim Hayward, I show that substantive environmental human rights can survive the quality control of putative human rights,98 thus demonstrating that the right to an environment adequate to human health and well-being is worthy of the nomenclature of human rights. The conceptual criteria available for assessing whether something is a genuine moral right are varied, and assessing which to use appears to require a quality control of its own.99 One approach to navigate this array might be to look for shared standards, for example the weightiness or importance of the need is common to many substantive human rights criteria.100 However, this is only partially helpful, because there is little consensus as to criterion. Another approach, as advocated by Hayward, is to look to the motivations behind the criteria. Pogge, for example, focuses on moral rights, so he is not incorporating what criteria might also be needed for a legal human right. Boyd builds his criteria as part of his argument for an environmental human right, and so he may be unintentionally expansive in his approach. Cranston, however, sets out his criteria

94 J Locke, Two Treatises of Government (T Hollis (ed), London, A Millar et al, 1764) 1.26; Grotius (n 93) I.24.2. 95 Coyle and Morrow (n 91) 42. 96 Ibid, 23. 97 Hayward (n 4) 36–47. 98 Ibid, 36–54. 99 See text to n 48. 100 Cranston (n 48); Boyd (n 7); Pogge (n 42); General Assembly res 41/120 (4 December 1986) General Assembly Resolution 41/120 (4 December 1986).

90  Environmental Rights with the goal of restricting the number of possible human rights. Therefore, as Hayward advises, if an environmental human right can be shown to meet his criteria, then it might properly be regarded as a genuine human right.101 On Cranston’s view, a genuine human right must meet the following criteria: ‘moral paramountcy, universality and practicability’.102 I consider each in turn. One way to approach the question of whether a substantive environmental right is morally paramount or sufficiently weighty has been to highlight the link between existing human rights, such as the right to life, and environmental needs like clean water and air. Whilst this is an important exercise, it does not show why a substantive environmental right exists as a self-standing right.103 Another approach, therefore, is to show how environmental needs relate to the values that human rights underpin, such as dignity or autonomy.104 Erin Daly, in particular, has done substantial work on developing dignity as the human rights anchor of environmental rights, demonstrating that ‘environmental concerns affect people’s ability to live with dignity’.105 And, as I discussed in Chapter 3 on environmental democracy, environmental conditions can have a significant impact on individual autonomy, because a poor quality environment may force someone to accept conditions they would not otherwise choose. Given the severe consequences of environmental deprivation and harm on these baseline values, there can be little doubt that environmental rights are of paramount importance, in the same way that more traditional human rights are.106 Universality, Cranston’s second criterion, is less straightforward, because universality has two dimensions. The first, that ‘the interests intended to protect it are common to all’, is unproblematic.107 The environment is inherently common to all. Indeed, the need for an environmental right arises because of its commonality. It makes sense to class an environmental human right as universal in this way. However, this only covers one aspect of universality. The second dimension relates to duty: ‘to speak of a universal right is to speak of a universal duty’.108 Accordingly, universality has implications for who owes the duty as well as who benefits from the right. In the context of the environment this seems to mean that everyone has a duty to refrain from harming everyone else’s environment. However, environmental

101 Hayward (n 4) 47; for an approach that applies the General Assembly Resolution criteria see M Orellana, ‘Quality Control of the Right to a Healthy Environment’ in Knox and Pejan (n 4) 169. 102 Hayward (n 4) 47. 103 This is particularly problematic in terms of developing shared standards for a substantive environmental right: S Atapattu, ‘Environmental Rights and International Human Rights Covenants: What Standards Are Relevant?’ in Turner et al (n 4) 17–18. 104 Nickel (n 9) 290; Rodríguez-Garavito (n 62) 167. 105 E Daly, ‘An Environmental Dignity Rights Primer’ in E Daly et al (eds), New Frontiers in Environmental Constitutionalism (United Nations Environment Programme, 2017) 111. 106 Boyd (n 7) 21. 107 Hayward (n 4) 48. 108 M Cranston, ‘Human Rights: A Reply to Professor Raphael’ in Raphael (n 48) 96; see also Gewirth (n 41) 2.

Environmental Ground  91 problems are rarely the direct result of individual actions; rather, they are the result of ‘complex collective practices’.109 Therefore, in order to achieve universal protection on Cranston’s view of human rights, individuals would be required to refrain from the small indirectly harmful actions that collectively constitute the eventual harm. Intuitively, however, this does not seem to be in the order of a human rights duty: is my decision to buy a plastic water bottle because I forgot my reusable one really bound by the human rights claims of everyone else?110 This intuitive discomfort is furthered by Cranston’s final criteria – practicability. For a human right to be meaningful, a human rights duty needs to draw a sufficiently clear line to be able to guide human behaviour.111 In light of the complex way that environmental harms manifest, drawing such a line to guide the behaviour of individual duty holders would be challenging. Added to this, maintaining the duty would inevitably clash with other human rights, particularly as they relate to human liberty. On this basis, it is hard to see how environmental rights can be both feasible and universal. Consequently, it would be difficult for an environmental right to satisfy this aspect of genuineness. In response to this challenge, there are a number of possible solutions. The first is to challenge the requirement of feasibility as a necessary condition of a genuine human right. Amartya Sen, for example, argues that ‘understanding that some rights are not fully realised … does not, in itself, entail anything like the conclusion that these are, therefore, not rights at all’.112 Thus, although there may be significant practical barriers to the cogency of the right to an adequate environment, it does not automatically mean that the right does not exist. Indeed, there is an inherent fragility in all human rights claims, including classical political liberties, which means that they may not always be feasible. For example, the right to freedom from torture in an authoritarian regime that regularly tortures political dissidents may not be feasible, but that does not mean that there is something inherently wrong with the right itself. On this basis, universality need not be contingent on feasibility, and the practical difficulties of achieving substantive environmental protection need not be a bar to environmental human rights. This, however, does not get us over the high bar set by Cranston, and so another approach is necessary. A second response, taken by Hayward, is to challenge Cranston’s view of universality, which is based on an interactional account of human rights. Interactional accounts regard the duties associated with human rights as being duties between people. But this account misses out an important feature of human rights – their relationship to social and political institutions.113 In contrast,

109 Hayward (n 4) 49. 110 Although maybe I would be less forgetful if it was. 111 Griffin (n 48) 37. 112 Sen (n 42) 2924. 113 Indeed, some human rights do not make sense without an institutional context, for example the right to vote: Pogge (n 42) 51.

92  Environmental Rights Pogge proposes an institutional conception of human rights.114 On an institutional account, human rights are those that bind social institutions.115 They generate claims ‘on coercive social institutions’ and ‘against those who uphold such institutions’.116 This rings true of the general understanding of human rights. For example, an individual who commits murder is not regarded as committing a human rights violation, but a government that sanctions the unlawful killing of political prisoners is. Thus it is society, embodied in the form of the state, that has the duty to observe basic human rights, not specific citizens.117 This does not mean that individuals have no role to play in relation to the implementation of human rights. They do, as part of civil society which has a responsibility to engage with the ‘political life of their society’.118 Therefore, individual citizens are responsible for environmental rights violations where they fail to engage with opportunities to challenge decisions made by the state that violate environmental rights. The institutional account of human rights, thus, means that human rights do not imply duties for all people at all times. Whilst this may seem contrary to the requirement of universality, universality need only imply that the right is enjoyed by all (universality in a weak sense).119 Similarly, Henry Shue claims that the point of universal rights is not to impose universal duties, rather it is to achieve ‘full coverage’, which does not necessitate universality in a strong sense.120 To emphasise this point, Hayward turns to Hohfeld’s schema.121 If environmental rights were ‘strongly’ universal then they would all be what Hohfeld terms ‘claim-rights’, giving the holder exclusive control over the good claimed. However, given that the environment relates to a shared good, environmental rights can never be pure claim rights: they do not give the holder a right to exclude others from using the environment how they might choose.122 Indeed, such a formulation would be contrary to the very purpose of environmental rights, because it would allow individuals exclusive control over a shared resource. Properly understood, therefore, environmental rights are closer to Hohfeldian privileges because they protect the right-holders’ freedom to access the environmental goods necessary for their health and well-being.123

114 Ibid, 50–54. 115 Ibid; C Wellman, ‘Solidarity, the Individual and Human Rights’ (2000) 22 Human Rights Quarterly 639, 629. 116 Pogge (n 42) 50–51. 117 A Pagden, ‘Human Rights, Natural Rights, And Europe’s Imperial Legacy’ (2003) 31 Political Theory 171, 192. 118 Pogge (n 42) 68. 119 DD Raphael, Political Theory and the Rights of Man (Macmillan, 1967) 65. 120 H Shue, ‘Mediating Duties’ (1988) 23 Ethics 687, 690. 121 Hayward (n 4) 51. 122 S Douglas and B McFarlane, ‘Defining Property Rights’ in J Penner and HE Smith (eds), Philosophical Foundations of Property Law (Oxford University Press, 2013) 219. 123 Hayward (n 4) 51.

Environmental Ground  93 Therefore, as with other negative human rights, to describe an environmental right as a human right does not immediately imply a duty on all people at all times to protect the environmental rights of everyone else. On these terms, I suggest that an environmental human right can be regarded as both universal and practicable, satisfying the criteria of a genuine human right. Substantive environmental rights can, accordingly, be shown to meet the exacting quality control developed by Cranston to weed out unworthy human rights claims. This is an important conceptual step in establishing the human rights credentials of environmental rights. However, as I discussed in section II above, a complete account of rights needs to consider both the moral and the legal form of a supposed right. I turn now, therefore, to the legal status of the right so as ‘to endow the moral claim with additional material and symbolic power’.124 iii.  Legal Development The final way in which I want to show that environmental rights can be understood as human rights, is to look at the legal status of the substantive environmental right, ie to find legal evidence to corroborate my historical and moral arguments about the existence of a right to an environment adequate to human health and well-being, thus endowing the moral and historical claims ‘with additional material and symbolic power’.125 Building the legal case for environmental human rights is particularly important for my purpose because it provides context for the substantive right referred to in Article 1 of the Convention. However, the legal status of a substantive right to the environment is a complicated one, and the tension and ambiguity that sits at the heart of the rights purpose of the Convention is echoed in the international legal order.126 Locating a clear statement of the existence of a legal right to the environment is far from straightforward. On a domestic level, the right to a healthy environment has been incorporated into legal arrangements (through constitutional provisions,127 legislation and adjudication128) in a significant number of jurisdictions. As research undertaken by Boyd shows, over 100 countries have incorporated the right into legislation.129 A similar picture is present in relation to regional human rights arrangements.130 The African Regional Human Rights system, for example, has evolved

124 Rodríguez-Garavito (n 62) 159. 125 Ibid, 159. 126 M Limon, ‘The Politics of Human Rights, the Environment, and Climate Change and the Human Rights Council: Toward a Universal Right to a Healthy Environment?’ in Knox and Pejan (n 4). 127 E Daly and JR May, ‘Learning from Constitutional Environmental Rights’ in Knox and Pejan (n 4). 128 D Shelton, ‘Complexities and Uncertainties: Identifying the Judicial Role’ in Knox and Pejan (n 4). 129 Boyd (n 5) 18. 130 Ibid, 23.

94  Environmental Rights a sophisticated rights-based approach to the environment,131 recognising that ‘environmental rights …. are essential elements of human rights in Africa’.132 These domestic and regional instances contribute to the legal character of the right to a healthy environment, by providing a bottom-up narrative of how human rights are created.133 Kotzé summarises this as follows: … the right to a healthy environment has arguably become “global” in the sense that it has spread transnationally, and continues to infiltrate domestic legal orders, creating a transnational environmental constitutional constellation or normative web that spans the globe and that increasingly shares common characteristics.134

Yet, as a matter of international law, there has been no formal endorsement of the right.135 International law certainly acknowledges that a critical link between the environment and human rights exists. For example, in the preamble to the Paris Agreement on climate change, parties recognise the profound connection between environmental harms, such as climate change, and a host of human rights issues. Nevertheless, the Paris Agreement, as with other international environmental agreements, stops short of explicitly endorsing a right in relation to the environment. Locating specific human rights, like the right to a healthy environment, in the international legal order is notoriously difficult136 because ‘human rights occupy a curious place in the pantheon of international law’.137 And the challenge of locating human rights is further complicated by the ‘temptation to believe that a desirable proposition is a human right’.138 In order to militate against this temptation, it is possible to take a strict, positivist approach to interpreting rights in international law. Indeed, a strict interpretation provides clarity and, in turn, serves to maintain the rule of law.139 Thus, on this view, a right is deemed to exist only if it can be shown to exist either in a convention or as ‘a customary right/ duty evidenced by state action connected with opinio juris’.140 However, as the

131 L Chenwi, ‘The Right to a Satisfactory, Healthy, and Sustainable Environment in the African Regional Human Rights System’ in Knox and Pejan (n 4) 61. 132 Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication No 1555/96 (2001) para 68. 133 RM Bratspies, ‘Reasoning Up: Environmental Rights as Customary International Law’ in Knox and Pejan (n 4) 124. 134 Kotzé (n 6) 136. 135 JH Knox and R Pejan, ‘Introduction’ in Knox and Pejan (n 4) 2. 136 J Paust, ‘The Complex Nature, Sources and Evidences of Customary Human Rights’ (1996) 25 The Georgia Journal of International and Comparative Law 147, 147. 137 Bratspies (n 133) 126. 138 S Marks, ‘Emerging Rights: A New Generation for the 1980s?’ (1981) 33 Rutgers Law Review 435, 436. 139 T Bingham, The Rule of Law (Penguin, 2011) 3–9, 37–59, 110–32; J Raz, ‘The Rule of Law and its Virtue’ in J Raz (ed), The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979). 140 Felice (n 38) 74; Hayward (n 4) 37.

Environmental Ground  95 work by scholars such as Kotzé shows, there is no evidence of a substantive right to the environment in these sources.141 Nevertheless, neither UN resolutions nor international law (and thus legal rights) come out of a social vacuum.142 They represent the sociohistorical development that surrounds interests that are recognised as being important to certain human values. William Felice is critical of the positivist approach to interpreting international law, describing it as ‘pinched elite-based methodology’.143 Alternatively, it is possible to view the existence of international human rights as part of a ‘process towards clarifying the moral and ethical standards to evaluate the behaviour of global actors, rather than merely as a list of rules’.144 New rights do not burst into existence with their expression in hard law; rather, they emerge progressively as part of the international legal order. Thus, human rights can be identified in international law, even if they are not yet fully articulated in hard law instruments. And it is this approach to environmental rights that is adopted by most environmental rights advocates. One source for helping to identify emerging human rights is soft law, because it contains the ‘principles with potentially great political, practical, humanitarian, moral or other persuasive authority, but which do not strictly speaking correspond to extant legal obligations or rights’.145 Whilst the proper place of soft law in the international legal order is a divisive subject,146 soft law nevertheless influences the establishment of binding international laws. Soft law thus constitutes ‘the building blocks’ of treaties and customary rules.147 Further, it can also be evidence of state practice, and opinio juris and, therefore, international custom. The legal effect of soft law is important in the context of a putative environmental right because most references to a substantive environmental right are found in soft law instruments and not in the hard sources of international law. Indeed, there are a great number of soft law instruments, declarations, conferences, resolutions and draft documents addressing the nexus between human rights and environmental interests that are evidence of at least an intention of states.148 For present purposes the focus is on the most overt examples, the most prominent being the Stockholm Declaration.149 141 Kotzé (n 6)141. 142 G Abi-Saab, ‘The Legal Formulation of a Right to Development’ in RJ Dupuy (ed), The Right to Development at the International Level (Brill, 1980). 143 Felice (n 38) 77. See also R Higgins, Problems of Process: International Law and How We Use It (Oxford University Press, 2003) 9. 144 Felice (n 38) 74–75. 145 J Currie et al, International Law: Doctrine, Practice, and Theory (Irwin Law, 2007) 156; see also Boyd (n 7) 79. 146 Boyd (n 7) 89; P Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 American Journal of International Law 413, 471; A Boyle, ‘Soft Law in International Law-making’ in M Evans (ed), International Law, 2nd edn (Oxford University Press, 2006). 147 Boyd (n 5) 80. 148 Global recognition of the right to a safe, clean, healthy and sustainable environment A/73/188 (19 July 2018). 149 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1 (Stockholm Declaration).

96  Environmental Rights The Stockholm Declaration was designed to address the problems of the human environment, and Principle 1 contains the first authoritative statement of an environmental right in international law:150 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. (emphasis added)

Although the Stockholm Declaration does not have mandatory legal effect, it does contribute to the idea of a substantive environmental right in the international legal order.151 According to Stephen Marks, the references made to a substantive right in the Stockholm Declaration are ‘typical of the process of the emergence of human rights’.152 Thus, whilst Principle 1 was not the authoritative statement of a substantive human right to the environment that some hoped it would be, it was nevertheless a symbolic statement of this debutante human right.153 Although this formulation was not adopted in the Rio Declaration, the second major non-binding environmental law instrument, Principle 1 of the Rio Declaration at least ‘captures the ideals of a human right to a healthy environment’.154 In comparison to the Stockholm Declaration, however, the Rio Declaration is stark in its avoidance of substantive rights language.155 In addition to Rio and Stockholm, there have also been attempts to develop a concrete set of environmental rights for the international legal order. The Brundtland Report156 and Draft Principles on Human Rights and the Environment (annexed to the Ksentini Report) are both concerned with the creation of a specific human right to the environment.157 The Ksentini Report in particular marks the shift from a ‘traditional environmental law approach to a human rights approach to environmental problems’.158 More recently, the Malé Declaration on Human Dimensions of Global Climate Change provides another soft ‘stepping stone’ towards the recognition of an environmental human right.159 150 L Sohn, ‘The Stockholm Declaration on the Human Environment’ (1973) 14 Harvard International Law Journal 423, 425. 151 Knox and Pejan, ‘Introduction’ (n 135) 2. 152 Marks (n 138) 443. 153 Sohn (n 150) 515. 154 J Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Journal of Environmental Law 283, 308. 155 A Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’ in Boyle and Anderson (n 7) 43. 156 Brundtland Report, World Commission on Environment and Development: Our Common Future: report by the World Commission on Environment and Development (Brundtland Report) (1987). 157 F Ksentini, Draft Principles on Human Rights and the Environment (E/CN4/Sub2/1994/9, Annex 1, 1994). 158 Boyle (n 155). 159 D Magraw and K Wienhöfer, ‘The Malé Formulation on the Human Dimensions of Global Climate Change’ in Knox and Pejan (n 4) 229–31.

Environmental Ground  97 In addition to these major soft law instruments, there are also a number of General Assembly resolutions, such as General Assembly resolution 45/94,160 that refer to a substantive environmental right and, although they are not legally binding, the International Court of Justice in Namibia Advisory Opinion has stated that they do have some legal effect. Quoting former legal counsel to the United Nations, William Slomanson, the court stated that declarations of the General Assembly can ‘give an important impetus to the emergence of new rules, despite the fact that the adoption of declarations per se does not give them the quality of binding norms’.161 Thus, these General Assembly resolutions contribute to the idea that environmental rights are part of the international legal order. A further source of international law that might help locate the emergence of a genuine human right in relation to the environment are jus cogens, the constitutional norms or ‘apex’ principles that govern international law.162 Kotzé seeks to locate the emergence of a genuine human right via jus cogens, and whilst he recognises that there is little explicit evidence to claim that any relevant jus cogens exists, he does point to the no harm rule, and the existence of fundamental human rights norms against racial discrimination (where discrimination leads to environmental harms) as paving the way for a jus cogens norm that recognises the fundamental nature of substantive environmental rights.163 Responding to the growing momentum of substantive environmental human rights, the Human Rights Council appointed an Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H Knox in 2012.164 Knox was later promoted to Special Rapporteur, as a recognition of the importance of his work, and has now been succeeded by David Boyd, who continues to champion the important connection between human rights and the environment.165 During his two terms, Knox produced nine reports detailing human rights obligations relating to the environment,166 both by mapping existing obligations and by identifying important overlapping concerns such as the rights of children.167

160 General Assembly Resolution 45/94, 14 December 1990, on the need to ensure a healthy environment for the well-being of individuals, A/RES/45/94. 161 W Slomanson, Fundamental Perspectives on International Law, 6th edn (Cengage Learning, 2010) 36. 162 Kotzé (n 6) 144. 163 Ibid, 148–54. 164 Human Rights Council res 19/10 (12 March 2012). 165 Human Rights Council res 28/11 (26 March 2015). 166 Eight to the Human Rights Council and one to the General Assembly. 167 JH Knox, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment: Preliminary Report; Knox, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment: Mapping Report, www.ohchr.org/EN/ Issues/Environment/SREnvironment/Pages/Annualreports.aspx, accessed 13 April 2020.

98  Environmental Rights Following his Implementation Report168 and report on climate change in 2016,169 the Human Rights Council adopted a ‘remarkably ambitious’170 resolution recognising and clarifying human rights norms in relation to the environment.171 Since then the Council has adopted two further resolutions,172 which reiterate the importance of environmental rights, encouraging states to adopt specific measures. For example, in resolution 34/20 the Human Rights Council recognises that respect for human rights relies on a combination of environmental needs, including the right to water, food and culture.173 The rhetoric of environmental human rights has, therefore, gradually been ratcheted up in the ongoing dialogue between the Special Rapporteur and the Human Rights Council. As Marc Limon explains, the work of the Special Rapporteur on Environmental Rights ‘has moved the international community within touching distance’ of elaborating, negotiating and declaring a universal right to an environment that supports human health and well-being.174 Thus, although the legal status of a substantive human right to the environment is complicated, there is enough evidence from domestic and regional legal practice, as well as from the sociohistorical development of international law, to suggest that the right to a healthy environmental is an emerging idea in the global legal order.175 The Aarhus Convention is of course a part of this story, a plot development that builds the narrative towards the recognition of a substantive environmental right in the international legal order, but it is also being shaped by this story. Understanding this development of environmental human rights in international law is thus important for understanding the environmental rights purpose of the Convention. iv. Conclusions In taking a three-pronged approach to articulating a substantive environmental right as a human right, I have sought to provide a textured portrait of the right, showing that from an historical, theoretical and legal perspective a substantive environmental human right can be said to exist. Critically, this approach emphasises the dynamic quality of human rights, showing that they do not simply burst into existence as fully articulated concrete rights but that they emerge through

168 A/HRC/31/53. 169 A/HRC/31/52. 170 Limon (n 126) 212. 171 Human Rights Council res 31/8 (23 March 2016). 172 Human Rights Council res 34/20 (25 March 2017) and Human Rights Council res 37/8 (22 March 2018). 173 Human Rights Council res 34/20 (25 March 2017, para 5(a). 174 Limon (n 126) 214. 175 Hayward (n 4) 58; Hiskes (n 38) 26–47; S Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted: The Emergence of a Human Right to a Healthy Environment under International Law’ (2002) 16 Tulane Environmental Law Journal 65.

Environmental Ground  99 a process of historical, moral and legal development. This emergent quality of human rights is important for understanding the language of Article 1 of the Aarhus Convention. The call ‘to contribute to the recognition of …’ imbues the Convention with a responsive quality that can grow into the prevailing legal recognition of the right to a healthy environment. As I will explain further in Chapter 6, whilst Article 1 cannot be said to concretise the legal recognition of the right to a healthy environment, it does help elevate the moral claim on its ascent to the concrete legal recognition. Whilst the status of the substantive right at the heart of the Convention is the principle intrigue of the Convention’s rights purpose, a supplemental intrigue is the relationship between the substantive right and the three procedural rights. As I explained in section II.B above, the boundary between procedural and substantive rights is blurred, and it is possible to view procedural rights as derivatives from substantive rights, and not stand-alone human rights. In the next section I assess the theoretical ideas that underpin procedural rights in order to understand the nature of the three procedural rights of the Convention. I explore their connection to the substantive claim, to assess whether they promote moral ends other than those associated with good decision-making. In so doing, I examine what makes these rights specifically environmental. B.  Procedural Environmental Rights Procedural or participatory rights are those which guarantee access to administrative, political or legal processes. They are, as Jeremy Waldron claims, Hohfeldian powers, because they give the holder of the right a specially protected power to participate in some form of process, and impose a liability on the duty holder (the state) to provide access to that process, disabling them from acting in a way that could infringe the power.176 Broadly speaking, they are intended to promote transparency, accountability and legitimacy in relation to governance and decision-making. Indeed, there is a direct line between procedural rights and democracy. Many of these rights are deemed fundamental enough to achieve the status of human right – for example the right to a fair trial – because of the connection between the procedure and fundamental human values. Environmental procedural rights are similarly focused on the quality of environmental governance and decision-making, because they allow more voices to contribute to environmental decisions, increasing problem-solving capacity and improving legitimacy. What is not clear, however, is whether environmental procedural rights have some justification that stretches beyond the need for legitimacy of government decision-making. In this section, I show that they might; that the legitimacy of environmental decision-making is not an end in itself, and that the



176 Waldron

(n 53) 309.

100  Environmental Rights real end of environmental procedural rights is the role that they play in helping to achieve the substantive right to a healthy environment.177 Procedural rights came to the fore in environmental rights jurisprudence because they are practically and politically simpler for a state to guarantee than a substantive right to an environment of a particular quality. As I demonstrated in the previous section, the expansive aspiration of Principle 1 of the Stockholm Declaration remained just that – an aspiration with no immediate legal effect. It was not until the 1992 Rio Declaration, when the language of substantive rights was dropped from the opening principle and the focus switched to procedural guarantees, that serious action was taken globally on implementing a schema of environmental rights.178 Rather than recognising a substantive right, Principle 10 embedded in international soft law three procedural rights: access to information; public participation; and access to justice in relation to environmental decision-making (rights that are supplemented by Principles 20 and 22, which respectively provide for the enhanced participation of women and Indigenous people). Procedural rights were, therefore, perceived as an ‘effective and flexible tool in achieving environmental justice’ averting the implementation challenge of substantive rights.179 The wisdom of Principle 10, that environmental issues are best handled with the participation of all concerned citizens, now permeates international and transnational environmental law and there are numerous environmental law agreements that are both negotiated on the basis of this philosophy and that implement it. There have also emerged a number of instruments concerned with elaborating and enforcing these procedural rights: the Bali Guidelines; the Escazú Declaration; and, of course, the Aarhus Convention. However, although fundamental to environmental rights jurisprudence, there has been surprisingly little interrogation of the theoretical dimensions of procedural environmental rights. This reflects the more limited exploration of procedural rights in general rights scholarship. Procedural rights have variously been justified on the basis that they protect human dignity;180 ensure that no one is treated as a means to an end;181 allow individuals to present their case in the best light possible;182 maintain due process,

177 For a similar argument see M Murcott, ‘The Procedural Right of Access to Information as a Means of Implementing Environmental Constitutional Law’ in E Daly and JR May (eds), Implementing Environmental Constitutionalism (Cambridge University Press, 2018). 178 Rio Declaration on Environment and Development: Application and Implementation, 10 February 1997, E/CN.17/1997/8. 179 M Fitzmaurice and J Marshall, ‘The Human Right to a Clean Environment – Phantom or Reality? The European Court of Human Rights and English Courts Perspective on Balancing Rights in Environmental Cases’ (2007) 76 Nordic Journal of International Law 103, 106. 180 J Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’ (1981) 61 Boston University Law Review 885; J Mashaw, Due Process in the Administrative State (Yale University Press, 1985). 181 E Pincoffs, ‘Due Process, Fraternity, and a Kantian Injunction’ in R Pennock and J Chapman (eds), Due Process: Nomas XVIII (NYU Press, 1977). 182 L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353.

Environmental Ground  101 natural justice183 and institutional justice;184 and, finally, ensure the legitimacy of decisions.185 As already indicated, procedural rights have adjudicative and legislative variants. The majority of work done on analysing procedural rights has focused on adjudicative procedural rights, with particular attention paid to criminal procedures and the specific legislative right, the right to vote. In this context the moral substance that animates procedural rights is their connection to the important values of human dignity, autonomy and liberty.186 For example, as Edmund Pincoffs argues, ‘the moral value of participation turns on its relation to a moral end’.187 Similarly, Dworkin, whose account of procedural rights focuses on the criminal adjudicative process, shows that the paramount importance of procedural rights arises because they reduce the likelihood of the ‘moral harm’ (a wrongful conviction) occurring and a person being subject to a ‘bare harm’ (the loss of liberty).188 However, because these justifications have been developed in reference to specific types of procedural rights – ie the right to vote and the general right of access to the courts – they do not necessarily apply to other procedural rights. Indeed, Jerry Mashaw argues that other procedural rights, such as participation in public processes or access to information, are not ‘part of the core conditions for realising liberal values’, ie dignity and self-respect, and are therefore a different order of procedural right.189 Accordingly, such explanations do not seem to fit the environmental procedural rights. Take Dworkin’s approach, for example: the two types of harm that he identifies do not translate with ease in an environmental context.190 There is a right or a wrong answer to the moral harm in the context of criminal adjudication – either a person is guilty, or they are not, therefore the bare harm is clear cut and in a perfectly just system the risk of people being wrongly convicted is non-existent. However, ‘environmental protection … is not an all-or-nothing matter’ and so it may in some circumstances be acceptable for the bare harm (environmental damage) to manifest.191 As Mark Sagoff points out, ‘no-one has a right to a completely risk-free environment’.192

183 R Dworkin, A Matter of Principle (Oxford University Press, 1985). 184 E Carolan, The New Separation of Powers: A Theory for the Modern State (Oxford University Press, 2009). 185 L Solum, ‘Procedural Justice’ (2004) 78 California Law Review 181. 186 Mashaw (n 180); Fuller (n 182) 353. See also Robert Bone, who is highly critical of Fuller’s approach: R Bone, ‘Procedure, Participation, Rights’ (2010) 90 Boston University Law Review 1011, 1026. 187 Pincoffs (n 181) 175–79. 188 Dworkin (n 183) 80; Larry Alexander also focuses his account of procedural rights on the reduction of risk, although his account is focused on showing how procedural rights are really derivative substantive rights: Alexander (n 54) 19–21. 189 Mashaw (n 180) 922. 190 Collins-Chobanian (n 72) 136; Nickel (n 9) 293; Sax (n 81) 96. 191 Hayward (n 4)152. 192 M Sagoff, The Economy of the Earth: Philosophy, Law, and the Environment, 2nd edn (Cambridge University Press 2008) 197.

102  Environmental Rights Inherent in the conception of environmental procedural rights, therefore, is an acceptance that some risk of harm is inevitable and that it is a mistake to ‘believe that an environmentally sound society is a place without significant risk’.193 The environmental risks that give rise to the bare harm are an unavoidable – sometimes even desirable – aspect of modern society. The aim, then, is not to eliminate the risk of the harm occurring (as with criminal adjudication); rather, it is to decide the appropriate level of risk that is acceptable and to ensure that it is justly distributed. Thus, in the context of environmental procedural rights, ‘participation has a value that cannot be reduced to accuracy’.194 Beyond the call for accuracy, procedural rights are also valued for their link to important values such as legitimacy, justice and human dignity. Take the example of legitimacy: the increased legitimacy of environmental decisions is necessary because of the serious consequences that environmental decisions can have for basic human needs.195 These values, however, point to a more substantive content to procedural rights than is immediately obvious. Thus, procedural rights by themselves produce only a partial print, and it is their connection to a moral end and some substantive aim that completes them. This conclusion seems to fit with Alexander’s general account of procedural rights, that procedural rights are really derivatives of substantive moral rights: that ‘rights to both types of procedures [meaning adjudicative and legislative procedures] are derived from the substantive rights we possess, and exist primarily as instruments to realize those substantive rights to the greatest extent possible’.196 This view seems to be shared by Waldron, who argues that procedural principles should be viewed as ‘at least in part the entrenchment of a particular view of the substantive outcomes to which a person is entitled’.197 It is this approach that seems to best explain the value and purpose of procedural environmental rights, that they are derivatives of the substantive right to an environment fit for human health and well-being. This account of procedural rights also complements Pogge’s institutional account of human rights, where he suggests that the ‘legal rights [used to protect the moral right] need not … have the same content as the [moral] human right they help to realise’ (emphasis added).198 From this survey of the theoretical underpinning of procedural environmental rights, it is therefore possible to see that procedural rights, which are distinctly legal, can be employed to protect moral rights that might relate to human dignity or need. Further, as human rights are ‘moral claims on civil

193 Sax (n 81) 96–97. 194 Solum (n 185) 275. 195 Sax (n 81) 97. 196 Alexander (n 54) 42. 197 J Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 41. 198 Ibid, 52.

Environmental Ground  103 society’ and citizens have a duty to maintain the human rights record of their society, when citizens utilise their individual procedural rights there is an implicit moral imperative that they act so as to protect the substantive moral right that everyone has in an adequate environment, thus emphasising the institutional account of human rights. C.  Rights of Future Generations Curiously, many of the major texts on environmental rights lack explicit coverage of the rights of future generations, skipping straight from human rights to rights of nature. This absence is understandable: intergenerational rights are theoretically complex ideas that invoke philosophical troubles like the nonidentity problem199 or the just-savings principle.200 Yet, if the moral case for environmental human rights is as strong as is generally claimed, then it should also apply to future generations. Environmental harms, like climate change or biodiversity loss, are persistent and even permanent and are, therefore, felt most acutely by future generations. This moral intuition is embedded in Article 1 of the Aarhus Convention as well as in the principle of sustainable development which is referenced in the Convention’s preamble. Given the philosophical complexity of intergenerational rights, I cannot hope to give full coverage to all aspects of their character in this section. Instead, I want to highlight the major conceptual difficulty behind intergenerational rights and some of the ways around it. In so doing, I return to the moral and legal separation of environmental rights that I arrived at in relation to procedural rights, to show that the procedural rights of the Convention are motivated by both the substantive rights of present and future generations. The critical conceptual problem encountered when thinking about the rights of future generations is that future generations cannot have anything – whether it is a preference for vanilla ice-cream or size five feet: future generations are simply future possibilities. If, as seems to be the case, the right to live in an environment adequate to human health is a Hohfeldian ‘privilege’, the quality of having and the ability to exercise such a privilege, and thus uphold the right, seem to be integral to the existence of the right. Future generations thus lack any way of vindicating their rights and ensuring that the current generation respects them.201 Without the ability to exercise and enforce their rights, the right of future generations to an environment adequate to human health and well-being appears to be the kind of ‘nonsense upon stilts’ that Bentham thought all moral

199 D Parfit, Reasons and Persons (Oxford University Press, 1984) 351–79. 200 J Rawls, A Theory of Justice, revised edn (Harvard University Press, 1971) 255. 201 W Beckerman and J Pasek, Justice, Posterity, and the Environment (Oxford University Press, 2001) 12.

104  Environmental Rights rights to be.202 This is the crux of the problem articulated by philosopher Derek Parfit, that without a clear identity it does not make sense to attribute rights or justice claims to potential human beings.203 However, the problems of not being able to have and not being able enforce rights are not insurmountable. Joel Feinberg argues that although the exact identity of the individuals who constitute future generations is necessarily obscure, it is almost a certainty that these future generations will be human; accordingly they will have certain needs which attach to them by virtue of their humanity,204 and these needs are so ‘vital’ that they constitute rights.205 They attach to humans not because of their specific individual identity, but because of their membership of the human community.206 Accordingly, it is both necessary and logical to recognise the rights of all future persons.207 Feinberg is making a very specific point here: that the rights of future generations are individual rights, which they have because they will become part of the human community. A slightly different approach is to regard environmental rights as collective or community rights. Collective rights, as explained above, recognise that things like language or culture cannot adequately be protected through individual rights, because they relate to shared values and interests.208 Therefore communitarian rights attach not to the individuals who are part of the community, but to the community itself.209 In intergenerational terms, the rights which attach to the human community more generally are variously termed ‘planetary rights’210 or ‘group rights’ and correspond to the idea that the human collective is capable of claiming and holding rights.211 Generations are linked by what Edith Brown-Weiss has described as the ‘common patrimony of the earth’ in which the present human community holds the rights and duties of forthcoming generations in an intergenerational partnership.212 Thus, future individuals benefit from these planetary rights because they become part of the community, and rights are not lost because a particular individual has failed to come into existence. Viewing the rights of future generations as group rights is advantageous because it addresses the problem of future generations not being able to exercise

202 Bentham (n 19) 317. 203 Parfit (n 199) 351–79. 204 Feinberg (n 38) 181–82. 205 Hiskes (n 38) 60. 206 A Baier, ‘The Rights of Past and Future Persons’ in E Partridge (ed), Responsibilities to Future Generations: Environmental Ethics (Prometheus Books, 1981) 177. 207 Ibid, 179. 208 Green (n 56). 209 Réaume (n 31). 210 E Brown-Weiss, ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 The American Journal of International Law 198, 202; E Brown-Weiss, ‘Climate Change, Intergenerational Equity and International Law’ (2008) 9 Vermont Journal of Environmental Law 615, 624. 211 Hiskes (n 38) 63. 212 Brown-Weiss (1990) (n 210) 199.

Conclusion  105 or enforce their rights.213 If the right rests with the group, then it is the group who is responsible for claiming the rights of members.214 Rights can be enforced by current generations who act as proxies for future generations,215 because there is a partnership of generations.216 For example, as Les Green explains, ‘it does not follow from the fact that something has the capacity to be a right holder that it also has the capacity to be a right-exerciser’.217 Therefore, it is possible for future generations to benefit from a right that is exercised and vindicated by someone in the present. In seeking to protect the rights of future generations, the Aarhus Convention recognises that the persons exercising a right need not be the person who ultimately benefits from it, by separating the substantive right to a healthy environment from the procedural rights that help to vindicate it. Accordingly, there is a ‘reflexive reciprocity’ of environmental rights that is embedded in the way that Article 1 of the Convention is contrived.218 I will come back to this significance of this separation in Chapter 6 when I finally resolve the environmental rights riddle that plagues the Convention. For now I simply show how it is possible to overcome the philosophical difficulties of recognising the rights of future generations. IV. CONCLUSION

Rights have the unfathomable quality of a femme fatale, tempting many and frustrating all.219 In trying to get to grips with the rights dilemma at the heart of the Aarhus Convention I have become intimately acquainted with the frustrating qualities of rights. This frustration was in part due to the enigmatic nature of the environmental rights purpose of the Convention but it was exacerbated by the unfamiliar language and alienating customs of analytical rights scholarship. In trying to familiarise myself with that scholarship I was both seeking a solution to the puzzle of environmental rights that haunts the Aarhus Convention and I was also motivated by a lurking defensiveness about the validity of framing environmental needs in rights terms.

213 Beckerman and Pasek (n 201) 16. 214 JG Merrills, ‘Environmental Protection and Human Rights: Conceptual Aspects’ in Boyle and Anderson (n 7) 32–33. 215 Feinberg (n 38) 181. 216 E Burke, Reflections on the Revolution in France, 2nd edn (printed for J Dodsley, 1790) 144; another solution to this problem, suggested by Edith Brown-Weiss, is to appoint an ombudsman who is responsible for ensuring that future generations’ rights are represented in the political and judicial processes of the current generation: E Brown-Weiss, ‘In Fairness to Future Generations’ (1992) 8 American University Journal of International Law and Policy 19, 25. 217 Green (n 56) 324. 218 Hiskes (n 38) 60. 219 See the quote from Bogojević and Rayfuse, text to n 16.

106  Environmental Rights Environmental rights, like other supposed third generation rights,220 have been amongst the type of right that strict rights scholars would like to exclude for generating ‘more heat than light’.221 Wisely, the majority of recent environmental rights scholarship has been content to overlook these criticisms, choosing instead to illuminate the burgeoning and undeniable jurisprudence of environmental rights in domestic, transnational and international regimes.222 However, I was beset with a desire to show that environmental rights are in fact paradigmatic of the sorts of claims that ought to be awarded the general status of right, and the particular one of human right. This secondary aim looked beyond the specific context of the Aarhus Convention in an effort to situate environmental rights in the establishment, alongside rights like the right to life or the right to property. Letting go of this ambition was challenging and the tendrils of this insecurity still weave through the chapter, but it was also necessary in order to focus on the already enormous task of resolving the Aarhus rights riddle. In Chapter 6, I bring together the various strands of environmental rights that I have carefully pulled apart in this chapter in my quest to solve this riddle. For now, this means that there is an unfinished quality to the chapter, waiting as it is for the cadence to resolve in the final chapter. In contrast to the previous chapter, where it was possible to offer a contained, albeit dynamic, account of environmental democracy, my account of environmental rights is far from finished. Environmental rights stretch beyond the realm of theory into the real world and the two plots are intertwined. It is not possible, therefore, for me to complete the story of the environmental rights purpose of the Convention without returning to the text of the Convention. Instead, what I have done in this chapter is to locate and gather the keys that will finally unlock the enigma of environmental rights that dwells in the depths of the Aarhus Convention.

220 Bogojević and Rayfuse have shown how environmental rights can fit into all three generations: Bogojević and Rayfuse (n 16) 17. 221 Edmundson (n 12) 120. 222 See text to n 4.

5 Environmental Stewardship Embracing a love ethic means that we utilize all the dimensions of love – ‘care commitment, trust, responsibility respect and knowledge’1

I. INTRODUCTION

E

nvironmental stewardship is a deeply value-laden concept, akin to ideas such as guardianship and trusteeship. Stewardship presents a powerful narrative about the proper relationship between human beings and their natural environment.2 As a foundational purpose of the Aarhus Convention, it propels the operation of the procedural rights towards care and concern for the environment, orienting them towards collective, biocultural and intergenerational ends, thus providing a normative motivation for the legal framework.3 Stewardship, therefore, offers an important ethical core to the Convention, which runs through the first two purposes – rights and democracy. Indeed, it is the concept of environmental stewardship that gives each of these purposes their environmental hue. Environmental rights, for example, have an intergenerational component (an ethical imperative of stewardship) and environmental democracy is decision-making with a view to producing good environmental outcomes – both purposes point towards stewardship. Arguably then, stewardship is the animating idea of the Convention, all other purposes flowing from it. Understanding what stewardship is, thus, is critical to understanding the foundations of the Aarhus Convention. This enigmatic introduction to the concept of stewardship highlights its importance for understanding the Aarhus Convention, but (as enigmatic introductions are wont to do) conceals its complexity and challenges. Like the previous two concepts, stewardship is a tangle of ideas with broad and blurred edges. It can be used both to represent a powerful spiritual expression of the

1 bell hooks, All About Love: New Visions (Harper Perennial, 2001) 94. 2 E Barritt, ‘The Story of Stewardship and Ecological Restoration’ in A Akhtar-Khavari and BJ Richards (eds), Ecological Restoration Law: Concepts and Case Studies (Routledge, 2019); KS Bavikatte and T Bennett, ‘Community Stewardship the Foundation of Biocultural Rights’ (2015) 6 Journal of Human Rights and the Environment 7. 3 Bavikatte and Bennett (n 2) 21.

108  Environmental Stewardship human-nature relationship, and as a rhetorical device to hide poor corporate practices. Despite its considerable importance to understanding the Convention (and environmental law more generally), there are tensions that exist within the concept of stewardship that make it difficult, if all the more necessary, to articulate its meaning and its many guises with care.4 This chapter charts stewardship’s different elements and manifestations in order to understand both the shape and the spirit of environmental stewardship. As with the previous purposes, such mapping is necessary because without properly interrogating the meaning of stewardship, claiming that the Convention is underpinned by the concept of environmental stewardship does little to tell us how the Convention ought to be interpreted. Given the numerous manifestations of stewardship, its role in interpreting the Convention might suggest that Aarhus promotes human dominion over the environment, or conversely, that the Aarhus Convention is an expression of humanity’s profound, spiritual connection to the natural world – neither of which, on the surface, the Convention appears to do. Therefore, in order to demonstrate that environmental stewardship is a foundational purpose of the Aarhus Convention and to understand what this means for how it should be interpreted, this chapter creates a map for establishing the different ways that stewardship can be understood. The framework developed in this chapter, alongside the environmental democracy and environmental rights frameworks of Chapters 3 and 4, will then be used in Chapter 6 to interpret and analyse the terms of the Convention. The analytical exploration of stewardship that follows is necessarily extensive, because the concept of stewardship finds expression in many different subject matters,5 disciplines6 and areas of legal scholarship.7 It has practical, legal, cultural, political, ethical and spiritual connotations, traversing many of these spheres. In fact, stewardship is a perfect illustration of the nature of environmental law more generally: ‘it transcend[s] legal, jurisdictional and disciplinary boundaries, and … reflects a range of meanings, from those that are deeply ethical and purposive to those that are descriptive and doctrinal’.8 In the context of environmental law scholarship, stewardship is used variously to reconceive a proprietary relationship with land,9 impose communitarian burdens 4 E Barritt, ‘Conceptualising Stewardship in Environmental Law’ (2014) 26 Journal of Environmental Law 1. 5 For example, the environment, water, money, products, waste etc. 6 For example, law, philosophy, ethics, geography, theology etc. 7 In particular, environmental law, corporate law, law and finance, property law etc. 8 E Scotford, Environmental Principles and the Evolution of Environmental Law (Hart Publishing, 2017) 27. 9 DB Hunter, ‘An Ecological Perspective on Property: A Call for Judicial Protection of the Public’s Interest in Environmentally Critical Resources’ (1988) 12 Havard Environmental Law Review 311; C Rodgers, ‘Nature’s Place? Property Rights, Property Rules and Environmental Stewardship’ (2009) 68 Cambridge Law Journal 550; WNR Lucy and C Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55 Cambridge Law Journal 566; VJ Yannacone, ‘Private Property Plus Public Interest Equals Social Property’ (1978) 23 South Dakota Law Review 71; C Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733; C Reich, ‘The Liberty Impact of the New Property’ (1990)

Introduction  109 on landowners10 and empower individuals as good environmental citizens.11 Further afield, stewardship has been used to represent an expression of human mastery over the environment, of religious duty and of spiritual connection to the natural world. Given these very different expressions, the conflict embedded in the concept of stewardship should be clear. But, as we saw with rights and democracy, ambiguity and tension do not necessarily sound the death knell of a concept. Instead the knell that does sound is one of warning, a note of caution about how we use these concepts. Failure to confront these ambiguities is the danger, not the use of the concept itself. The map of stewardship that follows, therefore, dissects the different elements of the stewardship duty, in order to understand the consequences of different choices. For example, if stewardship is a reciprocal duty between all human beings, what does that duty look like and what does it mean for future generations or the natural environment? As a result, the map is catholic, drawing as it does on an extensive range of perspectives in an effort to fully articulate stewardship as a concept for analysing environmental law. Understanding stewardship in this dynamic way recognises ‘conceptualisation … as a process’.12 As with the other two purposes, the conceptualisation of stewardship is intentionally expansive, embracing Margaret Davies’ philosophy that concepts are ‘dynamic expressions’ rather than fixed ideals.13 This approach to defining concepts is desirable when dealing with big ideas like democracy or stewardship because there are equally valid conceptual variations as to how they can be understood. Preferring one version over another is often an arbitrary exercise that masks methodological, ideological and normative choices. It is important to reiterate this underlying theoretical choice, lest the reader mistake it as mere indecision. It is not. It is an intentional recognition that definitions are rarely neat, quick or easily packaged. Attempting to hide complexity in stable definitions does a disservice to such concepts and those trying to use them. I therefore openly battle with conceptual dynamism in mapping the concept of environmental stewardship. Organising concepts in this expansive way, however, requires a considered approach. In Chapter 3 on environmental democracy this meant that I adopted the imagery of boundary markers to distil the essential components of democracy, and in Chapter 4 on environmental rights it necessitated unpacking the important structural dichotomies inherent in rights theory. In this chapter, I map

31 William and Mary Law Review 295; C Reich, ‘The New Property After 25 Years’ (1990) 24 University of San Fransisco Law Reveiw 223. 10 DW McKenzie Skene et al, ‘Stewardship: Rhetoric to Reality’ (1999) 3 Edinburgh Law Review 151. 11 P Christoff, ‘Ecological Citizens and Ecologically Guided Democracy’ in B Doherty and M de Geus (eds), Democracy and Green Political Thought: Sustainability, Rights and Citizenship (Routledge, 1996). 12 M Davies, Law Unlimited: Materialism, Pluralism and Legal Theory (Routledge, 2017) 47. 13 Ibid, 12–16.

110  Environmental Stewardship out a stewardship network according to four key dimensions: the object of the duty; the actor (or actors) who exercises the duty; the beneficiary of the duty; and the nature of the duty. The last consideration – the nature of the stewardship duty – reflects the nature of the particular stewardship relationship involved. These different relationship types represent a spectrum of different stewardship duties: custodial stewardship; managerial stewardship; proprietorial stewardship; and ethical and spiritual stewardship.14 This spectrum helps to identify different aspects and strengths of the concept of stewardship that I then use in Chapter 6 to interpret the specific terms of the Convention. Before commencing with this mapping exercise, it is worth first saying a word about maps. Maps are tools. They are handy representations developed to help navigate unfamiliar or difficult terrain, whether that be intellectual or physical. Yet, maps are rarely perfect. For example, the image of the world map that we are most familiar with does not accurately reflect the actual landmass of each of the continents; and, as those who enjoy hiking will know, maps do not faultlessly anticipate the path that you are treading. It is also entirely possible for maps of the same territory to be drawn differently, as any historical survey of London tube maps will reveal. The same is true for the map that is drawn here. For example, an interdisciplinary group of French scholars have developed their own ‘typology of stewardship stances’,15 and Christopher B Barrett and Ray Grizzle adopt a ‘three-compartment model’ in order to capture the plurality of stewardship.16 Each of these models represent a similar intellectual approach to the one taken here, but each exercise produces quite different results. These maps are prepared for specific contexts, scientific and economic, and therefore fail to capture the legal and spiritual dimensions of stewardship. Maps have their limitations. However, in spite of those limitations, maps allow for an intellectual openness and curiosity that is foreclosed by a commitment to fixed definitions. The map of stewardship I present here, whilst painstaking at times, represents my view of the best way to plot a defensible course through the vast concept that is environmental stewardship. II.  ENVIRONMENTAL STEWARDSHIP, AN ARTIST’S IMPRESSION

In order to help with understanding this map, I offer first an artist’s impression of stewardship; an orientating glimpse at the landscape we are about to explore. 14 These categories are not intended to be definitive; within them there are further discrepancies and disagreements as well as overlaps. However, this framework is helpful for understanding what is a fairly disparate body of literature. 15 R Mathevet et al, ‘Environmental Stewardship and Ecological Solidarity: Rethinking SocialEcological Interdependency and Responsibility’ (2018) 31 Journal of Agricultural and Environmental Ethics 605. 16 CB Barrett and R Grizzle, ‘A Holistic Approach to Sustainability Based on Pluralism Stewardship’ (1999) 21 Environmental Ethics 23.

Environmental Stewardship, An Artist’s Impression  111 This impressionistic version of stewardship is intended to do three things: first, to confront the moral ambiguity inherent in stewardship; second, and related to the first step, to ascertain its enduring normative appeal; and third, to identify four unifying features of environmental stewardship. To continue with the mapping metaphor, what follows in this section is intended to clear a path, set the compass and establish some parameters for exploration. Each of these activities provides a focus for the expansive map that follows in section III below. Stewardship is inherently an ethical concept. As with many ethical ideas, stewardship is complex and can appear to be motivated by conflicting goals. For example, stewardship might be a self-regarding desire to protect resources, a religious duty owed to a creator deity or a spiritual commitment to the natural world. Alongside these motivational differences, there are also different expectations about the purpose of stewardship. Bruce R Reichenbach and V Elving Anderson write of the paradox of stewardship, that is the contradictory obligations to both conserve and to change the natural world.17 Further, the history of stewardship reveals that it has been used both to condone and to justify the unadulterated use of natural resources.18 This ambiguity has only recently been recognised and explicitly dealt with in stewardship literature.19 Traditionally, notions of stewardship have developed in an isolated fashion in order to fit particular scholarly purposes and paradigms. There has been little examination or acknowledgment of the various contested aspects of the concept.20 Equally, there has been little consideration of how these different aspects and notions of stewardship might interact or overlap. This plurality exposes stewardship to criticism that it is lacking in focus21 and, consequently, normative force.22 Thus, it is often claimed that it is merely a form of greenwash for corporations and of little utility in seriously guiding good environmental behaviour.23

17 BR Reichenbach and VE Anderson, ‘Tensions in a Stewardship Paradigm’ in RJ Berry (ed), Environmental Stewardship: Critical Perspectives – Past and Present (T & T Clark, 2006) 113. 18 S Coyle and K Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart Publishing, 2004) 148. 19 cf Errol Meidinger, who recognises the divergence of different aspects of stewardship but more in terms of its implementation than its conceptualisation: EE Meidinger, ‘Laws and Institutions in Cross-Boundary Stewardship’ in RL Knight and PB Landres (eds), Stewardship Across Boundaries (Island Press, 1998) 2. 20 cf Richard Barnes’ treatment of stewardship, although, even though he does acknowledge the existence of different ways of conceiving of stewardship, he limits his analysis to proprietorial ways of understanding stewardship: R Barnes, Property Rights and Natural Resources (Hart Publishing, 2009) 155–62. 21 CM Roach et al, ‘Ducks, Bogs and Guns: A Case Study of Stewardship Ethics in Newfoundland’ (2006) 11 Ethics and the Environment 43, 46–48; R Routley and V Routley, ‘Human Chavanism and Environmental Ethics’ in D Mannison et al (eds), Environmental Philosophy (Canberra: Austrialian National University, 1980) 113. 22 Stewardship lacks normative force because it ‘fails to change the fundamental human centeredness’: C Palmer, ‘Stewardship: A Case Study in Environmental Ethics’ in Berry (n 17) 75. 23 Roach et al (n 21) 47; J Dryzek, The Politics of the Earth: Environmental Discourses (Oxford University Press, 2005) 110.

112  Environmental Stewardship Masking this moral ambiguity also makes stewardship vulnerable to criticisms that it is a ‘patriarchal, elitist, anthropocentric’ concept that promotes rather than condemns the exploitation of natural resources because it promotes a dominion over the natural world that is ordained by God.24 Thus, for some, stewardship is irredeemable and therefore unhelpful for shaping morally desirable environmental behaviour. Clare Palmer, for example, has been particularly vehement in her critique, arguing that stewardship ‘allows humans to continue with [an] exploitative attitude towards the natural world’,25 and James Lovelock likens stewardship to ‘gunboat diplomacy’.26 Such criticisms are powerful and require thoughtful consideration, and it is necessary to confront the problems that are embedded in the idea of stewardship, in order to fully understand it. Recognising this moral ambiguity is therefore part of the process of fully articulating the concept of stewardship before it can be used to identify and assess the stewardship purpose of the Aarhus Convention. Indeed, it may be that there are interpretations of the Convention that allow for the exploitation of the natural world. The exploitative tendencies that linger under the surface of stewardship are hard to ignore; stewardship has been used as a paradigm to justify the colonisation, manipulation and depletion of natural resources.27 Nevertheless, the moral corruption of a concept does not necessarily consign it to the reject pile. In this way, the concept of stewardship is similar to that of democracy.28 Originally, democracy was an exclusionary social custom open to an elite sphere of Athenian society; thus democracy had racist, sexist and classist origins. But despite its unsavoury beginnings, there is a core motivating idea within the concept of democracy that has enduring and universal normative appeal. Like democracy, the term stewardship accesses a rich vocabulary and narrative that transcends its more undesirable manifestations. Indeed, the moral ambiguity of stewardship is part of the conceptual dynamism that lends itself to the broad mapping approach taken here in defining the concept.29 Therefore, rather than dismiss stewardship on the basis of its less savoury interpretations, I maintain that it is still useful as an ethical concept.

24 Paraphrasing Clare Palmer: J Welchman, ‘A Defence of Environmental Stewardship’ (2012) 21 Environmental Values 297, 298; see also R Routley, ‘Is there a need for a new environmental ethic?’ (1973) 1 Proceedings of the XVth World Congress on Philosophy 205; R Routley and V Routley, ‘Social Theories, Self Management and Environmental Problems’ in MA McRobbie and R Routley (eds), Environmental Philosophy (Australian National University 1980); L White, ‘The Historical Roots of Our Ecological Crisis’ (1967) 155 Science 1203, 1206; Palmer (n 22); R Atttfield, ‘Environmental Sensitivity and Critiques of Stewardship’ in Berry (n 17) 79–82; J Black, ‘The Dominion of Man’ in Berry (n 17) 92–93. 25 Palmer (n 22) 75. 26 J Lovelock, ‘The Fallible Concept of Stewardship of the Earth’ in Berry (n 17) 109. 27 R Page, ‘The Fellowship of All Creation’ in Berry (n 17) 98. 28 Welchman (n 24) 307. 29 Davies (n 12) 47.

Environmental Stewardship, An Artist’s Impression  113 What, then, is the normative appeal of stewardship? Stewardship’s appeal is its deep well of values and virtues (care, prudence, temperance, loyalty etc) and its cross-cultural power. Typically associated with Christianity, it also has a considerable cosmopolitan lineage both from a secular perspective and from the perspective of other religious frameworks. For example, post-Platonic philosophers in the Roman Empire, such as Iamblichus, took as their theme Plato’s claim in Phaedrus that ‘it is everywhere the responsibility of the animate to look after the inanimate’;30 and the Confucian model of governance was one of ‘political stewardship’ that linked authority with virtue.31 Stewardship in its various guises also manifests in each of the major world religions. From the Qur’an’s repeated calls for khalifa (care for the environment), to the Hindu concept of ahimsa (respect for all life); from the Jewish concept of radah which views humans as custodians of the soil,32 to the Buddhist ethic of care for nature, stewardship ideals pervade.33 Paganism also recognises a form of stewardship, as part of pagan belief in the animism of all things, and therefore the need to protect the natural world. Further, a stewardship ethic is embedded in the belief systems of many Indigenous communities. For example, the Māori have an obligation of kaitiakitanga (guardianship and protection) which characterises their interactions with the natural environment, and the cultural heritage of the Saami people of Northern Europe is wrapped up in their biological heritage. This is also true of many of the traditional African religions, for example in the Yoruba tradition, humans are viewed as co-tenants of God’s earth alongside all other members of the natural world.34 There is therefore, an ‘overlapping consensus’ around the role of stewardship, such that is serves as a rule of recognition that can guide our interactions with the natural world.35 Stewardship, in spite of its challenges, therefore, retains ethical significance. Critically, stewardship goes further than imposing legal or practical requirements on individuals by encouraging the cultivation of particular moral virtues, like loyalty and temperance.36 Stewardship, fully realised, requires more than civil obedience; it calls for an internal moral response. The observance of environmental laws, for example, need make no demands on the conscience of the observer, whereas the practice of environmental stewardship does. Stewardship, in spite of its conceptual challenges, therefore, represents an important 30 J Passmore, Man’s Responsibility for Nature, 2nd edn (Duckworth, 1974) 28. 31 S Greer and TP Lim, ‘Confucianism: Natural Law Chinese Style?’ (2002) 11 Ratio Juris 80, 87. 32 M Northcott, ‘Soil, Stewardship and Spirit in the Era of Chemical Agriculture’ in Berry (n 17) 216. 33 RJ Berry, ‘Editor’s Preface’ in Berry (n 17) xi; C Southgate, ‘Stewardship and its Competitors: A Spectrum of Relationships between Humans and the Non-Human Creation’ in Berry (n 17) 88. 34 FD Babalola, ‘Roles of and Threats to Yoruba Traditional Belifs in Wilderness Conservation in Southwest Nigeria’ (2011) USDA Forest Service Proceedings 125, 127. 35 J Rawls, Political Liberalism (Columbia University Press, 1993) 133–72; G Enderle, ‘In Search of a Common Ethical Ground: Corporate Environmental Responsibility form the Perspective of Christian Environmental Stewardship’ (1997) 16 Journal of Business Ethics 173, 174–75. 36 J Welchman, ‘The Virtues of Environmental Stewardship’ (1999) 21 Environmental Ethics 411, 415; Welchman (n 24) 299.

114  Environmental Stewardship counterpart to understanding the nature and ambitions of environmental legal instruments, the Aarhus Convention amongst them. Having thus located the normative appeal of stewardship in its associated values and virtues (care, temperance, responsibility etc), it is necessary to set some parameters for how the concept should be understood, because although stewardship is an expansive idea, it is not unlimited. In spite of the disunity over how the notion of stewardship should be conceived, it is still possible to identify four universal features of the concept to guide the more detailed examination of stewardship in section III below. The first is that it is relational – that is there is a duty bearer, something or someone to whom the duty is owed and a beneficiary of the duty. The second is that the relationship is one based on a duty or responsibility in relation to a particular resource or good. The third feature is that there is an element of responsibility for the resource in question, that responsibility may arise through law or through moral conviction. Finally, stewardship implies certain values or virtues that colour the exercise of that responsibility, such as consideration, loyalty or benevolence.37 Accordingly, I loosely define stewardship as follows: where people (either as individuals, a group or the state) are in a position of responsibility for a resource, they have a duty to treat that resource in line with certain values and virtues. Beyond this point, however, there is great divergence as to how stewardship is properly conceptualised. In order to provide a more comprehensive picture of stewardship it is necessary to begin to untangle and map the different elements of stewardship. III.  ELEMENTS OF STEWARDSHIP

To elaborate on the four universal features of stewardship presented in section II above, and to move beyond the definitional impasse created by the complexity of stewardship ideas, this section maps the various elements of stewardship across the diversity of stewardship concepts, considering not just legal scholarship but also drawing on the practical and philosophical dimensions of stewardship. This expansive approach is necessary in order to identify the full range of ideas and approaches that can inform the concept of environmental stewardship. This is particularly important with stewardship (as compared to rights and democracy), because it is access to these non-legal elements that provides the fullest understanding of the concept and thus allows for the fullest interpretation of the Convention. The map drawn reveals that stewardship can be conceptualised in a variety of different ways, which is demonstrated by identifying a network of potential actors, environmental interests, relationships and associated duties. This results because of the different ways in which the natural environment is defined,



37 Ibid.

Elements of Stewardship  115 the various beneficiaries and duty bearers in relation to stewardship, and lastly, because of a spectrum of stewardship duties and relationships. These different elements of stewardship are mapped according to four key dimensions: the object of the duty; the actor who exercises the duty; the beneficiary of the duty; and the nature of the duty. This map thus captures the plurality of stewardship. The first element considered is the object of the stewardship duty. Understanding how the object is defined is complex because there is little agreement about what exactly is being stewarded – landscapes, property or crisp packets etc. This has implications for the scope of the duty, because the normative demands on individual stewards will differ considerably, depending on what it is that is being stewarded. For example, some stewardship accounts focus on the land as the object of the duty, implying particular, sometimes onerous, duties on landowners as to how they can manage their property. Other accounts take a more conceptual approach, for example, if a particular community is the object of the duty, this has implications for all members of that community, because benefiting from the duty entails reciprocal obligations if stewardship is to be achieved. The second element of stewardship considered is the beneficiary of stewardship and although the environment, or some connotation of it, may be the object of the duty, it does not immediately follow that it is also the beneficiary of the duty. Members of present generations and future generations might be regarded as the direct beneficiaries of a stewardship ethic, thus revealing an undercurrent of anthropocentrism in the concept of stewardship. Therefore, the environment might only incidentally benefit from the stewardship duty, in so far as its protection promotes the needs of human beings. The third element of stewardship is the holder of the duty – landowners, individuals, civil society and the state are all potential candidates for bearing stewardship responsibilities. The final element considers four relationships that are implied by the different ways of understanding stewardship and, by implication, the different values that inform those understandings. These relationships, and their attendant values, thus help describe the nature of the duty. The first stewardship relationship is custodial stewardship, which represents a stewardship duty that is concerned with the careful holding of environmental goods in order to pass them on to future generations. The second is managerial stewardship, which implies active, more controlling, duties. The third is proprietorial stewardship, which denotes the specific type of stewardship relationship that is held by those who have a particular legal relationship with the land. The final stewardship relationship is spiritual stewardship, which engages with the existential dimensions of environmental protection. This is potentially the most onerous of the four relationships considered because it, at least in theory, demands both an internal and external manifestation of stewardship responsibilities. Mapping out these different aspects of stewardship provides a more detailed framework for interpreting and analysing the terms of the Aarhus Convention. For an indicative map of the more detailed discussion that follows see Figure 1.

116  Environmental Stewardship Figure 1  Map of environmental stewardship DUTY

Object

Beneficiary

Holder

Proprietorial Relationships

Custodial

Managerial

Spiritual

In addition to considering these relationships, it is also important to note the role played by values in conceptualising environmental stewardship. Doing so exposes the possibilities of stewardship as a tool for informing and analysing environmental law.38 Values influence the concept of stewardship in a fundamental way – they expose and build the normative dimensions of stewardship. Different values attach to the different aspects of the network, influencing how those elements are conceived, which elements are chosen or preferred in a particular conceptualisation of stewardship, and the strength and nature of the duty imposed. For example, how the environment as the object of the stewardship duty is perceived will be influenced by the different values that are attached to the natural environment.39 Thus, if the environment is viewed as a mere good to exploit, then the resulting stewardship relationship might be one based on the proprietorial or managerial relationship,40 whereas a conception of the environment that acknowledges its inherent worth might result in a custodial or spiritual understanding of stewardship. Values also allow for more nuanced considerations as

38 For example, see Brady’s use of the public trust doctrine to analyse the National Environmental Policy Act of 1969 in the USA: TP Brady, ‘“But Most of It Belongs to Those Yet to be Born”: The Public Trust Doctrine. NEPA and the Stewardship Ethic’ (1990) 17 Boston College Environmental Affairs Law Review 621. 39 M Schwarz and M Thompson, Divided We Stand: Redefining Politics, Technology and Social Choice (Harvester Wheatsheaf, 1990) 3. 40 D Harvey, Justice, Nature and the Geography of Difference (Blackwell Publishers, 1996) 150.

Elements of Stewardship  117 to how far stewards ought to go in protecting the natural environment.41 This is reflected in the intersection between custodial and managerial conceptions of stewardship and is influenced by who or what ought to benefit from the duty. Values, therefore, serve as an essential backdrop to the stewardship network, which in turn provides a framework for uncovering the stewardship possibilities of the Convention and its provisions that appear to be directed at achieving good stewardship of the environment. A.  Object of the Stewardship Duty The first aspect of environmental stewardship that is considered is the object of the stewardship duty. That is the thing that is being stewarded, whether that be the land, an ecosystem, a local community or even a used plastic bottle. A comprehensive analysis of the object of the stewardship duty must open any discussion of the definition of stewardship, because a failure to properly articulate the object leads to confusion when defining other aspects of stewardship. This is particularly so because the nature of the stewardship duty can alter according to what the object of the duty is. For example, when an object is a common resource, such as a national park or a beach, all members of the community could be treated as having custodial obligations to steward it,42 whereas a privately-owned piece of land would entail specific duties for the owner of that land. Furthermore, imprecision as to the object of the duty results in imprecision when analysing the stewardship potential of the Convention, because it is difficult to assess the potential impact of a particular provision without knowing what the object of the duty is. Accordingly, this section sets out the various realms over which a stewardship duty might operate, ranging from concrete examples that focus on a particular object, such as the land or inanimate objects, to more intangible ones, such as the local or global community. Stewardship is generally considered to be a duty towards the land.43 Indeed, the word stewardship comes from the old English stigweard, denoting a servant charged with looking after landed estates.44 More modern accounts of stewardship use the word land to refer not just to the ground or the landscape; ‘land’ is used inclusively to refer to the soil, water, plants and animals45 – ‘enlarging the boundaries’ of the concept of land.46 Indeed land is synonymous with

41 cf preservation versus conservation dialectic: JM Meyer, ‘Gifford Pinchot, John Muir, and the Boundaries of Politics in American Thought’ (1997) 30 Polity 267. 42 G Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. 43 See, for example, A Leopold, A Sand County Almanac: and Sketches Here and There (Oxford University Press, 1949); JP Karp, ‘A Private Property Duty of Stewardship: Changing our Land Ethic’ (1993) 23 Environmental Law 735; Lucy and Mitchell (n 9). 44 Welchman (n 24) 299 and 306. 45 Leopold (n 43) 204 and 218. 46 Ibid.

118  Environmental Stewardship ‘environment’ in much of the stewardship literature.47 William Lucy and Catherine Mitchell, for example, make little of the distinction between land and the natural environment.48 Even where scholars do acknowledge that there is a difference between land and other natural resources, the distinction is rarely developed, leaving ambiguous what land refers to in real terms.49 In other accounts of stewardship this distinction is acknowledged – David Hunter, for example, argues that the word land fails to capture all aspects of the natural environment.50 These accounts attempt to define the object of the duty using broader ecological descriptors: Errol Meidinger prefers the word ‘ecosystem’;51 and Victor Yannacone and Christopher Rodgers both adopt the term natural resources.52 An alternative, narrower way to understand the object of the duty is to focus on property. Defining the object of the stewardship duty in terms of property is helpful because the stewardship relationship can be mapped onto the existing proprietary one. Further, the different categories of property – private, collective and common property – provide an established way of handling the different actors and interests in the stewardship network considered below.53 For example, common property might require custodial stewardship by civil society for the benefit of present and future generations, whereas private property might engage a managerial approach for the benefit of a specific community. Adopting property as the object of the duty, however, is not a complete solution to the problem of defining the object of the stewardship duty. The property relationship is itself a complex one, with its own set of contrasting conceptions.54 Any interaction between the two concepts consequently leads to further theoretical problems, as will be discussed in relation to the proprietorial stewardship relationship. Thus, there is good reason to think differently about how to define the object of the stewardship duty.

47 A Leopold, ‘Conservation: In Whole or in Part?’ in SL Flader and J Baird Callicott (eds), The River of the Mother of God and Other Essays by Aldo Leopold (University of Wisconsin Press, 1993) 316. 48 Lucy and Mitchell (n 9) 583. 49 Karp (n 43) 752. 50 Hunter (n 9) 334. 51 Meidinger (n 19). 52 Rodgers retains use of the word ‘land’ to refer specifically to the object of the property relationship: Rodgers (n 9) 550; Yannacone (n 9) 71. 53 For a description of each of these see J Waldron, ‘What is Private Property’ (1985) 5 Oxford Journal of Legal Studies 313, 326–33. 54 For a whistlestop tour of the property discourse: property is variously conceived, amongst other things, as: a way of demarcating moral spaces in order to ensure that they are immune from predation: LE Lomasky, Persons, Rights and the Moral Community (Oxford University Press, 1987); a bundle of rights: S Munzer, A Theory of Property (Cambridge University Press, 1990); an exclusive unitary relationship: JE Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43 UCLA Law Review 711, H Smith, ‘Property as the Law of Things’ (2011–2012) 125 Harvard Law Review 1692, L Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) 58 University of Toronto Law Journal 276; a way of tying individuals together in social groups: EM Peñalver, ‘Property as Entrance’ (2005) 91 Virginia Law Review 1889 and finally as a network of interests: CA Arnold, ‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harvard Environmental Law Review 281, 283.

Elements of Stewardship  119 A more conceptual understanding of the object might circumvent some of these difficulties. Stewardship could, therefore, be a duty in respect of a ‘local area or resource’, avoiding the ambiguity inherent in the word land as well as the narrowness of the property relationship.55 However, this both limits the stewardship duty to the local, and creates another conceptual ambiguity as to what local is. Localism provides limits for the object of the duty that are attractive for practical reasons but it disregards the universal dimensions of the stewardship duty. Promoting this universality, Edith Brown-Weiss makes the planet the object of the stewardship obligation, thus avoiding both the complications inherent in the word land, and the limitations of local and national boundaries.56 However, thinking of stewardship as a planetary obligation necessarily has limitations for how and to whom the duty is owed, ie stewardship might become a weak ethical imperative to think about environmental concerns. A contrasting way to conceive of the subject of the stewardship duty is to think in terms of things or objects. That is, not just the natural matter we normally associate with the ecological, but also inorganic matter whose use can cause harm to the natural environment, such as a discarded crisp packet or a broken refrigerator. This thing-centric approach to stewardship could work in one of two ways. First, we might owe stewardship duties with respect to products or human artefacts because of the impact that they have on the natural environment. For example, my choice to discard rather than reuse a plastic bag will probably result in that plastic bag causing some form of environmental harm, particularly if I persist in this practice. In this way, the object of the duty is the thing, but the beneficiary would be the natural environment. This thing-centric approach is exemplified in the two major stewardship non-governmental organisations (NGOs) – the Forest Stewardship Council and the Marine Stewardship Council, both of which seek to govern production of particular products with a view to protecting natural resources (forests and the marine environment). Given the focus of this approach on products and production, it would imply specific duties on producers and consumers to minimise and mitigate the negative environmental impacts of commercial production.57 The second thing-centric approach is the most inclusive of all the approaches to understanding the object of stewardship. This approach expands Aldo Leopold’s vision of an enlarged environmental community, to include inorganic as well as organic matter. Therefore, things are owed a stewardship duty not simply because of the impact they might have on the natural environment, but because imagining things as ‘dead or thoroughly instrumentalized matter feeds human hubris and our earth-destroying fantasies of conquest

55 Roach et al (n 21) 48. 56 E Brown-Weiss, ‘The Planetary Trust: Conservation and Intergenerational Equity’ (1984) 11 Ecology Law Quarterly 495, 500. 57 Welchman (n 24) 301.

120  Environmental Stewardship and consumption’.58 Thus, acknowledging the ‘vitality of matter’ recognises a duty to all things because all things are connected.59 Such an approach is advocated by the new materialism of Jane Bennett and can be identified in Bruno Latour’s ‘Parliament of Things’, where things or matter become subsumed into a profoundly holistic vision of the earth’s community.60 Offering an unqualified definition of the object of a stewardship obligation is difficult, and in turn leads to difficulty in defining other aspects of the duty. Tensions in relation to the object of a stewardship duty arise because of the different disciplinary angles,61 different understandings of the environment and the values attached to it,62 as well as the different scales of approach.63 Each conception of stewardship makes a different (often implicit or assumed) choice about what the object of a stewardship duty is, which in turn has an impact on the nature of the duty. Consequently, the object should be interpreted flexibly, and the choice of the object should be justified on doctrinal, practical or normative (including value-driven) grounds. For example, a strongly ecocentric approach to environmental law and policy would favour conceiving of the object of stewardship as widely as possible in geographical and ecological terms so as to include all possible elements of the biotic and ecological environment. Or an approach that favours Brown-Weiss’ definition might interpret broad, imprecise references to the environment in environmental law regimes so as to include the global as well as local environment. It is important to recognise these differences in using the notion of stewardship to analyse the terms of the Convention, because how the object of the duty is defined has implications for how other aspects of the stewardship purpose of the Convention might be interpreted. B.  Beneficiaries of the Stewardship Duty The second aspect of the definition of stewardship concerns in whose favour the stewardship duty exists. Although stewardship is a duty to treat a thing (the object) in a particular way, it does not necessarily follow that the object of the duty is the intended beneficiary. There may of course be ‘spill over’ benefits – a duty to steward a particular landscape might ostensibly be for the benefit of its human inhabitants but could also produce benefits for the landscape – though that is not always a given.64 Indeed, it is this version of stewardship that has

58 J Bennett, Vibrant Matter: A Political Ecology of Things (Duke University Press, 2010) xi. 59 Ibid, 13. 60 B Latour, We Have Never Been Modern (C Porter (tr), Harvard University Press, 1993) 142–45. 61 Property law versus ecological philosophy. 62 Land versus biotic community. 63 Local versus community. 64 C Redgwell, ‘Life, the Universe and Everything: A Critique of Anthropocentric Rights’ in A Boyle and M Anderson (eds), Human Rights Approches to Environmental Protection (Clarendon Press, 1996) 87.

Elements of Stewardship  121 received such critical treatment from deep green theorists for its anthropocentric focus that fails to recognise a duty to protect the environment for its own sake. As with environmental rights, stewardship can generally be understood to have three groups of possible beneficiaries: members of the current generation (either individually or collectively); future generations; and the natural environment itself. Further, if the new materialism of Bennett is adopted, it is also possible to conceive of things as being the beneficiary of the duty as well. Identifying who or what directly benefits from a duty of good stewardship is necessary to ensure that any moral or legal duties implied by the stewardship purpose of the Convention can be properly analysed. This is particularly important where the beneficiary is incapable of ensuring that stewardship duties are properly carried out, either because they do not yet exist or because they are inanimate. It is hardly contentious to identify members of the current generation as direct beneficiaries of a stewardship duty.65 There is, however, a disagreement as to whether such duties should be owed to individual citizens or to society more generally.66 Jeremy Waldron stresses the importance of specific protection for the individual, in addition to protection for the community, because there is always a risk that social relations will disintegrate.67 According to his approach, then, the stewardship duty ought to be owed to each member of the current generation. However, stewardship is not generally concerned with protection for specific individuals. Indeed, it is the preoccupation with the interests and needs of the individual that gives rise to an increased urgency to protect the environment generally. Lynton Caldwell insists that in order to ‘embrace stewardship, society must shift its focus’ from the rights of the individual to the rights of the community.68 Given that a key reason for promoting stewardship is to protect communal goods – ‘the air we breathe, the water we drink’ – it makes sense that it is the community, and not specific individuals, that is the beneficiary of the duty.69 In this way, stewardship serves as a counterpoint to environmental rights, which, as the discussion of Chapter 4 revealed, are generally better suited to protecting individual needs and interests in relation to the environment. The two ideas dovetail. Establishing that the human community is a beneficiary of the stewardship duty has another important implication – that stewardship is a concept designed to benefit future generations as well as the present one. Communities are transgenerational and intergenerational in the way that individuals

65 Yannacone (n 9) 74; Lucy and Mitchell (n 9) 596. 66 LK Caldwell, ‘Land and the Law: Problems in Legal Philosophy’ (1986) University of Illinois Law Review 319, 323. 67 J Waldron, ‘When Justice Replaces Affection: The Need for Rights’ (1988) 11 Harvard Journal of Law & Public Policy 625, 645. 68 Caldwell (n 66) 323; McKenzie Skene et al (n 10) 155; Karp (n 43) 760 also advocate the shift in focus away from the individual to the wider community. 69 Equitable maxim quoted in Yannacone (n 9) 76.

122  Environmental Stewardship are not. Almost without exception, accounts of environmental stewardship emphasise the duty to protect the environment for future generations.70 Viewing the community as the beneficiary of the stewardship duty helps to overcome some of the conceptual challenges of intergenerational justice, such as the nonidentity problem (which says that as it is not possible to identify specific future generations, it is not possible for them to make demands of justice on present generations) and the impossibility of future persons enforcing rights in the present. This is because it is the community who is able to uphold stewardship claims and it is the community whose identity endures across generations. By contrast to environmental rights, there is a pervasive intergenerational component in accounts of environmental stewardship. The intergenerational dimensions of stewardship reveal parallels between the ideas of trusteeship and stewardship. The most notable account of environmental trusteeship is Brown-Weiss’s ‘planetary trust’71 and although she does not describe the planetary trust in terms of stewardship, there are definite parallels between the two concepts, and indeed Edward Page characterises his version of the planetary trust as the ‘stewardship model’.72 The premise of the planetary trust is that each generation is both beneficiary and duty bearer in relation to the good stewardship of the planet. The trust places the current generation under a fiduciary duty to protect and preserve the planet for the benefit of present and future generations,73 whilst simultaneously entitling the present generation to benefit from the duty that the previous generation was under.74 This is very similar to the concept of reciprocal environmental rights developed by Peter Hiskes, and considered in relation to the environmental rights of future generations in Chapter 4. The parallels between planetary trusteeship and stewardship highlight another overlap between the different elements of the stewardship duty – between the beneficiaries and the holders of stewardship duties. The focus thus far has been on how stewardship can benefit the human population, and indeed stewardship is historically an anthropocentric concept.75 However, there is also room within the concept of stewardship to consider the needs of the ecological interests as well as human ones. For example, John Barry claims that ecological stewards ought to consider the interests of non-humans alongside the interests of humans76 and Lucy and Mitchell argue that stewardship

70 Caldwell (n 66) 323; Yannacone (n 9) 74; Lucy and Mitchell (n 9) 583; Meidinger (n 19) 2. 71 Brown-Weiss (n 56); E Brown-Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (United Nations University, 1989); E Brown-Weiss, ‘In Fairness to Future Generations’ (1992) 8 American University Journal of International Law and Policy 19; E Brown-Weiss, ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 The American Journal of International Law 198. 72 E Page, Climate Change, Justice and Future Generations (Edward Elgar, 2007) 119–24. 73 Brown-Weiss (n 56) 499. 74 Brown-Weiss (1990) (n 71) 199. 75 Roach et al (n 21) 46; Lucy and Mitchell (n 9) 597. 76 J Barry, Rethinking Green Politics (Sage, 1999) 230–31.

Elements of Stewardship  123 requires an ecologically informed appreciation of Hume’s circumstances of justice, thus bringing the environment within traditional conceptions of justice designed to protect humans.77 Limited attention is paid, however, to identifying the environment as a beneficiary of the stewardship duty independent of its relationship to the human world. Even Bennett’s radical vision of vital matter is based on the view that benefits for things are benefits for human beings.78 In his articulation of the Land Ethic, Aldo Leopold attempts to shift the focus towards protection of the environment for the environment’s sake, exclusive of any human benefit, but his approach is not one that is commonplace in accounts of stewardship.79 Indeed, stewardship generally oscillates towards the anthropocentric end of the spectrum between anthropocentricism and ecocentrism.80 Stewardship, therefore, remains at least a weakly anthropocentric concept. This is because, even if the environment is regarded as an independent beneficiary of stewardship, it is never regarded as the sole beneficiary and thus there is latent conflict within the concept of stewardship about whether human or nonhuman interests ought to trump when potential stewardship duties clash. This conflict exists within the concept of stewardship because beneficiaries of the stewardship duty are invariably linked – the interconnectedness of the human and ecological community means that stewardship duties exercised in favour of one beneficiary are likely to have a positive impact on another.81 This conflict might be resolved by the stewardship values adopted or by the particular stewardship relationship conceived. For example, a deeply ‘green’ stewardship ethic is likely to be more ecocentric than a more general custodial form of stewardship. Nevertheless, it appears that the general tenor of stewardship is directed towards the human community being the direct beneficiary of stewardship. C.  Holder of the Stewardship Duty There are a number of actors who might be held responsible for the good stewardship of the natural environment – landowners, individuals, communities, corporations, state bodies, and so forth. This section establishes the different actors that are regarded as owing stewardship duties and, in so doing, it sets up the idea that there are different stewardship relationships. These different relationships emerge because different actors are able to exercise different degrees of control in relation to the environment. Therefore, the nature of these duties and stewardship relationships involved ought to reflect that. For example,

77 Lucy and Mitchell (n 9) 597. 78 Bennett (n 58) 13. 79 Leopold (n 43) 209 and 211. 80 Barrett and Grizzle (n 16) 33–36. 81 Leopold’s philosophy is based on the interconnectedness/interdependence of all things: Leopold (n 43) 203.

124  Environmental Stewardship landowners owe a different kind of stewardship duty to that owed by civil society or corporations. Recognising that the general concept of stewardship involves different types of stewards resulting in different stewardship relationships and duties is important for the analysis of the Convention in Chapter 6, which identifies the different types of stewardship duty according to the different actors identified in the Convention – ‘the Parties’, ‘public authorities’, ‘the public’, ‘the public concerned’, ‘operators’ – thus helping to draw out more precisely the stewardship purpose of the Convention. Landowners and managers are most commonly identified as owing stewardship duties, either as an ethical proposition arising from the privilege of land ownership, or as a legal one because of a particular legal framework that applies to their land. This group of people have direct control over large sections of the natural world and thus they are well placed to act as stewards of the environment. They are also identified because the choices that private landowners or land managers make have direct and significant impacts on both the environment and the general public.82 Accordingly, the concept of stewardship implies that these actors might reasonably be expected to forgo certain privileges or undertake certain duties, because they are in control of a resource which can have communal consequences.83 Ownership or possession of land can, therefore, be viewed as a trust, for the benefit of the community as well as future generations, with attendant duties to protect the environment. Indeed Jean-Jacques Rousseau assumed that landowners would willingly exercise their proprietary interests in favour of the public good.84 Evidently this is no longer the case – if it ever was – and the dramatic shift of the Industrial Revolution meant that it was no longer in a landowner’s interests to consider the public or environmental consequences of how they used their resources.85 Within the context of legal scholarship in particular, stewardship is a concept that is directed at imposing duties on landowners and managers in order to ensure that they are mindful of their responsibilities in respect of the natural environment.86 Corporations can also be viewed as owing stewardship duties. In part this is because many corporations are major landowners and thus their activities generate particular environmental risks or harms. This is reflected in planning tools such as an Environmental Impact Assessment, which requires large scale developments to be conducted with their environmental impacts in mind.

82 Lucy and Mitchell (n 9); Hunter (n 9); Caldwell (n 66). 83 K Gray and S Gray, ‘The Ideal of Property in Land’ in S Bright and JK Dewar (eds), Land Law: Themes and Perspectives (Oxford University Press, 1998) 57. 84 Particularly in comparison to mere capitalists whose interests were merely financial and therefore had no interest in promoting the public good: J-J Rousseau, Discourse on the Origin of Inequality (P Coleman (ed), B Constant and M Mauldon (trs), Oxford University Press, 1994) 42; Coyle and Morrow (n 18) 68. 85 Coyle and Morrow (n 18) 148. 86 Lucy and Mitchell (n 9).

Elements of Stewardship  125 Companies also generate stewardship obligations because they adopt stewardship as part of a corporate value statement, through a commitment to corporate social responsibility or by signing up to regulatory schemes that promote stewardship values. These duties might appear in the form of legal requirements, shareholder commitments or genuine moral undertakings. There are, therefore, a number of ways in which corporations in particular owe stewardship duties. From the perspective of legal conceptions of environmental stewardship, less attention is paid to how individuals more generally might owe stewardship duties.87 This is because there is a fundamental jurisprudential presumption that there must be very weighty reasons to interfere with someone’s liberty by imposing a legal burden on someone. General, universal obligations are therefore the purview of morality. The stewardship duty that all individuals might owe is explicitly an ethical one. John Barry, for example, describes stewardship as an ‘ethics of use’ that accounts for the interests of ‘fellow citizens, non-humans, foreigners and future generations’.88 This is a sentiment echoed by Welchman, who describes stewardship as ‘the social role individuals adopt towards others’.89 In this way, stewardship is intimately connected with the concept of environmental or ecological citizenship, revealing a distinctly political role for the individual in the context of environmental stewardship.90 As with the beneficiary of the duty, it is also possible to think about stewardship being a community as well as an individual matter.91 Thus stewardship can be a shared, community-based ethic that requires all members of society to engage with the different aspects of stewardship in order to protect the natural environment.92 In this sense the stewardship duty becomes a ‘collective practice’,93 which of course leads to questions about what the community is. One approach is to think in terms of civil society which in its most expansive sense ‘refers to a sphere of social life [that is] outside the sphere of government’.94 However, civil society is a particular, politicised vision of community. Duties could also be expressed in terms of a community’s cultural heritage or on the basis of ‘a history of stewardship’.95 This allows for the legal recognition 87 Lawton does acknowledge that individuals have a role to play but this is specifically in relation to nature conservation rather than stewardship more generally: J Lawton, ‘Making Space for Nature’ (2011) 13 Environmental Law Review 1, 1. 88 J Barry, ‘Vulnerability and Virtue: Democracy, Dependency, and Ecological Stewardship’ in B Minteer and B Pepperman Taylor (eds), Democracy and the Claims of Nature: Critical Perspectives for a New Century (Rowman & Littlefield, 2002) 231. 89 Welchman (n 36) 415. 90 See, in particular, Barry (n 76) Ch 7; D Bell, ‘Liberal Environmental Citizenship’ (2005) 14 Environmental Politics 179. 91 Gray and Gray (n 83) 27. 92 Karp (n 43) 738 and 755. 93 A Dobson, Citizenship and the Environment (Oxford University Press, 2003) 103; Barry (n 76) 231. 94 EE Meidinger, ‘Law Making by Global Civil Society: the Forest Certification Prototype’ (University of Freiburg, Germany, 20–22 June 2001) 6. 95 Bavikatte and Bennett (n 2) 27.

126  Environmental Stewardship of the specific stewardship duties of indigenous communities whose cultural identity is often intimately connected to the health of their natural environments through what Sanjay Kabir Bavikatte describes as biocultural rights.96 Māori, for example, have specific guardianship duties in relation to natural beings, such as the Whanganui river or Te Urewera (a former national park). Article 29 of the United Nations Declaration on the Rights of Indigenous Peoples explicitly recognises that ‘indigenous peoples have the right to the conservation and protection of the environment’.97 Thus, the duty bearer might be conceived accordingly to a cultural rather than civil vision of community. The recognition of stewardship duties as being a cultural practice, as well as a practical or civil one, also hints at the different relational approaches to environmental stewardship. The duty of an Indigenous person or community is more likely to be conceived in ethical or spiritual terms than it is in proprietorial terms, for example. NGOs, particularly environmental ones, also owe specific stewardship duties – whether through environmental protection activities, supporting community action or requiring corporations to adhere to certain stewardship standards. Two major international environmental NGOs are devoted to promoting and ensuring better stewardship of the environment – the Marine Stewardship Council98 and the Forest Stewardship Council – and both play a role in regulating the stewardship responsibilities of corporations, in particular, enabling citizens to make consumer choices based on stewardship standards.99 Given the regulatory role that NGOs can play, there is a strong link between environmental governance and stewardship and, although NGOs do not form part of the state, the complexity of environmental governance is such that it involves a variety of state and non-state actors, NGOs amongst them. Having thus uncovered a link between stewardship and governance, the final actor who might be regarded as having stewardship responsibility is the state. For example, the state is responsible for implementing and promoting the vast majority of explicit stewardship duties that are imposed on landowners through a number of regulatory mechanisms, and it is the state that helps facilitate good environmental citizenship, through providing access to information or public participation. Accordingly, the state should also be recognised as owing stewardship duties. These duties are primarily focused on facilitating and overseeing the better stewardship of members of the public, civil society, corporations and landowners. It is the state who has the moral authority ‘to establish and enforce

96 KS Bavikatte, Stewarding the Earth: Rethinking Property and the Emergence of Biocultural Rights (Oxford University Press, 2014). 97 United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). 98 T Hale, ‘Marine Stewardship Council’ in T Hale and D Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley, 2011) 309. 99 H Liedeker and M Spencer, ‘Forest Stewardship Council’ in D Burger et al (eds), Forest Certification: An Innovative Instrument in the Service of Sustainable Development? (Deutsche Gesellschaft fur Technische Zusammenarbeit GmbH, 2006).

Elements of Stewardship  127 standards of conduct’ and accordingly it is seen as having a duty to do so.100 Therefore, the state is specifically able to promote good environmental stewardship by facilitating the institutions that enable and maintain the planetary trust.101 Further, from the perceptive of Indigenous communities in particular, states might also have an indirect duty to protect their biocultural rights to exercise stewardship.102 Finally, given the increasingly multifaceted view of the state in environmental law and the emergence of ‘new governance’ structures, it is also possible to identify a specific stewardship duty in this complex new landscape.103 Stewardship potentially reveals something about these elaborate governance structures, because it acts as a ‘new form of governance’.104 For example, the protection of the marine environment is achieved through a mixture of UK and EU governmental policies, scientific input, international regimes, pressure from NGOs as well as public and press opinion, all working together in the colossal effort of effectively stewarding the oceans.105 In this example, a wide range of governance actors are involved in owing stewardship duties; in other words, multiple aspects of the potential network of stewardship actors are engaged. Accordingly, although all of these different duty-bearers are under a general obligation to be stewards of the natural environment, how that duty is manifested depends on the actor involved. These differences I develop in the following section when considering the different stewardship relationships. Properly articulating the different actors engaged in stewarding the environment ensures that, when analysing the Aarhus Convention, their individual and distinct stewardship roles can be identified and understood. D.  Nature of the Duty: Relationships and Values This final section explores the spectrum of different, but overlapping, relational understandings of stewardship – custodial, managerial, proprietorial and spiritual – in order to understand the manifold nature of the stewardship duty.106 This spectrum is not so much one of shades as of distinct colours. That is, the difference between the relationships is not about the strength of the obligations 100 Reich (1964) (n 9) 755; see also R Eckersley, The Green State: Rethinking Democracy and Sovereignty (MIT Press, 2004) 11–13. 101 Brown-Weiss (n 56). 102 Bavikatte and Bennett (n 2) 27. 103 J Scott and J Horder, ‘Law and New Environmental Governance in the European Union’ in G de Búrca and J Scott (eds), Law and Governance in the EU and the US (Hart Publishing, 2006). 104 Specifically, in relation to fisheries and forestry governance, see TS Gray and J Hatchard, ‘Environmental Stewardship as a New Form of Fisheries Governance’ (2007) 64 ICES Journal of Marine Science: Journal du Conseil 786, 786. 105 Ibid, 787. 106 Caldwell links the custodial, managerial and proprietorial elements of what he describes as the stewardship ethic: Caldwell (n 66) 326.

128  Environmental Stewardship undertaken within the relationship that attend the relationship – proprietorial stewardship is not necessarily stronger than custodial stewardship, for example – rather each relationship represents different expressions of the types of obligations placed on the steward and the sorts of values and virtues engaged. Neither are these different relationships discrete: it is perfectly possible for spiritual and custodial stewardship to coalesce, for example. This spectrum of relationships instead articulates the multifaceted nature of environmental stewardship, because each relationship expresses different characteristics of the broad concept of stewardship. It also addresses two dimensions of stewardship that have not yet been explicitly detailed in this map: the values that underpin stewardship and the motivations of stewards. Each of the relationships considered here capture these two dimensions, and in so doing, add another layer to the map of stewardship that is being drawn. i.  Custodial Stewardship Custodial stewardship is a form of stewardship based on the careful holding of natural resources for the benefit of others, in particular future generations. The custodial steward is someone who recognises that their relationship with the natural world is one of caretaker and not owner or manager (both of which emphasise control rather than care), and that therefore environmental stewardship is about responsibilities rather than rights. Caldwell, for example, defines stewardship as ‘the socially and ecologically responsible custody of the land’.107 Tracing the early origins of the concept of stewardship to nomadic and seminomadic communities in ancient Israel, Tim Ingold locates the true meaning of stewardship in custodianship.108 In contrast to the linguistic origins of stewardship therefore – stigwerd, a concept that was associated with managing and ownership – the cultural origins of stewardship reveal that it is based on the understanding that humans are custodians rather than owners of the lands they inhabit. In this way, there are parallels between custodial stewardship, guardianship,109 trusteeship110 and even sustainable development.111 Although not perfect synonyms, each of these associations illuminates the meaning of custodial stewardship, and each signals the values that are associated with this stewardship relationship: care; prudence; thoughtfulness; protectiveness; concern for posterity.

107 Ibid, 323. 108 T Ingold, The Appropriation of Nature: Essays on Human Ecology and Social Relations (Manchester University Press, 1986) 277. 109 Welchman (n 24) 299. 110 PH Sand, ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources?’ (2004) 4 Global Environmental Politics 47. 111 J Agyeman and B Evans, ‘Justice, Governance and Sustainability: Persepctives on Environmental Citizenship from North America and Europe’ in A Dobson and D Bell (eds), Environmental Citizenship (MIT Press, 2006).

Elements of Stewardship  129 In general parlance, something is held in custody either for the benefit of the thing itself, the actual owner or some other who benefits from the custodianship. In stewardship terms, this might translate to the natural environment being held in custody for the benefit of the environment itself, as part of a religious commitment to God, or as a duty towards other members of the community, both now and in the future. Indeed, the planetary trust is a particularly apt analogue to custodial stewardship because communal responsibility for the planet is central to the trust’s operation. Custodianship as stewardship, therefore, determines that the defining feature of stewardship is that it is intended to benefit the other, not the self.112 Further, custodial stewardship represents a duty that all human beings hold, in part because all human beings benefit from natural resources, and partly because all human beings have (in theory) benefited from the stewardship responsibilities of previous generations. Thus landowners, individuals, communities, corporations, NGOs and the state all have some form of duty to protect and preserve the shared environment: to act as its custodians. This is particularly evident with Indigenous communities who recognise a communal responsibility in relation to the natural resources that they use. Indigenous Australians, for example, are less concerned with owning the land than they are with fulfilling obligations to it;113 the Walpole Islanders articulate their relationship with land as an ethic of care;114 and M Kat Anderson describes the careful ways in which Californian Indians cultivate and tend their environs.115 Even from an historical perspective, the ancient Hebrew nomads saw occupation of the land not as a matter of ownership (as was the Roman tradition) but rather as a practice of tending to and looking after it.116 Although this form of stewardship largely represents an ethical commitment that all members of the human species have to the natural environment in a broad sense, there are also particular connotations for the state as custodians of the natural environment for their citizens. In legal terms, some jurisdictions hold their governments to account on the basis of the public trust doctrine. According to the doctrine, the sovereign state holds environmental goods in trust for their citizens and therefore the state has fiduciary duties to protect and maintain those natural resources.117 Politically, particularly in the international arena, custodial stewardship manifests as sustainable development. Julian Agyeman and Bob Evans, for example, describe stewardship and sustainability as ‘the same beast’

112 J-J Rousseau, The Social Contract and Other Later Political Writings (Victor Gourecitch ed, Cambridge University Press, 1997) 54–56. 113 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 270F. 114 CL Beckford et al, ‘Aboriginal Environmental Wisdom, Stewardship, and Sustainability: Lessons From the Walpole Island First Nations, Ontario, Canada’ (2010) 41 The Journal of Environmental Education 239, 243. 115 M Kat Anderson, Tending the Wild (University of California Press, 2005) 335. 116 Ingold (n 108) 227. 117 J Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review 471.

130  Environmental Stewardship because each is directed toward protecting the environment for future generations and the interests of others.118 Thus, sustainable development, typically defined as ‘development which meets the needs of current generations without compromising the ability of future generations to meet their own needs’, reflects a particular political commitment to custodial stewardship.119 One challenge with the values associated with custodianship – care, consideration, gentleness – is that it enfeebles the natural world. The things we are custodians over are often vulnerable or fragile, children being a prime example. Therefore, rather than recognising the agency of nature, custodial stewardship can tend to presume that humans have and should have a leading role in the natural hierarchy, even if that leading role is one of caretaker. This can lead to the hubris that many critics of stewardship find so objectionable. As Stephen Jay Gould argues, ‘the view that we live on a fragile planet now subject to permanent derailment and disruption’ caused by human beings, and that those very same human beings can fix it, is ‘rooted in the old sin of pride and exaggerated self-importance’.120 Therefore, inherent in this form of stewardship is an anthropocentric assumption that humans are sufficiently responsible to act as custodians. Nevertheless, custodial stewardship represents the ethical core for what environmental stewardship can look like. Though, ostensibly an anthropocentric concept, it is only weakly so, and it allows for the possibility that human beings are not so separate from the natural world as the dominant paradigm of human/ nature relationships would suggest. The values embedded in the custodial form of stewardship also denote a form of humility that turns the focus away from human gain towards human responsibility. However, as a stewardship relationship it only explains the nature of the duty, it does not specify exactly how that duty should be performed. There is room, therefore, beyond custodial stewardship for further elaboration of what stewardship might look like. ii.  Managerial Stewardship The managerial stewardship relationship conceives of stewardship as an obligation that requires active engagement with environmental resources. Stewards, in the managerial sense, are required to actively care for and manage the natural resources under their control.121 This form of stewardship does more than describe the nature of the duty (as with custodial stewardship); it ascribes the operation

118 Agyeman and Evans (n 111) 200. 119 Sustainable development has been defined by the Brundtland Report, World Commission on Environment and Development: Our Common Future: report by the World Commission on Environment and Development (Brundtland Report) (1987). 120 SJ Gould, ‘The Golden Rule – A Proper Scale for our Environmental Crisis’ (1990) 99 Natural History Magazine 24, 30. 121 Roach et al (n 21) 50; Lucy and Mitchell (n 9) 583; Passmore (n 30) 28.

Elements of Stewardship  131 of that duty by emphasising the controlling role for humans in the natural world order. Custodial values might colour how nature should be managed – stewardship could be ‘conservative management’ (emphasis added),122 careful management (emphasis added),123 or management of resources so as to use no more of the available resources than is necessary – but the emphasis is on the activity of human beings.124 In this way it is possible to draw parallels between the managerial stewardship and other practices of active engagement with the natural world, for example ecological restoration, a form of stewardship aimed at actively repairing damaged nature. Like the custodial form, however, stewardship as resource management relies on the assumption that natural resources can and should be managed by human hand and therefore maintains the arrogant streak of stewardship. As an alternative to this assumption, managerial stewardship might be thought of as management of human behaviours with a view to improving environmental quality. Therefore, managerial stewardship has two alternate visions: environmental management and behaviour management, both directed at good environmental stewardship, but achieved through different means. Embedded in the managerial stewardship relationship, therefore, are associations with the ideas of mastery, control and dominion. Thus, the underlying moral challenge of stewardship – that it enables rather than restrains human dominion – is strongly present in the managerial approach to stewardship. This can lead to troubling practices, such as ocean fertilisation and stratospheric aerosol injection,125 forms of geoengineering developed as ways to manage the natural environment, with a view to preserving it for future generations – ostensibly a form of managerial stewardship. Thus, there is a dark underbelly to managerial stewardship that does little to rebut the presumption of human superiority in the natural world order. However, where managerial practices are tempered with custodial values, these more unsavoury manifestations of environmental stewardship can be avoided. For example, as Welchman explains, the ‘successful performance’ of stewardship requires ‘broader moral commitments to benevolence, justice and compassion’.126 Therefore, active management of the environment should be measured against the normative core of stewardship before it can truly qualify as stewardship. Another difficult aspect of the managerial stewardship relationship is that the duty is prone to a focus on the benefits that can be derived for the human species. McKenzie Skene and others warn that many of the existing stewardship agreements that focus on the careful management of land result in stewardship

122 Karp (n 43) 753. 123 Lucy and Mitchell (n 9) 597. 124 Science Action Coalition and Albert Fritsch, Environmental Ethics: Choices for Concerned Citizens (Anchor Press/Doubleday, 1980) 248. 125 Barritt (n 2) 86. 126 Welchman (n 24) 309–10.

132  Environmental Stewardship of property, producing benefits for private interests and not those of the community or the environment.127 This is, again, an impoverished form of stewardship, because it depletes the concept of the normative commitment to steward the environment for the benefit of others. It is perfectly possible to learn how to manage resources so as to deliver benefits for wildlife as well, for example, rather than it being a purely selfish enterprise.128 Ecological restoration, for example, represents a form of managerial stewardship that is not focused on human benefits. The eco-restoration movement developed as a way to restore parts of the natural environment, replicating past landscapes and eco-systems. Thus, the focus is not on human productivity or gain; instead, restoration is concerned with recognising and repairing the damage of our former interactions with the natural world. It thus has a backwards element, which contrasts with the custodial form of stewardship, which is future-focused. Restoration has taken many forms: replanting prairie grasses; rehydrating marshlands; and returning lost species to their original habitats.129 It is often a deeply technical practice, and therefore as a form of stewardship is often reserved for those who have specific expertise. However, restoration still rests on the assumption that humans can control the natural world and as Robert Elliot laments, ‘in intervening we are dominating nature, holding nature captive, taking nature prisoner, incarcerating nature or some such, and probably for our own ends’.130 An alternative way to view the managerial relationship therefore is to think not in terms of managing the environment, but in terms of managing human behaviour. Marcello Di Paola argues ‘the idea of humans “managing” the complexity, magnitude and evolution of natural systems appears at any rate preposterous’.131 Instead, human beings should focus on managing themselves. This is also the approach taken by Welchman, who conceives of stewardship as a way to prescribe human behaviour in relation to the environment.132 This alternative way of conceiving managerial stewardship aims to move the emphasis of stewardship to the protection of the environment for the benefit of others (the wider public, future generations, the environment), rather than the careful management of resources for economic gain.133 It also shifts the focus of stewardship away from the assumption that the environment exists so that humanity might control and improve it.134 Furthermore, managerial stewardship, in this

127 McKenzie Skene et al (n 10) 155. 128 Lawton (n 87) 2. 129 FE Court, Pioneers of Ecological Restoration (University of Wisconsin Press, 2012) 1–17. 130 R Elliot, Faking Nature: The Ethics of Environmental Restoration (Routledge, 1997) 135. 131 M di Paola, ‘Environmental Stewardship, Moral Psychology and Gardens’ (2013) 22 Environemntal Value 503, 504. 132 Welchman (n 24) 302. 133 Ibid, 302–303. 134 Passmore (n 30) 28–40.

Elements of Stewardship  133 sense, is not dependent on a pre-existing land relationship; rather, it applies to the whole range of actors and not specifically in relation to the land. Irrespective of the way in which managerial stewardship is used, the duties which are prescribed by the concept of managerial stewardship are generally reserved for those who exercise control over the land, such as the state that develops and enforces stewardship agreements, or the landowners and managers who implement them.135 Therefore, it is those who have control by virtue of their ownership who are best placed to carefully manage natural resources. However, the switch to behaviour management rather than resource management highlights the difficulty of containing the concept of stewardship within the discrete elements detailed in this map. iii.  Proprietorial Stewardship Proprietorial stewardship is the specific stewardship relationship that landowners have in relation to the natural resources that they own. Understanding the nexus between property and stewardship is an important legal enquiry that relates to a broader legal question about the nature of property and its relationship to environmental problems.136 Therefore, this form of stewardship occupies the greatest territory in the expressly legal stewardship scholarship. There are inevitable overlaps between this form of stewardship and the custodial and managerial forms. For example, a proprietorial steward might be called to manage their resources in a particular way but, unlike these other two relationships, how the duty is exercised is not a dominant concern of proprietorial stewardship. Instead, proprietorial stewardship is focused on defining the correct legal form of the relationship between an owner and their land given the impact of environmental obligations (both legal and moral). Redefining ownership in stewardship terms is done in pursuit of legal accuracy,137 as a matter of moral imperative, or some combination of the two.138 Within the proprietorial stewardship discourse two competing models are presented as to what proprietorial stewardship can and should look like.139 The first retains the dominant legal paradigm of private property but attaches to that relationship attendant duties of good stewardship that are intended to control and mitigate the environmental impacts of property ownership.140 The second rejects the coherence of private property in land, replacing it with a relationship

135 McKenzie Skene et al (n 10) 155. 136 See text to n 9. 137 Rodgers (n 9). 138 Lucy and Mitchell (n 9). 139 These relationships apply only to the notion of private property, so considerations of common and collective property should be temporarily set aside. 140 Hunter (n 9); Caldwell (n 66); Rodgers (n 9); although not explicitly relating to stewardship see also RJ Lazarus, ‘Debunking Environmental Feudalism: Promoting the Individual Through the Collective Pursuit of Environmental Quality’ (1992) 77 Iowa Law Review 1739.

134  Environmental Stewardship of stewardship that resembles the custodial stewardship relationship, in that the property is not held for the sole benefit of the owner; rather, the owner holds it for the benefit of the wider community.141 These competing models arise out of the complexity inherent in the concept of ownership, particularly when it is applied to land and natural resources, and the discomfort that this relationship gives rise to from the perspective of environmental protection.142 The first model of proprietorial stewardship applies an extension pack of stewardship duties to the existing proprietary relationship, or as Caldwell describes it, stewardship imposes certain ‘requirement(s) of landownership’.143 Proprietorial stewardship, in this form, imbues existing property rights with ideas of stewardship in order to take proper account of the needs of the community; to reorder the balance between public and private rights.144 Private property in land, according to this model, must therefore include a legal and not just an ethical duty to steward the land. Stewardship thus amounts to a collection of duties that landowners assume as part of the privilege of ownership. Although a normative project (ie finding a way to improve the stewardship of privately held resources) this form of proprietorial stewardship is also concerned with understanding the legal nature of property in relation to environmental law. Richard Lazarus, for example, predicted that property rights will be modified as an inevitable consequence of modern environmental legislation;145 and Christopher Rodgers claims that a new species of property has begun to emerge in order to promote nature conservation.146 For example, the EU Natura 2000 network and Natural England’s Sites of Special Scientific Interest (SSSI) require private property owners to protect areas of land in their possession that are deemed to be ecologically significant. Accordingly, existing property relationships are modified by values of good stewardship, in order to achieve the best possible protection of the natural environment. In particular, these values promote the interests and needs of the whole community in relation to limited resources. This communal interest thus informs the content of the duty, blurring the lines between private, collective and common property. Proprietorial stewardship, on this view, is therefore a form of ownership that includes obligations as well as the usual privileges and liberties that come with ownership. The second way to view the relationship with property is to see stewardship as replacing the notion of private property. This is the approach advocated by Lucy

141 Lucy and Mitchell (n 9). 142 Kevin and Susan Gray have written a series of articles discussing the problematic nature of the property relationship: K Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252; K Gray, ‘The Ambivalence of Property’ in G Prins and H Tromp (eds), Threats Without Enemies: Facing Environmental Insecurity (Taylor & Francis, 1993); K Gray, ‘Equitable Property’ (1994) 74 Current Legal Problems 157; Gray and Gray (n 83). 143 Caldwell (n 66) 330. 144 Hunter (n 9) 319. 145 Lazarus (n 140) 1759. 146 Rodgers (n 9) 552.

Elements of Stewardship  135 and Mitchell, who argue that it is a mistake to think that stewardship and property are compatible concepts.147 Instead, they argue that the notion of private and common property in land and natural resources should be dispensed with altogether and replaced by a pure stewardship relationship. Lucy and Mitchell argue this is so because stewards cannot enjoy the ‘trinity of rights characteristic of private property’ – exclusivity, enforceability and transferability148 – and because there has been a failure to justify the notion of property in land.149 Their concept of stewardship retains some of the features of a property relationship; for example, the relationship is still one of control, however, that control is exercised with due account taken of human (which includes the needs of the present and future generations) and ecological needs. Their conception of stewardship is expressly normative,150 although they refrain from conceptualising stewardship as a ‘substantive moral doctrine’. Rather they use stewardship as an instrumental concept designed to replace the dominant ethic of landownership with that of stewardship, which they regard as better able to promote altruism in respect of both human and ecological needs.151 Resolving the incompatibility between these two models is not necessary, because the concept of stewardship I am developing here is expressly designed to splay out its different, and sometimes competing, conceptions. Recognising this conflict therefore only adds to the starting idea of this chapter, that environmental stewardship requires thorough interrogation before it can be used as a standard by which to evaluate and interpret environmental law in general and the Aarhus Convention in particular. As with the other dimensions of stewardship, these two approaches highlight the layers of foundational assumptions and beliefs that are built into the concept. iv.  Spiritual Stewardship Closing this spectrum of stewardship relationships is spiritual stewardship. This final relationship captures an important dimension of the concept of stewardship that has not yet been fully explored in this chapter. That is, the way in which stewardship invites the holder of the duty to reflect on their place in the world. Stewardship is, therefore, not just a question about what it means to be a good environmental citizen, according to legal or social norms; it is also an existential question about who we are as inhabitants of the earth. Thus, it appeals to a different moral architecture and authority. Emphasising these spiritual dimensions of stewardship is not intended as a commitment to one particular religious or theistic view of spirituality – it is possible to identify the idea of stewardship



147 Lucy

and Mitchell (n 9) 586. and Mitchell (n 9) 586. 149 Ibid, 573–79. 150 Ibid, 567. 151 Ibid, 596–97. 148 Lucy

136  Environmental Stewardship in a range of very different belief systems – rather, it points to the existentialism that underpins environmental thought.152 The origins of the modern environmental movement in the 1960s, for example, are frequently attributed to the capture of the first images of the earth from space, images that highlighted its fragility as well as its beauty.153 And the question of whether environmental laws and policies should be anthropocentric or ecocentric is an existential question about whether or not humans should be at the centre of our concern for environmental survival. Stewardship, as a spiritual concept, represents a dialogue about the role humans have in protecting, caring for and managing the natural world and why they have such a role. Therefore, a comprehensive examination of environmental stewardship, such as this, must engage with the transcendental as well as the practical parts of the concept. Alien and alienating as the notion of spirituality may be to a modern legal audience, it was not so for the natural lawyers of the seventeenth and eighteenth centuries. Thomas Hobbes, Samuel Pufendorf and John Locke, for example, were all preoccupied with the question of humanity’s place in the natural order – an order that included the divine.154 Early attempts to define humankind’s relationship with the land, as a matter of law, were therefore rooted in a theological approach.155 Sir Matthew Hale, for example, described human beings as the ‘viceroy of the great God of heaven’156 with responsibility for all of creation, and Hugo Grotius described human beings as having a God-given dominion over the material world.157 Nor is such an appeal to the mystic alien to Indigenous cultures. Indeed, legal frameworks have already been built around these ideas. For example, the Andean concept of buen vivir (good living), which is concerned with spiritual as well as material well-being, helped inform the 2008 Bolivian Constitution which recognises the primary need to respect mother nature (Pacahamama).158 And the bestowal of legal personhood on the Whanganui river or Te Urewera was driven by the spiritual beliefs of the Māori people. Uncommon as the transcendental may be in legal discourse, it is not entirely out of place. Stewardship, in its various guises, is deeply rooted in religious tradition. From a Western perspective those roots are commonly associated with Christian thought where stewardship was regarded as a duty owed by all humans to God to care for the earth and to pass it on to future generations.159 Within the traditions

152 J Barry et al, ‘Editor’s Introduction’ in J Barry et al (eds), Europe, Globalization and Sustainable Development (Routledge, 2004) 3. 153 Dryzek (n 23) 25. 154 Coyle and Morrow (n 18) 148. 155 Ibid, 148. 156 Sir Matthew Hale, The Primitive Organisation of Mankind Considered and Examined According to the Light of Nature (London, William Godbid, for William Shrowsbury, 1677) 370. 157 Coyle and Morrow (n 18) 16. 158 S Carira and R Domíngues, ‘Ecuador’s Buen vivir: A New Ideology for Development’ (2015) 43 Latin American Perspectives 18, 19–20. 159 Brown-Weiss (1989) (n 71) 19 (citing Genesis 1:1–31, 17:7–8).

Elements of Stewardship  137 of Franciscan, Benedictine and Celtic Christianity, the natural environment was considered to be a beneficiary of the stewardship duty alongside present and future generations.160 Although Christianity has been an important source of values for the articulation of a stewardship ethic, it is not the only tradition that makes stewardship of the natural environment a sacred pursuit. As highlighted in section II above, each of the major world religions contains a concept akin to stewardship, thereby placing devotees under a duty to protect and care for the natural environment. For example, as Martin Lau explains, ‘the precepts of Islam embody a moral postulate to protect the environment’.161 Paganism goes further than the theocentric belief systems by attributing spiritual significance to nature itself, a belief that spurs respect for and protection of the natural world.162 Many Indigenous cultures also exhibit a specifically mystical conception of humanity’s relationship with the environment.163 For example, the Native American land ethic recognises that the natural environment is more than a mere resource: it has important spiritual value and this is reflected in their reverence for, and stewardship of, the land.164 Traditionally, spiritual stewardship relationships depend on some form of theistic or mystic framework. This may make stewardship, in a spiritual sense, unattractive to those unpersuaded by otherworldly considerations, particularly those like Lynn White, for example, who attribute the roots of the current ecological crisis to the medieval Christianity of the West.165 Once God, or some other divine being, is taken out of the equation, the higher moral authority that underpins this form of stewardship disappears.166 Nevertheless, this does not immediately mean that the spiritual conception of stewardship is the preserve of those who possess specific religious belief.167 Leopold’s Land Ethic, Lovelock’s

160 A Schweitser, Reverence for Life (RH Fuller (tr), Harper and Row, 1969); White (n 24); C Balmford and W Parker Marsh (eds), The Heritage of Celtic Christianity: Ecology and Holiness (Floris Books, 1986). 161 M Lau, ‘Islam and Judicial Activism: Public Interest Litigation and Environmental Protection in the Islamic Republic of Pakistan’ in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, 1996) 287. 162 J Zizioulas, ‘Priest of Creation’ in Berry (n 17) 289. 163 G Pentassuglia, ‘Towards a Jurisprudential Articulation on Indigenous Land Rights’ (2011) 22 The European Journal of International Law 165, 171; Beckford et al (n 114) 243–44 and 246; S Appiah-Opoku, ‘Indigenous Beliefs and Environmental Stewardship: A Rural Ghana Experience’ (2007) 24 Journal of Cultural Geography 79, 82. 164 A Ross et al, Indigenous Peoples and the Collaborative Stewardship of Nature: Knowledge Binds and Institutional Conflicts (Left Coast Press, 2011) 239–40; C Martin, Keepers of the Game: Indian-Animal Relationships and the Fur Trade (University of California Press, 1982) 38–39; see also Brown-Weiss (1990) (n 71) 198 quoting part of a letter from Chief Seattle, patriarch of the Duwamish and Squamish Indians of Puget Sound, to US President Franklin Pierce (1855). 165 White (n 24) 1207. 166 Val and Richard Routley argue that problems arise for the concept of stewardship when God is taken out of the equation because it is no longer clear to whom the duty is owed: Routley and Routley (n 21) 113. 167 Barry et al (n 152) 3.

138  Environmental Stewardship Gaia Hypothesis, the varied approaches of ecofeminists168 and Bennett’s ‘kinship’ all advocate a particular framework about the proper ordering of humanity’s relationship to the natural world, that emulates the structural reordering of religious frameworks.169 Indeed, each of these approaches recognises something akin to the sacred in the natural world; these frameworks thus represent a form of modern pagan animism. One thing that is common to both theistic approaches, and the alternative approaches of Leopold, Lovelock, ecofeminists and Bennett, is that they appeal to a higher moral order in order to shape our human-nature relationships. The previous ways of explaining the relationship and duties of stewardship, discussed above, assume that humans are – and should be – the dominant members of the environmental community, whether this is by owning, managing, repairing, governing, or benefiting from the environment.170 Spiritual approaches to stewardship do not necessarily make this assumption (although as Lynn points out, some may reinforce this attitude); rather, they re-examine and re-prioritise the place of the humans in the moral hierarchy, whether because humans are deemed submissive to a divine moral authority, or because nature itself is imbued with religious significance or mysticism.171 This approach affects the notion of the stewardship relationship fundamentally, by considering non-selfish motives for protecting the environment.172 By re-prioritising the place of both human beings and nature in the moral hierarchy, the spiritual form of stewardship enables the environment to be seen as a primary beneficiary of the stewardship duty and not just an incidental one.173 IV. CONCLUSION

Traversing the landscape of environmental stewardship reveals much about the vastness, as well as the complexity, of the concept. It has an inherently multidimensional character, with a mixed linguistic, cultural, legal and religious history. As demonstrated in the map of stewardship developed in this chapter, stewardship is a concept that can take many forms. For example, the linguistic origins of stewardship indicate that it is connected to the management of legally owned property, whereas its cultural origins paint a picture of nomadic custodianship. Even where the various relationships of the concept are distilled,

168 S Sapra, ‘Feminist Perspectives on the Environment’ in RA Denmark and R Marlin-Bennett (eds), Oxford Research Encyclopaedia of International Studies (Wiley-Blackwell, 2012). 169 Bennett (n 58) 112. 170 Hunter (n 9) 319. 171 Passmore (n 30) 28; Lucy and Mitchell (n 9) 583. 172 External in the sense that the reasons for acting are reasons other than those motivated by human survival and development. 173 Leopold (n 43).

Conclusion  139 there are different ways to understand that relationship, for example managerial stewardship can be understood as either resource management or behaviour management. Embracing the potential for a profound plurality is challenging, and the terrain of stewardship can feel like moving sand. However, even though the concept is multi-disciplinary, composed of various overlapping elements, and appears under different guises, it is still possible to discern something about the character of stewardship. As with other complex concepts such as democracy or justice, it is not always possible to put our finger perfectly on its meaning; instead, through familiarity and exploration, we come to develop a general but meaningful sense of what the concept is about. It is in this circling around the concept that it is possible to understand its core. Central to the concept of stewardship is humanity’s responsibility to nature. However, as there is no clear picture of what that responsibility is and how that responsibility manifests, there are competing visions of what stewardship can and should look like. When it comes to interpreting the Aarhus Convention, then, stewardship might seem too unwieldy a concept to be helpful. However, the struggle of defining stewardship monoconceptually, and thus our responsibility for nature, is a struggle that is central to the Convention itself. The commitment of the Convention to procedural – rather than substantive – rights, and its aspiration towards environmental democracy, recognise that the task of stewarding the environment is not a clear or straightforward one. Therefore, the expansive map of stewardship developed in this chapter enables an evaluation of the Convention that appreciates the complexities and layers of the vision that it promotes.

6 Interpretive Possibilities The function of art is to do more than tell it like it is – it’s to imagine what is possible …1

I. INTRODUCTION

I

n bringing this book to a close, I take the work that I have done in the three purpose chapters in order to assess how each purpose should be understood in the context of the Convention. Using the three theoretical maps from Chapters 3, 4 and 5, I add definition to the portrait of each of the three purposes that I outlined in Chapter 2. With this more developed picture, I am able to offer an in-depth explanation of how each purpose of the Convention is to be understood. In producing these portraits, I have tried to remain faithful to my early commitment to respect the oscillations of contested concepts. Therefore, the explanations that I offer are not rigid – they, like the theoretical maps they are informed by, recognise the undulating contours of each of the three purposes of the Aarhus Convention. For example, in relation to the environmental rights purpose, I acknowledge that there are different, complementary ways to interpret environmental rights in the context of the Convention, and I outline these differences, without being prescriptive as to which is the best solution. This approach thus reflects the dynamism of the Convention, recognising that the shape of its purposes grows as the Convention does.2 Producing these nuanced portraits thus allows me to reflect on their interpretive consequences for the Aarhus Convention. In respect of each of the three purposes, I illustrate how their elaborate explanation contributes to a more authentic interpretation of the Convention. Given that the focus of this book has been on uncovering the foundations and articulating the three purposes – environmental democracy, rights and stewardship – this final interpretive step is reflective rather than comprehensive. I identify only a few examples to show how each of the purposes shape how the Convention is interpreted and thus why a purposive approach is both valuable and necessary. This chapter, therefore, is 1 bell hooks, Teaching to Transgress: Education as the Practice of Freedom (Routledge, 1994) 281. 2 Á Ryall, ‘Beyond Aarhus Ratification: What Lies Ahead for Irish Environmental Law?’ (2013) 20 Planning and Environmental Law Journal 19, 19.

The Purposive Approach  141 not a definitive statement of those possibilities; rather, it is an invitation to carry on the work of discovering the interpretive possibilities of the Aarhus Convention using the frameworks that I have developed. A key revelation of this purposive approach that emerges in this chapter is the interplay between the three pillars of the Convention – access to information, public participation and access to justice – and the substantive purposes that it pursues. Each of the three purposes helps to shape the way in which the three procedural rights operate, allowing the Convention to achieve its full potential. To borrow an analogy from writer Rob Bell, the pillars of the Convention are better likened to the springs of a trampoline.3 They are fixed structural devices, but they are not static and the energy of each of the purposes enlivens the Convention’s procedural rights in order to achieve an ambitious vision of environmental protection. In examining the purpose and possibilities of the Convention, I have thus been bouncing on these springs, exploring the full potential of the Convention’s provisions. II.  THE PURPOSIVE APPROACH

Before examining the interpretive possibilities of each of the three purposes, I begin with a reminder of why I have taken such an unabashedly purposive approach to understanding the Aarhus Convention. As I explained in Chapter 2, purposive interpretation is a ‘value-based’ form of interpretation that unpacks the broad purpose of a text as a way to arrive at its most authentic interpretation.4 Such an approach to the Aarhus Convention is necessary for three reasons. First, it is an instrument of international law and is therefore to be interpreted in accordance with Article 31(1) of the Vienna Convention, which states that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objective and purpose’ (emphasis added).5 Second, because the Convention aspires to be a human rights instrument, it requires a form of interpretation which ensures that the protection of individual rights is meaningful and responsive; this form of interpretation is generally understood to be purposive.6 Third, the Convention is accompanied by a significant body of explanatory material (its Implementation Guide and Strategic Plans, for example), which suggests that it has meaning beyond the black letters of the Convention’s text.7 Together, these reasons affirm the value of a purposive approach to interpreting the Aarhus Convention. 3 R Bell, Velvet Elvis (Zondervan, 2005). 4 J Burrows, ‘The Changing Approach to Interpretation of Statutes’ (2002) 33 Victoria University of Wellington Law Review 981, 981. 5 The Vienna Convention on the Law of Treaties [1969] 1155 Treaty Series 331, Art 31. 6 M Swart, ‘Is there a Text in this Court? The Purposive Method of Interpretation and the Ad Hoc Tribunals’ (2010) 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 767, 783. 7 Case C 279/12 Fish Legal, Emily Shirley v The Information Commissioner et al [2014] QB 521, para 38.

142  Interpretive Possibilities Purposive interpretation is not just about the ambiguity latent in a legal text. In some cases ‘the text alone does not suffice’ to help locate the purpose and meaning of a text.8 This implies a further layer of complexity when adopting a purposive approach, because in these cases purposive interpretation requires recourse to ‘external sources’9 or an understanding of a text’s general social purpose.10 As I have shown throughout, the Aarhus Convention suffers from this interpretive challenge. Its preamble lists an impressive array of expansive purposes and the Convention has an entourage of ongoing interpretive commentary designed to supplement its interpretation. What is more, it positions itself as an instrument designed to address many of ‘the basic problems of social living’,11 for example, environmental protection, transparent government, democratic engagement etc.12 The plain text of the Convention is emphatically not enough to understand its full purposive scope. Untangling this second layer of interpretive complexity has received far less attention within the broader conversation about the process of interpreting law. It goes beyond the doctrinal activity of discerning legal complexity, to the world of philosophical ambitions which are contained in less restrictively drafted explanatory materials or which emerge from a broader social context. It is no accident, for example, that the term ‘environmental democracy’ does not feature in the text of the Aarhus Convention; it lacks legal precision and relates to ideas that are rightly contested. By comparison, the Convention’s Foreword and Implementation Guide are written to contribute to the story of the Convention, and therefore have more freedom to employ more descriptive, but less precise, language. Two challenges emerge from this second interpretive layer. The first is the extent to which external sources and broader purposes should be used to aid the interpretation of the text. In Chapter 2 I showed that in light of the formal rules of interpretation set by the Vienna Convention and jurisprudence from the Court of Justice of the European Union, these external materials are a permissible source of revelation for the purposive interpretation of the Aarhus Convention.13 The second challenge, for which there is no formal guidance, is how to unpack ambiguity where it arises in those interpretive materials, most especially when those materials relate to complex and contested philosophical ideas. Unpacking the nature and meaning of these philosophical ideas, which

8 A Barak, Purposive Interpretation in Law (S Bashi (tr), Princeton University Press, 2005) 228. 9 Ibid, 157–69. 10 HM Hart Jr and AM Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Foundation Press, 1995) 148. 11 Ibid, 148. 12 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 38 ILM 517, 5th, 6th, 10th 11th and 21st preambular recitals. 13 The Vienna Convention (n 5) Arts 31–32; Fish Legal (n 7) para 38.

Environmental Democracy in the Context of the Aarhus Convention  143 often lack a fixed or fixable meaning, is a different order of exercise to that of discerning textual ambiguity. Focusing on environmental democracy, rights and stewardship, this book has been devoted to understanding how a purposive approach can work, when the purposes themselves are complex and in need of development and explanation. If the ambitious scope of the Convention is to be taken seriously, then this expansive, purposive approach is necessary. To do otherwise would be to treat the Convention’s claims as mere puffs, the phantom identity of a social media star, cultivated to create an image of the Convention that does not bear much relation to its reality. I do not believe this to be the correct approach to the Aarhus Convention. The values and ambitions that form part of the narrative of the Convention are genuinely meant and have recurred across the range of interpretive materials that shape the Convention. Take, for example, the environmental rights purpose of the Convention: this purpose can be identified from the very early history of the Convention’s inception, through to the documentation arising out of its twentieth anniversary celebrations. Understanding the nature of these purposes is critical to understanding how the Convention operates. Taking each purpose in turn, I can finally put into practice the purposive approach I advocate, drawing on the theoretical accounts I have developed to show how they can shape the ways in which the Convention can be understood. III.  ENVIRONMENTAL DEMOCRACY IN THE CONTEXT OF THE AARHUS CONVENTION

Although the Aarhus Convention is widely regarded as an important legal instrument for the promotion of environmental democracy, little effort has been made to actually define environmental democracy as a purpose of the Convention. The work of Chapter 3 showed this to be a mistake. Environmental democracy is a complex idea that can manifest in a variety of different practical arrangements in order to promote a number of different normative ends. Any claim about environmental democracy being a purpose of the Convention thus needs to be supported by an explanation of what environmental democracy is – otherwise, the claim risks becoming a meaningless promotional gloss that has no real consequence for how the Convention is implemented. This failure to define environmental democracy in the context of the Convention may be because ‘environmental democracy’ is intended as a descriptive claim rather than a normative one – ie the Convention epitomises environmental democracy, rather than strives towards it. Thus, there is no need to resort to some theoretical standard of environmental democracy by which to judge the success of the Convention, because the Convention is the standard. This seems to be the approach of Francesco La Camera, who argues that the meaning given to environmental democracy is a matter of context because there is quite

144  Interpretive Possibilities a ‘distance between words and facts’.14 In other words, Aarhus environmental democracy is different from the theoretical idea of environmental democracy, but it is nevertheless a form of environmental democracy. More cynically, it is also possible to regard the Convention’s claims about environmental democracy as a clever means by which to incorporate democratic practices and values (like transparency and participation) into the fledgling regimes of former authoritarian states, thus helping to facilitate EU enlargement more generally.15 Indeed, as Stephen Stec points out, ‘as a club of advanced democracies, the EU has not looked at the adoption of Aarhus rights by its members as particularly related to its own democratisation’.16 Therefore, it is possible to see the environmental democracy purpose of the Convention simply as a tool to remedy the democratic deficits of largely Eastern European states, without it pushing the boundaries of democracy into the territory of specifically environmental democracy. Yet, to regard environmental democracy as a descriptive claim about the Aarhus Convention, or a clever diplomatic device, does a disservice to the Convention. As I explained in Chapter 2, the Convention is a ‘dynamic international treaty’ that should be allowed to grow through a purposive approach to its interpretation.17 This purposive approach depends on the normative potential of the various aims attributable to the Convention being recognised and properly understood. To use environmental democracy as a purely descriptive claim, or as a cover for the development of more elemental democratic infrastructure, underestimates the purposive possibilities of the Convention. Therefore, it is still necessary to try to understand what environmental democracy is, in order to understand what it means for the Convention. Having done the work of defining environmental democracy in Chapter 3, I now seek to show how environmental democracy might operate as a purpose of the Aarhus Convention. In this part I explain how the Convention promotes the normative agenda of environmental democracy, and thus I elaborate on the environmental democracy purpose of the Aarhus Convention, as a normative rather than descriptive claim. I also highlight the ways in which the Convention, as currently understood, falls short of the full ambitious potential of environmental democracy. I then reflect on how the democratic purpose of the Convention ought to influence its interpretation and implementation, focusing on Articles 7 and 8 to show how the democratic ambitions of the Convention can exert a greater influence.

14 F La Camera, ‘Economy, Ecology and Environmental Democracy’ in M Pallemaerts (ed), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law (Europa, 2011) 23. 15 M Mason, ‘So Far but No Further? Transparency and Disclosure in the Aarhus Convention’ in A Gupta and M Mason (eds), Transparency in Global Environmental Governance: Critical Perspectives (MIT Press, 2014) 84, 87 and 95; S Stec, ‘EU Enlargement, Neighbourhood Policy and Environmental Democracy’ in Pallemaerts (n 14) 43–45. 16 Stec (n 15) 41. 17 Ryall (n 2) 19.

Environmental Democracy in the Context of the Aarhus Convention  145 A.  The Environmental Democracy Purpose of the Aarhus Convention The Aarhus Convention promotes, in more and less expansive ways, all of the normative dimensions of environmental democracy. In the first place, it contributes to a broader understanding of the common good, principally through the right to participation. The participatory rights also help improve the legitimacy of environmental decision-making. The reference to future generations nudges environmental decision-making to give greater moral priority to long-term generalisable interests and the privileged status offered to environmental nongovernmental organisations (NGOs), combined with the ethic of stewardship, aims the Convention towards the broad goal of environmental protection. As a normative proposition, therefore, the Convention engages many elements of environmental democracy. Structurally, however, the Convention promotes a more minimal understanding of environmental democracy, focusing on participatory forms of democracy only, and neglecting other important structural features of environmental democracy – for example deliberative democracy or legally enforceable substantive rights protection – that are necessary to fully achieve the normative dimensions. Central to the environmental democracy purpose of the Aarhus Convention is the contribution it makes to increasing the variety of interests that are brought to bear on environmental decisions. It does this by opening up participation in environmental decision-making to members of the public (regardless of nationality or domicile) and to environmental NGOs. In so doing it expands the democratic community beyond geographical and, to a lesser extent, species and temporal boundaries, contributing to a ‘redefinition of the form of the democratic community’.18 In widening the democratic community, the Convention increases opportunities for the interests of all those affected by environmental decisions to be represented in decision-making processes, allowing the public to reclaim their ‘decision-making powers and capacities’.19 Thus, the key contribution that the Convention makes to promoting environmental democracy is to promote the second normative dimension of environmental democracy – a broad understanding of the common good. The Convention achieves this expansion in a number of ways: it increases the participatory rights of all members of the public and does not limit them to the nationals of each Contracting Party; it extends these rights equally to environmental NGOs so that organisations representing specifically environmental

18 B Doherty and M de Geus, ‘Introduction’ in B Doherty and M de Geus (eds), Democracy and Green Political Thought: Sustainability, Rights and Citizenship (Routledge, 1996) 7; see also J Barry, ‘Sustainability, Political Judgment and Citizenship: Connecting Green Politics and Democracy’ in Doherty and de Geus, ibid, 214; R Eckersley, ‘Liberal Democracy and the Environment: The Rights Discourse and the Struggle for Recognition’ in F Mathews (ed), Ecology and Democracy (Frank Cass, 1996) 153. 19 V Shiva, Earth Democracy: Justice, Sustainability and Peace (North Atlantic Books, 2015) 66.

146  Interpretive Possibilities interests can participate in the decision-making processes; and it opens with a reference to the right of present and future generations to an environment adequate to human health and well-being, thus emphasising both the needs of others and the importance of recognising long-term interests in environmental decisions. Underpinning these structural arrangements is the Convention’s contribution to fostering an ethic of stewardship, thus promoting a less selfish approach to participation, which helps support the normative ambitions of environmental democracy.20 The primary tools that the Convention uses to promote the normative ambitions of environmental democracy are the three procedural environmental rights: access to information; public participation; and access to justice. As I explained in Chapter 3, environmental rights are an important structural device used to promote the normative ends of environmental democracy. In their procedural form, environmental rights facilitate the machinery of democratic engagement, both by allowing access to decision-making processes, and by ensuring that access is meaningful by providing access to adequate information and also legal redress for failures of participation through an emphasis on access to justice. By offering the public ‘a genuine opportunity’ to participate in decisionmaking processes, decisions will necessarily be based on an expanded concept of the common good because decisions will not be based solely on the views of professional decision-makers. Increased participation thus helps to produce a more expansive picture of the common good in decision-making processes.21 However, there is nothing especially environmental about this view of the common good. What really engages the normative ambitions of environmental democracy is that the participation rights are made available to non-citizens and non-residents of the Parties and to dedicated environmental NGOs (the new environmental constituencies).22 The Convention increases the democratic recognition of members of these new constituencies through Article 3(9). Article 3(9) states that the three procedural rights are to be applied ‘without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’.23 Therefore ‘rather than drawing the line for involvement along … state borders’ the Convention

20 J Ebbesoson, ‘Public Participation’ in D Bodansky et al (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 687; S Whittaker et al, ‘Back to Square One: Revisiting How We Analyse the Right of Access to Environmental Information’ (2019) 31 Journal of Environmental Law 465, 479. 21 D Bell, ‘Sustainability Through Democratization? The Aarhus Convention and the Future of Environmental Decision Making in Europe’ in J Barry et al (eds), Europe, Globalization and Sustainable Development (Routledge, 2004) 80. 22 A Dobson, ‘Representative Democracy and the Environment’ in W Lafferty and J Meadowcroft (eds), Democracy and the Environment: Problems and Prospects (Edward Elgar, 1996) 124. 23 Aarhus Convention, Art 3(9); this requirement is reinforced by Decision III/8 on the Strategic Plan for 2009–2014 (ECE/MP.PP/2008/2/Add.I) Objective I.2.

Environmental Democracy in the Context of the Aarhus Convention  147 expands ‘the opportunities for transboundary public participation’24 ensuring that there is ‘horizontal accountability’ in respect of environmental decisions.25 The non-discriminatory nature of the Convention’s procedural rights is particularly important because ‘it challenges the conventional idea that the demos is made up of citizens of a single state’.26 The Convention accordingly recognises that as environmental harms and risks have transboundary impact, the relevant notion of the common good for decisions in respect of those harms and risks should be transboundary.27 The transnational nature of the relevant democratic community characterises environmental democracy, and the nondiscriminatory nature of the procedural rights is an important feature of the democratic purpose of the Convention. A second way that the Convention expands the relevant democratic community – to reflect the normative requirements of environmental democracy – is to extend the procedural rights to dedicated environmental NGOs. Article 2(5) of the Convention deems environmental NGOs to qualify as ‘the public concerned’. As a result, environmental NGOs can take advantage of the Convention’s procedural rights and they are regarded as having a sufficient interest in respect of access to justice under Article 9(2). By granting these procedural rights to organisations whose purpose is to promote specifically environmental ends, the representation and consideration of specifically environmental interests is increased in environmental decision-making processes. So, although the Convention does not implement structures for ‘effective listening’ to nature, as suggested by John Dryzek, it does allow organisations who are likely to be paying attention to natural indicators to have a voice.28 In this way the democratic community is expanded to include environmental interests as well as those of non-nationals. The Aarhus Convention also takes steps to expand the common good temporally to include the needs of future generations. It recognises the right of future generations to an environment adequate to human health and well-being in its objective, and places an emphasis on sustainability and sustainable development in its preamble. This means that the interests of future generations are given a degree of moral priority in the context of environmental decision-making. To a more limited extent, thus, a further normative dimension of environmental democracy is promoted – the moral priority of long-term generalisable interests.

24 J Ebbesoson, ‘A Modest Contribution to Environmental Democracy and Justice in Transboundary Contexts: The Combined Impact of the Espoo Convention and Aarhus Convention’ (2012) 20 Review of European Community & International Environmental Law 248, 255. 25 E Petkova and P Veit, ‘Environmental Accountability Beyond the Nation-State: The Implications of the Aarhus Convention’ (2000) Environmental Governance Notes 1, 7. 26 Bell (n 21) 99. 27 This is also emphasised by the reference to the Espoo Convention in the preamble: Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991. 28 J Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford University Press, 2000) 149.

148  Interpretive Possibilities However, compared to the way in which environmental and transnational interests are encompassed within the relevant democratic community, the provision for the proper representation of future interests in decision-making processes is more limited. This is because the protection of future generations relies largely on citizens to respond to their moral obligations to protect and represent the interests of those future generations (which is an important aspect of their stewardship duties). Compared to non-nationals, who can represent themselves, and the environment, which is represented by NGOs, future generations receive limited structural protection. Therefore, the Convention does not fully meet this normative aspect of environmental democracy. Nevertheless, the inclusion of this right in Article 1, and the emphasis on sustainable development, is a step towards giving moral priority to long-term generalisable interests as well as expanding the common good to include the needs of future generations. In these three ways the Convention takes steps to expand the democratic community to include members of the new environmental constituencies – and in doing so it manifests an important dimension of the normative sense of environmental democracy – that collective decisions are made on the basis of an expanded understanding of the common good. As Robyn Eckersley argues, an important aspect of environmental democracy is that ‘all those potentially affected by a risk should have some meaningful opportunity to participate or otherwise be represented in the making of the decision that generates the risk’.29 The Aarhus Convention makes a substantial attempt to achieve this goal. In so doing the Convention also helps to enhance the legitimacy of environmental decision-making. Democratic legitimacy stands on the ability of those affected by a decision to participate in the production of collective decisions.30 As the Convention expands the democratic community, and backs up that expansion with procedural rights that increase the opportunities for democratic engagement, the Convention increases the opportunities of those affected in environmental decisions to participate in their production, thus enhancing the legitimacy of those decisions. Underpinning these important steps to expand the democratic community, the Convention also seeks to encourage members of the public to think about considerations beyond their own interests. As explained in Chapter 3, fundamental to the expansion of the democratic community is an expansion of the moral community achieved by encouraging what Hannah Arendt termed an ‘enlarged mentality’ on the part of members of the public.31 Indeed, as Derek Bell points out, the procedural rights of the Convention will only facilitate environmental

29 R Eckersley, The Green State: Rethinking Democracy and Sovereignty (MIT Press, 2004) 111. 30 J Dryzek and C List, ‘Social Choice Theory and Deliberative Democracy: A Reconciliation’ (2003) 33 British Journal of Political Science 1, 1. 31 H Arendt, Lectures on Kant’s Political Philosophy (University of Chicago Press, 1982) 42–43.

Environmental Democracy in the Context of the Aarhus Convention  149 protection insofar as the public are willing to exercise their rights in order to achieve this end.32 Therefore, an essential aspect of the Convention’s democratic purpose is the way in which it encourages citizens to be more concerned about the aims of environmental protection. In this way ‘the bones of the procedural rights enshrined in the Aarhus Convention [can be] clothed with substantive’ ambitions that promote collective environmental ends.33 To the extent that this aim can be achieved, there is an increased likelihood that citizens will exercise their procedural rights in a way to promote collective environmental ends, rather than to simply protect their own substantive environmental interests. One way in which the Convention does this is to recognise the rights of present and future generations to an environment adequate to human health and well-being. Substantive environmental rights are an important structural tool for promoting the normative aims of environmental democracy, because they help safeguard the conditions for authentic democratic decision-making. Whilst the extent to which the Convention promotes a legally enforceable substantive environmental right is unclear, the reference to the right does at least signal the moral significance of a healthy environment for authentic decision-making. Further, the emphasis on environmental education and environmental protection also contribute to the moral imperatives that ignite the Convention.34 In this way, the democratic, stewardship and rights purposes are all linked. Indeed, for the environmental democracy purpose of the Convention to be properly realised, there is a need for citizens to take seriously their stewardship obligations and the moral rights of others, including future generations, when they exercise their procedural rights.35 This is a particularly important condition of the procedural rights, because if members of the public use the procedural rights in a way that promotes purely private interests, then the democratic potential of the Convention is thwarted.36 Therefore, to meaningfully contribute to environmental democracy, the procedural rights of the Convention need to be motivated by a moral imperative that recognises environmental needs and priorities. The final aspect of the environmental democracy purpose of the Convention is that it promotes better quality environmental decisions.37 One of the boundary markers of democracy identified in Chapter 3 was that democracy is a system of decision-making designed to reduce the impact of the fallibility of

32 Bell (n 21) 102; see also Whittaker et al (n 20) 479–80. 33 E Hey, ‘The Interaction between Human Rights and the Environment in the European “Aarhus Space”’ in A Grear and LJ Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar, 2015) 375. 34 Aarhus Convention (n 12) Art 3(3). 35 Bell (n 21)107. 36 Ibid, 101. 37 Aarhus Convention (n 12), 9th preambular recital.

150  Interpretive Possibilities human knowledge. Environmental knowledge claims are particularly prone to this fallibility because they can be based on uncertain technical knowledge and are often a combination of facts and values.38 As a result of the complex nature of environmental decision-making, environmental democracy promotes participatory and deliberative process for their problem-solving potential.39 In relation to the Aarhus Convention, the increased participation of the public and NGOs enables these groups to contribute ‘to the “technical” assessment of environmental impacts’.40 Access to information also facilitates this aspect of the democratic purpose of the Convention, enabling members of the public to take ‘on the perspective of the expert by becoming a well-informed citizen’.41 This view is supported in the Implementation Guide, which states that ‘the quality of decisions can be improved by the public’s provision of additional information, as well as through the influence that advocacy of alternative solutions can have on the careful consideration of possible solutions’.42 In this way the Convention at least opens up the opportunity for environmental decisions to be motivated by less technical forms of rationality. It can be seen from the analysis thus far that the Convention promotes the normative ambitions of environmental democracy in a number of important ways. Nevertheless, the Aarhus Convention’s model of environmental democracy does not entirely match up to the full scope of environmental democracy. For example, the form of the participation envisaged by the Convention is purely consultative and is thus based on a very meagre understanding of participatory democracy (one of the key structural forms of environmental democracy). According to Sherry Arnstein’s Ladder of Participation, genuine public participation needs to combine consultation with other forms of participation, such as citizen control and delegated powers.43 Indeed, on Arnstein’s metric, consultation is a very tokenistic form of participation, leading Bell to argue that ‘Aarhus democracy’ is limited because there is no direct role for the public to ‘control’ environmental decision-making.44 Further, a common structural feature of environmental democracy decision-making is discursive democracy. Discursive democracy is important for

38 U Beck, Ecological Politics in an Age of Risk (Polity Press, 1995) 158–84; J Bohman, Public Deliberation: Pluralism, Complexity and Democracy (MIT Press, 2000) 64; J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press, 1996) 351. 39 J Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem-Solving Approach’ (2001) 3 Oxford Journal of Legal Studies 415, 433; M Lee and C Abbot, ‘The Usual Suspects? Public Participation Under the Aarhus Convention’ (2003) 66 Modern Law Review 80, 81; R Paehlke, ‘Democracy, Bureaucracy, and Environmentalism’ (1988) 10 Environmental Ethics 291. 40 Bell (n 21) 103. 41 Bohman (n 38) 64. 42 The Aarhus Convention: An Implementation Guide (2014) ECE/CEP/72/Rev.1 (Implementation Guide, 2nd edn) 31. 43 S Arnstein, ‘A Ladder of Citizen Participation’ (1968) 35 JAIP 216, 219; Lee and Abbot (n 39) 86. 44 Bell (n 21) 146.

Environmental Democracy in the Context of the Aarhus Convention  151 environmental democracy, because it allows for a more authentic discussion of values, and enhances the ability of participants to appreciate and consider collective – including environmental – needs. Whilst Article 6(5) recognises the value of discussion, it is hardly in keeping with the radical discursive democracy that is represented in environmental democracy scholarship and, as Dryzek warns, ‘such process can be discursive but not necessarily very democratic’.45 Thus, there is a risk that the Convention’s participation and information disclosure rights are ‘more about legitimising’ decisions than they are about really interrogating the quality and environmental outcomes of environmental decisions and governance.46 Holding Aarhus against the template of environmental democracy outlined in Chapter 3 shows that there is much more that the Convention could do to be a truly ambitious instrument of environmental democracy. Whilst there is more that can be done to promote this purpose of the Aarhus Convention, significant steps have been taken towards advancing the normative and structural dimensions of environmental democracy. In the next section I suggest that on a purposive reading of Articles 7 and 8 it might be possible to further expand the potential of this purpose by introducing deliberative environmental decision-making procedures as part of the implementation of these articles. In this way, the Convention’s environmental democracy purpose can be more fully realised. B.  Interpretive Consequences of the Environmental Democracy Purpose Articles 7 and 8 form part of the trio of articles that represent the second pillar of the Convention – public participation in environmental decision-making. Unlike Article 6, the first of this trio, which concerns decisions on specific activities, these two articles are drafted in very general terms. This means that the Contracting Parties have significant flexibility in how they implement each of these articles. If the Aarhus Convention truly is an ambitious venture in environmental democracy, then the vague drafting of these two articles offers Parties an opportunity to fully realise this vision. Taking each article in turn, I offer some suggestions about how this ambitious venture might be achieved. Article 7 promotes public participation concerning plans, programmes and policies relating to the environment and reads as follows: Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the

45 J Dryzek and P Dunleavy, Theories of the Democratic State (Palgrave Macmillan, 2009) 264–65. 46 M Mason, ‘Information Disclosure and Environmental Rights: The Aarhus Convention’ (2010) 10 Global Environmental Politics 10, 26.

152  Interpretive Possibilities environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.

Although it does reference some of the detailed requirements of Article 6 – for example the requirement of ‘reasonable time-frames’ – it does not set out a specific decision-making procedure.47 The Convention’s Implementation Guide suggests that Article 7 is drafted in this way to allow the Parties more flexibility in finding appropriate solutions’.48 This flexibility is evident in the omission of a provision similar to Article 6(7), which prescribes the procedures for public participation, because it allows Parties to choose the type of decision-making processes that they adopt.49 Taking a purposive approach to Article 7, I suggest that an ‘appropriate’ provision for public participation is a deliberative, participatory process. Through a deliberative process, the range of values considered when making ‘plans, programmes and policies’ can be properly interrogated in a way that they cannot with the consultative participation prescribed by Article 6(7).50 A participatory process that includes a discussion about values will make these types of environmental decision-making processes more ‘transparent and fair’ because the public will be able to see – and to challenge – the values that influence decision-makers when developing policies and plans. Further, as deliberation facilitates a transformative and educative process of decisionmaking, more legitimate and more just decisions in respect of the environment are likely to result. Article 7 is already set up to enable the Parties to think carefully about how they promote environmental democracy. For example, requiring the public authority to identify ‘the public which may participate’51 helps to ensure that the public who participate in environmental decisions are not all part of a selfselecting ‘elite’ of those who might choose to participate in decisions on plans, programmes and policies.52 Taken seriously, this provision encourages Parties to identify a range of relevant and necessary voices to contribute to the formation of environmental policy.

47 Aarhus Convention (n 12) Art 6(3). 48 Implementation Guide, 2nd edn (n 42) 143. 49 Ibid, 178. 50 Bell (n 21) 106. 51 As the Implementation Guide explains, if it had been the intention of the drafters to limit the public involved, they would have opted to use the concept of the ‘public concerned’: Implementation Guide, 2nd edn (n 42) 179. 52 Dryzek and Dunleavy (n 45) 264–65.

Environmental Democracy in the Context of the Aarhus Convention  153 Article 8 relates to ‘public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments’ and states that: Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. To this end, the following steps should be taken: (a) Time-frames sufficient for effective participation should be fixed; (b) Draft rules should be published or otherwise made publicly available; and (c) The public should be given the opportunity to comment, directly or through representative consultative bodies. The result of the public participation shall be taken into account as far as possible.

This article allows for even greater flexibility than Article 7 as to how public participation should be organised, and it does not include any of the provisions of Article 6. The Implementation Guide suggests that ‘effective participation’ refers to the need for public authorities to ensure that the ‘basic conditions of public participation are provided’. Considering the well-proclaimed democratic ambitions of the Convention, this is an unduly restrictive approach.53 ‘Effective participation’ should again be viewed in terms of a deliberative process. As explained in Chapter 3, deliberation is better suited to making just decisions that involve a wide spectrum of interests and values and that relate to complex knowledge claims and risk assessments. Consequently, it is a more effective way of making high-level legislative decisions, thus promoting a more authentic vision of environmental democracy. My suggested interpretive possibilities for Articles 7 and 8 of the Convention are ambitious but they merely reflect the ambitious vision the Convention claims for itself. If the Convention is an instrument of environmental democracy, it should endeavour to advance all of the normative dimensions of the concept, and in so doing embrace more of the structural arrangements that are associated with the concept of environmental democracy. This, however, requires a serious commitment to the precepts of environmental democracy, and to not simply pay lip service to superficially democratic ideas. C. Conclusions In developing a theoretical account of environmental democracy, I have unearthed some of the interpretive possibilities of the most ubiquitous purpose of the Aarhus Convention. Whilst the Convention does indeed promote some important aspects of environmental democracy, I have also shown that the

53 Implementation

Guide, 2nd edn (n 42) 182.

154  Interpretive Possibilities Convention falls short of the full ambitious scope of its most talked-about purpose. The style of participation envisaged by the Convention is purely consultative and does not provide for the assessment of value claims. This means that the concept of environmental democracy that is manifest in the Convention is a weak one. There is, of course, room within the text of the Convention to interpret its provisions to promote a richer vision of environmental democracy, but this will require a considered effort on the part of the Parties. However, if the Aarhus Convention truly is to be a ‘flagship’ of environmental democracy, then this purposive and progressive approach is necessary.54 IV.  ENVIRONMENTAL RIGHTS IN THE CONTEXT OF THE AARHUS CONVENTION

My constant refrain in relation to the environmental rights purpose of the Aarhus Convention has been that Article 1 represents an environmental rights riddle that has thus far received insufficient attention. On a simple reading of the article it is not immediately obvious whether it is a legally enforceable right, an aspirational moral right or a mere rhetorical flourish. Too often scholars have either read the right as a straightforward recognition of the right to a healthy environment in a legal document, or else have dismissed it for having no legal effect; neither response seems to me to be correct. In order to start to unpack this ambiguity, in Chapter 4 I traversed the territory of rights, interrogating the history, moral status and legal development of environmental rights. In this section, I use that work to offer two overlapping solutions to the riddle. A.  The Environmental Rights Purpose of the Convention The first solution I propose to the Aarhus rights riddle is that the substantive right to a healthy environment is a moral claim that underpins and colours the operation of the three procedural rights in Article 1. The second solution I suggest is that the textual ambiguity that surrounds the substantive right is a device that allows the Convention to be responsive to the development of a substantive environmental right in international law generally. Thus, although at the time of signing the right did not have legal effect, the Convention’s drafting allows it to reflect legal change. These two solutions allow for a more nuanced understanding of Article 1 that recognises the spectrum between moral aspiration and a legally enforceable right, as well as the difficulty of discerning legal rules and rights in international law.55 The remainder of this part will develop each of these solutions more fully. 54 M Pallemaerts, ‘Introduction’ in Pallemaerts (n 14) 11. 55 S Marks, ‘Emerging Rights: A New Generation for the 1980s?’ (1981) 33 Rutgers Law Review 435, 435.

Environmental Rights in the Context of the Aarhus Convention  155 i.  Solution I: The Moral Right My first solution to the Aarhus rights riddle is to regard Article 1 as referencing a moral right to an adequate environment. This solution is premised on a more traditional or positivist approach to interpreting international law. According to this method of interpreting international law, legal rights can only be said to exist where they are ‘declared as such in actual treaties binding on the states signatory to them, and are actually implemented and enforced within specific jurisdictions’;56 or where they represent a customary principle of international law, evidenced by opinio juris or the general practice of states.57 As there is no overt evidence of a substantive environmental right in either of these sources, such a right cannot be said to exist within the international legal order.58 Neither can the Convention be described as creating a legal right. Article 1 is the only place in the main body of the Convention where the substantive environmental right is alluded to, and the allusion carefully refrains from giving legal force to the substantive right. Contrast the language used to introduce the procedural rights, ‘shall guarantee’, with the language used to introduce the right to an adequate environment: ‘in order to contribute to’. Further, as highlighted in Chapter 2, the drafters of the Convention chose to confine to the preamble a more emphatic formulation of the right: ‘Recognizing also that every person has the right’. Thus, it is to stretch the terms of the Convention beyond their ordinary meaning to regard them as creating a substantive legal right.59 This interpretation of the status of the right to an adequate environment is shared by a number of commentators on the Aarhus Convention. For example, Ellen Hey describes the right as non-justiciable,60 and Alan Boyle argues that the failure to set out the right in the main text of the Convention indicates that it does not establish the right as a legal concept, irrespective of what the content of the preamble might suggest.61 Perhaps recognising the potentially misleading nature of Article 1, when the United Kingdom signed the Convention they issued a statement of reservation to say that the reference to the right to an adequate environment ‘expressed an aspiration which motivated the negotiations of the

56 T Hayward, Constitutional Environmental Rights (Oxford University Press, 2005) 37. 57 W Felice, Taking Suffering Seriously: The Importance of Collective Human Rights (State Universty of New York Press, 1996) 74. 58 LJ Kotzé, ‘In Search of the Right to a Healthy Environment in International Law: Jus Cogens Norms’ in JH Knox and R Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press, 2018) 138–41. 59 The Vienna Convention, Art 31(1) requires that the ‘ordinary meaning’ ought to be given to the terms of international treaties. 60 Hey (n 33) 357; see also P Eleftheriadis, ‘The Future of Environmental Rights in the European Union’ in P Alston et al (eds), The EU and Human Rights (Oxford University Press, 1999). 61 A Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’ in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press 1996); A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471.

156  Interpretive Possibilities Convention’ but did not create a new legally enforceable right.62 As such statements of reservation are pertinent to interpreting ambiguity in international law, this confirms that no substantive legal right is created.63 This does not mean, however, that the right to an adequate environment introduced in Article 1 cannot exist as a moral right. In Chapter 4 I built the case for describing the right to an environment adequate to human health and well-being as a moral human right by applying Maurice Cranston’s criteria for a genuine human right. Relying on the work of Tim Hayward, I showed how the right to a healthy environment is morally paramount, universal and practicable, and thus worthy of the nomenclature of human rights. Similarly, I showed that despite the conceptual difficulties, it is also possible to regard future generations as capable of benefiting from moral rights claims. Therefore, it is perfectly possible to claim that Article 1 is referencing the moral right of present and future generations to live in an environment adequate to human health and well-being. Regarding this right as a moral right might seem unsatisfactory because it is not legally enforceable, and thus there is no way of ensuring that the institutions of state respect it. However, on Thomas Pogge’s account of human rights, ‘legal rights need not … have the same content as the human right they help to realise’.64 In other words, it is possible for a legal right to protect a moral human right, even where the content of the two types of right differ. This describes the way that the Convention might be said to operate. The legal rights of the Convention (the three procedural rights) protect the moral right (the right to an adequate environment) even though the two types of right are quite different. The procedural rights are all drafted to include a reference to the environment; for example, ‘environmental information’ or participation in ‘environmental decision-making’ and thus are framed so as to reflect the moral right, but they are not identical. There is a significant advantage to this conceptual separation of the two types of rights. Legal rights require clarity and certainty.65 By contrast, regulation of the environment and environmental protection require flexibility to respond to developing scientific, social and political views. Further, the notion of ‘the environment’ is laden with many different values, such that there are multiple possibilities as to what might constitute an environment adequate to human health and well-being. The advantage of framing the legal right in procedural terms and retaining the substantive right as a moral right is that there can be both certainty and flexibility: certainty about the duties that are imposed and 62 ‘Declarations and Reservations’, available at treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en#EndDec, accessed 13 April 2020; see also OW Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review 73, 99. 63 S Fatima, Using International Law in Domestic Courts (Hart Publishing, 2005) 4.5.8. 64 T Pogge, World Poverty and Human Rights, 2nd edn (Polity Press, 2008) 52. 65 J Raz, ‘The Rule of Law and its Virtue’ in J Raz (ed), The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979); T Bingham, The Rule of Law (Penguin, 2011).

Environmental Rights in the Context of the Aarhus Convention  157 to whom those duties apply; flexibility in terms of how the procedural rights are used to interpret and uphold the substantive environmental right. Another advantage of the separation is that it gives rise to moral obligations on the public to uphold the right, as Pogge explains, ‘what is needed is to make the object of the right truly secure is a vigilant citizenry that is deeply committed to this right and disposed to work for its political realisation’.66 In other words, it is the public who are ‘the ultimate guardian[s]’ of the right to a healthy environment.67 This seems to ring true to the spirit of the Convention, which recognises in the preamble that every person has ‘the duty, both individually and in association with others, to protect and improve the environment, for the benefit of present and future generations’.68 The Implementation Guide also indicates that the public have a role to play in respect of the protection of environmental rights and calls for a more ‘active and engaged population’.69 A further feature of Pogge’s account of human rights that illuminates the moral right is that those who are more easily able to access the procedural rights (those with ‘greater influence’) have a greater duty in respect of the moral right.70 Without this altruistic element to the moral right, only a privileged few will be able to benefit from it and it ceases to operate as a ‘broadly shareable’ or universal moral good. In turn, it ceases to function properly as a human right. The Convention is drafted so as to enable citizens to respond to this moral imperative. For example, according to Article 9(2), which relates to access to justice, Contracting Parties are required to interpret the term ‘sufficient interest’ so as to give ‘the public concerned wide access to justice within the scope of this Convention’. This means that in theory an individual, or group, wishing to challenge a decision that is harmful to future generations, or an aspect of the natural environment, should be allowed to do so. Further, environmental NGOs are recognised as having legal rights under the Convention, and by Article 9(2) are deemed to have ‘sufficient interest’.71 When they exercise their legal rights under the Convention they will do so with the aims of their organisation (which may be strongly ecocentric) in mind. Thus, trees are given standing by proxy of the environmental NGOs that choose to represent them.72 On Lon Fuller’s analysis of procedural rights, therefore, environmental NGOs and altruistic members of the public thus ‘present their reasoned proofs and arguments’ to decision-makers to ensure that environmental interests are properly represented.73 Interests that

66 Pogge (n 64) 68. 67 Ibid, 69. 68 Aarhus Convention (n 12) 7th preambular recital. 69 Implementation Guide, 2nd edn (n 42) 1. 70 Pogge (n 64) 70. 71 Aarhus Convention (n 12) Arts 5(2) and 9(2). 72 C Stone, ‘Should Trees Have Standing? – Towards Legal Rights for Natural Objects’ (1974) 45 Southern California Law Review 450. 73 L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353, 364.

158  Interpretive Possibilities are not normally regarded as being capable of legal protection – for example, those of future generations or the natural environment – are legally protected, as there is a ‘fortuitous spill-over’ from the exercise of the procedural rights.74 It is also possible for the citizens, or environmental NGOs, of one Contracting Party to act to protect the interest of the citizens of another Contracting Party. The Convention has a novel compliance procedure that allows references to be made to an external Compliance Committee when Parties fail to meet their obligations under the Convention.75 This compliance procedure allows for cross-border enforcement of environmental rights; hence, the moral right can have ‘diagonal’ effect.76 Although the Convention promotes procedural legal rights, there is an inevitable connection between those legally enforceable rights and the moral substantive right present in Article 1. It is intuitively the case that the procedural rights are means to substantive environmental ends. These substantive ends drove the project of the Convention and are littered throughout the Implementation Guide. The substantive ends, however, are framed as moral ones, such that it would not be possible to directly legally enforce the substantive right. However, this separation between the moral and legal aspects of environmental rights can seem unsatisfactory – Pogge’s analysis of moral human rights is highly idealistic. Even if moral human rights do generate claims against the state, and in turn the public, there is no way to fully enforce the right, should a state or the public wish to ignore it.77 A moral right can only influence the procedural rights to the extent that those using them and those responding to them allow it to. If the protection of human interests in the natural environment is to receive meaningful protection then the right ought to be something more than a moral statement of the right.78 Solution II builds the case for regarding the right to an adequate environment as an emerging principle of international law, arguing that, whilst the substantive right is not yet a fully-fledged right, it is one that is gaining increased legal recognition. Accordingly, as international law develops, the Aarhus Convention is likely to be interpreted in a way that gives force to the substantive as well as the procedural right.

74 C Redgwell, ‘Life, the Universe and Everything: A Critique of Anthropocentric Rights’ in Boyle and Anderson (n 61) 87. 75 Aarhus Convention (n 12) Art 15; S Kravchenko, ‘The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements’ (2007) 18 Colorado Journal of International Environmental Law & Policy 1; M Fitzmaurice, ‘Global Importance of Human Rights for Environmental Protection’ in G Ziccardi Capaldo (ed), The Global Community Yearbook of International Law and Jurisprudence 2009 (Oxford University Press, 2010). 76 J Knox, ‘Diagonal Environmental Rights’ in M Gibney and S Skogly (eds), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press, 2010) 177. 77 As the work of Whittaker et al shows in relation to the right of access to information: Whittaker et al (n 20) 483. 78 J Waldron, ‘When Justice Replaces Affection: The Need for Rights’ (1988) 11 Harvard Journal of Law & Public Policy 625.

Environmental Rights in the Context of the Aarhus Convention  159 ii.  Solution II: The Emerging Legal Right The second solution overlaps with the first to the extent that it does not regard the Aarhus Convention as creating a new legal right to an adequate environment. However, rather than viewing the right as a purely moral concept, it sees Article 1 as referring to an emerging legal right. In this way, Solution II is not necessarily incompatible with the first – as stated early on in Chapter 4, rights can have complementary or overlapping moral and legal components. According to this second approach then, Solution I is not wrong, but incomplete. Solution II requires the analysis of Solution I as a starting point for establishing the moral case and for describing the right as a human right. But it also relies on a more creative interpretation of international law in order to claim that the right represents an emerging legal right. This is because the right to an adequate environment does not exist in any legally binding international law instrument; nor does it (without a great deal of construction) exist as customary law. Therefore, on the traditional approach, the right does not exist. However, as explained in Chapter 4, this is only one method of interpreting international law. Other scholars adopt a ‘needs-based’ approach to interpreting rights in international law.79 On this view the development of human rights in international law is a progressive process. Human rights exist on a continuum and are not simply declared into existence.80 Accordingly, it is possible for rights to be recognised in principle ‘even though the obligations pursuant to the rights may not be able to be articulated precisely’.81 As Hayward describes it, human rights are those that ‘pass from the status of a well-founded moral aspiration, through exhortatory declarations, into legally binding instruments and effective enforcement’.82 According to Solution II, the right being referred to in the Aarhus Convention is one that is currently undergoing that process. There is a moral obligation in relation to the substantive right, but articulating it as a legal concept has proved difficult. This is evident from the number of failed attempts to formulate a substantive legal right, and the preference for procedural environmental rights within the international community.83 At the time of the Convention’s completion, the substantive right was still very much a moral aspiration. In the intervening years, however, the right has become an increasingly prominent feature in international law. The substantive right has appeared in a

79 Felice (n 57) 77. 80 Hayward (n 56) 46; C Miller, Environmental Rights (Routledge, 1998) 4; Marks (n 55) 437; G Abi-Saab, ‘The Legal Formulation of a Right to Development’ in RJ Dupuy (ed), The Right to Development at the International Level (Brill, 1980). 81 Felice (n 57) 74; 82 Hayward (n 56) 46. 83 M Limon, ‘The Politics of Human Rights, the Environment, and Climate Change and the Human Rights Council: Toward a Universal Right to a Healthy Environment?’ in Knox and Pejan (n 58) 190–95.

160  Interpretive Possibilities number of regional human rights instruments, and many national jurisdictions recognise it. Of particular note on this point is the action taken by the Human Rights Council since 2012. As detailed in Chapter 4, they have appointed a Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. And, following the publications of the Special Rapporteur, they have been engaged in an ongoing dialogue which affirms the importance of the relationship between environmental protection and human rights, imposing increasing obligations on states in respect of this connection. Although there is no fully articulated substantive right in their declarations, the Human Rights Council has opened the matter for consideration.84 This approach seems to be supported by Stephen Stec and Jerzy Jendrośka: they argue that ‘in the long term the Aarhus Convention represents a step towards the formation of a basic right with real legal content’.85 Thus they affirm that the Aarhus Convention is intended to be responsive to international legal developments surrounding the substantive environmental right. These developments in international law regarding environmental rights add weight to the suggestion that the right to an adequate environment is an emerging principle of international law. Thus, this second approach suggests that the Convention was drafted so that it is able to respond to the development of the emerging right – that it is, as Áine Ryall has described it, ‘a dynamic international treaty with enormous potential to deliver environmental rights in practice’.86 The two solutions are therefore compatible, as it is possible for rights to have both a moral and a legal component. Even though the right might be categorised as a legal one, it is does not detract from the benefits associated with the right being a moral human right. In particular, the moral duties that are imposed on the public, and the potential for the Convention to benefit future generations and non-human rights, are not lost by describing the right in legal terms. Rather, greater security for the right is added such that the Parties will have a greater responsibility to ensure the substantive as well as the procedural rights of their citizens. B.  Interpretive Consequences of the Rights Purpose In relation to the environmental rights purpose, the articulation of the purpose and the interpretive exercise are bound up together. Unlike the environmental democracy purpose, for example, which is an external purpose attributed to the

84 Ibid, 213. 85 J Jendrośka and S Stec, ‘The Aarhus Convention: Towards a New Era in Environmental Democracy’ (2001) 9 Environmental Liability 140, 141. 86 Ryall (n 2) 19.

Environmental Rights in the Context of the Aarhus Convention  161 Convention, the environmental rights purpose is embedded in the Convention’s text. Identifying this purpose is, therefore, an interpretive exercise in and of itself; an exercise which is exacerbated by the ambiguous drafting of Article 1. Nevertheless, I still want to briefly reflect on how further aspects of the Convention might be interpreted, as the right to an environment adequate to human health crystallises in the legal order, ie how Solution II might influence the way the Convention operates. This is not so easy with Solution I, because this is primarily concerned with the moral imperatives that influence the public as they engage with the procedural rights of the Convention. Although it might place a burden on Parties to be generous in their interpretation of terms like the ‘public concerned’ to allow room for those responding to the moral call of the Convention, I will consider this further in relation to the environmental stewardship purpose in section V below. One consequence of an emerging legal right to an environment adequate to human health and well-being being recognised as part of the Aarhus implementation, is that it will provide a strong counterweight to the exceptions to the right of access to information set out in Article 4(4).87 At present, when an exception has been raised, deciding whether information is to be available requires a balancing between the stated exception and the general public interest. Given the weighty nature of rights, if these exceptions are instead balanced against the substantive environmental right, it is likely that they will be more restrictively interpreted. For example, Article 4(4)(e) states that if a request has the potential to adversely affect ‘intellectual property rights’, the request may be declined. If this intellectual property right is being balanced against an emerging human right, the circumstances in which this intellectual property right will trump the emerging human right will be limited. The right to an adequate environment as an emerging human right therefore strengthens the right of access to environmental information in a way that the moral right cannot. Similarly, it will become harder for Contracting Parties to underplay the access to justice provisions contained in Article 9 of the Convention. Vindication is a critical function of a right, and meaningful access to justice is essential for allowing a right holder to enforce their rights. The need to ensure that access to justice is not prohibitively expensive and that remedies are effective (Article 9(4)), for example, will take on an even more serious hue if they are employed in pursuit of a human rights claim. Accordingly, if the Convention is designed to be responsive to the emerging jurisprudence of substantive environmental rights, as Solution II suggests, the environmental rights purpose of the Convention can have very significant consequences for how the Convention is interpreted and understood.



87 For

a critical account of these exceptions see Mason (n 15) 89–91.

162  Interpretive Possibilities C. Conclusions In the opening to the Key Messages from the Rome Anniversary Event, the drafters began with the following key message: The fathers and mothers of the Convention were visionaries. This is evidenced by its Article 1, which refers to a fundamental right of every person to live in a healthy and sustainable environment, including for future generations. It explicitly makes this Convention an instrument of both international environmental law and an instrument of international human rights law.88

The drafters go on to lament that Article 1 has often been forgotten; the focus being drawn by the three pillars of the Convention. Neglect of Article 1, and in particular the right to a healthy environment, is undoubtedly a consequence of its ambiguity. As I explained in Chapter 4, the slippery language of Article 1 makes it difficult to come to terms with. It is understandable, therefore, that the substantive right has been both misunderstood and overlooked. In unravelling this ambiguity, I have sought both to resolve the rights riddle of the Convention, and to draw attention back to this overlooked but significant purpose of the Convention. V.  ENVIRONMENTAL STEWARDSHIP IN THE CONTEXT OF THE AARHUS CONVENTION

Environmental stewardship, the final purpose that I consider, is the most important for understanding the grand vision of the Aarhus Convention. Even though it is the least explicit, it represents the normative core of the Convention, binding together the environmental rights and democracy purposes and confirming the Convention as a powerful and innovative legal instrument designed to assist with the ‘awesome responsibility’ of protecting the environment for the benefit of future generations.89 In Chapter 2 I identified the whispers in the preamble and main body of the Convention that suggest that it is promoting stewardship, at least in a general sense of responsibility towards the environment. For example, the preamble emphasises the need to ‘protect, preserve and improve’ the environment and Article 1 affirms that the Convention is concerned with protecting an environment adequate to human health and well-being. Thus, on a rudimentary understanding of stewardship, it was possible to argue that it is a candidate purpose of the Convention. However, as stewardship is a broad concept with a variety of possible meanings, in order to understand how it should be understood as a purpose of the

88 Key Messages from the Rome Anniversary Event to Celebrate 20 Years of the Aarhus Convention (15–16 May 2018, Rome). 89 Implementation Guide, 2nd edn (n 42) 30.

Environmental Stewardship in the Context of the Aarhus Convention   163 Convention it was first necessary to go beyond this initial, undeveloped definition of stewardship. Accordingly, in Chapter 5 I mapped the different aspects of stewardship, drawing on ideas of stewardship found in legal scholarship, as well as more diverse disciplinary accounts of stewardship from geographers and theologians. This expansive approach was necessary because stewardship is more than just a legal concept. Indeed, as a legal concept, it has limited utility in terms of the Aarhus Convention: legal conceptions of stewardship focus on property rights and, as the Convention says little about this particular relationship, this form of stewardship does little to illuminate the foundations of the Convention. Instead it is the moral character of stewardship and the implications that it has for human interaction with the environment that distinguishes it as an important tool for analysing the Convention. Unpacking the stewardship purpose of the Convention is therefore a slightly different task to the work undertaken on the other two purposes. The stewardship purpose is more difficult to pin down, as it does not relate to the specific provisions in the way that the rights and democratic purposes do. Rather it permeates the entirety of the Convention, influencing and supporting the other two purposes. For example, whilst the rights purpose is directed at protecting fundamental human needs through a spectrum of different procedural rights, the potential consequences of these procedural rights go beyond the protection of basic human rights to a more general duty to protect the environment. Interpreting these rights in terms of environmental stewardship means that they can be used to promote environmental protection goals in addition to the protection of human rights. Or in relation to the environmental democracy purpose, although the Convention is promoting democratic values, the aspirational emphasis on environmental democracy implies that there is something more than democratic governance that motivates the Convention’s democratic ambitions. My suggestion is that what motivates both purposes and the entire Convention is an ethic of environmental stewardship – an ethic that engages and influences all the different actors identified in the Convention. The stewardship purpose therefore goes beyond the legal and political aspects of the Convention to reveal an explicitly moral dimension to the Convention. Writing about environmental governance more generally, Paul Wapner argues that international environmental law needs to be reinforced with a ‘moral dimension’ and that the most effective and durable international agreements are those that appeal to moral as well as purely legal aspirations.90 As he explains, these moral dimensions help to improve the outcomes and the effectiveness of law, engage more stakeholders and increase the legitimacy of international environmental law. Exploring and articulating these moral dimensions is important because leaving it ‘unexpressed or at least undeclared in international

90 P Wapner, ‘Environmental Ethics and Global Governance: Engaing the International Liberal Tradition’ (1997) 3 Global Governance 213, 227.

164  Interpretive Possibilities agreements’ means that agreements are couched ‘in the language of interests and expedience, thus leaving little understanding of principled action on which to build’.91 By closing with an examination of the stewardship purpose of the Convention, I expose the full scope and potential of the Convention as an instrument of international environmental law. A.  The Environmental Stewardship Purpose of the Aarhus Convention Environmental stewardship is a rich ethical ideal that seeks to balance the relationship between human beings and the natural environment. In Chapter 5, I explained that there are different stewardship actors and different stewardship relationships that imply different kinds of duties for the steward and are influenced by different values. In the context of the Convention, the stewardship purpose engages two categories of actor: the public (which includes environmental NGOs) and Contracting Parties (which includes public authorities). The nature of the stewardship duties attached to these actors is different given the relative power and influence that they can exercise. In the first place the Convention promotes an ethic of custodial stewardship within civil society in relation to, but not limited to, the local and national environment of each Contracting Party. By contrast, the nature of the stewardship duty of the Parties is more managerial, in the sense they are managing their actions in order to facilitate better environmental stewardship of civil society and to facilitate better stewardship in the context of international law and international decision-making processes. In this way the stewardship ethic is a multi-scalar purpose that permeates all aspects of the Convention. The custodial stewardship ethic that the Convention promotes influences the procedural rights, so that the legal obligations that are owed to members of the public generate moral obligations on the public to exercise their rights in a way that promotes environmental stewardship. The stewardship purpose hence promotes a duty between members of the public. Additionally this duty can extend to the environment, thus facilitating a more ecocentric approach.92 In this way the Convention is a radically ‘new kind of environmental agreement’; not only does it go beyond obligations between parties to obligations between parties and the public, it also generates obligations between members of the public.93 Thus, the moral burden of protecting the environment does not rest with the Contracting Parties but is also passed onto civil society. There is ample evidence in the preamble to suggest that the full realisation of the Aarhus Convention depends on some form of moral duty on civil society. It



91 Ibid,

214. (n 33) 375. 93 Implementation Guide, 2nd edn (n 42) 15. 92 Hey

Environmental Stewardship in the Context of the Aarhus Convention   165 recalls Principle 1 of the Stockholm Convention, which states that humans have ‘a solemn responsibility to protect and improve the environment’. The preamble also refers to a duty that is owed by all human beings. This duty is owed, according to preambular recital seven ‘both individually and in association with others’ – language that is strongly suggestive that it is the public who owes the duty. Further support for this suggestion can be found in the thirteenth preambular recital, which stresses the importance of ‘the respective roles that individual citizens, NGOs and the private sector can play in environmental protection’.94 This interpretation of the Convention is affirmed by Objective I.4 of the Strategic Plan 2009–14, which states that the environmental (social and economic) challenges facing societies depend upon ‘the involvement and support of a wide range of stakeholders, including citizens and civil society organisations’.95 This theme is echoed in the Strategic Plan 2015–2020, which ‘recognises the cornerstone of civil society in protecting the environment’.96 Therefore the Convention is intended to impose some form of general moral duty on the public. Although it does not immediately follow that this duty is a duty of stewardship, there are a number of other indicators that help to confirm that the moral duty implicit in the Convention is specifically a duty of stewardship. The first indication is that the duty relates to the environment. That is, the object of the duty is some connotation of the environment. This is not only because the Convention is generally concerned with environmental protection but also because the procedural rights are engaged only in environmental matters – the right of access to information is to environmental information and participation protected is in relation to environmental decision-making processes. Article 1 also states the objective of the Convention is to contribute to the protection of ‘an environment adequate to human health and well-being’. Further, the Convention specifically identifies environmental NGOs amongst those who should benefit from the procedural rights.97 These NGOs operate in order to promote various environmental ends – their specific inclusion suggests that the rights are motivated by a moral duty in relation to the environment. Therefore, it seems correct to conclude that the moral duty referred to in the Convention is one that relates to the environment. The second reason that the duty should be regarded as a duty of stewardship is that the beneficiaries of this moral duty are members of present generations and future generations.98 Article 1 makes it clear that the Convention is

94 Aarhus Convention (n 12) 13th preambular recital. 95 Strategic Plan for 2009–2014 (n 23) Objective I.4. 96 Decision V/5 on the Strategic Plan for 2015–2020 (ECE/MP.PP/2014/2/Add.I) 2. 97 Aarhus Convention (n 12) Arts 2(4), 2(5) and 3(4). 98 There are hints in the preamble that this duty might also be directed towards non-human elements of the environment. The General Assembly resolutions referenced at the second preambulatory paragraph of the Convention also affirm the solemn responsibility of all human beings to protect the environment. General Assembly resolution 37/7 expands the duty to protect beyond the simple call to protect the environment. The third paragraph of the resolution requires that the

166  Interpretive Possibilities concerned with protecting the environment for humans of both the present and future generations. And the seventh preambular recital states that the general moral duty of civil society in relation to the environment exists for the benefit of present and future generations. The intergenerational aspect of this duty, in particular, is affirmed in the Implementation Guide (‘we owe an obligation to future generations’).99 As future generations, in particular, are often cited as benefiting from the concept of stewardship, this is further support for the idea that the duty the Convention is promoting is a stewardship one. Finally, this duty ought to be seen as a stewardship duty because the values that influence the duty are stewardship values. The need to protect, preserve and improve the environment can all be identified as stewardship values – in particular, values that would be associated with a custodial or managerial sense of stewardship.100 Further, the duty is linked to sustainable development and sustainability values in the preamble, Implementation Guide and Strategic Plans. As will be recalled from Chapter 5, there is a strong connection between stewardship and sustainable development, with sustainable development taking on shades of stewardship when it is regarded as a general duty of the public. To sum up the argument thus far, the Convention intends to implement some form of moral duty that is owed by all members of civil society. This moral duty should be identified as stewardship because it is a duty in respect of the environment, to protect and preserve it, for the benefit of members of present and future generations. This is aptly summarised in Objective I.13 of the Strategic Plan 2004–2015, which states: Civil society organisations and the general public [should] assert [their rights under the Convention] to effectively engage in addressing environmental and sustainable development issues and to advance both environmental protection and good governance, thus contributing to sustainable development.

Accordingly, there is a strong case for claiming that a key aspect of the stewardship purpose of the Convention is to engage civil society as stewards of their local and national environment. The three procedural rights are bonded by the obligation that they should be exercised in a way that reflects the stewardship purpose of the Convention. Therefore, although the procedural rights lack intrinsic value, their value lies

duty to protect the natural environment is observed both at the national and international level. The international community is required to protect and safeguard the ‘balance and quality of nature’ in the interests of present and future generations. This weighting of the duty in favour of humans with a residual benefit for the environment follows a similar pattern to the theoretical understanding of stewardship which is largely concerned with protecting the environment for the benefit of the human community: A/RES/37/7, fourth and fifth paragraphs in particular. 99 Implementation Guide, 2nd edn (n 42) 15. 100 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1 (Stockholm Declaration) Principle 1; Aarhus Convention (n 12) 5th and 7th preambular recitals.

Environmental Stewardship in the Context of the Aarhus Convention   167 in the extent to which they enable members of the public to act as stewards of their environment.101 In this way the stewardship purpose and the environmental rights purpose of the Convention are linked. The stewardship purpose represents a general moral obligation to protect the environment that encompasses the specific moral obligation to protect substantive environmental human rights. Hey has described this connection in terms of a right to protect the environment, thus showing that the Convention is promoting a general sense of stewardship.102 Accordingly, when members of the public take advantage of the procedural rights they ought to do so in a way that reflects their moral responsibility towards the environment for the benefit of their local environment both now and in the future. To borrow the human rights language used in Chapter 4, the stewardship purpose introduces an ‘interactional’ element to the operation of the Convention. Whilst the environmental rights are institutional – ie the correlative duties are owed by the state – the stewardship duty is interactional and implies moral duties between individual members of the public. The focus of this first aspect of the stewardship purpose is on members of the public and how they should be seen to owe a custodial stewardship duty because there is a tacit stewardship duty that attaches to the procedural rights and as the procedural rights are for the benefit of the public and the public concerned, the duty only applies to the public. The second aspect of the stewardship purpose is that the Parties have a duty to facilitate the stewardship responsibilities of the public and to promote stewardship values in international law. Thus, the stewardship purpose of the Parties has both a national and global dimension. In both dimensions, the stewardship duty of the state is a managerial one, because they are either managing the behaviour of their citizens or of global actors. This second aspect of the stewardship duty relates to the Parties. Contracting Parties have a managerial stewardship duty, not in terms of managing the environment, but in terms of managing their actions.103 This duty operates in two ways, primarily as the facilitator of the public’s stewardship duty to the Parties, and, to a lesser extent, in the role they play in promoting Aarhus values in the global arena. In this way the stewardship purpose of the Convention operates on numerous levels, from domestic to global, although it manifests most strongly in the domestic context. The principal stewardship responsibilities of the Parties, and their respective public authorities, are to provide the infrastructure that facilitates the stewardship duties of the public. Parties are required to implement and maintain the necessary legal and practical arrangements that guarantee the procedural rights. Public authorities, in particular, have a stewardship duty in so far as they are



101 Bell

(n 21) 95. (n 33) 375. 103 J Welchman, ‘A Defence of Environmental Stewardship’ (2012) 21 Environmental Values 297, 302.

102 Hey

168  Interpretive Possibilities responsible for administering the participation and access to information procedures, for example, by providing members of the public with the environmental information that they need in order to act in accordance with the general duty of custodial stewardship. Further, this allows the public to ‘engage in a substantive dialogue with public authorities … about how the environment may best be protected in view of potentially harmful developments’.104 Thus there is a comingling of managerial and custodial stewardship duties in pursuit of the best environmental outcomes. The Parties also facilitate the custodial stewardship values of the public by promoting environmental education and awareness among the public.105 As the Strategic Plan 2009–2014 points out, environmental education ‘promotes active and responsible behaviours among the public as regards the environment, including the exercise of rights guaranteed by the Convention’.106 It is through environmental education that the public are able to cultivate stewardship values and respond to the moral call of custodial stewardship. The Parties thus play an instrumental role in enabling the stewardship duties of those exercising the procedural rights of the Convention. The managerial stewardship duty of the Parties also has a global dimension, as they are required by Article 3(7) to promote values and ideas that underpin the Convention in the international arena. Thus, if environmental stewardship is a purpose of the Convention, then the Parties must also promote environmental stewardship in these fora. In this way, the Parties are encouraged to act as ‘ecological steward[s] and facilitator[s] of transboundary democracy rather than a selfish actor jealously protecting its territory and ignoring or discounting the needs of foreign land’.107 B.  Interpretive Consequences of the Stewardship Purpose Having elaborated on the stewardship purpose of the Convention, I suggest two interpretive consequences of this particular purpose. As before, these examples are intended to illustrate how identifying environmental stewardship as one of the purposes of the Convention aids a better understanding of the potential of the Convention as an instrument of international environmental law. The first interpretive consequence of the stewardship purpose is that the terms ‘public concerned’ and ‘sufficient interest’ ought to be interpreted expansively, to ensure that all those who wish to act as environmental stewards are able to do so. The second consequence is that the Parties, as facilitators of the public’s stewardship



104 Hey

(n 33) 353. Convention (n 12) Art 3(3). 106 Strategic Plan for 2009–2014 (n 23). 107 Eckersley (n 29) 20. 105 Aarhus

Environmental Stewardship in the Context of the Aarhus Convention   169 duties, are also required to engage the private sector in order to enable the public to exercise their stewardship duty fully. There are, of course, more interpretive possibilities of the stewardship purpose – these two are selected by way of a reflective conclusion to my analysis of the stewardship purpose. The first consequence, that the references to the ‘public concerned’ and ‘sufficient interest’ should be generously interpreted, suggests that an ‘interest’ or a ‘concern’ does not relate only to personal interests and concerns, but also to stewardship interests and concerns. In the same way that environmental NGOs are deemed to have a sufficient interest because their participation is motivated by environmental concerns, members of the public acting in response to their stewardship duties ought to be deemed to be amongst the public concerned or to have a sufficient interest. To return to the introductory example of the Coedbach Action Team, despite their geographical distance from the site in question, their environmental concern should have been qualification enough for them to be regarded as having a sufficient interest in the project.108 In this way the Convention can fully realise its purposive stewardship ambitions by ensuring that those exercising their environmental stewardship responsibilities are given the widest possible access to the Convention’s provisions. The second interpretive consequence suggested by the stewardship purpose is that in facilitating the stewardship of civil society the Parties are also, in a limited way, required to involve the private sector. For example, Article 5(6) states that Parties should encourage operators (meaning public authorities and the private sector) whose activities have a significant impact on the environment to participate in eco-labelling and eco-auditing schemes. By engaging the private sector in this way, the Parties assist members of the public in governing their consumptive habits by allowing them to make choices in light of the environmental impact of the goods that they buy and use. This aspect of the stewardship purpose is identified in the nineteenth preambular recital of the Convention: ‘noting the importance of adequate product information being provided to consumers to enable them to make informed environmental choices’. In his Foreword to the first edition of the Implementation Guide, Kofi Annan even goes so far as to suggest that the Convention was intended to alter behaviour in relation to the established consumption and production patterns.109 In this way the stewardship purpose not only affects members of the public who directly engage with its provisions but can also begin to engage all members of society as good environmental stewards.

108 Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin). 109 The Aarhus Convention: An Implementation Guide (2000) ECE/CEP/72 (Implementation Guide, 1st edn) v.

170  Interpretive Possibilities C. Conclusions Identifying the stewardship purpose has been slightly different to identifying the other two purposes, because it receives no explicit recognition in the text of the Convention, and neither is it expressly referred to in the Convention’s supporting materials or academic commentary. However, the ethic of environmental stewardship permeates every fibre of the Convention’s being. In this way, the stewardship purpose is the most significant of the three purposes considered in this book. It represents the underlying moral ambition of the Convention and it is this moral ambition which animates both the doctrinal provisions of the Convention and its other purposes. Given how stewardship permeates all aspects of the Convention, the stewardship purpose is emblematic of the Convention’s ambitious vision. In giving citizens procedural environmental rights that have implicit stewardship responsibilities, it is attempting to engage an enormous resource – the public – in the task of protecting the environment for the benefit of present and future generations. Similarly, by encouraging global actors to think about their stewardship responsibilities, the stewardship purpose operates both from the bottom up and from the top down. VI. CONCLUSION

Many superlatives and high ideals have found themselves in the orbit of the Aarhus Convention. It emerged to a great fanfare and has continued to accumulate an impressive list of objectives and ambitions. It is the job of a legal scholar to question these kinds of claims – to interrogate their veracity, to understand their consequences and to try to draw meaningful conclusions from the gloss and hype that can accompany law and policy. In elaborating the nature and interpretive consequences of just three of the purposes of the Convention, I open the way for greater clarity as to how these purposes can shape the ways in which the Convention is interpreted and understood. In so doing I have underscored the Convention’s impressive scope and enduring appeal. Central to the appeal of the Convention are the three procedural rights of access to information, public participation and access to justice in environmental matters. Whilst there is something skeletal about these rights, lacking as they do the fullness of the substantive right to the environment, viewing them in purely procedural terms misses the point. To return to the image of trampoline springs from the beginning of this chapter, these procedural rights are tightly wound with enormous substantive potential.110 Of course the full potential of trampoline springs can only be realised when they are jumped on, and in examining



110 See

text to n 3.

Conclusion  171 three purposes of the Aarhus Convention that is exactly what I have done. In closing, however, it is worth remembering that trampolines are most fun when multiple jumpers work together to reach the greatest possible heights.111 This is exactly how the Convention works: the procedural rights require a collective practice of engagement, stretching out their full potential in pursuit of the Convention’s ambitious vision. The beauty of the Convention, therefore, is the space that it creates for this collective engagement.



111 Bell

(n 3) 28.

7 Conclusion Usually we imagine that true love will be intensely pleasurable and romantic, full of love and light. In truth, true love is all about work.1

I. INTRODUCTION

E

cclesiastical wisdom says that ‘finishing is better than starting’.2 Indeed, the immeasurable feeling of relief that comes from finishing a project far outweighs the general elation of its inception, or at least that is how it feels from the finish line. But scholarship is a bit like marathon running – whilst you struggle through the final eight hundred meters, there is a lingering sense that once your aching limbs have recovered, the pull of the pavement will compel you to don your trainers and run some more. Finishing may well be better than starting, but finishing is generally always just the start of something else. Therefore, although this conclusion represents the formal end of this project, it is the beginning of a conversation about what my approach means for how the Aarhus Convention should continue to be implemented as a dynamic instrument of international environmental law.3 Beyond the Convention, this book contributes to the broader conversation about purposive interpretation. This is because many of the purposes that underpin the Aarhus Convention, including the three studied in this book, relate to complex and contested philosophical ideas that do not lend themselves to neat or simple definition. Understanding how contested concepts shape the interpretation of law is a far from straightforward exercise. Therefore, whilst the original intention behind this book was to understand more deeply the nature of the Aarhus Convention and its purposive potential, a second feature of the book emerged in its writing. As I worked to understand the nature of the purposes of the Convention, it became clear that the purposes I had chosen could not be understood in simple terms. Like those images that are simultaneously the face of an old and a young

1 bell hooks, All About Love: New Visions (Harper Perennial, 2001) 183. 2 Ecclesiastes 7 v 8. 3 Á Ryall, ‘Beyond Aarhus Ratification: What Lies Ahead for Irish Environmental Law?’ (2013) 20 Planning and Environmental Law Journal 19, 19.

Negative Capability  173 woman, or a duck and a rabbit, as the book began to take shape it also became about the challenge of balancing accuracy with vibrancy when defining contested concepts. Thus, the book has a dual identity – two identities that are to a certain extent at odds with each other. The first activity of the book was governed by the pursuit of greater doctrinal clarity. The second recognises the value of respecting philosophical oscillations. There is thus a tension between definitional clarity and definitional dynamism. In concluding, I want to reflect on these two aspects of the book, starting with the process of defining the three purposes and closing with a reflection on what is so compelling about the Aarhus Convention. II.  NEGATIVE CAPABILITY

The second aspect of this book, which only surfaced in the process of writing, became its principal scholarly activity. In trying to produce a purposive interpretation of the Convention, it was first necessary to get to grips with the three purposes I had chosen as my focus – environmental democracy, environmental rights and environmental stewardship. The more time I spent considering these three purposes, the less convinced I was that producing a single, contained definition of each concept was possible or desirable. This view is echoed by Grayson Perry who explains that ‘[c]raftmanship is often equated with precision but I think there is more to it. I feel it is more important to have a long and sympathetic hands-on relationship with materials’.4 The same can be said of legal scholarship, which is often equated with precision, and where the most celebrated scholars are those who produce the defining single best theory of a concept or who can have the final word on a contested idea. Like Perry, I think there is more to scholarship than this. In contemplation of the needs of legal certainty and the rule of law, it is understandable that law should strive for precision and clarity, but these need not be the parameters of legal scholarship. Legal scholarship requires a ‘hands-on’ approach to the tension and complexity inherent in the ideas that we work with.5 The poet John Keats described this as ‘negative capability’ – the idea that thinkers should be ‘capable of being in uncertainties, Mysteries, doubts, without any irritable reaching after fact and reason’.6 This negative capability is not just the licence of the poet, but also I think the duty of the scholar. We do our calling a disservice when we fail to recognise that inherent in the complex ideas that we work with are oscillations that should be preserved, not tamed

4 G Perry, The Tomb of an Unknown Craftsman (British Museum Press, 2011) 169. 5 E Fisher, ‘Back to Basics: Thinking About the Craft of Environmental Law Scholarship’ in OW Pedersen (ed), Perspectives on Environmental Law Scholarship: Essays on Purpose, Shape and Direction (Cambridge University Press, 2018) 36. 6 HE Rollins (ed), The Letters of John Keats: 1814–1818, vol I (Cambridge University Press, 1958) 193–94.

174  Conclusion into submission.7 This is especially true of environmental law scholarship which ‘transcends legal, jurisdictional and disciplinary boundaries and itself reflects a range of meanings, from those that are deeply ethical and purposive to those that are descriptive and doctrinal’.8 It is a subject that demands of its acolytes an ability to sit in tension, to become comfortable with the novel and to ‘learn by doing’.9 Advocating this malleable, poet’s approach might seem like the stereotypical scholarly neglect of the urgent and important, a privileged preference for the woolly over the concrete, that might appear irresponsible given the present political turmoil that is playing out in the arena of an impending climate catastrophe. In a time when truth blends into fantasy, and concepts like democracy become the playthings of political operators, it might seem that I have a responsibility to pin down meaning, not pursue dynamism. But the fight to reassert the meaning of our foundational values is not a competitive search for the single best explanatory theory; rather, it is a collective practice in achieving sufficient agreement on ‘what we take to be paradigm instances’ of these concepts so that we can say clearly and loudly what they are not.10 Therefore, whilst the definitions that I have produced for each purpose are multidimensional, each definition has nevertheless given a clear sense of its character. In tracing the boundary markers of democracy, traversing the territory of rights and charting the map of stewardship, I have thus been able to locate and share the truth of each concept. Much of this book therefore has been about developing my negative capability. Not in pursuit of an aesthetic ideal like Keats, but in order to capture the truth of the profoundly contested ideas that I have been working with. Environmental democracy, environmental rights and environmental stewardship are complex, expansive concepts and my methodological treatment of each of them has sought to locate their meaning whilst preserving their vitality. In getting to grips with the purposes of the Convention, I have thus been involved in a long hands-on relationship that has been guided by an ‘ever curious love’ of the ‘stuff’ of the Aarhus Convention.11 III.  AN AFFAIR TO REMEMBER

I took great pleasure in thinking about which classic movie title would best suit this final part: The End of the Affair didn’t seem quite right, as the hold that the Convention has over me has not yet loosened; and given how long this project

7 E Scotford, Environmental Principles and the Evolution of Environmental Law (Hart Publishing, 2017) 64. 8 Ibid, 27. 9 Fisher (n 5) 36. 10 R Dworkin, Justice for Hedgehogs (Harvard University Press, 2013) 160. 11 Perry (n 4) 169.

An Affair to Remember  175 has taken, A Brief Encounter was far from accurate. An Affair to Remember, however, captures the permanent mark that the Aarhus Convention has left on me and the films plot conveys some of the tumult and turmoil of getting to know the Convention. In the opening quotation from bell hooks, she reminds us that true love requires work, and no doubt the labour of trying to understand the Aarhus Convention has been evident across the pages of this book. But of course, love stories are not only about torment; they also have moments of joy. In closing, I want to reflect on what makes the Convention so compelling; to show why it is a worthy object of scholarly obsession.12 The chief charm of the Convention is its ambition. Ambition is often perceived as an attractive quality, not in the aggressive, all-consuming sense, but in the sense of having dreams, a purpose, ideals to pursue.13 As I have shown throughout this book, the Convention is not short of ideals to pursue and neither are these ideas modest. The extent of the Convention’s vision is summarised perfectly in the final paragraph of the Vision and Mission statement set out in its Strategic Plan 2015–2020: ‘This vision and mission are part of our broader aspiration to achieve a more equitable world and a better quality of life’.14 The Aarhus Convention, therefore, has the enchanting quality of a day dreamer; its eyes fixed on the lofty, the world-changing. Sometimes, however, daydreamers can be frustrating; like Jane Austen’s Willoughby they imagine glorious futures, whilst neglecting the consequences of their fantasy.15 Not so with the Convention; its ambitious vision is matched with a practical outlook. The Convention is not concerned with pipe dreams. It is focused on concrete, realisable outcomes that can help to achieve its vision. In Chapter 6 I showed how the three procedural rights are central to the practical vision of the Convention; that despite their own lack of substantive moral content, they provide the space and the structure necessary for more substantive ambitions to come to the fore.16 Finally, what makes the Convention so compelling is its capacity to grow. It is not a static legal instrument satisfied that its first iteration was sufficient to achieve its high ambitions. It is a living, breathing text that has grown, and continues to grow both into the vision that it set for itself and beyond: our immediate mission is: (c) to keep the provisions and principles of the Convention under constant review and consider forward-looking interpretations of the Convention and its further

12 Fisher (n 5) 38. 13 EB Johnson, ‘Why is Ambition so Attractive?’ (Medium, 29 March 2019) available at medium. com/@ebjohnson/ambition-is-attractive-ecb164fc8128, accessed 13 April 2020. 14 Decision V/5 on the Strategic Plan for 2015–2020 (ECE/MP.PP/2014/2/Add.I) 3. 15 Jane Austen, Sense and Sensibility (Penguin Popular Classics, 1994). 16 E Hey, ‘The Interaction between Human Rights and the Environment in the European “Aarhus Space”’ in A Grear and LJ Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar, 2015) 375.

176  Conclusion development so as to ensure that it continues responding to modern challenges and provides an adequate instrument to achieve its objectives.17

Ultimately, this is what is enduring about the Convention’s appeal: its unwillingness to stay still in the face of pressing environmental problems. It is this relentless and capacious vision of the Convention that makes it a true romantic hero.



17 Strategic

Plan for 2015–2020 (n 14) 3.

Index Abbot, Carolyn  28 Abraham, Selina  3 academic commentary on AC  7, 13, 21, 28–9, 33, 49, 163 access to environmental information  8–12 active component  10 commercial purposes, for  12 consumption  36 environmental democracy  27–9, 63, 146, 150–1 environmental rights  29, 31, 100, 156, 161 environmental stewardship  36, 126, 165, 168 passive component  10 public participation  28, 150–1 purposive interpretation  141 soft law  100 substantive rights  170–1 access to justice in environmental matters  8, 10–12 access to environmental information  11 costs  2, 11, 161 effective remedies  161 environmental democracy  27–9, 146 environmental rights  29, 100, 102, 156, 161 environmental stewardship  36 fair and impartial procedures  11, 36, 49, 83, 99 public participation  11, 28, 67 purposive interpretation  141 review procedures before a court, entitlement to  11 substantive rights  170–1 accountability  3, 13, 26–7, 99, 147 Africa regional human rights system  93–4 religions  113 Alexander, Larry  102 Alston, Philip  82 An Affair to Remember (film)  174–5 Andean concept of bien vivir  136 Anderson, M Kat  129 Anderson, V Elving  111 animism  113

Annan, Kofi  7, 26, 28, 39, 169 anthropocentricism environmental democracy  56, 60, 72 environmental rights  76 environmental stewardship  115, 121, 122–3, 129, 136 Arendt, Hannah  60, 148 Arnstein, Sherry  150 art, definition of  19, 45 associative democracy  62, 66, 71–2 Atapattu, Sumudu  64 Austen, Jane  175 autonomy civil competence  47, 50 collective decision-making  47 environmental democracy  42, 47–8, 50–1, 55–7, 64 environmental rights  90, 101 individual  42, 47 intergenerational equity  56 Aygeman, Julian  129–30 Baber, Walter  58–9 Bali Guidelines  100 Ban Ki-Moon  28, 35 bare use right  88 Barrett, Christopher B  110 Barry, John  57–8, 122, 125 Bartlett, Robert  58–9 Bavikatte, Sanjay Kabir  126 beating the bounds  19, 46 Beck, Ulrich  54 behaviour management  132–3, 139, 169 Bell, Derek  13, 148–50 Bell, Rob  141 Bennett, Jane  120–1, 123, 138 Bentham, Jeremy  103–4 binding effect  11, 42, 97, 153, 155 biological heritage  113 biomass power stations  2–3, 169 Black, Julia  6, 61 Bolivian Constitution 2008  136 Bonilla Maldonado, Daniel  4, 8, 15

178  Index boundary markers beating the bounds  19, 46 environmental democracy  40, 41–2, 45, 57, 59–60, 109, 174 Boyd, David  75, 89, 93, 97 Boyle, Alan  155 Brown-Weiss, Edith  104, 119–20, 122 Brundtland Report  96 Buddhist ethic of care for nature  113 Budva Declaration on Environmental Democracy for our Sustainable Future  7, 28–9 Caldwell, Lynton  121, 128, 134 Californian Indians  129 Christianity  113, 136–7 citizenship  6, 9–10 directly enforceable citizens’ rights  9–10 environmental democracy  60, 63–5, 68–9 environmental rights  157–8 environmental stewardship  109, 126, 165 purposive interpretation  14 civil society environmental democracy  65–6, 70 environmental rights  92 environmental stewardship  115, 126, 164–6, 169 policy-making  13 clarity boundary markers  46 complexities  19 definitions  41, 156, 170, 173 environmental rights  75, 80, 95 Coedback Action Team (CAT)  2–3, 169 coercive power  48 Cohen, Joshua  71 collective decision-making  39–42, 45–9 common good  59 environmental democracy  39–42, 45–9, 59–61, 71, 148 group context, in  42 collective practices  23, 125 collective rights  83–4, 104–5, 118 colonisation  112 common good  59, 68, 145–8 communitarianism  77, 104, 108–9 complexities collective practices  91 contestability  17–20 decision-making  40, 50–5 environmental democracy  17–20, 40–50, 68–9, 72, 174 environmental rights  15, 16–20, 91, 174

environmental stewardship  17–20, 107, 109, 132, 138, 174 intergenerational equity  103 negative capability  173–4 purposive interpretation  14, 142 understanding the AC  17–20 Confucianism  113 consultation  150, 154 Cooper, Davina  4, 18 corporations corporate social responsibility  125 environmental stewardship  111, 124–6 land ownership  124–5 NGOs  126 standards  126 cosmopolitanism  113 costs  2, 11, 161 Court of Justice of the EU (CJEU)  25 Coyle, Sean  89 Cranston, Maurice  89–91, 93, 156 culture biological heritage  113 environmental stewardship  113, 125–6, 128, 138–9 identity  126 indigenous people  126, 127 open, administrative culture  13 custodial stewardship  110, 115, 117, 123, 127–34, 164, 166–8 customary law environmental rights  94–5, 97, 155, 159 jus cogens  97 opinio juris  94–5, 155 Dahl, Robert  41–2, 44, 47 Daly, Erin  90 Davies, Margaret  18, 109 de Geus, Marius  59–60 decision-making binding effect  42 collective  39–42, 45–9, 59–61, 71, 148 complexities  40, 50–5 environmental democracy  26–7, 39–61, 67–73, 145–50 environmental stewardship  36, 164–5 good environmental decision-making  3–4 knowledge, uncertain nature of environmental  40, 50 legitimacy  47–8 plurality of environmental values  40, 50, 52–3 public participation  36, 63 rationality  45, 58, 150

Index  179 risk, complex nature of environmental  40, 50 transparency  152 definitions clarity  41, 156, 170, 173 dynamism  17–19, 72, 173–4 environmental democracy  14, 17, 39–50, 53, 56, 72, 112, 140, 143, 173–4 environmental rights  14, 17–18, 78, 140, 173 environmental stewardship  14, 17–18, 109, 114–15, 117, 120, 139–40, 162–3 experimental explanations  18 public concerned  21–2 scientific definitions  43 sufficient interest  168 sustainable development  130 deliberative democracy  40–1, 48, 56, 62, 66–71, 145, 150–3 democracy see environmental democracy di Paola, Marcello  132 Diamond, Larry  44 directly enforceable rights  9–10, 158 discrimination  10, 147 discursive democracy  67–8, 150–1 Doherty, Brian  59–60 domicile, discrimination as to  10 drafting  8–9 Ad Hoc Working Group, establishment of  9 environmental democracy  151–3 environmental rights  29–30, 154, 161 health and well-being, substantive right to environment adequate to  161 NGOs  9 purposive interpretation  22 values  22 Dryzek, John  40, 45, 58, 65, 70, 151 Duncan, Nigel  16–17 Dunleavy, Patrick  58 Dworkin, Ronald  101 dynamism  8, 172–4 definitions  17–19, 72, 173–4 environmental democracy  15, 17–18, 48, 72, 106 environmental rights  15, 17–18, 25, 98, 160 environmental stewardship  15, 17–18, 109, 112 implementation  172 purposive interpretation  140, 144 ECE Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making (Sofia Guidelines)  9

Eckersley, Robyn  57, 61, 65–6, 148 eco-auditing  169 ecocentric approaches  56, 66, 72, 76, 120, 123, 136, 164 eco-labelling  169 ecological restoration  131–2 education  3, 14, 35, 68, 82–3, 168 elections/voting  44, 61 Elliott, Robert  132 emergent purpose approach  24–6 enlarged mentality, development of  60, 68, 71, 148–9 entry into force of AC  8 environmental democracy  3, 39–73 academic commentary  21, 28–9, 49 access to environmental information  27–9, 63, 146, 150–1 access to justice in environmental matters  27–9, 146 accountability  26–7, 147 anthropocentric approaches  56, 60, 72 associative democracy  62, 66, 71–2 Athenian democracy  112 autonomy  42, 47–8, 50–1, 55–7, 64 binding effect of decisions, justification for  42 boundary markers  40, 41–2, 45, 57, 59–60, 109, 174 Budva Declaration on Environmental Democracy for our Sustainable Future  7, 28–9 citizenship  60, 63–5, 68–9 civil society  65–6, 70 coercive power  48 collective decision-making  39–42, 45–9, 59–61, 71, 148 common good  59, 68, 145–8 complexities  17–20, 40–50, 68–9, 72, 174 constituencies, political recognition of new  60, 64–5, 67, 146–7 constituent parts  40, 41–50 decision-making  26–7, 39–61, 67–73, 145–50 binding effect  42 collective  39–42, 45–9, 59–61, 71, 148 complexities  40, 50–5 knowledge, uncertain nature of environmental  40, 50 legitimacy  47–8 plurality of environmental values  40, 50, 52–3 rationality  45, 58, 150

180  Index risk, complex nature of environmental  40, 50 transparency  152 universal consensus  41 volume and diversity of environmental interests  40, 50 definition  14, 17, 39–50, 53, 72, 112, 140, 143, 173–4 deliberative democracy  40–1, 48, 56, 62, 66–71, 145, 150–3 descriptive approach  43–5, 143–4 design of concept of democracy  40 dimensions of environmental democracy  55–72 direct democracy  49–50 discursive democracy  67–8, 150–1 drafting  151–3 ecocentric approaches  56, 66, 72 education  68 elections/voting  44, 61 enlarged mentality, development of  60, 68, 71, 148–9 environmental rights  21, 42, 47–50, 55–7, 62–5, 100 environmental stewardship  34, 63, 107, 109, 112, 139, 162, 168 explanatory and supporting materials  3, 21, 27, 28–9 explanatory definition of democracy  43 fallibility of human knowledge  42, 46, 47–8, 55, 69, 149–50 foundational purposes  3, 13, 14 health and well-being, substantive right to environment adequate to  28, 63–4 identification in AC  26–7 ideological choices when defining democracy  40, 42–3, 56, 72 Implementation Guide  7, 152–3 intergenerational equity  50–1, 56, 63–5, 72, 145–9 interpretive consequences  151–3 justice  42, 47–50, 55, 57–8, 67, 72 knowledge  42, 46, 47–8, 55, 68–70, 149–50 fallibility of human knowledge  42, 46, 47–8, 55, 69, 149–50 uncertain nature of environmental  40, 50, 53–4 legitimacy  26, 42, 47–8, 54, 56, 61–4, 67–70, 72, 145, 148, 151 liberal theory of representative democracy  49–50 methodological choices when defining democracy  40, 42–4, 53, 72

mixed fact/value nature of decisions  53 narrative of democracy  40, 41–50, 72 NGOs  145–7 non-citizens/non-residents  51, 59–61, 64–6, 68, 72, 146–8 non-human interests  47, 59–60, 63 normative elements  41, 43–4, 55–62, 67, 72, 143–6 philosophical scope  7–8 plurality of environmental values  40, 50, 52–3 conflicts between values  52–3 incommensurability of values  52–3 incompatibility of values  52–3 political concept, democracy as  16, 42, 46 political equality  42, 46, 47–8, 50–1, 55, 57 popular control  42, 46, 47–8, 57 preamble  21, 27 procedural rights  27, 48, 63–6, 99, 149 public participation  14, 27–9, 55–6, 62–8, 71, 145–7, 150–4 consultation  150, 154 executive regulations and/or generally applicable legally binding normative instruments  27 Ladder of Participation  150 NGOs  67, 145–7 plans, programmes and policies  27, 151–2 poor and marginalised communities  64 risk assessment  67 social stratification  64 purposive interpretation  3, 14–17, 21–9, 37, 142–54 radical democracy  50 rationality  45, 58–9, 150 representative democracy  14, 40–1, 49–50, 62, 66–7 risk, complex nature of environmental  40, 50, 53–4 scientific knowledge  68–70 single best theory  44–5 Strategic Plans  21, 26 structural arrangements  41, 45, 55–7, 62–72, 145 substantive rights  63–4, 145, 149 sustainable development  13, 61, 148 theory  40–50 thick approach to democracy  43–4 thin approach to democracy  43–4 transnational interests  147–8 transparency  26–7, 152

Index  181 understanding  3, 15, 16–20, 37, 40–1, 70 values  22, 27, 37, 40, 43, 50–4, 57, 63, 67–71, 144, 152, 154 volume and diversity of environmental interests  40, 50 environmental rights  3, 74–106 absoluteness  81 academic commentary  21 access to environmental information  29, 31, 100, 156, 161 access to justice in environmental matters  29, 100, 102, 156, 161 ambiguity  29–33, 154, 156 analytical rights scholars  75–81 autonomy  90, 101 character of rights  78–84 citizenship  157–8 civil society  92 clarity  75, 80, 95 collective rights  83–4 complexities  17–20, 91, 174 Compliance Committee  158 conceptual limitations  76–7 criteria  82, 86, 90–3 customary law  94–5, 97, 155, 159 definition  14, 17–18, 78, 140, 173 drafting  29–30, 154, 161 ecocentric approach  76 emerging legal right, right to an adequate environment as an  159–61 environmental democracy  21, 42, 47–50, 55–7, 62–5, 100 environmental ground  84–105 environmental stewardship  76, 87, 107, 109–10, 162–3, 170 explanatory and supporting materials  3, 21 General Assembly resolutions  97 health and well-being, substantive right to environment adequate to  29–33, 74–6, 82 historical foundations  86–9, 93, 95, 98–9, 154 human dignity  82–3, 90, 100–2 Implementation Guide  31, 158 indigenous value systems  87 individual rights  83–4, 104 intellectual property rights  161 interactional account of human rights  91–2 interest or benefit theory of rights  80–1 intergenerational equity  74, 76–7, 86, 103–5, 107, 157

international law, status of AC in  75, 94–7, 159–60 interpretive consequences  160–1 legal development  93–9, 154 legal rights  79, 81–2, 84–6, 155–7, 160 legitimacy  99–102 liberty, right to  86, 89, 101 life, right to  86, 90 minimally decent environment  76 moral framing  89–93 moral rights  79, 81–2, 84–6, 89–90, 98–9, 102–4, 154–61 natural law/rights  86–9 need-based approach  159 negative rights  82–3, 93 NGOs  157–8 objectives/purposes of AC  29–30, 76, 78 philosophical scope  7–8 positive rights  82–3 positivism  81–2, 94–5, 155 practicability  90, 93 preamble  21, 31, 155, 157 privacy  86 procedural criteria  82, 86 procedural rights  30–2, 74–7, 83–5, 99–103, 158–60 public participation  29, 31, 99–101, 156 purposive interpretation  3, 15–17, 21–6, 29–33, 78, 154–62 regional arrangements  93–4, 160 risk  101–2 soft law  95–7, 100 special character of rights  81–4 Strategic Plans  21, 31 structure  109–10 substantive criteria  82, 86 substantive rights  29–31, 74–7, 83–100, 103, 154–61 Task Force on Environmental Rights and Obligations  9 territory of rights  77–84, 154 transparency  99 understanding  3, 15, 16–20, 91–2 universality  90–3 environmental stewardship  3, 107–39 academic commentary  21, 33, 163 access to environmental information  36, 126, 165, 168 access to justice in environmental matters  36 ambiguities  108–9, 111–12 anthropocentrism  115, 121, 122–3, 129, 136

182  Index artist’s impression  110–14 behaviour, altering  169 beneficiary of the duty  110, 115, 117, 120–3 citizenship  109, 126, 165 civil society  115, 126, 164–6, 169 commercial production  119 communitarianism  108–9 complexities  15, 16–20, 107, 109, 132, 138, 174 conceptualisation  109, 116, 119 corporations  111, 124–6 cultural heritage  113, 125–6, 128, 138–9 custodial stewardship  110, 115, 117, 123, 127–34, 164, 166–8 decision-making  36, 164–5 definitions  14, 17–18, 109, 114–15, 117, 120, 139–40, 162–3 dominion  112, 131–2 ecocentrism  120, 123, 136, 164 ecological environment  120, 122–3, 132 ecological restoration  132 ecosystems  118 education  35, 168 elements of stewardship  114–38 environmental democracy  34, 63, 107, 109, 112, 139, 162, 168 environmental rights  76, 87, 107, 109–10, 162–3, 170 ethical stewardship  110–15, 123–6, 129–31, 138, 163–7, 170 explanatory and supporting materials  3, 21, 33 exploitation  111–12 governance  126–7, 163 guardianship  107, 128 holders of duty  110, 114–15, 123–7, 164–5 impact assessments  169 implementation  35, 36, 166 indigenous communities  113, 126, 127, 129 intergenerational equity  33, 35, 107, 109, 115, 121–2, 129–30, 136–7, 162, 165–6, 170 interpretive consequences  168–9 land corporations  124–5 duty towards the  117–18 impact assessments  124–5 managerial stewardship  131–3 ownership  124 proprietary stewardship  134 legitimacy  163 linguistic origins  138

local areas or resources  119, 164 managerial stewardship  110, 115–18, 127, 130–3, 139, 164, 166–8 behaviour management  132–3, 139 mastery, control and dominion  131–2 resource management  131–2, 139 mapping metaphor  110–11, 115–16, 139 moral dimension  33–4, 110–15, 123–6, 129–31, 138, 163–7, 170 motivations of stewards  127 natural resources ambiguities  111 colonisation  112 custodial stewardship  110, 115, 117, 123, 127–30, 164, 166–8 exploitation  111–12 land distinguished  118 managerial stewardship  110, 115–18, 127, 130–3, 139, 164, 166–8 nature, human relationship with  107–8, 112–16, 130, 139 nature of the duty  110, 114, 120, 127–38 new materialism  120–1 NGOs  119, 126–7, 164–5, 169 non-humans  122 normative nature of stewardship  111, 113, 115, 131 objects of duty  110, 114–15, 117–20, 165 particular resource or good, duty in relation to  34 philosophical scope of AC  7–8, 34, 114 plurality of stewardship  115, 139 practicality  167–8 preamble  21, 34, 162 private interests  118, 132, 133–5, 165, 169 procedural rights  33–4, 36, 107, 139, 163–8, 170 proprietary stewardship  108, 110, 115–18, 127–8, 133–5, 163 collective property  118 common property  118, 135 exclusivity, enforceability, and transferability  135 ownership  118, 133–5 private property  118, 132, 133–5 protect, preserve and improve aims  33–4, 36, 166 public as holders of duties  22, 35–6, 127, 164–70 public concerned, meaning of  22, 168 public participation  36, 126, 164, 168 purposive interpretation  33–7, 108, 112, 114–15, 120, 162–70

Index  183 rationality  54 reciprocity  109, 115, 122 relational duty, stewardship as  114, 126 relationships  110, 115–16, 127–39, 164 religion  16, 87, 109, 111–13, 129, 136–7 responsibility  114, 115, 128–9, 139, 164–7 spiritual stewardship  109, 110, 115, 126, 127–8, 135–8 standards  126–7 standing  168 state, role of  126–7, 129 Stockholm Declaration  34, 165 Strategic Plans  21, 34–5, 166 sustainable development  34–5, 128, 129–30 thing-centric approach  119–21 three-compartment model  110 transboundary democracy  168 trusteeship  107, 122, 124, 127, 128–9 understanding  3, 15, 16–20, 107, 114, 162–3 universality  125 values  22, 34–7, 113–17, 125–38, 164, 166–7 Escazú Agreement in Latin America and Caribbean  11–12, 100 EU Natura  134 European Court of Human Rights (ECtHR)  24 Evans, Bob  129–30 explanatory and supporting materials  7, 12–14, 17, 25, 141 environmental democracy  3, 21, 27, 28–9 environmental rights  3, 21 environmental stewardship  3, 21, 33 fair and impartial procedures  11, 36, 49, 83, 99 fallibility of human knowledge  42, 46, 47–8, 55, 69, 149–50 Feinberg, Joel  104 Felice, William  95 Fish, Stanley  22–3 Fisher, Elizabeth  3, 17, 19–20, 53, 173, 174, 175 Forest Stewardship Council (FSC)  119, 126 foundational concepts  3–4 foundations of Aarhus Convention  3–4, 6, 12–14, 107–8, 135, 174 Fourth Ministerial Conference of Environment for Europe process  8 freedom of speech  48 Fuller, Lon  157 future generations see intergenerational equity Gaius  88 Gallie, Walter  18–19 General Assembly (UN) resolutions  97

generations see intergenerational equity Gould, Stephen Jay  130 governance  13, 126–7, 163 Green, Les  105 Grey, Cam  18 Grizzle, Ray  110 Grotius, Hugo  88–9, 136 guardianship  107, 128 Habermas, Jürgen  45, 53 Hale, Matthew  136 Harrison, Ross  48 Hart, HLA  80 Hayward, Tim  29, 89–92, 156, 159 health and well-being, substantive right to environment adequate to  8–9, 33, 74–6, 82–6, 162 ambiguity  29–32 drafting  161 emerging legal right, right to an adequate environment as an  159–61 environmental democracy  28, 63–4 environmental stewardship  35, 165 intergenerational equity  103–4 moral rights  154–8 reservations  155–6 Hebrew nomads  128–9 Hey, Ellen  155 Hinduism, ahimsa in  113 Hiskes, Peter  122 Hobbes, Thomas  87–8, 136 Hohfeld, Wesley Newcomb  77, 79–80, 82–3, 92, 99, 103–4 hooks, bell  4, 5, 21, 39, 74, 107, 140, 172, 175 human dignity  82–3, 90, 100–2 Human Rights Council (UN)  97–8, 160 human rights see environmental rights; human rights agreement, AC as a human rights agreement, AC as a  3, 10, 12, 13–14, 22, 24–5, 30 Hume, David  123 Hunter, David  118 Hutchinson, Terry  16–17 Iamblichus  113 ideology  40, 42–3, 56, 72 impact assessments  124–5, 169 implementation  4, 12–13, 36, 172 environmental stewardship  35, 36, 166 Implementation Guide  7, 12, 21, 25, 35, 142, 152–3, 166 purposive interpretation  22, 25

184  Index indigenous people biocultural rights  126, 127 communal responsibility to natural resources  129 cultural identity  126 environmental rights  87 environmental stewardship  113, 126, 127, 136–7 spiritual stewardship  136–7 UN Declaration on the Rights of Indigenous Peoples  126 values  87 individualism  58 Industrial Revolution  124 information see access to environmental information Ingold, Tim  128 instrumentalism  45, 58, 168 intellectual property rights  161 intergenerational equity  3, 14, 103–5 collective rights  104–5 environmental democracy  50–1, 56, 63–5, 72, 145–9 environmental rights  4, 74, 76–7, 86, 103–5, 107, 140–1, 157 environmental stewardship  33, 35, 107, 109, 115, 122, 129–30, 136–7, 162, 165–6, 170 non-identity problem  103–4, 121–2 trusteeship  122 international law, status of AC in  75, 94–7, 159–60 interpretation see definitions; purposive interpretation Islam  113, 137 Israel  128–9 Jacobs, Francis  24 Jendrośka, Jerzy  29, 160 Judaism, radah in  113 jus cogens  97 justice see also access to justice in environmental matters; intergenerational equity environmental democracy  42, 47–50, 55, 57–8, 67, 72 fair and impartial procedures  49 Justinian  87–8 Keats, John  173–4 knowledge environmental democracy  42, 46, 47–8, 55, 68–70, 149–50

fallibility of human knowledge  42, 46, 47–8, 55, 69, 149–50 scientific knowledge  68–70 uncertain nature of environmental knowledge  40, 50, 53–4 Knox, John H  97 Kotzé, Louis  75, 94–5, 97 Ksentini Report  96 La Camera, Francesco  143–4 land corporations  124–5 duty towards the land  117–18 environmental stewardship  117–18, 124–5, 131–4 impact assessments  124–5 managerial stewardship  131–3 ownership  124–5 proprietary stewardship  134 language  138 Latour, Bruno  120 Lau, Martin  137 Lazarus, Richard  134 Lee, Maria  28 legal certainty  173–4 legal rights  79, 81–2, 84–6, 155–7, 160 legitimacy decision-making  47–8 definition  6 environmental democracy  26, 42, 47–8, 54, 56, 61–4, 67–70, 72, 145, 148, 151 environmental rights  99–102 environmental stewardship  163 government  6, 14 public participation  67 Leopold, Aldo  52, 119, 123, 137–8 Levi, Margaret  48 liberty, right to  86, 89, 101 life, right to  86, 90 Limon, Marc  98 List, Christian  70 listening  37, 70, 72 living instrument principle  24, 25–6, 175–6 Locke, John  86–7, 89, 136 locus standi see standing Lovelock, James  112, 137–8 Lucy, William  118, 122–3, 134–5 McKenzie Skene, Donna W  131–2 Malé Declaration on Human Dimensions of Global Climate Change  96

Index  185 managerial stewardship  110, 115–18, 127, 130–3, 139, 164, 166–8 Māori kaitiakitanga, obligation of  113 natural beings, duties in relation to  126, 136 mapping metaphor  110–11, 115–16, 139 marine environment  119, 126, 127 Marine Stewardship Council (MSC)  119, 126 Marks, Stephen  96 Mashaw, Jerry  101 May, James  43 Meetings of the Parties  28 Meidinger, Errol  118 methodology doctrinal analysis  16–17 environmental democracy  40, 42–4, 53, 72 expansive review  16–17 philosophical scope  3, 15, 16–17 understanding the AC  15, 16–17 Mitchell, Catherine  118, 122–3, 135 moral/ethical dimensions environmental rights  79, 81–2, 84–6, 89–93, 98–9, 102–4, 154–61 environmental stewardship  33–4, 110–15, 123–6, 129–31, 138, 163–7, 170 health and well-being, substantive right to environment adequate to  154–8 political equality  47 Morrow, Karen  89 nationality, discrimination as to  10 Natural England’s Sites of Special Scientific Interest (SSSIs)  134 natural law/rights  136 natural resources ambiguities  111 colonisation  112 custodial stewardship  110, 115, 117, 123, 127–30, 164, 166–8 environmental stewardship  110, 115–18, 123, 127–33, 139, 164, 166–8 exploitation  111–12 land distinguished  118 managerial stewardship  110, 115–18, 127, 130–3, 139, 164, 166–8 nature, human relationship with  107–8, 112–16, 130, 139 negative capability  173–4 negotiation of Aarhus Convention  8–9 new constituencies, political recognition of  60, 64–5, 67, 146–7

new materialism  120–1 non-citizens/non-residents  51, 59–61, 64–6, 68, 72, 146–8 non-discrimination  10, 147 non-governmental organisations (NGOs) environmental democracy  145–7 environmental rights  157–8 environmental stewardship  119, 126–7, 164–5, 169 public participation  67, 145–7 standing  147, 169 non-human interests  47, 59–60, 63, 122 normative elements common normative space  56–7 environmental democracy  41, 43–4, 55–62, 67, 72, 143–6 object and purpose of treaties  24–5, 141 objectives/purposes of AC  29–30, 76, 78 see also purposive interpretation opinio juris  94–5, 155 ordinary meaning  23 Paganism  113 Page, Edward  122 Pallamaerts, Marc  13 Palmer, Clare  112 Parfit, Derek  104 Parliament of Things  120 Paris Agreement  94 Perry, Grayson  19, 45, 173 philosophical scope of Aarhus Convention  3, 5–20, 34, 114 Pincoffs, Edmund  101 Plant, Raymond  51 Plato  113 Pogge, Thomas  92, 102, 156–8 politics environmental democracy  16, 42, 46, 47–8, 50–1, 55, 57 equality  42, 46, 47–8, 50–1, 55, 57 public participation  67 poor and marginalised communities  64 popular control  42, 46, 47–8, 57 positivism  15, 81–2, 94–5, 155 practicability  90–1, 93, 100, 113, 143, 156, 167–8, 175 preamble of AC  7, 21, 25, 27, 31, 34, 103, 155, 157, 162 precision  73, 80, 117, 142, 173 privacy  86 private interests  118, 132, 133–5, 165, 169

186  Index procedural rights  170–1 see also access to environmental information; access to justice in environmental matters; public participation adjudicative rights  101 discrimination as to citizenship, nationality or domicile  10 environmental democracy  27, 48, 63–6, 99, 149 environmental rights  30–2, 74–7, 83–5, 99–103, 158–60 environmental stewardship  33–4, 36, 107, 139, 163–8, 170 guarantees  31–2, 99–101 health and well-being, substantive right to environment adequate to  32 purposive interpretation  141 substantive rights  74–5 three pillars  8, 10–12, 37–8 proprietary stewardship  108, 110, 115–18, 127–8, 163 collective property  118 common property  118, 135 exclusivity, enforceability, and transferability  135 ownership  118, 133–5 private property  118, 132, 133–5 property, right to  86 protective costs orders (PCOs)  2 public participation  8–12 access to environmental information  28, 150–1 access to justice in environmental matters  28 collective responsibility  36 consultation  150, 154 decision-making  63 effectiveness  153 effectiveness  11 environmental democracy  14, 27–9, 55–6, 62–7, 71, 145–7, 150–4 environmental rights  29, 31, 99–101, 156 environmental stewardship  36, 126, 164, 168 flexibility  11 Ladder of Participation  150 legitimacy  67 negotiation of AC  9 NGOs  67, 145–7 plans, programmes and policies  27, 151–2 poor and marginalised communities  64 problem-solving  67, 70

procedural rights  31 purposive interpretation  141 risk assessment  67 social stratification  64 soft law  100 standing  147 values  152, 154 public trust doctrine  129 Pufendorf, Samuel von  89, 136 purposive interpretation  3, 6, 21–6, 141–3 academic commentary on AC  25–6 access to environmental information  141 access to justice in environmental matters  141 ambiguities  142–3 citizenship  14 communal effort, as  23 complexities  14, 142 context  25 drafting  22 dynamism  140, 144 education  14 emergent purpose approach  24–6 environmental democracy  3, 14–17, 21–9, 37, 142–54 environmental rights  3, 15–17, 21–6, 29–33, 78, 154–62 environmental stewardship  3, 15–17, 21–6, 33–7, 108, 112, 114–15, 120, 162–70 explanatory and supporting materials  14, 25, 141 external sources  25, 141–3 formal sources  37–8 human rights treaties  24 implementation  22, 25, 142 intergenerational equity  14 interpretive community  23, 26 legitimacy  14 living instrument principle  24, 25–6 object and purpose of treaties  24–5, 141 ordinary meaning  23 procedural rights  141 public participation  141 substantive rights  170–1 sustainable development  14 textual ambiguities  22 understanding  3, 21–6, 142 values  21, 22–4, 141, 143 Vienna Convention on the Law of Treaties  23–5, 141 purposes of Aarhus Convention see purposive interpretation

Index  187 Qur’an, khalifa in  113 rationality  45, 58–9, 150 reciprocity  109, 115, 122 regional arrangements  93–4, 160 Reichenbach, Bruce R  111 religion dominion  112 environmental rights  87 environmental stewardship  87, 109, 111–13, 129, 136–8 intergenerational equity  136–7 representative democracy  14, 40–1, 49–50, 62, 66–7 reservations  155–6 rights see environmental rights; human rights agreement, AC as a Rio Declaration environmental rights  30, 100 Principle 10  5, 9, 11–12, 30, 100 risk class-specific distribution of risk  54 complexities  40, 50, 53–4 cultural sensitivities  53–4 environmental democracy  40, 50, 53–4 environmental rights  101–2 legitimacy  54 public participation  67 social stratification  54 Rodgers, Christopher  118, 134 Rogers, Joel  71 Roman empire  87–8, 113, 129 Roman law  87–8, 129 bare use right  88 usufruct  88 Rousseau, Jean-Jacques  124 rule of law  94, 173 Ryall, Áine  13, 24–5, 160 Saami people  113 Sagoff, Mark  101 Salter, Rebecca  20 Sanders Peirce, Charles  46 Saward, Michael  44, 46, 65 Sax, Joseph  64, 87 Schumpeter, Joseph  43–4 Scotford, Eloise  15, 108, 174 Second Environment for Europe Ministerial Conference 1994  9 Sen, Amartya  91 Shue, Henry  92 Sites of Special Scientific Interest (SSSIs)  134

Slomanson, William  97 Smith, Graham  52, 68 social stratification  54, 64 Sofia Guidelines  9 soft law  95–7, 100 Special Rapporteur on Environmental Rights (UN)  97, 160 spiritual stewardship  109, 110, 115, 126, 127–8, 135–8 dominion  136 indigenous people  136–7 natural law  136 religion  136–8 transcendentalism  136 standing access to justice in environmental matters  36 environmental stewardship  168 NGOs  147, 169 public participation  147 sufficient interest  11, 147, 157, 168–9 state, role of the  126–7, 129 Stec, Stephen  29, 57–8, 144, 160 Steele, Jenny  57 stewardship see environmental stewardship Stockholm Declaration  30, 34, 84–5, 95–6, 100, 165 Strategic Plans 2009–2014  13 2015–2020  13 environmental democracy  21, 26 environmental rights  21, 31 environmental stewardship  21, 34–5, 166 philosophical scope  7 purposive interpretation  25 Vision and Mission statement  175–6 structural arrangements environmental democracy  41, 45, 55–7, 62–72, 145 environmental rights  55, 109–10 substantive rights see also health and well-being, substantive right to environment adequate to access to environmental information  170–1 access to justice in environmental matters  170–1 environmental democracy  63–4, 145, 149 environmental rights  29–31, 74–7, 83–100, 103, 154–61 intergenerational equity  103 procedural rights  74–5 purposive interpretation  170–1

188  Index supporting materials see explanatory and supporting materials sustainable development definition  130 environmental democracy  13, 61, 148 environmental stewardship  34–5, 128, 129–30 intergenerational equity  103 purposive interpretation  14 Swanton, Christine  18 Swart, Mia  24 systemisation  15 Szerszynski, Bronislaw  71–2 Task Force on Environmental Rights and Obligations  9 teleological interpretation see purposive interpretation territory of rights  77–84, 154 thing-centric approach  119–20 three purposes  21–38 see also environmental democracy; environmental rights; environmental stewardship Tokeley, Kate  37–8 transcendentalism  136 transnational interests  147–8 transparency  13, 14, 26–7, 88, 152 travaux préparatoires  7, 21 trusteeship  107, 122, 124, 127, 128–9 20th anniversary celebrations  3, 7, 13–14, 25, 32–3, 143, 162 UN Economic Commission for Europe (UNECE)  9, 27 understanding the Aarhus Convention  15–21 definitions, dynamic approach to  17–19, 173–4 environmental democracy  3, 15, 16–20, 37, 40–1, 70

environmental rights  3, 15, 16–20, 91–2 environmental stewardship  3, 15, 16–20, 107, 114, 162–3 methodological approach  15, 16–17 positivist approach  15 purposive interpretation  3, 15, 16–17, 21–6, 141–2 universality  79, 85, 90–3, 98, 114, 119, 125, 156–7 usufruct  88 values  125–38, 174 conflicts between values  52–3 environmental democracy  22, 27, 37, 40, 43, 50–4, 57, 63, 67–71, 144, 152, 154 environmental rights  22, 37 environmental stewardship  22, 34–7, 113–17, 125–38, 164, 166–7 incommensurability of values  52–3 incompatibility of values  52–3 indigenous people  87 plurality of environmental values  40, 50, 52–3 public participation  152, 154 purposive interpretation  21, 22–4, 141, 143 Vienna Convention on the Law of Treaties (VCLT)  23–5, 141 Waldron, Jeremy  99, 102, 121 Walpole islanders, Australia  129 Wapner, Paul  163 Wates, Jeremy  13 Welchman, Jennifer  125, 132 well-being  80, 87, 92 will or choice theory of rights  80–1 White, Lynn  137–8 Yannacone, Victor  118 Yoruba people  113