More than half a century ago, Rachel Carson’s Silent Spring Footnote 1 fervently demonstrated the negative impacts that our activities can have on the environment. Yet, we exert increasing pressure on Earth to the point where the integrity of its life-support system is at risk. This might be seen as evidence of our failure as custodians of nature, but we have not given up hope. Institutional and normative interventions are being devised to better mediate the human-environment interface. Among others, there has been a marked development of environmental rights. The field of human rights and the environment increasingly affords people a remedy to challenge decisions, to access information, and to participate in environment-related decision making in the absence of substantive environmental rights internationally.
In A Global Environmental Right, Stephen Turner seeks to translate the power of environmental rights from the domestic to the global domain.Footnote 2 Turner’s point of departure is simple: to achieve sustainability, we need to impose the responsibility to protect the environment on all stakeholders, including states, business, industry, communities, and individuals. Turner argues that the fulfilment of legal duties and obligations by decision makers could mitigate the downward spiral of environmental degradation.
The book is divided into four substantive parts. In the first three chapters, Turner methodically carves out his justification for a global environmental right. Chapter 2 addresses the state of the planet’s environment and starts by demonstrating that Earth and its subsystems are under severe stress. This stress comes with negative impacts on human rights because of the causal connection between the state of the environment and the maintenance of fundamental human rights. The deteriorating environmental conditions have given rise to the development of human rights to the environment. At the international level, for example, the 1966 International Covenant on Economic Social and Cultural RightsFootnote 3 has been instrumental in the environmental application of the rights to life, health, water, food, housing/shelter, and property. However, substantive environmental rights (as opposed to procedural rights) so far have been found wanting.
Chapter 3 discusses some of the challenges that a global environmental right would help to address. Turner proceeds from the assumption that the global legal architecture is ineffective as environmental degradation has been increasing. Thus, international environmental law cannot function as it should, given that it relies in major part on this dysfunctional global legal architecture. He observes that the problems leading to environmental degradation are traceable. They lead back to domestic legal systems, business (in the form of multinational corporations) and trade, as these are predisposed to decision making aligned with economic goals in a neoliberal culture of growth without limits. Turner thus adds to the generally held view that we do not need more laws, but must find a way to make the current laws work. He supports a multidisciplinary approach to better align competing economic, social, and environmental interests, and argues that it is possible to redesign the global legal architecture to be more predisposed to sustainability.
The main contribution of this study is Chapter 4, which introduces a draft global environmental rights treaty consisting of 21 provisions. Article 1 places environmental duties on states, corporations, and individuals, and requires compensable actions where environmental degradation is unavoidable. Articles 4, 6 and 7 could be controversial. Article 4 requires states to amend their constitutions so as to prohibit decision making that would result in environmental degradation. Where harm is unavoidable, states are required to compensate for damage through equitable principles by buying ‘direct environmental offsets from a registered supplier’ (Article 10) and to purchase insurance where environmental degradation is occasioned (Article 11). Articles 6 and 7 ascribe duties to both individuals and corporations respectively to not make decisions that would degrade the environment. In the event that degradation is inevitable, the entities are required to purchase direct environmental compensatory offsets and insurance. These provisions, as Turner notes, depart from the usual human rights approaches whereby only states have duties and obligations.
However, the prospects for such provisions being effective, let alone operationally possible, could be very slim. Article 4 is likely to be seen as a threat to sovereignty and as being onerous for developing countries. It can also be reasonably expected that businesses would strongly oppose the proposed imposition of obligations on them in favour of self-regulation.Footnote 4 Although Turner believes that these hurdles would be addressed under Article 18’s transitional arrangements, the contentious ‘grey areas’ could have benefited from clarity.
Article 12 could also be controversial. It provides for the creation of an International Corporation Registration Body which would register all corporations operating internationally, and which would regulate the provision and revocation of their licences. This has far-reaching implications and feeds into the raging environment-trade debate. It is probable that not only businesses but also states will oppose such supranational governance because some of their regulatory power over corporations operating in their territories would be usurped by such a body. This could be particularly true for developing countries, which rely largely on investment by multinational corporations.
An obvious concern that besets a study such as this is the efficacy and practicality of a global environmental right. One would have to differentiate between its theoretical aspirations and its practical contributions. In Chapter 5, Turner pre-empts the idea that the global environmental right could be a mere aspiration that might have limited practical value in the current Westphalian system of global governance. That the Westphalian system is diminishing somewhat is evident in the generally held view that states are no longer the sole actors on the international stage. The proposed global environmental rights treaty, which extends duties and obligations to every actor beyond states, would reinforce this trend, and could do away with the Westphalian-based orientation of obligations.
Overall, the book offers valuable insights into the overarching relationship between humans and the environment, the obligations and responsibilities humans and non-state actors have towards the protection of the environment, and the way in which humans should start to think about their impact on the environment. The most significant contribution of the book is that Turner does more than simply argue that there should be a global environmental right; he actually articulates the substantive and procedural provisions that such a right could have, however idealistic these may be. The book offers an insightful synthesis of procedure and substance and it does so in a comprehensive way by not only identifying how various actors are contributing to environmental degradation, but also how their actions could be addressed by a global environmental right that has been framed under a reformed global legal architecture.
In one of his earlier works,Footnote 5 as well as in this book, Turner notes that the acceptance of the concept of sustainable development at the expense of a fundamental environmental right was a compromise and a policy choice within the international community. I believe the same could be said about the draft global environmental right treaty he proposes. Ideal and necessary as it could be, with the problems inherent in treaty formation I suspect that if ever there were a time for global stakeholders to gather and draft such a treaty, many of the provisions suggested by Turner would need to be tweaked in order to find acceptance. Nonetheless, Turner himself acknowledges that the draft is not perfect and that more research needs to be done. This book is therefore part of an ongoing research project. Environmental rights sceptics would do well to read this book, as would those grappling with how to frame such a right.
