When environmental protection and human rights collide : studies in legal conflict and its management

Abstract

This research inquiries into the meanings that have been ascribed to the ‘environment’ in relation to human rights in international law and adjudication. It retraces the historical nexus between international environmental law and human rights law and provides a genealogical account of their interconnectedness. The analysis reveals that a synergistic frame dominates the portrayal of how both regimes interact, while conflicts of norms inherent to this relationship remain overlooked. To bridge this gap, this research constructs a theoretical typology of conflicts between environmental laws and human rights and maps out the formal conflict prevention, conflict resolution and conflict avoidance techniques that exist to manage the tensions. An empirical analysis of conflicts decided by regional human rights courts reveals the politics that underlie the management of conflicts and exemplifies how courts developed specific strategies to counter the legal, factual and scientific indeterminacy that underpins the trade-offs. To justify their judicial decisions, adjudicators re-inject determinacy, objectivity and impartiality into their reasoning by articulating their arguments in an idiom of universality. Two ‘universalisation strategies’ are induced from the cases. First, environmental protection is framed as a ‘general’ interest and thereby granted additional weight in the balancing exercise against relative human rights. What the ‘general’ interest in environmental protection means and entails, however, cannot be epistemologically defined. By having recourse to this abstract concept, adjudicators continuously expand its content by subsuming certain substantive and procedural environmental concerns into it and discarding others. In doing so, adjudicators play a determining role in defining the environment-human rights nexus and legitimise certain visions of this interface rather than others. A form of hegemony is thereby taking place, which the research assesses through sociological (Bourdieu), political (Gramsci) and legal (Koskenniemi) lenses. A second ‘universalisation strategy’ used to counter indeterminacy is observable in the reliance of courts on scientific and technical experts’ data to determine ‘optimal’ outcomes. Reliance on expertise, it is demonstrated, grants weight to specific arguments in the balancing exercise and gives rise to an expert-based managerial approach to conflict adjudication. The research concludes with a reflection on the depoliticising effects involved in the juridification of environmental concerns and questions the suitability of international human rights law for radical environmental politics and change.