Dr Su-Ming Khoo, Political Science & Sociology presented this seminar entitled From Constitutionalized Environmental Rights to Contested Sustainable Development and Beyond as part of the 2016 Whitaker Ideas Forum series of seminars representing the Environment, Development, and Sustainability Research Cluster on 25th February 2016.

1. From Constitutionalized Environmental Rights
to Contested Sustainable Development and
Beyond
DEVELOPING A 4AS APPROACH TO SUBSTANTIATING
ENVIRONMENTAL PROCEDURAL RIGHTS
Su-ming Khoo
School of Political Science and
Sociology
NUI Galway, Ireland
suming.khoo@nuigalway.ie
Chiara Costanzo
cstchr@gmail.com
Whitaker Institute for Innovation and Societal Change
CEDS Cluster on Environment and Sustainable Development
25 February 2016

2. Paper overview
1. Environmental rights revolution or a retreat of rights in the newera of SDGs?
2. Authors’ position – substantiating right to a healthy environment (CC); solidarity in human
rights (solidarity as practical responsibility) (SMK)
3. Theoretical approaches to HR and SD - the UN position and impasse
4. Moving CBDR from encapsulation withinenvironmental law and norms, connecting HR + SD
5. Inter-disciplinary, hybrid interpretation of HR; SD
◦ problem and context driven
◦ 4 As criteria for procedural approaches

3. Environmental Rights Revolution?
National constitutionalization and regional recognition? Boyd, 2012
◦ “The practice of States in this area may eventually set the stage for renewed debate on the status of customary law on the
right to a healthy environment” - 140 Constitutions; 70% of countries A/HRC/19/34
A brand new right to a healthy environment ? Existing instruments sufficient?
Existing environmental dimensions to: rights to life, food, health, housing, property and private and family life
Environmental instruments protect public health,env as common heritage of mankind; recognize env as essential
component for human survival/development
Env instruments also entail access to information, public participation and access to justice
African Charter on Human and Peoples’ Rights and the Additional Protocol to the American Convention on
Human Rights in the Area of ESCR - explicit environmental references.
Closely related to the Right to Health - “healthy environment”, ‘clean environment’, ‘environmental and industrial
hygiene’; Water and food; protection of indigenous rights, territories and livelihood resources
YET: Human Rights language little used in proposed SDGs and targets (Knox 2015, 8)

4. Environmental threats to Human Rights
Land
Soil
degradation
Deforestation
Desertification
Natural
disasters
Environmental
threats to
Human Rights
Hazardous
waste and
chemical
contaminat
ion
Atmospheric
Air pollution
GHG
Ozone depletion
Water
Pollution
Freshwater scarcity
Fisheries collapse
Biodiversity
loss

5. Theoretical approaches to HR and SD
2011 HRC resolution 16/11; analytical study on human rights and the environment A/HRC/19/34
3 possible approaches
◦ (a) healthy env. is a precondition to human rights enjoyment.
◦ (b) human rights are tools to address environmental problems, procedurally and substantively.
◦ (c) integration of HR and environment under the concept of sustainable development
5 assumptions
◦ (a) SD and env protection contributes to human well-being and enjoyment HR
◦ (b) Env. harm can directly and indirectly compromise the enjoyment HR
◦ (c) Env. harm affects everyone, but disproportionately affects the already vulnerable
◦ (d) Env. harm is transnational, requiring effective international cooperation to protect rights
◦ (e) HR framework potentially strengthens env. policy and promotes policy coherence, legitimacy and
sustainable outcomes.

6. State duties
Procedural duties – to assess impacts, make env info public, facilitate public participation in env
decision making, provide access to effective legal remedies. (Freedom of expression and
association)
Substantive duties – take steps to protect (environmental defenders), from env harms affecting
enjoyment of rights (reasonable balance with eg economic development), incl private actors,
based on int. health and env standards. Non-retrogressive.
Duties relating to protection of those particularly vulnerable to environmental harm – non-
discrimination, indigenous peoples.

7. Our main line of thinking
A human rights based approach to Sustainable Development
Substantiating right to healthy environment (CC) + Solidarity as practical HR responsibility (SMK)
The gaps: ‘Encapsulated’ nature of env HR – fragmented, limited focus on indigenous peoples, private
life.
Misalignment of SD and HR discourses creates conflicts
◦ Where there are conflicts, resort to procedural approach
◦ But these fail to deliver substantive outcomes
Substantive inequality underpins the reality of conflicts, while environmental protection is weak
How to substantiate democratic, public aspect of procedural rights
◦ Yet keep environmental principles (precaution, solidarity) central?
‘Hybrid’ methodology: HR norms + SD theory + HRBA procedures

8. Methodology: A hybrid approach
human rights (normative and operational)
◦ RBA
sustainable development (theoretical framework)
◦ Rio Principles (PP and CBDR)
social scientific approach
◦ Evaluation/monitoring and ‘closing the escape hatch’
◦ power and discrimination
qualitative methods
◦ documentary analysis
◦ participant observation
◦ country context

9. RBA: 4 As
Env
Procedural
Rights
Evaluation of
environmental
governance
(environmental
democracy)
AVAILABLITY ACCESSIBILITY ACCEPTABILITY ADAPTABILITY
Access to
information
Recognizable
environmental institutions
with a clear mandate
Accessible to all and
timely
Flexibility in content
appropriate to social,
cultural and economic
context
Flexibility in practice. Timing
according to needs.
Positive actions for expanding
knowledge and provide means
for future skills
Public
participation
Physically accessible:
location and
decentralization
Confidence in
representatives capacity
Environmental governance
system responsive to changes in
goals, values and interests.
Supporting mechanisms
(expertise) for vulnerable
peoples.
Access to justice
Economically accessible:
free service and allocated
resources to unburden the
most vulnerable
Establishment of standards
of practice and rights
standards for regulatory
roles.
Technical, social science and
human rights competencies
Forward looking character: future
skills needed

10. RBA 4As
Meaningful
participation
View-point of participation
Quality of
participation
Availability Accessibility Acceptability Adaptability
Cross-evaluating
criteria
Outcome
Transparency
Disclosure of intended role of
participants
Influence or feeling of
empowerment
Awareness raising impacts:
generation of the 'public'
Adaptability
A
v
a
il
a
b
ili
t
y
Fairness
Interaction between
participants and sponsor and
among participants
Perceptions (participants,
sponsors)
Involvement in value and
interests
Adaptability
Process
Equality and
non-
discriminatio
n
Sufficient opportunities
Representativeness of the
'public'
Flexibility of participation:
appropriate to social and
cultural context
Degree to which policy
outcomes match the goals of
the people affected
(Parkinson, 2006: 23, cited in
McLaverty, 2011: 412)
Adaptability
Allocated resources Economic
accessibility
Positive actions to redress
vulnerability: language
(translator); education
(support with expertise,
attention in communication
methods and means);
gender/racial/power bias
(mechanisms for inclusion)
Acceptability
Decentralization of decisions Physical
accessibility
Transparency
Frequency
Timing and timeframe (when
and how long)
Confidence in process
legitimacy
Degree to which outcomes
achieve normatively
justifiable or desirable ends
(Parkinson, 2006: 23, in
McLaverty, 2011: 412)
Acceptability
Defined mechanisms of
participation
Social science methods
application
Quality

11. The gap between rights failures and SD
Findings of CC’s study (Panama case)- Procedural rights fail due to substantive inequalities
◦ Undermining ‘meaningful participation’ and ‘benefit’
UN Declaration on a Right to Development (UN 1986):
◦ ‘Third generation’ solidarity right unites first and second generation rights (Wellman 2000)
◦ SD efforts should base ‘development’ on people’s right to participate and benefit (DRD 1986)
◦ ‘Development’ as a vector (Sengupta 2002) or ‘umbrella’ (Rosas 2001) of indivisible rights
1990s – transformative ‘development’ vision underpins expansiveness and depth of Ksentini report (1994)
◦ Context of shift from economism to humanism (Gasper 2004) – UNDP human development paradigm
Democratic transitions underpin new perspectives on participation and increased interest in participation, agency
Environment regulation takes narrow view of ‘public concerned’
◦ How to move from narrow ‘public concerned’ to wider 'concerned public': Public Interest Activism
◦ Link public interest to substantive equality, democratic sphere and environment as public goods

12. The ‘development’ that SD misses
South Africa’s transformative politics: from racial ‘contract of domination’ (Pateman & Mills
2007) to democratisation 1994
◦ ‘Democratising development through a democratic politics of socio-economic rights (Jones & Stokke
2005, 2)
Rwanda genocide 1994
◦ a turning point for development, human rights and the international community’s role (Uvin 2001, 76)
◦ Gross, systematic HR violations coexisting with positive evaluations of economic ‘development’ and
large amounts of aid
◦ a ‘model of development…full to the brim with development projects and technical assistance…perhaps
the highest density of technical assistance per square kilometre in the world’ (op cit,95)
◦ Challenge ‘…a much deeper mainstreaming of human rights and conflict resolution’, trying harder to
fundamentally connect ‘wealth of facts’ about context to better forms of social science theorizing

13. Unburdening the most vulnerable
“Little Mermaid” (E. Eriksen 1913) and “Survival of the Fattest” (J. Galschiot 2007) Copenhagen, 2009 UN Climate Summit
(see: SevenMeters.net)

14. The role of social science
Social science brings human rights ‘back to reality…both objective processes and structures and
of subjective meanings and values’ (Freeman, 2002, p. 99).
New work on conceptualizing, measuring and evaluating human rights (Landman & Carvalho,
2010); Jabine & Claude (1992) Human Rights and Statistics
Substantive development of ESCR- requires evaluations of ‘resource constraints’ viz progressive
realization of ESCR
◦ Toolkit to ‘close the escape hatch’ - ‘hold governments accountable for policies and practices that turn
millions of people into victims of avoidable deprivations such as illiteracy, malnutrition, preventable
diseases, and homelessness’ (Felner 2009,404)
◦ macroeconomic policies and human rights: public expenditure, taxation, trade policy and regulation
(Elson & Balakrishnan, 2011).
Socio-political analyses of substantive discrimination – power, powerlessness and domination
(Yamin 2009; 2013)

15. Where did human rights go??
Failure to reach consensus on key criteria/ indicators for Right to Development (Fukuda-Parr 2009, 165)
HR sidelined in MDGs - rights not explicitly mentioned: ‘Everywhere but not somewhere’ (Brolan et al
2015)
◦ Donor preference for strictly delimited goals, targets
HRBA evolve alongside – converging human rights and development based on HR principles of
equality/non-discrimination; true participation; indivisibility and interdependence
◦ Presence in SDG goals and targets too general and vague to provide practical guidance (Knox 2015, 20)
Human rights continued to have little traction in SDGs: ‘high-level hesitancy’ (Brolan et al 2015)
◦ Sidelining of right to health reflects general sidelining of human rights: ‘difficult issues’ blamed
◦ Negotiators anticipate/ escalate particular anxieties about potential disagreement (SRHR =LGBT?)
◦ Argue that rights (eg R2H) ‘too big’ to be specifically defined as a goal
◦ ‘targets are where the action is’, but are too difficult to implement
◦ Falls back on existing agenda and targets eg UHC for health focused on services and financing, ignoring social and
environmental determinants

16. The transformative demand for HR
Anti-political stance a weakness of HR
◦ Focus on individual criminalization, identifying perpetrators of past crimes at the expense of focusing on
structural injustice and potential for transformation
◦ Mamdani (2014) victims’ justice v. survivors’ justice
◦ Transformative demand for a state that governs not merely in the name of past victims, but addressing the
fact that all are ‘survivors’ who must live together.
Alston (2005) question of private sector vs state responsibility for HR
Where private and ‘peoples’ interests clash, HRBAs tend to focus on access or procedural rights
Integration of SD principles requires HRBA to address
◦ deeper democratization of development processes
◦ re-integration of human and environmental principles into HR and Dev
◦ National and international solidarity - Development of concrete arrangements for responsibility and benefit
sharing (Common But Differentiated Responsibility)
Promise of new bottom-up approach: “regional globality” based on substantiating procedural rights