Environment, Law, and History

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.

South African Constitutional Court

A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

OAS headquarters in Washington

Carmen Gonzalez recently posted "Environmental Racism, American Exceptionalism, and Cold War Human Rights". The abstract:

Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism. 

However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has generally resisted scrutiny of its human rights record by domestic or international institutions on the basis of “American exceptionalism” -- the belief that the U.S. is unique in its commitment to freedom and equality and provides more robust protection of human rights than international law. What historical events triggered this resistance to international human rights law? What are the implications for human rights-based approaches to environmental protection? 

This article explains how the struggle for racial justice in the United States at the height of the Cold War shaped U.S. attitudes to international human rights law. Using Mossville Environmental Action Now v. United States as a case study (currently pending before the Inter-American Commission on Human Rights), the article argues that international human rights law is far superior to U.S. domestic law as a means of addressing environmental injustice. However, its utility is constrained by legal doctrines developed over time but reinforced during the Cold War that restrict the enforcement of international human rights law in U.S. courts. Nevertheless, a victory for the Mossville petitioners would be immensely useful as part of a larger strategy to name and shame the United States, to bridge the gap between international law and domestic law, and to educate government officials and the public at large about the relationship between environmental protection and human rights.

While we're on the topic, I missed this when it was posted a couple of years ago: Nicholas Robinson's "The Charter of the Forest: Evolving Human Rights in Nature" (in Magna Carta and the Rule of Law (Daniel Barstow Magraw et al., eds., ABA, 2014). The abstract:

Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

The last year has seen a lot of reflection of the US Wilderness Act of 1964, including a symposium, a special issue of Environmental Law, a website, and books. The October issue of Environmental History includes several pieces on the Act as part of its Reflections and Gallery sections. First is environmental historian Donald Worster's "The Higher Altruism", which moves from history to thoughts on ecocentrism and environmental justice:

Only the human species could mourn another creature’s extinction or work to protect earth’s ecosystems. It is our unique contribution to conservation. The conservation of energy and matter for the sake of survival are common behaviors throughout the plant and animal kingdoms, but not the conservation of otherness, of wholeness and balance, of endangered communities of life. Those require the evolution of what we might call the higher altruism, an intentional selflessness that may have an element of self-interest but expands to find moral purpose in the act of preservation. Aldo Leopold called it a “land ethic,” but we can also call it a more thoughtful and ambitious preservation of diversity, ecological integrity, and wildness on the planet.

America reached a high point of ecological altruism in 1964 with the passage of the Wilderness Act. Like most moral visions, this one was layered over with vestigial language from the past: wilderness as a “resource,” wilderness as a place to “use and enjoy,” wilderness as an opportunity for “solitude or a primitive and unconfined type of recreation.” Those well-worn justifications were the result of more than sixty revisions needed to gain the approval of two houses of Congress, as well as various conservationist groups, who often were still thinking in anthropocentric and utilitarian terms. But unmistakably the act changed the focus of conservation, away from human needs and material demands to the needs of the other than human world.

Signs in Kalmiopsis Wilderness (Rene Casteran, wilderness.net, reproduced on front cover of Environmental History)

Further on:

The moral cause of preservation remained politically strong until the presidency of Ronald Reagan, who led a backlash that tried to brand preservation as a kind of selfishness that would prevent the majority of Americans from improving their standard of living. True, Reagan signed bills adding nearly 11 million acres of protected wilderness. At the same time, however, he appointed to office people who worked relentlessly to open all public lands to oil, gas, and coal development, to tree cutting, mineral extraction, road building, and motorized recreation, who were determined to block the change in moral perspective that wild lands preservation signified. The subsequent rise of neoconservatism in American society has tended to accept conservation for narrow economic purposes while rejecting conservation for more altruistic ends. The Reagan legacy has often forced preservationists to reemphasize more human-centered goals (e.g., wilderness protection for its tourist potential) and to pursue their more radical goals on private instead of public lands.

More surprisingly, the moral vision of the preservation movement, its commitment to saving and freeing the earth’s community of life, has recently come under fire by critics on the left, who make strange bedfellows with the neoconservatives. Preservationists, we are now told by a growing number in the “save the humans” party, lack a sense of social justice. They want to protect nature from exploitation not only by capitalist ranchers, oil companies, and real estate developers but also by those who are relatively weaker in terms of power or money, whether they are American Indians or peasant farmers in Africa. Anyone who pursues a preservationist vision stands accused of indifference toward the economic needs of the world’s poor. Protecting wilderness and wildlife has become, by this reasoning, an act of aggression against vulnerable people who want and need to exploit the oil, wood, or game that nature offers. To exclude people from any part of the natural world, it is argued, is to deny those people’s rights and to collude in their mistreatment.

Amit Singh recently posted "Judicial Activism on Environment in India". The abstract:

The Indian judiciary demonstrated willingness to exercise its power whenever the political/executive organs of the state failed to discharge their constitutional obligations effectively. This willingness has been often termed as ‘judicial activism’. Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. This period was characterized not only by administrative and legislative activism but also judicial activism. A subset of this has been environmental activism, which has developed in India in a very major way. One of the reasons for judicial activism in specific environmental cases has been the relaxation of the rule of locus standi giving a chance to the public to approach the Court under Articles 32 and 226 of the Indian Constitution. Also, the recognition of environmental rights as a ‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the right to enjoy a clean and healthy environment.

Paul Finkelman has posted to SSRN "Why Water Rights Was Never a 'Right': Historical Perspectives on American Water Law". As the abstract explains, the article

explains how the history of access to water in England and early America makes it difficult (but not impossible) to develop a “right” to water under traditional Anglo-American common law. This article ties physical geography – including the amazing abundance of water in the eastern part of the United States, with common law developments. The article also considers, briefly, that right of access to water for religious purposes and access to water under [American] Indian law.