As one of the primary expressions of substantive constitutionalism, human rights are considered ethical demands that operate at an elevated juridical level. The appeal of human rights to social movement energies and energetic global solidarities evinces their increasing popularity as legal constructs that supplement the traditional instrumentalist functions of law. Despite their many limitations and the legitimate criticism often levelled against rights generally, they remain enduringly valuable juridical constructs in a normative and an analytical sense. Currently there seems to be renewed and burgeoning scholarly interest in the role of human rights in the broader environmental paradigm. As legal mechanisms possessing unique characteristics, human rights are elevated within the juridical order as meta-values and able to perform a singular mediating role in the human-environment interface. The worldwide acceptance of people’s rights to a healthy environment, environmentally related procedural rights and other substantive political and socio-economic human rights bearing on environmental interests (collectively understood as environmental human rights), is testimony to their increasing popularity.
The move towards constitutional environmental care, and more specifically, the emergence of environmental human rights, occur conceptually within the newly emerging paradigm of “environmental constitutionalism”. Environmental constitutionalism, unlike human rights in the environmental context, is an entirely new concept for which, to date, there does not exist a universally endorsed definition, and of which there has been no cogent theoretical-normative treatment. As has been stated, and as this article argues, environmental constitutionalism manifests in formal and substantive guise. Its formal aspects provide for the architecture and implementation of environmental governance, whereas its substantive aspects include constitutionally entrenched higher-order values and principles, and importantly for present purposes, environmental human rights. The latter proliferation occurs predominantly at a domestic constitutional level, suggesting that constitutions are almost always the legal avenue of choice to entrench environmental human rights.
The gradual rise of environmental constitutionalism in scholarly debates suggests a deliberate, albeit (still) hesitant attempt to view anew the human rights-environment debate through a constitutional lens. As a juridically elevated expression of constitutions through human rights, environmental protection therefore has the “constitutional possibility” of gradually assuming greater status within the protective realm of legal systems worldwide. Human rights and constitutions (and the latter’s derivatives “constitutionalism” and “constitutionalisation”) are evidently related to the extent that constitutions in the main provide for human rights. Theoretically, and as a matter of disciplinary focus, constitutionalism and human rights are often considered together. Yet, despite these significant convergences, human rights and constitutions are also somewhat distinct, while remaining inherently interrelated. Their distinction lies mostly in the taxonomical-analytical reality that human rights are the domain of human rights law, and constitutions those of constitutional law (notwithstanding the fact that the two fields can, and frequently do, overlap). Most notably, in addition to their important domestic functions, human rights also operate globally, while constitutions remain within the domestic purview of the nation-state (notwithstanding recent advances of global constitutionalism which – with the exception of the European Union – still only vaguely suggests the possible evolution of a global constitution or global constitutional features). Despite these distinctions, however, scholars almost always use “human rights” and “constitutions” in the same breath – a trend that is also clearly observable in the environmental context.
While the reignited interest in environmental human rights seems to depart from a more environment-focused and tailor-made constitutional approach (that is, environmental constitutionalism), one has to ask: Is environmental constitutionalism merely a new label for an old phenomenon (namely constitutionalism), or does it actually bring something new to the table? More importantly, for present purposes: Is this new scholarly term of art useful to the human rights-environment debate? In an effort to contribute to the young but evolving discourse on environmental constitutionalism, this article seeks to start a normative-conceptual inquiry focused on answering these questions, even though one must acknowledge the limitations of such an investigation (or any inquiry for that matter) to answer the questions definitively. In doing so, this article specifically aims to critically interrogate environmental human rights in the context of environmental constitutionalism; to provide a more coherent and systemised description of the formal and substantive aspects of environmental constitutionalism; and to critically reflect on the potential of environmental human rights as important elements of substantive environmental constitutionalism to mediate the human-environment interface. Because the debate on environmental constitutionalism occurs mostly in English, it is also the purpose of this article to introduce this debate in broad terms to an Afrikaans audience, which in turn could contribute to the growing Afrikaans environmental law discourse.
The articles concludes that environmental constitutionalism may be a nebulous and unwieldy concept, but probably one that people may be more inclined to understand intuitively and to accept despite a lack of ability to describe concisely its exact normative content and contours. As is also the case with environmental human rights, one must accept that environmental constitutionalism, as a concept, as a socio-legal and political project, and as a transformative means of creating “new beginnings” for greater environmental care, will not necessarily have immediate and/or definite results, and nor will it ever be complete. It is as unlikely that constitutionalism will provide immediate solutions to the myriad of questions and problems that beset environmental regulation as it is for human rights to fully solve the deepening ecological crisis. There is good reason to suggest that both these paradigms should not strive to, and will never be able to, provide final answers. Nevertheless, this on-going reform project is a crucial part of a myriad of human efforts to augment environmental care through broader constitutional and more specific environmental law and governance responses that include the rights-based approach. Environmental constitutionalism provides fertile ground for future exploration and it has the potential to grow into an autonomous and influential field of inquiry that provides human rights and environmental law scholars and regulators alike with a more familiar and comprehensive regulatory perspective, a more consistent justificatory basis, and conceptually supportive analytical and normative interventionist regulatory options in these times of unprecedented ecological upheaval.
Keywords: Anthropocene; Constitution; constitutionalism; environmental human rights; formal environmental constitutionalism; human rights; substantive environmental constitutionalism; sustainability