Teaching environmental justice across international, European and national disciplinary 'boundaries'
David Ong (University of Essex) will present a paper at the UKCLE event on Environmental justice in legal education on 29 March 2010. He will consider environmental justice in relation to the jurisdictional boundaries of international, European and national law, and the sub-disciplinary boundaries of human rights and environmental law.
The term ‘environmental justice’ raises issues of, inter alia, conceptualisation, interpretation and application. In this presentation, David will suggest that the term ‘environmental justice’ is also at the conjunction of various legal fields or sub-disciplines. Two of these will be examined, namely, the jurisdictional ‘boundaries’ of international, European and national law; and the sub-disciplinary ‘boundaries’ of human rights and environmental law. In a nutshell, the questions/issues that David will address are:
- Jurisdictional ‘boundaries’, namely, to what extent does the teaching of ‘environmental justice’ require prior knowledge of international law, European – including both EC and ECHR – law, as well as domestic legal systems, in respect of their actors, sources, principles, dispute settlement and enforcement mechanisms?
- Disciplinary ‘boundaries’ – is environmental justice a sub-discipline/field of human rights law or environmental law? Is it possible in this respect to talk about ‘natural’, as opposed to strictly ‘human’, environmental justice?
In general terms, these issues can be encapsulated within the phrase: ‘legal problems caused by environmental problems’. In other words, these are problems for the international, European and national/domestic legal disciplines that are raised by the specific nature of environmental problems.
Given the need to be able to understand the different jurisdiction levels in which environmental justice issues take place and the tensions that this concept gives rise to within the human rights and environmental law fields, the course leader therefore needs to provide an adequate balance of information on the different concepts and terms utilized across these jurisdictional and disciplinary ‘boundaries’. The risk that is run when trying to provide sufficient but not overwhelming amounts of information on these issues is that the student develops only a cursory understanding of subject matter. This paper argues that the course leader should instead try to develop learning skills for the students to grasp the common elements and themes across the jurisdictional and disciplinary ‘boundaries’.
Working from the presumption that all legal systems – whether international, European, or national – have certain common elements such as actors, sources, principles, dispute settlement and enforcement mechanisms, it is possible to conduct a comparative analysis of these common elements across the legal disciplines concerned. For example, within the ‘sources’ aspect of environmental law, the sources of international law such as treaties/convention and customary international law, can be analogously compared and contrasted with national (UK) sources of law such as statute law and the common law.
Moving on to the ‘actors’ element of environmental law, the environmental justice theme then comes to the fore in the ‘legal representation’ issue. What is examined here is the way in which the international/European and national legal systems provide for the legal representation of the ‘environment’; in particular, the ‘natural’ (by which is meant wildlife and/or ecosystem) environment?
Within this context, while international environmental law provides for an obligation to prevent serious or significant harm to the environment, including areas beyond the limits of national jurisdiction, it still lacks the concrete means to enforce this obligation. For example, advocacy of the actio popularis notion by which other states may be able to bring claims against the alleged perpetrator state acting as representatives of the ‘international community’ have not yet been fully established. The Espoo and Aarhus Conventions provide for the possibility of non-governmental organizations (NGOs) exercising a range of procedural environmental rights – information, participation and access to justice – on behalf of local community and ‘natural’ environmental concerns. These legal innovations at the international level echo progressive developments in the standing requirements before the UK high courts in judicial review proceedings when NGOs challenge government decisions on behalf of their (NGO) concerns for the ‘natural’ environment.
Making these connections between international and domestic developments on access to environmental justice on the one hand, and its derivation from human rights law and environmental law principles on the other hand, when teaching undergraduate or even postgraduate law students represents a challenge to the generally mono-jurisdictional and field or sub-discipline specific way in which students approach other legal subjects. With the right motivation and awareness of potential pitfalls however the student can be introduced to globally applicable concepts and themes, and yet develop fairly detailed knowledge of environmental justice issues within their domestic (UK) jurisdiction.
David Ong is a Reader at the University of Essex, where he teaches international law, including WTO Law, and Environmental Law. His main research interests are in the international law of the sea and international environmental law. Recently, he has been collaborating with Professor Sheldon Leader in an ESRC project on the implications of project finance-type loans for major infrastructure development projects on social and environmental rights. More recently, he gave a paper on ‘Procedural international environmental justice: from inter-state obligations to individual-state rights’, at a conference on global justice and sustainable development organised by the Sheffield University Law Faculty and the International Law Association Committee on Sustainable Development.
Last Modified: 4 June 2010