International courts and environmental human rights: re-imagining adjudicative paradigms

Human rights courts have provided an important avenue for the protection of the environment over the past 40 years, particularly in light of the absence of a compulsory dispute resolution mechanism in international environmental law. Human rights adjudication is therefore of fundamental importance in the development of environmental principles and norms. Critics of a human rights approach to environmental protection argue, however, that human rights adjudication is unsuitable for the task of developing environmental principles first, because of the individualistic approach of human rights law; and second, because human rights law tends to focus on isolated rights rather than on the relationship between rights. This limits the ability of human rights adjudication to address environmental problems which affect many rights and the rights of many. This Chapter focuses on adjudication in the three regional human rights systems, specifically the European Court of Human Rights, the Inter-American Commission and Court of Human Rights and the African Commission and Court of Human and Peoples’ Rights. The Chapter’s aim is to examine the jurisprudence of those courts in the context of the objections relating to the individualism and disconnection of a human rights approach to environmental protection and to consider first, to what extent the practice of the courts support those objections and secondly, whether the practice of any of the courts suggest different or innovative approaches which, if developed and extended, could address or reduce the obstacles to using human rights law in order to protect the environment. Both questions have a bearing on the wider issue of how we reimagine human rights adjudication in order to harness the power of international human rights law to address environmental harm.