I was honoured to be accepted to present a conference paper at the 3rd Conference on Environmental Governance and Democracy, held at Yale University Law School and School of Forestry, 5-7 September 2014. The event was organised under the UNITAR-Yale Environment & Democracy Initiative by the United Nations Institute for Training and Research (UNITAR), in partnership with: the United Nations Environment Programme (UNEP); the United Nations Development Programme (UNDP); and the World Resources Institute (WRI). Professor John Knox, UN Independent Expert on Human Rights and the Environment, provided the keynote presentation, I got to speak to him one on one, regarding the right to natural resources, and Ireland’s Convention on the Constitution.
The conference brought together more than 150 scholars and policy experts to discuss state-of-the-art knowledge concerning the nexus of human rights and the environment
1. Constitutional Environmental Rights: A Driver for Environmental Policy Making?
2. Human Rights and Environmental Justice: Cases from Countries and the Field
3. Procedural Environmental Rights: Why and How Do They Matter?
4. Human Rights, Environment, and Corporate Responsibility
5. Effective Participation of Civil Society and Vulnerable Groups
6. Environmental Rights, Post-2015 Development, and the Future Climate Regime
The title of my paper was A Constitutional Equation for Sustainable Development: Constitutionalising Economic, Social and Natural Resource Rights and the Public Trust Doctrine in Ireland, and can be downloaded from the Yale UNITAR 2014 conference web site. My paper was given in Session 1: Taking Stock of State-of-the-Art Knowledge on the Human Rights-Environment Interface. It addressed Topic 1: Constitutional Environmental Rights: A Driver for Environmental Policy-Making?
The paper gives the history of the fundamental human right to natural resources, that had been enshrined in Article 11, in the Fundamental Rights section of the Constitution of the Irish Free State (Saorstát Eireann), from 1922 until the adoption of the 1937 Constitution, (Bunreacht na hÉireann). It also outlines how a referendum on the reinstatement of the fundamental right to natural resources, in conjunction with social and economic rights, could create a constitutional equation for sustainable development. It would also lead to the adoption of the Public Trust Doctrine (PTD), i.e., that the public natural resources belong to the people of Ireland, and that the State is subject to the fiduciary duties of a trustee, in relation to those resources, which places real limits on its ability to privatise public natural resources, that are enforceable by the the beneficiaries, the public. The paper got a good response, and I received a number of questions, during panel discussions, in relation to the issues raised.
According to the organisers: “The outcomes and conclusions of the Conference are expected to inform:
- the discussion on sustainable development goals and a post-2015 development agenda by the 69th UN General Assembly in 2014/2015;
- the negotiation of a new climate change regime by the end of 2015 under the UNFCCC;
- the 2014 World Conference on Indigenous Peoples; and
- the 2015 report of the UN Independent Expert on Human Rights and the Environment whose mandate was initiated by the Human Rights Council in 2012.
“A Constitutional Equation for Sustainable Development; Constitutionalising Social, Economic and Natural Resource Rights, and the Public Trust Doctrine, in Ireland.”
Constitutionalisation has been a prerequisite for sustainable development since its very inception. The 1980 World Conservation Strategy stated: “Ideally, a commitment to conserve the country’s living resources should be incorporated in the constitution or other appropriate legal instrument.” This case study on Ireland formulates a constitutional equation for achieving the policy goal of sustainable development within the context of the Ireland’s current Convention on the Constitution, which has recommended making social and economic rights justiciable. The study concludes that constitutionalization of sustainable development in Ireland, by combining social, economic and environmental rights and duties, is necessary to meet international human rights and environmental obligations. Collectively, these rights equate to ‘the right to sustainable development’, which the 1992 UNFCCC identified, but has yet to be defined or fulfilled.
State duties are to be imposed by constitutionalising the Public Trust Doctrine (PTD) in Ireland. An historical analysis shows: how the first draft of the 1922 Constitution of the Irish Free State said, “Dáil Éireann (Parliament) shall regulate and control the same (natural resources) as trustees of the people of Ireland”; how rights to natural resources were enumerated within “fundamental rights”; how these rights were removed in the 1937 Constitution; and, how this can be remedied. State duties and procedural and substantive rights associated the American and Indian PTD are compared with those of sustainable development; contributing to knowledge by showing they are almost identical.
- Blumm, Michael C. and Guthrie, Rachel D. 2012. “Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision.” University of California, Davis, Law Reivew. 45: 741-808.
- Farrell, Brian. 1970. “The Drafting of the Constitution of the Irish Free State: I,” The Irish Jurist. 5: 115-140.
- Hogan, Hon. Gerard. 2012. Origins of the Irish Constitution 1928-41. Dublin: Royal Irish Academy.
- Sax, Joseph L. 1970. “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” Michigan Law Review. 68: 471–566.
- Wood, Mary Christina. 2014. “Atmospheric Trust Litigation: Defining Sovereign Obligations In Climate Recovery,” Fletcher Forum of World Affairs.