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1 1 1 1 12 22 20 0 (2008) 20 ELM : ENVIRONMENTAL RIGHTS – CLIMATE CHANGE, CONSERVATION AND THE ECJ – SANDS

The Professor David Hall Memorial Lecture
Environmental Law Foundation in association with the Law Society,
supported by WWF; 11 June 2008
Rethinking environmental rights – climate change,

conservation and the European Court of Justice

Professor Philippe Sands QC
Professor of Law, University College London, Barrister Matrix Chambers, London

I met David Hall on a number of occasions and feel The editorial was premised on three assumptions. First,
privileged and grateful to his family to be able to give this that international law actually provided a framework which
lecture in his memory. The subject is one I know him to could achieve environmental protection; secondly, that
have been interested in, because we once had a cooperation between governments alone to the exclusion
conversation about the law review article that I will revisit of other international actors could be adequate; and
today. May I also express my thanks to the Environmental thirdly, that governments act within a sort of legal vacuum
Law Foundation, whose excellent work has done so much in which they, unconstrained, can decide on the limits of
to inspire for so many years, to WWF for their support their legal obligations. The editorial prompted a question:
and for their continued interest in the protection of the what is the role of other actors in relation to the
environment under rules of international law, and also to development and enforcement of international
the Law Society for hosting this event. environmental laws?
In preparing this lecture I went back to the very first Thinking about that question I came to appreciate
law review article I wrote, published in 1989 in the Harvard that I was deeply influenced by an article I had first come
International Law Journal. It was entitled ‘Environment, across a few years earlier when spending a year at Harvard
Community and International Law’, and reflected a first Law School as a visitor, written by a well-known American
effort on my part to grapple with the challenge that the academic, Professor Christopher Stone. If there is one law
environment posed for the international legal order. 1 review article that any of you here must read, if you are
My thinking was triggered by an editorial in The interested in the environment, it is the article Professor
Economist, earlier that year, in the period before the Rio Stone wrote in 1972, with the wonderful title: ‘Should Trees
Summit and at a point where I was just beginning to Have Standing?’ 3
connect with environmental issues. I had studied law and Professor Stone seems to have been the first person
international law before the environment was a recognised to articulate the jurisprudential and legal difficulty of
subject. We didn’t have an option to study the accommodating the protection of environmental assets
environment at law school when I was an undergraduate, and rights and objectives into a legal order which was
or even when I was a graduate. In 1988, the year before I essentially anthropocentric. How do humans or
wrote this article, a group of us set up the first course on associations of humans stand up to protect endangered
international environmental law at the University of species – species of cod, or of whales – or habitats? How
London. The context was that the environment was only do humans go to court to enforce rules to protect the
beginning to permeate the international legal order. climate system, to challenge acts of governmental entities
This editorial in The Economist set out the prevalent that contribute to global warming in violation of
view of international cooperation. It said: international legal norms?
The difficulty is that the law traditionally requires
It’s for governments on behalf of voters to decide how litigants to show some sort of direct injury to their rights.
clean they want the world to be. Markets cannot The idea of going to court to protect the environmental
decide that for them and it’s for governments to rights of others is novel. We do not traditionally have rights
cooperate in managing those parts of the planet that to protect assets that are not our own. This is an essential
have no owner – the oceans, the jungles and the and long-standing problem.
atmosphere. 2 In his article Christopher Stone made a plea to allow
human persons to be able to act on behalf of the
environment. That function is often ascribed to the state,

1 30 Harv. I.L.J. 393–420 (1989). The theme is taken up in P Sands
Principles of International Environmental Law (2nd edn Cambridge
University Press 2003). 3 Available in C D Stone Should Trees Have Standing? And Other Essays
2 Quoted in P Sands ‘Environment, Community and International Law’ on Law, Morals and the Environment (Oxford University Press USA
ibid. 1996).

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