5 - The General Interest as Universalisation Strategy

Summary

When environmental protection and human rights collide, regional human rights courts balance the competing interests at stake to determine optimal outcomes. In doing so, courts tend to frame environmental protection as a ‘general interest’ capable of limiting relative fundamental rights and freedoms. This construction of an integrated, common and shared social value is loaded with political agency. In dictating specific outcomes as being in the ‘general’ interest, this adjudicative practice projects particular ideals into the realm of universality. This chapter traces the origins and meanings of the general interest, its attribution to environmental protection and, most importantly, its invocation by regional human rights courts when solving conflicts between environmental and human rights concerns. The ability of judges to reframe the particular in universal terms through the heuristic of the ‘general interest’ is assessed in the light of Martti Koskenniemi’s theory on the (discursive) hegemony of international legal argumentation. When courts frame particular substantive, aesthetic or procedural dimensions of environmental protection as being in the general interest, they produce a hegemonic vision of the environment–human rights interface, which is continuously reproduced through judicial cross-referencing. Thereby, values set under established case law gradually crystallise into patterns, precedents and social norms.