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3rd UNITAR-Yale Conference on Environmental Governance and Democracy

Human Rights, Environmental Sustainability, Post-2015


Development, and the Future Climate Regime
A Constitutional Equation for Sustainable Development;
Constitutionalising Economic, Social and Natural Resource Rights,
With the Public Trust Doctrine, in Ireland

Vincent Salafia, B.A., J.D., LL.M (TCD)*


Prepared for the 3rd UNITAR-Yale Conference on Environmental Governance and
Democracy, 5-7 September 2014, New Haven, USA - Please do not cite without permission
Case study paper on the theme of:
Constitutional Environmental Rights: A Driver for Environmental Policy Making?
Abstract
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 Irelands 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, Dil
ireann (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.

* Vincent Salafia is a Ph.D candidate at the Law School, Trinity College Dublin, and can be contacted at
salafia@gmail.com / +353-87-132-3365

3rd UNITAR-Yale Conference on Environmental Governance and Democracy

The essential requirements and policy objectives of sustainable development (SD)


were redefined in the opening recitals of the Rio+20 outcome document, The Future We
Want, which states: We recognize that poverty eradication, changing unsustainable and
promoting sustainable patterns of consumption and production and protecting and managing
the natural resource base of economic and social development are the overarching objectives
of and essential requirements for sustainable development.1 The triple bottom line (TBL)
of economic, social and environmental dimensions remains the broad policy framework and
this paper agues that its constitutionalization is essential for SD.
In Ireland,
constitutionalising economic, social and cultural (ESC) rights (including natural resource
rights), with the Public Trust Doctrine (PTD), is necessary for managing the natural resource
base of economic and social development. 2
Ireland signed the Rio Declaration in 1992,3 but instead of developing sustainably, it
became a model for unsustainable development, punctuated by the EU/ECB/IMF bailout in
2010.4 Worryingly, little has changed in the development model since then. However,
fundamental change is now possible, due to the Convention on the Constitution, established
in by Government in 2012, pursuant to pre-election promises made in 2010 by the Labour
Party.5 Due to exceptionally narrow Terms of Reference,6 and limited number of possible
amendments, public proposals for environmental rights were defeated by 52% to 48%.7
However, the 85% of the Convention voted to recommend that the State make economic,
social and cultural (ESC) rights justiciable.8 Those rights are found in Article 45 of the
Constitution, Directive Principles of Social Policy.9 Article 45 includes rights and duties in
relation to natural resources in 45(2)(ii): The State shall, in particular, direct its policy
towards securing: That the ownership and control of the material resources of the community
may be so distributed amongst private individuals and the various classes as best to subserve
the common good.10 The problem has been that Article 45 shall not be cogisable by any

The Future We Want, para. 10, Annex A/66/L.56 to Report of the United Nations Conference on
Sustainable Development, June 2022, 2012, UN Doc. A/CONF.216/XX, available at:
http://www.uncsd2012.org/content/documents/727The%20Future%20We%20Want%2019%20June
%201230pm.pdf (emphasis added)
2 Ibid.
3 United Nations Declaration on Environment and Development. 1992. (Rio Declaration), UN Doc
A/CONF.151/5/Rev. 1.
4 Waterfield, Bruno. 2010. Ireland forced to take EU and IMF bail-out package. Telegraph. 22 Nov.
http://www.telegraph.co.uk/finance/financialcrisis/8150137/Ireland-forced-to-take-EU-and-IMF-bail-outpackage.html
5 Labour Party. 2011. One Ireland, jobs, reform, fairness.
http://www.labour.ie/download/pdf/labour_election_manifesto_2011_reform.pdf
6 Resolution of the Houses of the Oireachtas. 2012. July.
https://www.constitution.ie/Documents/Terms_of_Reference.pdf
7 Convention on the Constitution. 2014. Ninth Report of the Convention on the Constitution; Conclusions
and final recommendations. March.
https://www.constitution.ie/AttachmentDownload.ashx?mid=55f2ba29-aab8-e311-a7ce-005056a32ee4
8 Convention on the Constitution. 2014. The Convention on the Constitution has voted to afford greater
constitutional protection to Economic, Social and Cultural (ESC) rights. 23 February.
https://www.constitution.ie/NewsDetails.aspx?nid=a531341a-a19c-e311-a7ce-005056a32ee4
9 Constitution of Ireland, 1937, Article 45.
10 Ibid.
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Court,11 and has not acted as a restraint on State ownership and management of natural
resources, provided for in Article 10. It is argued that, by substituting natural resources for
environmental rights, a unique opportunity to formulate and enact a constitutional equation
for sustainable development, which includes economic, social and environmental rights,
exists, as part of the Convention on the Constitution process
All constitutions are an equation, made up of rights and duties within an institutional
framework, aimed at producing a certain type of society, through intergenerational progress.
The Preamble of the 1937 Constitution of Ireland states its aims as, to promote the common
good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom
of the individual may be assured, true social order attained, the unity of our country restored,
and concord established with other nations. 12 By establishing the Convention, the
Government accepted that fundamental changes are necessary, in order for those
constitutional promises to present and future generations be fulfilled. This paper posits that
by constitutionalising ESC rights, in conjunction with the Public Trust Doctrine (PTD), that a
constitutional equation for SD can be formulated, which will: optimise the common good;
drive policy towards a sustainable social order; engender peaceful resolution to the Northern
Ireland issue; and ensure that Ireland acts in harmony with foreign nations through
responsible and nondestructive economic, social and environmental development.
The starting point for this equation is found in the first international agreement to
promote sustainable development; the 1980 World Conservation Strategy (WCS), 13 which
Ireland signed up to. Describing state duties thereunder, it stated, Ideally, a commitment to
conserve the country's living resources should be incorporated in the constitution or other
appropriate legal instrument. 14 Subsequently, some experts recommended that this be
broadened to include all resources in national implementation. 15 Dr Jona Razzaque
advocated constitutionalisation of environmental rights, in the furtherance of sustainable
development, at a 2012 Yale/UNITAR workshop:
Constitutionalisation has an impact on political institutions, law-making and access to
remedies. With its impact on due process, accountability, rule of law, separation of
powers, and inclusiveness, constitutional guarantees such as the right to a healthy
environment provide a framework to revisit the interactions between different
constitutional elements, explore relationships between public and private actors, and
facilitate the move from pure economic to sustainable globalisation.16
Ibid.
Constitution of Ireland. 1937. Article 40.1. Preamble.
13 IUCN/UNEP/WWF. 1980. World Conservation Strategy: Living Resource Conservation for Sustainable
Development. Gland, Switzerland.
14 Ibid. at Ch. 11, Para 7.
15 Anton, D., Kohout, J. and Pain, N. 1993. Nationalizing Environmental Protection in Australia: The
International Dimensions. Environmental Law Review, 23, 76383.
16 Razzaque, Jona. 2013, Constitutionalisation of rights: influence of the right to a healthy environment in
shaping the governance landscape of Asis. April 26 & 27, Yale/UNITAR workshop, Rights in
Environmental Governance: Explaining their Emergence, Examining their Effectivenes.
http://environment.yale.edu/content/documents/00003444/Razzaque-Constitutionalisation-ofrights.docx
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Research has confirmed the positive effects of constitutionalisation of environmental rights.


At a 2013 Yale/UNITAR workshop, Professor David R. Boyd stated:
[N]ew research demonstrates that the incorporation of the right to a healthy
environment in a countrys constitution leads directly to two important legal
outcomesstronger environmental laws and court decisions defending the right from
violations. Evidence indicates that the other anticipated benefits of constitutional
environmental rights also are being realized, while the potential drawbacks are not
materializing.17
Its seems only logical to conclude that in order to implement the core policy formula
of SD, that economic and social rights and duties should be constitutionalised, along with
environmental or natural resources rights and duties. The challenge arises in phrasing those
rights and duties in such a way as to make them cognizable within the existing constitutional
order, and grounding them in the pre-existing English common law tradition, so as to make
them justiciable. The great advantage and supreme irony of the proposed equation is that its
elements already exist in both the Constitution and the common law, in the form of
fundamental rights and the PTD. The PTD lies hidden, in plain view, as an implied trust
within the Constitution. By making all of Article 45, which includes fundamental rights to
natural resources, justiciable, the PTD will necessarily be triggered. Since the PTD places a
fiduciary duty on the state, to protect natural resources, it will replace the lack of political
will to implement international agreements regarding sustainable development, thereby
strengthening ESC rights.
The 2014 Convention on the Constitution press statement read, ESC rights are
currently protected in a limited manner in the Irish Constitution and the focus of the
concluding Convention on the Constitution was on whether or not these rights should be
afforded greater Constitutional protection. ESC rights are socio-economic human rights and
are protected to varying degrees under international, European and Irish law. 18 The
statement then noted that the members of the Convention, voted to enhance the level of
protection for ESC rights, making them amenable to supervision by the courts in certain
circumstances. They also voted to highlight certain rights which should be expressly stated in
the Constitution namely: Housing; Social Security; Essential Health care; Rights of people
with disabilities; Linguistic and cultural rights; Rights covered in the International Covenant
on ESC rights.19 However, there was one glaring omission from the press statement; natural
resources.

Boyd, David R. 2013. The Effectiveness of Constitutional Environmental Rights, Yale UNITAR
Workshop, April 26/27 http://environment.yale.edu/content/documents/00003438/BoydEffectiveness-of-Constitutional-Environmental-Rights.docx
18 Convention on the Constitution. 2014. Constitutional Convention votes in favour of reforming economic,
social & cultural rights in the Constitution, 23 February
https://www.constitution.ie/AttachmentDownload.ashx?mid=adc4c56a-a09c-e311-a7ce-005056a32ee4
19 Ibid.
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Article 10, Natural Resources, ostensibly grants absolute ownership and control to
of natural resources the State.20 Article 10.1, states, in relevant part, All natural resources,
including the air and all forms of potential energy belong to the State. 21 Article 10.3
continues: Provision may be made by law for the management of the property which
belongs to the State by virtue of this Article and for the control of the alienation, whether
temporary or permanent, of that property.22 Articles 10.3 and 10.4 apply the same principle
to land, mines, minerals and waters.23 While Article 10 is justiciable, it has never been
successfully used by citizens to assert any restraint on State action, due to its absolutist
wording, and the inability to use Article 45 as a constitutional restraint. This is clearly not
what was the founders of the State or the drafters of the founding Constitution intended.
Ireland is a tale of two constitutions. When Ireland gained its independence in 1922, it
adopted its own Constitution; the Free State Constitution. 24 Like the U.S. it continued to
ground its legal system in English common law, and on the other hand, assert its
Independence by distinguishing itself from the British parliamentary sovereignty, and making
the people constitutionally sovereign. Ownership and control of natural resources by the
people was seen by Irish revolutionaries a primary grounds for that distinction, and the
assertion of political independence. This idea was central to The Democratic Programme,
enacted by the first parliament, Dil ireann, in 1919:
We declare in the words of the Irish Republican Proclamation the right of the people
of Ireland to the ownership of Irelandand we declare that the nation's sovereignty
extendsto all its material possessions, the Nation's soil and all its resources, all the
wealth and all the wealth-producing processes within the Nation, and with him we
reaffirm that all right to private property must be subordinated to the public right and
welfare It shall be our duty to promote the development of the Nations resources,
to increase the productivity of its soil, to exploit its mineral deposits, peat bogs, and
fisheries, its waterways and harbours, in the interests and for the benefit of the Irish
people.25
Articles 10 and 45 of the 1937 Constitution are derived from Article 11 of the 1922
Free State Constitution, which was found in the opening section of the Constitution, under
the heading Fundamental Rights. Article 11 read, in relevant part:
All the lands and waters, mines and minerals, within the territory of the Irish Free
Stateand also all the natural resources of the same territory (including the air and all
forms of potential energy)belong to the Irish Free Stateand shall be controlled
and administered by the Oireachtasbut shall notbe alienated, but may in the
public interest be from time to time granted by way of lease or licence to be worked
or enjoyed under the authority and subject to the control of the Oireachtas.26
Constitution of Ireland, 1937. Article 10.
Ibid.
22 Ibid.
23 Ibid.
24 Constitution of the Irish Free State. 1922. (Bunreacht na aorst t ireann)
25 Dil deb. 1919. 21 January vol 1 (emphasis added).
26 Constitution of the Irish Free State. 1922. Article 11.
20
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A Constitutional Committee led by Michael Collins had been established in 1922 to


draft the Constitution. Article 81(1) of the first draft stated: The sovereignty of the people
extends over the natural resources of Saorstt ireann. Article 81(2) stated, None of these
resources may be so used as to impair the welfare of the citizens of Saorstat Eireann, or to
prejudice the provisions of this Constitution. Critically, Article 8(2), stated: Dil ireann
shall regulate and control the same as trustees of the people of Ireland.27
This is a clear and unequivocal statement of the PTD, which safeguards crucial
natural resources as common property of all citizens,28 by applying private trust principles to
State actors, as trustees, granting the public beneficial rights. The PTD has its roots in the
ancient Roman, Institutes of Justinian, which stated, By the law of nature these things are
common to mankind---the air, running water, the sea, and consequently the shores of the
sea.29 In c.1250, the English jurist Henry de Bracton adopted the Roman model in the first
general treatise of English Law, writing, "By natural law these are common to all: running
water, air, the sea, and the shores of the sea, as though accessories of the sea.30 Another
primary source for the PTD is Magna Charta of 1215, Chaps. 16 and 23, which limited the
kings sovereign power to grant certain public resources to private individuals.31 As such, it
was part of the royal prerogative, and an essential attribute of sovereign ownership of certain
lands, such as the foreshore, which were held for public uses.
The importance of these public, beneficial rights to natural resources was clearly
evident in commentary after the adoption of the 1922 Constitution. The Hon. Hugh Kennedy,
Chief Justice of the Supreme Court, who had served a member of the Constitution
Committee, wrote in the 1928 American Bar Association Journal, History made it inevitable
that in the forefront of the instrument, those doctrines which have come to be accepted as the
great fundamental rights and liberties of the citizen should be stated as fundamental
principles of this constitution. 32 He said, all these principles, including the national
ownership of the natural resources of the countryreceive guarantees as constitutional
rights.33 W.P.M. Kennedy, former Dean of University of Toronto law School, writing in the
North American Review in 1923, said, the Constitution contains clauses in which its
creators lay down their fundamental rights which are indefeasible 34and which the people
reserve to themselves from the processes of ordinary legislation; the inalienable possession of
their natural resources; the right to free elementary education; and, most important of all, the

Farrell, Brian. 1970. The Drafting of the Constitution of the Irish Free tate: I, The Irish Jurist. 5: 115140. (emhpasis added).
28 Wood, Mary. 2013. Natures Trust. New York: Cambridge University Press.
29 Justinian, Institutes, 2.1.1. http://www.fordham.edu/halsall/basis/535institutes.asp#Book%20II
30 Bracton, Henry. On the Laws and Customs of England, 39-40 (S. Thorne trans.1968) (citing J. INST.
2.1.1.).
31 The Magna Carta of Edward 1. 1297. 25 Edw. 1.
32 Kennedy, Hugh. 1928. Character and Sources of the Constitution of the Irish Free State, Annual Report
of the American Bar Association, 236, 253.
33 Ibid. at p.254.
34 Kennedy, W. P. M. 1923. Significance of the Irish Free State . The North American Review, Vol. 218,
No. 814 September 316, 321 (emphasis added).
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fundamental right to form associations.35 Finally, R.N. Tweedy succinctly described the link
between natural resources and other social and economic rights, This Article in the
Constitution is very important, because the natural resources of Ireland are so great that every
citizen can live in decency and comfort if the State directs their use properly.36
The presence of public trust principles in the present Constitution is clear from expert
advice given to, President Eamon De Valera, by the parliamentary draftsman, Arthur
Matheson, during the drafting of the 1937 Constitution: The Theory underlying the old
Article 11 and the new Article 10 is that all natural resources should belong to the State and
should be exploited for the benefit of the people and not for the private profit of
individuals.37 That advice also reveals why the PTD was not expressed in Article 10: I
would submit that all matters of management and alienation should be left to ordinary law;
experience with the existing Article 11 has shown that any attempt to control by the
Constitution the management and alienation of State property is undesirable.38 The PTD was
relegated then to Article 45, and the fundamental rights of the public to natural resources in
Article 11 were subverted by State rights in Article 10. Removal of the ban on alienation of
natural resources was a clear dilution of the PTD. One of the six substantive fiduciary duties
on a public trustee is to refrain from alienating, (that is privatizing) the trust except in
limited circumstances.39 With rights to resources absent now from the fundamental rights
enumerated in Articles 40-44 of the Constitution, there is no apparent restraint whatsoever on
State powers to privatize and sell resources outright. However, the fundamental rights to
natural resources, were indefeasible, inalienable, and essential to sovereignty itself, such that
they survive in Article 45, and must now be made justiciable.
Public trust principles existed in Irish common law centuries before the 1922
Constitution, and Irish cases served as a basis for the PTD in the U.S. The first U.S. Supreme
Court case to recognise the PTD, Martin v. Waddell (1842),40 relied on a 17th century Irish
case, The Case of the Royal Fishery of the Banne (1610).41 Justice Catron described the
Banne case in another 1842 Supreme Court case, The Mayor and Aldermen of the City of
Mobile v. William E Hallett,
A primary rule of construction (according to the English common law), as applicable
to grants of lands made by the government to individuals, when they front on the
shores of tide-waters, is, that they go no farther than ordinary high-water mark;
because the soil under tide-waters is a public sovereign right, and an estate to itself,
in the sovereign, held in trust for the public use, separate from the high land. This is

Ibid.
Tweedy, R.N. 1923 Irish Freedom Explained: The Constitution of Saorstt ireann, Talbot Press, Dublin,
72.
37 Matheson, Arthur. 1937. Memorandum from Arthur Matheson to Eamon de Valera The Constitution,
Parliamentary Draftsmans Office, 1 March. No. 80: UCDA. P150/2397, in Hogan, Hon. Gerard. 2012.
Origins of the Irish Constitution 1928-41. Dublin: Royal Irish Academy, at 313. (emphasis added).
38 Ibid.
39 Wood, 2013. Natures Trust, 167.
40 41 U.S. 367
41 Davies' Rep. 155.
35
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the settled doctrine in England, as will be seen by the case of the Royal Fishery of the
Banne, in 8 James I., reported by Sir John Davies 149. 42
Murphy v. Ryan (1868) 43 is another Irish case that featured strongly in the
development of the U.S. PTD, as explained by Justice White in Phillips Petroleum Co. v.
Mississippi (1988,)44 In Murphy v. Ryan the court explained that the King did not hold title
to the land underlying navigable waters, unless they were influenced by the tide. In Shively
v. Bowlby (1894),45 Justice Gray, citing Murphy, said, By the law of England, Scotland, and
Ireland, the owners of the banks prima facio own the beds of all fresh-water rivers above the
ebb and flow of the tide, even if actually navigable, to the thread of the stream, usque ad
filum aquae. Similarly, the Canadian Supreme Court decision of R. v. Robertson (1882)
cited Murphy in holding: [T]he ungranted lands in the province of New Brunswick, being in
the crown for the benefit of the people of New Brunswick, the exclusive right to fish follows
as an incident, and is in the crown as trustee for the benefit of the people of the province
exclusively.46
Therefore, Murphy v Ryan makes it clear that the essential rule of the PTDs was
formally recognized in Irish common law itself: [T]he right of fishing in the sea, and in its
arms and estuaries, and in its tidal waters, wherever it ebbs and flows, is held by the common
law to be publici juris, and to belong to all the subjects of the Crown - the soil of the sea, and
its arms and estuaries, and tidal waters being vested in the Sovereign as a trustee for the
public."47 However, in Ireland, due to the refusal of nineteenth century Irish courts to expand
the navigability rule, the Murphy case is regularly used as precedent for denying public
rights. Most recently, in 2012, Ms. Justice Laffoy, cited Murphy, in Inland Fisheries Ireland
v Peadar O'Baoill, John Gerard Boyle and John Boyle, quoted Murphy as follows: The issue
as to whether in Irish law a public right of fishing in an inland water where the tide does not
ebb and flow could exist wasdetermined in Murphy v. Ryan (1868) I.R. 2 C.L. 143. The
headnote in the report of that case states: The public cannot acquire by immemorial usage
any right of fishing in a river in which, though it be navigable, the tide does not ebb and
flow.48
With Independence, and the adoption of the 1922 Constitution, Ireland was finally
equipped with the means to deshackle itself from the strict common law navigability test,
based on the ebb and flow of the tide, which had limited the growth of the PTD in Ireland.
That opportunity came in 1928 in the High Court case of Moore v The Attorney-General
[1929] 63 I.L.T.R 112, which concerned the public right to fish. This is known as the Erne
Fishery Case, and was the first of a series, called The Fisheries Cases. Amongst the
42
43

41 U.S. 261 (1842), at 266, (emphasis added).

IR 2 C.L. 143
484 U.S. 469.
45 52 U.S. 1, at 31.
46 6 S.C.R. 52 (emphasis added)
47 Murphy v. Ryan (1868) IR 2 C.L. 143 at 149. (emphasis added)
48 Inland Fisheries Ireland v Peadar O'Baoill, John Gerard Boyle and John Boyle [2012] IEHC 550 at 61
(unreported) citing Murphy v. Ryan (1868) I.R. 2 C.L. 143.
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precedents cited were The Case of the Royal Fishery of the Banne and Murphy v. Ryan.
However, no mention is made of a public trust. Instead, the case hinged on a novel reading
of Magna Charta, asserting the primacy of public rights in early indigenous Irish law, Brehon
law, which pre-existed Magna Charta and the time of Henry II. Brehon law, the ancient
common law of Ireland, had been practiced from time immemorial across Ireland until the
12th century Norman Conquest in 1169, and in certain parts of Ireland that remained
unconquered until the late 16th century. Justice Johnson phrased the issue thus: The
question of the existence or non-existence of an exclusive right of fishery in tidal waters is
ultimately dependent upon the provisions of Chapter 16 of Magna Charta: No banks shall be
defended from henceforth, but such as were in defence in the time of King Henry our
grandfather, by the same places and the same bounds, as they were wont to be in his time.49
So, the issue became whether or not there could have been a private, several fishery in
existence before the time of Henry, under the indigenous law of Ireland. The Defendants in
the case, including the Attorney General, joined on behalf of the public, claimed that a
private several fishery, before 1189, the time of Henry II, was historically and legally
impossible due to the nature of Brehon law, which did not recognize such private ownership
in such property.50
Expert testimony was proffered by two highly respected scholars of Brehon law,
Professor D.A. Binchy and Professor Eoin MacNeill. The plaintiffs were at a loss to find any
expert to rebut their testimony, but that did not prevent Justice Johnson from weighing it,
according to his own reading of ancient law. As Mohr said: He rejected MacNeill's
interpretation of a passage referring to the salmon of the place taken from the 7th Century
tract Of Confirmation of Right and Law which, according to MacNeill, guaranteed members
of the local community common rights with respect to salmon fishing.51 The passage, as
translated from Early Irish, offers a unique view into the mists of time, and the ancient,
indigenous rights of the Irish:
How many things have been established as the inherent rights of every territory and
which are equally due to every person? The salmon of every place; wild garlic; the
andach property of each water; the quick drawing [of a net] from each stream; the
sufficiency for a night of faggots of each wood which has not the tripartite division of
[trees]; cooking fuel in each wood; the mast [nuts] of each wood; materials for each
carriage; timber for body-bearers; a handle for the champion's spear; a hand-stick for
the horse-boy; twigs for three spancels; materials for hoops; materials for a churn-dash;
the wild animals of each wood, through which there is a passage with necessity; the
sea-wrack of each strand; the salt-leaf of each rock; the produce of each wave outside
the rock; each wood which is without triple division; grinding upon the whet-stone; an
acknowledged fair-green; going into a boat; playing chess in the house of a chieftain;

Moore and others v. The Attorney-General for Saorstt Eireann, William Goan, and others, [1929] 63
I.L.T.R 112, at 115.
50 Ibid. at 126.
51 Mohr, Thomas. 2002. Law Without Loyalty - The Abolition of the Irish Appeal to the Privy Council. The
Irish Jurist 1, 187-226, 192.
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10

salt in the house of a brewy; the mountain which overtops all; a chain upon a captive,
there being a space between him and the fetter.52
Justice Johnson concluded that this passage did not prove anything, saying, I
am of the opinion that there is nothing in the evidence which has been adduced on
behalf of the defendants, or in any of the legal considerations that their counsel have
advanced, which is sufficient to displace the presumption of a lawful origin, or which
would enable me to come to the conclusion that this fishery was of modern origin.
Thus, rejecting the expert evidence, he held for the private owners. In a shock decision,
the Supreme Court reversed the High Court holding of Moore v The Attorney-General
[1934] 53 and found for the defendants and public right, based on the Brehon law
interpretation, stating: On the evidence, the existence of a several fishery in the locus
in quo before 1189 was an historical and legal impossibility, since English law did not
then apply and Brehon law (which then applied) did not recognise a right of several
fishery in tidal waters.
Moore should have marked the end of it, and opened and released the Irish public from
the narrow constraints imposed by the common law rule. However, Professor Binchy would
later change dramatically change his expert testimony, on the nature of Brehon law, and
community property, in relation to several fisheries, in the 1937 case of Little v. Cooper
[1937]54 also known as the Moy Fishery Case in 1936. With Professor MacNeill deceased,
there was nobody willing or qualified to rebut his evidence, and the court swung back in
denial of the public right. The 1922 Constitution was displaced in 1937, the same year as
Little v. Cooper and the fundamental rights of the Irish people in their natural resources were
subjugated once more, leaving little firm ground very any legal challenge to state action in
relation to them.
As of 2012, at least 10 countries had formally recognized the PTD, either by
constitutional amendment, or judicial activism. They are: India, Pakistan, the Philippines,
Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador, and Canada. 55 Most of these are
English common law jurisdictions, like Ireland, where either the courts or the legislature built
upon American jurisprudence, and resurrected the ancient rights therein. India adopted the
U.S. version of the PTD in 1997.56 The court inferred that the basis of the trust doctrine lay
in natural law.57 Ironically, India had modeled part of its 1949 Constitution on Irelands,
Article 45 Directive Principles on Social Policy. Article 39(b) of the Indian Constitution
requires that the ownership and control of the material resources of the community are so
Moore v. Attorney General. 1929. 130.
68 I.L.T.R 55.
54 [1937] IR 1, 21, 22.
55 Blumm, Michael C. and Guthrie, Rachel D. 2012. Internationalizing the Public Trust Doctrine: Natural
Law and Constitutional and Statutory Approaches to Fulifilling the axion Vision. University of California,
Davis, Law Reivew. 45: 741, 746.
56 Sax, Joseph L. 1970. The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention,. 68 Michigan Law Review. 471, 475.
57 Blumm & Guthrie. 2012., at 761.
52
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distributed as best to subserve the common good.58 Like Ireland, Indias version was also
nonjusticiable, by its own terms. 59 However, this did not prevent the Indian courts from
protecting material resources, via the PTD.
The Convention on the Constitution was explicit in the need to bring Irish law in line
with Rights covered in the International Covenant on ESC rights. 60 All rights in the
International Bill of Rights are dependent on natural resources. Article 10 of the Universal
Declaration on Human Rights (UDHR) states, Everyone, as a member of society, has the
right to social security and is entitled to realization, through national effort and international
co-operation and in accordance with the organization and resources of each State, of the
economic, social and cultural rights indispensable for his dignity and the free development of
his personality. 61 Both ICESCR and the International Covenant on Civil and Political
Rights (ICCPR) (1966) 62 , have identical provisions relating to natural resources at the
forefront, in Articles 1(2): All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and international law. In
no case may a people be deprived of its own means of subsistence.63 Both Covenants were
influenced by the 1962 UN Declaration on Permanent Sovereignty Over Natural Resources
which states, in Article 1, The right of people and nations to permanent sovereignty over
their natural wealth and resources must be exercised in the interest of their national
development and of the well-being of the people of the State concerned.64 This mirrors the
public trust principle in the former Article 11 and Article 45.
Article 2(1) of ICESCR also states Each State party to the present Covenant
undertakes to take stepsto the maximum of its available resources.65 That includes natural
resources, since resources are defined in the Handbook for National Human Rights
Institutions, published by the Office of the High Commissioner for Human Rights, as
including: Human resources; technological resources; information resources; natural
resources; and financial resources. 66 The Handbook also notes that natural resources are
used as an qualitative health indicators: Information on the extent of access to natural
resources, by geographic location, such as the proportion of households with access to safe
and clean potable water, types of access to safe and clean potable water, the proportion of
Constitution of India. 1949. Article 39(b).
Ibid.
60 See n.8.
61 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III). (emphasis
added)
62 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171.
63 Ibid. (emphasis added)
64 Permanent Sovereignty over Natural Resources, GA. Res. 1803 (XVII), 17 U.N. GAOR Supp. (No. 17) at
15, U.N. Doc. A/5217 (1962) (emphasis added).
65 See n. 62.
66 Office of the High Commissioner for Human Rights, Economic, Social and Cultural Rights: Handbook for
National Human Rights Institutions (Geneva: OHCHR, 2005). p.12 , n.26. quoting Robert E. Robertson,
"Measuring State compliance with the obligation to devote the 'maximum available resources' to realising
economic, social and cultural rights," HRQ, vol. 16, No. 4 (November, 1994), pp. 693- 694). [hereinafter the
Handbook] (emhpasis added).
58
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households with access to sanitation facilities and types of access to sanitation facilities.67
The Handbook also called on national human rights institutions to accentuate and reinforce
the economic, social and cultural rights components of existing government programmes or
agencies, such as those dealing withthe environment and natural resources.68 So, given
the prominent role that natural resources play in both the definition, and enforcement of ESC
rights, it would be contrary to international law and best practice for the proposed
constitutional amendment to exclude them. The 1986 Limburg Principles on the
Implementation of the International Covenant on Economic, Social and Cultural Rights,
Section 27 states: In determining whether adequate measures have been taken for the
realization of the rights recognized in the Covenant attention shall be paid to equitable and
effective use of and access to the available resources.69 Introducing equity into the human
rights equation, in relation to use of natural resources, fits with the PTD, since it grants
property rights to natural resources, akin to an equitable servitude.
In terms of the constitutional equation for sustainable development, the duties
imposed on States by ICESCR are almost identical to those imposed by the PTD. Article 6
of the 1988 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
states that ESC rights impose three different types of obligations on States: the obligations
to respect, protect and fulfil.70 These mirror the three main PTD substantive duties: the
Duty of Restoration; The Duty of Protection and the Fiduciary Obligation. 71 Critically, the
obligation to fulfill imposes and active or affirmative duty, akin to a fiduciary obligation
under the PTD, which require a public trustee to: (1) protect the res; (2) conserve the natural
inheritance for future generations (the duty against waste); (3) maximize the societal value of
natural resources; (4) restore the trust res where it has been damaged; (5) recover natural
resource damages from third parties that have injured public trust assets; and (6) refrain from
alienating the trust except in limited circumstances. 72 Under ICESCR, the obligation to
respect requires States to refrain from interfering with the enjoyment of economic, social
and cultural rights.73 The obligation to protect requires States to prevent violations of such
rights by third parties. 74 The obligation to fulfil requires States to take appropriate
legislative, administrative, budgetary, judicial and other measures towards the full realization
of such rights.75

Ibid., at 62, extrapolated from ocorro I. Diokno, Maria. 1999 Monitoring the progressive realization of
housing rights." Focus Asia-Pacific, Newsletter of the Asia-Pacific Human Rights Information Centre
(HURIGHTS Osaka), No 16, June.
68 Ibid. at 83.
69 Limburg Principles on the Implemention of the International Covenant on Economic, Social and
Cultural Rights, HRQ, vol 9 No. 2 (1987), pp. 122-146. (emphasis added)
70 20 HRQ 691.
71 Wood, Mary C. 2009. Advancing the overeign Trust of Government to afeguard the Environment for
Present and Future Generations (Part i): Ecological Realism and the Need for A Paradigm hift, 39
Environmental Law Review. 43.
72 Wood. 2013. Natures Trust p.167
73 Ibid.
74 Ibid.
75 Ibid.
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Constitutionalising the PTD and ESC substantive rights and duties will incorporate
the essential ingredients of SD. Rio Principle 1 states Human beings are at the centre of
concerns for sustainable development. They are entitled to a healthy and productive life in
harmony with nature. 76 The PTD protects natural resources that are essential to human life,
as do human rights. That is why natural law and the human right to life were used by India
as the basis for its recognition of the PTD. In M.C. Mehta v. Kamal Nath,77 the Supreme
Court relied on Article 21 of its Constitution, which provides that no person shall be
deprived of his life and liberty except in accordance with the procedure established by law.78
The court then noted, Any disturbance of the basic environment elements, namely air, water
and soil, which are necessary for life, would be hazardous to life. 79 South Africa,
Nigeria, Kenya and Pakistan have also grounded the PTD in the right to life. 80 Ireland has an
extremely strong right to life, based in natural law, which must be extended to include the
PTD. Rio Principle 3 states, The right to development must be fulfilled so as to equitably
meet developmental and environmental needs of present and future generations.81 Trusts,
like constitutions, are by nature intergenerational instruments, with a particular set of aims.
The aim of the Irish constitution, and ESC rights therein, is the attainment of a particular
social order by future generations. The objects of the public trust are the preservation of trust
property for benefit of present and future generations. Therefore, the PTD will provide a solid
framework for long-term policy-making for SD.
ICESCR also contains a number of procedural rights, which mirror those of the PTD
and those contained in the Rio Declaration. A 2008 study by the International Commission of
Jurists (ICJ) stated, While ESC rights are often identified with substantive provisions such
as healthcare, education and housing, they also include certain procedural dimensions, which
constitute a solid basis for their justiciability. Principles of access to courts and fair trial and
administrative procedures, for example, are particularly relevant in the area of access to and
the guarantee of effective ESC rights. 82 Similar procedural rights, regarding the
environment and natural resources are now enforced in Ireland under the 1998 UNECE
Aarhus Convention on access to information, public participation in decision-making and
access to justice in environmental matters, 83 as well as various EU Directives on impact
assessment and public participation. By comparison, the PTD duty to provide an accounting
means the trustee must disclose all matters pertaining to the health of the trust, and must

Rio Declaration. 1992. Principle 1.


M.C. Mehta v. Kamal Nath, 1997. 1 S.C.C. 388 (1996) (India).
78 Constitution of India. 1949. Article 21.
79 Ibid. at 466 (interpreting article 21 of the Indian Constitution).
80 Blumm &Guthrie. 2012. at 766-769, 782-783, 788-789.
81 Rio Declaration. 1992. Principle 3.
82 International Commission of Jurists (ICJ). 2008. Courts and the Legal Enforcement of Economic, Social
and Cultural Rights. Comparative Experiences of Justiciability, Human Rights and Rule of Law Series n 2.
http://www.unhcr.org/refworld/docid/4a7840562.html
83 Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to
Justice in Environmental Matters, June 25, 1998, 38 I.L.M. 517 (entered into force Oct. 30, 2001)
[hereinafter Aarhus Convention].
76
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provide an accounting of the profits and expenses to the trust.84 The PTD duty of undivided
loyalty includes the duty to provide an accounting. According to Wood, The duty of loyalty
isnot the duty to resist temptation, but to eliminate temptation, as the former is assumed to
be impossible.85 This is why the PTD, along with ESC rights, is suitable for replacing the
missing political will needed to enforce national and international natural resource and SD
obligations. These procedural rights and duties were agreed by states in the Rio Principles, in
the Rio Declaration on 1992.86 Principle 4 enunciated the broad principle of integration of
environmental protection into the development process, in order to achieve sustainable
development.87 Principle 10 specifically called for public participation, access to information
and access to justice and remedies,88 and Principle 17 specifically called for environmental
impact assessment.89
According to Woods, A litigation strategy, entitled Atmospheric Trust Litigation
(ATL) is currently under way in the U.S. and Europe that seeks to enforce the PTD
principle.90 ATL in the U.S is based on the PTD. The European action, filed against against
the Netherlands in the Hague,91 is based on negligence, as well as Articles 2 and 8 of the
European Convention of Human Rights (ECHR), which protect the right to life, and right to
respect for private and family life, respectively.92 If the European action is successful, Ireland
could be culpable and liable, in a similar action.93 This litigtion is a positive development, in
that it further defines the legal status of the atmosphere in states.
This PTD/ESC equation will require that Ireland meet its targets under the UNFCCC.
The equation can give substance to the right to sustainable development contained in that
document, which remains largely undefined. The 2002 New Delhi Declaration of Principles
of International Law Relating to Sustainable Development defined the common heritage of
mankind and common concerns of mankind.94 Common concerns include The proper
management of climate system, biological diversity and fauna and flora of the Earth" were as
"the common concern of humankind." Kemal Baslar has also noted, The CH principle's
antecedents include the legal public trust doctrine and precepts of Roman law applicable to

Wood, Mary C. 2009. Advancing the Sovereign Trust of Government to Safeguard the Environment for
Present and Future Generations (Part II): Instilling a Fiduciary Obligation in Governance. (March 1,
2009). Environmental Law Review. Vol. 39, No. 1, p. 91, at p.101.
85 Ibid., at 99, quoting Karen E. Boxx, Of Punctilios and Paybacks: The Duty of Loyalty Under the Uniform
Trust Code, 67 Mo. L. REV. 279, 279-81 (2002) (emphasis added) (footnotes omitted)
86 Rio Declaration. 1992.
87 Ibid. Principle 4.
88 Ibid. Principle 10.
89 Ibid. Principle 17.
90 Wood, Mary Christina. 2014. "Atmospheric Trust Litigation: Defining Sovereign Obligations In Climate
Recovery," Fletcher Forum of World Affairs. http://www.fletcherforum.org/2014/03/27/wood/
91 Our Childrens Trust. 2013. Netherlands, Legal Updates 20 November.
http://ourchildrenstrust.org/legal/international/Netherlands
92 Council of Europe. 1950. European Convention on Human Rights.
93 Oireachtas. 2003. European Convention on Human Rights Act.
94 International Law Association. 2002. New Delhi Declaration of Principles of International Law Relating to
Sustainable Development
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common space resources.95 Therefore, a public trust approach should be imbued into the
future agreements under UNCCCC.
The right to natural resources was recently defined in a Supreme Court of
Pennsylvania decision in Robinson Township v. Pennsylvania (2103),96 striking down a down
a fracking provision in the Oil and Gas Act (Act 13) under Article 27 of the Pennsylvania
Constitution.97 The court found two separate inherent and indefeasible rights in that
article: the right to the environment and; the right to natural resources.98 Article 27 reads:
The people have a right to clean air, pure water, and to the preservation of the
natural, scenic, historic and esthetic values of the environment.
Pennsylvanias public natural resources are the common property of all the
people, including generations yet to come. As trustee of these resources, the
Commonwealth shall conserve and maintain them for the benefit of all the
people.99
According to Chief Justice Castille, the first right in Article 27 is the right to
the environment. However, The second right reserved by Section 27 is the
common ownership of the people, including future generations, of Pennsylvanias
public natural resources.100 The court said: [T]he term fairly implicates relatively
broad aspects of the environment, andincludes not only state-owned lands,
waterways, and mineral reserves, but also resources that implicate the public interest,
such as ambient air, surface and ground water, wild flora, and fauna rent and
indefeasible rights.101 Article 10 of the 1937 Constitution of Ireland defines natural
resources equally broadly, and the common ownership of those resources by the
people in Article 27 is clearly the same as that in Article 45 of the 1937 Constitution,
where natural resources can only be used for the common good.102
In order ensure that Ireland upholds the Rights covered in the International
Covenant on ESC rights it is necessary to: (1) Insert, Dil ireann (Parliament)
shall regulate and control the same (natural resources) as trustees of the people of
Ireland, as a qualifier to the ownership of natural resources by the State in Article
10; (2) Reinstitute the ban on alienation, or prizatisation, of natural resources, in
favour of leasing, in Article 10; and (3) Remove nonjusticiability language in Article
45. The right to natural resources in Ireland is sufficiently broad as to play the role of
Noyes, John. E. 2012. The Common Heritage of Mankind: Past, Present, and Future, Denver Journal of
International Law & Policy;2011/2012, Vol. 40 Issue 1-3, p447, citing, Baslar, Kemal. 1998. The Concept of
the Common Heritage of Mankind in International Law. Dordrecht/ Boston/London: Martinus Nijhoff at
note 1, pp. 65-68.
96 Robinson Township v. Pennsylvania. 2013. 83 A.3d 901 http://caselaw.findlaw.com/pa-supremecourt/1653102.html
97 PA. CONST. art. I, 27 (Natural resources and the public estate) 948-949.
98 Ibid.
99 Ibid.
100 See n. 95
101 Robinson Township v. Pennsylvania, 83 A.3d 901 (2013) Paps, 812 A.2d at 603 (quoting PA. CON T.
art. I, 1).
102 Constitution of Ireland. 1937. Article 45.
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environment, and thereby complete the essential requirements for SD, in the triplebottom line equation, along with socio-economic rights. The equation will improve
management of the natural resource base of economic and social development, and
help fulfill the overarching objectives of SD.103

103

UNCSD. 2012. The Future We Want, UNGA Res. 66/288, UNGA. Para. 4. (emphasis added)

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