a right to a decent environment: are human rights sustainable?
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An analysis of whether a human right to a decent environment would lead to a more sustainable world.TRANSCRIPT
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A Right to a Decent Environment: Are Human Rights Sustainable?
The capacity of our ecological surroundings, on which we depend for
survival, to sustain current modes of consumption and production is under
threat. It has been argued that a rights-‐based approach to environmental
protection would guide policy formulation at all levels of governance towards a
more sustainable world. To that end, I shall argue here that what is required is
an alteration in the way in which our interactions with nature take place, which
the imposition of a right to a decent environment1 may well provide. As we shall
see, however, the rights discourse itself will need to be reconstructed so that it
can accommodate a naturalist ethic, and the extension of rights to the natural
world.
While there are still pockets of dissent, a general scientific consensus now
exists surrounding the role of human activity in bringing about rapid climate
change.2 As part of this consensus increases predicted in aggregate global
temperatures have been attributed to industrial development, the pace of which
has intensified considerably post-‐World War II, and particularly to a heavy
reliance on the burning of fossil fuels. Without immediate and rapid reductions
in greenhouse gas emissions, which are associated with fossil fuel use,
temperatures are predicted to rise by as much as 6.4 degrees over the course of
the twenty-‐first century.3 The impact of a rise greater than 2 degrees over that
timeframe would be catastrophic to human societies – warming oceans and
1 During this paper I will use the phrase ‘right to a decent environment,’ though it is important to note that several formulations have been put forward, and indeed that there are problems associated with defining the kind of environment that equates to a sustainable world. So for example, it has been variously referred to as a right to a healthy, clean, decent, safe, adequate, satisfactory, and viable environment at different times, and this list is by no means exhaustive. Unfortunately there is not space here to examine the implications of various definitions. Stephen Turner A Substantive Environmental Right: an Examination of the Legal Obligations of Decision-‐Makers Towards the Environment, Alphen aan den Rijn, Kluwer Law International, 2009, pp. 46-‐47. 2 This paper will assume that the scientific consensus is well grounded, and that climate change is an inevitability; all that can be determined through mitigation and adaptation is the degree to which human societies are affected. 3 Stephen Turner, A Substantive Environmental Right, p. 60.
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melting ice caps leading to the destruction of coastal cities and agricultural areas,
as well as an increased frequency and severity of extreme weather events such
as heat waves and flooding – particularly in the developing world, which
occupies the most vulnerable areas of the planet.4 The notion that localized
decisions may have grave global consequences forces us into a radical rethinking
of ethics (and by extension rights) on the one hand, and underscores the need for
truly global solutions on the other.5
Unfortunately, strategies for climate change mitigation based on
international co-‐operation have encountered significant obstacles. Market-‐based
approaches, such as the Kyoto Protocol, have suffered from extended delays,
insufficient funding, and United States obstructionism. They have also had their
effectiveness blunted by abuse-‐prone flexibility mechanisms designed to
appease the concerns of both developing and developed countries.6 Further, the
affirmation of the geographic dominance of states over their territories by the
United Nations (UN) in the aftermath of World War II continually acts a barrier
to the growth of global and regional solutions, with the catastrophic failure of the
recent Copenhagen negotiations being but one example.7 Taken together these
obstacles have contributed to the current political impasse, leading many climate
scientists to predict temperature increases consistent with ecological
catastrophe.8
4 Katherine Smits, Applying Political Theory: Issues and Debates, Basingstoke, Palgrave Macmillan, 2009, p. 233. 5 Our current ethical system is based on clear defined responsibilities and harms, such that if you cause harm to someone it is clear who did what and to whom. Peter Singer, One World: the Ethics of Globalization, Melbourne, Text Publishing, 2002, p. 19. 6 Sam Adelman, 'Rethinking Human Rights: the Impact of Climate Change on the Dominant Discourse,' in Stephen Humphreys (ed.), Human Rights and Climate Change, Cambridge, Cambridge University Press, 2010, pp. 166-‐167. 7 Conor Gearty, 'Do Human Rights Help or Hinder Environmental Protection?,' Journal of Human Rights and the Environment, Vol. 1, No. 1, 2010, p. 9. 8 See for example, Juliette Jowett and Christine Otter, ‘Global Emissions Targets will lead to 4C Temperature Rise, say Studies,’ Guardian, 5 July 2010. Retrieved 25 October 2010, available from http://www.guardian.co.uk/
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The consequences of unabated industrial development, however, extend
beyond the risk of rapid climate change. The threat to fragile ecosystems, and
hence their ability to sustain human life, is cause for as much concern. For
example, in 1998 the severe flooding of the Yangtze River in China was
attributed to the conversion of forest areas on its banks into agricultural land.
The resulting loss of vegetation and subsequent soil erosion amplified the run-‐off
from the storms, and contributed to over 4,000 deaths.9 Events such as this help
to underscore a more general need to radically reassess our relationship with
our ecological surrounds, as well as the viability of our current modes of
production and consumption.10
Challenges to our understanding of humanity’s relationship with nature
have of course been mounted previously. The discourse of industrialism, which
has dominated Western political thought since the very beginnings of industrial
society, has served as a framework within which we have understood that
relationship. It is based on the assumption that perpetual growth, well into the
foreseeable future, is not only desirable, but also sustainable. Indeed, to the
extent that limits are recognised at all, they are considered flexible; the available
stock of natural resources can be expanded through their progressively efficient
utilisation.11 With the publishing of the seminal Limits to Growth12 in 1972, and
the emergence of the environmentalist movement more generally during the
1970s, the supremacy of this discourse began to be challenged. The image of the 9 Stephen Turner, A Substantive Environmental Right, p. 60 10 Christopher D. Stone Should Trees Have Standing?: Law, Morality, and the Environment, Oxford, Oxford University Press, 2010, p. 25. 11 Industrialism has, despite its dominance in Western political thought, been questioned on occasion. For example, the Romantics of the nineteenth-‐century decried the destruction of the environment and society that resulted from rapid industrialization, while John Stuart Mill argued that industrial growth was progressing at a superior rate than the advancement of society, and as such should be slowed to allow society to catch up. Yet until the emergence of environmentalism, such arguments existed at the margins of mainstream thought. Katherine Smits, Applying Political Theory, p. 230. 12 In the book the authors used modelling to investigate the consequences of interactions between natural and man-‐made systems in order to explore the limits to exponential growth. See Donella H. Meadows et al., The Limits to Growth: a Report for the Club of Rome’s Project on the Predicament of Mankind, London, Earth Island Ltd., 1972.
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Earth as finite and fragile, as opposed to a cornucopia put at the disposal of
humanity, placed doubts upon the sustainability of the relentless pursuit of
growth.13
Throughout the 1970s, and into the early 80s, this ‘growth versus the
environment’ dichotomy polarised international debate.14 Of concern,
particularly to developing countries, were the implications for justice that a limit
to growth implied – industrial development had led to a standard of living in
developed countries that others feared they would be prevented from
obtaining.15 In response to such concerns the UN convened Bruntland
Commission published Our Common Future in 1987,16 which advocated the
normative framework of ‘sustainable development’ as a compromise between
economic and social development on the one hand, and the requirements for
sustained environmental protection on the other, now and into the future.17 The
Commission defined sustainable development as ‘development that meets the
needs of the present without compromising the ability of future generations to
meet their own needs’. Contained within the definition, as stated by the report,
are two concepts – ‘needs’ and ‘limitations’. The former, to which ‘overriding
priority should be given,’ specifies the meeting of the ‘essential needs of the
world’s poor’ as the condition under which development is realised, while the
later recognises the ‘limitations imposed by the state of technology and social
13 Douglas Torgerson, 'The Uncertain Quest for Sustainability: Public Discourse and the Politics of Environmentalism,' in Michael Black and Frank Fischer (eds.), Greening Environmental Policy: the Politics of a Sustainable Future, New York, Martin's Press, 1995, p. 3. 14 Andrew Jordan, 'The Governance of Sustainable Development: Taking Stock and Looking Forwards,' Environment and Planning C: Government and Policy, Vol. 26, p. 20. 15 Lisa D. Hawke and Daniel B. Magraw, 'Sustainable Development,' in Daniel Bodansky, Jutta Brunée and Ellen Hey (eds.) Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 617. 16 The Bruntland Commission, originally known as the World Commission on Environment and Development, was convened in 1983 to examine policy responses to the deterioration of the environment and its consequences for sustained economic development. Lisa D. Hawke and Daniel B. Magraw, ‘Sustainable Development,’ p. 617. 17 Andrew Jordan, ‘The Governance of Sustainable Development,’ p. 20.
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organization on the environment’s ability to meet present and future needs’.18
Sustainable development, as one possible response to the limits to growth
theorem, thus sought continuing industrial development of a level consistent
with our ability to expand nature’s carrying capacity for that development.19
By its very nature then, the Bruntland Commission’s compromise
between development and environmental protection can only go so far. For, as it
is widely recognised amongst international actors, of the two concepts contained
in the definition, development (needs) is afforded primacy over the
requirements for sustainability (limitations). This is not surprising given that in
1986, one year prior to the publishing of Our Common Future, the UN General
Assembly adopted the Declaration on the Right to Development. It stated, in
article 1, that the ‘right to development is an inalienable human right,’ and
further, in article 2, that the ‘human person is the central subject of
development’.20 Furthermore, development conceived as material growth, as it
is in Our Common Future, is intimately linked to the dominant structures of
18 World Commission on Environment and Development, Our Common Future, Oxford, Oxford University Press, 1987, p. 43. While this definition is not contained within any international legally binding instruments, its influence is such that it has attained a quasi-‐official status. Lisa D. Hawke and Daniel B. Magraw, ‘Sustainable Development,’ p. 618. 19 Timothy W. Luke, 'Sustainable Develpment as a Power/Knowledge System: the Problem of 'Governmentatlity,' in Frank Fischer and Michael Black (eds.), Greening Environmental Policy: the Politics of a Sustainable Future, New York, Martin's Press, 1995, p. 23. This view of nature’s carrying capacity as malleable is evident in the Commission’s statement: ‘The accumulation of knowledge and the development of technology can enhance the carrying capacity of the resource base.’ Hence, nature’s carrying capacity is not static, but rather flexible. World Commission on Environment and Development, Our Common Future, p. 45. It should be noted, however, that this implicitly implies the recognition that limits do per se exist. William M. Lafferty and Oluf Langhelle, ‘Sustainable Development as Concept and Norm,’ in William M. Lafferty and Oluf Langhelle (eds.), Towards Sustainable Development: on the Goals of Development -‐ and the Conditions of Sustainability, New York, St. Martin's Press, 1999, p. 6. 20 Declaration on the Right to Development, U.N. Doc A/RES/41/128 (1986). Retrieved 20 October 2010, available from http://www.un.org/
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industrial society, which developed out of the overexploitation of environmental
resources.21
Sustainable development also suffers from a vagueness that tends to belie
its practical use. Our Common Future itself leaves many questions unanswered:
sustainable development for whom? What is required of developed countries in
terms of assistance? At what societal level should sustainability be applied to?
Or indeed, what will it look like when we arrive there?22 Of course its generality
is in some sense necessary; it is intended to garner the support of both the
conservative and radical elements of the debate, a coalition which may fall apart
should a precise definition be applied. Moreover, the terms value arguably lies in
the process of contestation and debate that has led to an examination of the
issues it addresses in the years that have followed.23
In any case, the denial of the term’s usefulness as either an analytical
concept or a normative one is immaterial to its political import.24 This of course
speaks of its true nature; rather than being a concept, much less one of scientific
certainty, it is a discourse. Furthermore, sustainable development has come to
dominate international affairs, much as the discourse of industrialism did before
it. In a similar fashion too, it crowds out and rejects other discourses, among
them the limits to growth, on the basis that ecological limits are malleable, and
green radicalism, on the basis that drastic changes to international economic
structures are unnecessary.25
21 Michael Redclift, Sustainable Development: Exploring the Contradictions, London, Methuen, 1987, p. 199. 22 Lisa D. Hawke and Daniel B. Magraw, ‘Sustainable Development,’ p. 621. 23 Andrew Jordon, ‘The Governance of Sustainable Development,’ pp. 20-‐21. Debate has centred, for example, on the wording of the term itself, with developing countries attempting to emphasize ‘sustained economic growth’ as the framework under which development would take place. See Lisa D. Hawke and Daniel B. Magraw, ‘Sustainable Development,’ pp. 616-‐618 for a detailed discussion. 24 William M. Lafferty and Oluf Langhelle, ‘Sustainable Development as Concept and Norm,’ p. 2. 25 John Dryzek, 'Paradigms and Discourses,' in Daniel Bodansky, Jutta Brunée and Ellen Hey (eds.), Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 56.
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Yet it is those very discourses that seek a deeper understanding of
sustainability, and a re-‐examining of our relationship to nature. For
sustainability is far broader than ‘sustainable development’ in the normative
sense. Whereas the latter is an attempt to locate ecologically rational means
within, and in order to sustain, the existing structure of economic development,
the former refers more generally to the relationship between nature and society
conducive to the sustaining of the whole range of conditions under which human
social activity takes place, or indeed develops.26 In other words, rather than
being simply the ‘greening’ of the current patterns of production and
consumption, sustainability requires a normative judgement on those patterns.27
At present those conditions, including ecological integrity, justice, and
prosperity, are not being sustained by current patterns in any meaningful sense.
Thus ecological sustainability, both now and in the future, requires more radical
changes in human practices and priorities.28
One means through which a transformation in our interactions with the
environment could take place is by the imposition of a basic human right to a
‘decent environment’. Using a rights-‐based approach would certainly have its
advantages in this regard. For one, the hegemonic nature of the rights discourse
in international society affords claims articulated in its language a certain level of
political legitimacy and authority.29 More practically, as the imposition of a right
to a decent environment implies its realization is as a condition of human
fulfilment, we radically alter in favour of environmental quality the process by
which decisions on matters affecting that quality are made. Currently those
processes rest upon cost-‐benefit analysis, a rather blunt utilitarian framework
that views utility solely in economic terms at the expense of ecological
26 Nigel Dower, ‘Global Economy, Justice and Sustainability' Ethical Theory and Moral Practice, Vol. 7, No. 4, 2004, p. 402. 27 Barry 1996 116-‐117 28 Nigel Dower, ‘Global Economy,’ pp. 403-‐4. 29 Catherine Redgwell, ‘Life, the Universe and Everything: A Critique of Anthropocentric Rights,' in Alan Boyle and Michael Anderson (eds.), Human Rights Approaches to Environmental Protection, Oxford, Oxford University Press, 1996, p. 81.
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concerns.30 By raising the preference for a decent environment to the status of a
moral obligation,31 governments will be forced to consider the environmental
impacts of all policy decisions within their jurisdiction.32 Further, as rights are
universal in their application, the effects of industrial development that are
trans-‐boundary in nature (such as those contributing to climate change) will also
have to be taken into account in decision-‐making processes. Both of these
outcomes would be further strengthened by the recognition that other human
rights, including the rights to life and health, are dependent upon a decent level
of environmental quality.33 Lastly, through the enforcement of a right to a decent
environment now, we are indirectly protecting the environment for future
generations, and hence enhancing the prospect for sustainability over time.34
Given the status of rights-‐based approaches in international affairs it is not
surprising that the formulation of a substantive environmental right has been
attempted, and it is to these efforts that we now turn.
The non-‐binding Stockholm Declaration,35 issued following the UN
Conference on the Human Environment in 1972, was the first international
30 Robyn Eckersley, 'Greening Liberal Democracy: The Rights Discourse Revisited,' in Brian Doherty and Marius de Geus (ed.), Democracy and Green Political Thought: Sustainability, Rights and Citizenship, London, Routledge, 1996, p. 216. 31 Rights are that to which we are due, or obligated to receive, while preferences are simple wants or desires. So we may want a healthy environment for our children, but whether it can be claimed as a human right is an entirely separate question. John G. Merrills, ‘Environmental Rights,' in Daniel Bodansky, Jutta Brunée and Ellen Hey (eds.), Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, pp. 665-‐666. 32 Patricia Birnie et al., International Law and the Environment, Oxford, Oxford University Press, 2009, p. 269. 33 ibid., p. 302. 34 Richard P. Hiskes, The Human Right to a Green Future: Environmental RIghts and Intergenerational Justice, Cambridge, Cambridge University Press, 2009, p. 148. 35 Non-‐binding in the sense that, as a ‘soft-‐law declaration,’ its prescriptions are not considered international law. Rather, it is a normative statement on what the law is believed to be or what in fact it should be, and hence can be subsequently entered into international customary law. Patricia Birnie et al. International Law, p. 114.
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articulation of an environmental right.36 It proclaimed man to be both ‘creatures
and moulders’ of his environment, and that these aspects, the natural and the
man-‐made, are ‘essential to his well-‐being and to the enjoyment of basic human
rights.’ Having recognised the connection between environmental quality and
established human rights, it declares ‘Man has the fundamental right to freedom,
equality and adequate conditions of life, in an environment of quality that
permits a life of dignity and well-‐being, and he bears a solemn responsibility to
protect and improve the environment for present and future generations’
(principle 1).37 As part of this responsibility the safeguarding of the earth’s
natural resources, including ‘air, water, land, flora and fauna and especially
representative samples of natural ecosystems,’ is to be ensured.
Notwithstanding its gendered construction, the Stockholm Declaration
seemingly pointed to the emergence of a universal human right to a decent
environment and the corresponding duty of environmental protection.
Despite its promise, however, the impact of the Stockholm Declaration
has been modest. Its successor, the Rio Declaration on Environment and
Development,38 produced at the ‘Earth Summit’ of 1992, framed a decent
environment as an entitlement rather than a right. In stark contrast, it affirmed
the sovereign right of states to ‘exploit their own resources’ and endorsed a
‘right to development’ (principles 2 and 3 respectively), in an apparent
confirmation of the primacy of developmental needs over environmental
protection. For while development must be pursued ‘so as to meet equitably the
developmental and environmental needs of present and future generations,’ as a
right it necessarily takes precedence over concern for environmental impact.39
36 Katherine Smits, Applying Political Theory, p. 231. 37 Stockholm Declaration on Environment and Development, U.N. Doc. A/Conf.48/14/Rev. 1 (1972). Retrieved 20 October 2010, available from http://www.unep.org/ 38 Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (1992). Retrieved 20 October 2010, available from http://www.unep.org/ 39 Admittedly, in the case law that has followed the Rio Declaration there has been a tendency to pursue a balance between development and environmental protection. For example, the Gabcíkovo-‐Nagymaros case brought before the International Court of Justice, referred for the first time to ‘this need to reconcile economic development with protection of the environment [which] is aptly
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Furthermore, the Rio Declaration was explicitly anthropocentric in nature,
leaving out any reference to animal rights and the conservation of ecosystems.40
Perhaps the most substantive formulation of an environmental right thus
far came in a 1994 report by the UN Sub-‐Commission on the Prevention of
Discrimination and Protection of Minorities. During a five-‐year study into the
connections between human rights and the environment, the Sub-‐Commission
surveyed trends in national and international human rights and environmental
law. It concluded that a progressive shift away from the enactment of
environmental laws, and towards a substantive right to a decent environment
was occurring. Included in an annex to the report was a Draft Declaration of
Principles on Human Rights and the Environment. Much closer in substance to
Stockholm than Rio, it proclaimed that ‘All persons have the right to a secure,
healthy and ecologically sound environment [and to] an environment adequate
to meet equitably the needs of present generations and that does not impair on
the rights of future generations to equitably meet their needs.’41 Such a right, the
drafters argued, would redefine the balance between environmental protection
and competing objectives, while recognising a decent and healthy environment
as vital to human dignity and welfare, and hence to the realisation of other
rights.42
The response from the UN Human Rights Commission and the UN
member states, however, was wholly unenthusiastic, and no further progress
was made. Those dissenting claimed that a separate right to a decent
environment is unnecessary, in part due to the extent to which international
environmental law already attends to such concerns.43 Certainly, states are
required by international law to take appropriate precautions in relation to
possible risks of trans-‐boundary environmental harms emanating from within
expressed in the concept of sustainable development.’ ICJ Reports 1997, p. 7 para 140. Quoted in Patricia Birnie et al., International Law, p. 116. 40 Ibid, pp. 114-‐116 41 Rio Declaration on Environment and Development 42 Patricia Birnie et al., International Law, p. 278. 43 See ibid., p. 279.
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their territories.44 Otherwise known as the precautionary principle,45 this has
become a mandatory requirement of customary international law, and is
contained within a wide range of global and regional treaties, as well as the
Stockholm and Rio Declarations. Yet, just what constitutes a ‘foreseeable’ threat
is by its very nature indeterminate, and leaves ample room for legal
manoeuvring by states.46 While no doubt commendable, the precautionary
principle is not an adequate substitute for a substantive and binding
environmental right.
The field of international human rights law has been somewhat more
productive in regards to environmental protection mechanisms. While none of
the international human rights treaties contain a substantive human right,47 the
link between established human rights, such as the right to life, and
44 Resource use by states is traditionally regulated based upon whether that resource is considered sovereign, shared by several states, or held in common. Generally the use of resources held in common or by several states is dealt with through international treaties that seek to define what constitutes reasonable use, while those resources considered sovereign may be disposed of as states see fit. Despite such a guarantee of sovereign right, in practice international treaties and the rules of customary international law that concern environmental protection and resource conservation qualify that sovereignty. Ibid, pp. 190-‐2. 45 The Rio Declaration’s Principle 15 stated, in relation to the precautionary principle that ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-‐effective measures to prevent environmental damage.’ Rio Declaration on Environment and Development. 46 For example, in the Rio Declaration the precautionary principle was referred to as an approach rather than a principle due to US insistence that no consensus had yet been built determining when such a principle would apply. Ibid, p. 143. 47 Some regional treaties, however, do contain an environmental right in this form. Article 24 of the African Charter of Human and Peoples’ Rights of 1981 states that people have a right to a ‘generally satisfactory environment favourable to their development,’ while the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1989 grants individuals the right to ‘live in a healthy environment,’ thereby obligating states to ‘protect, preserve and improve the environment.’ Stephen Turner, A Substantive Environmental Right, p. 17. Furthermore, at the national level for example, the French Constitution, amended in 2005 to include a Charter of the Environment, grants French citizens the right to live in a ‘balanced environment, favourable to human health.’ Dinah Shelton, 'Developing Substantive Environmental Rights,' Journal of Human Rights and the Environment, Vol. 1, No. 1, p. 97
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environmental protection has been made in a number of cases.48 Furthermore,
human rights bodies have begun to re-‐interpret basic human rights as having an
environmental dimension.49 This so-‐called ‘greening’ of existing human rights is
certainly appealing given that they are already well entrenched within law
instruments and institutions, and that their use avoids potential conflict with a
new environmental right. It is also true that the very threat of legal action in
relation to human rights violations caused by ecological degradation may
contribute indirectly to environmental protection.50 Still, such a process falls
short of guaranteeing sustainability or a decent environment, if we understand
those concepts in terms broader than impacts on isolated individuals. For
example, in Kyrtatos v Greece, a recent case before the European Court of Human
Rights involving the illegal draining of a wetland that occurred in the vicinity of
the claimants place of residence, the court found no violation of their right to
private life or property. According to the court, they were not entitled to live in
any particular environment, or to have that environment indefinitely preserved,
and stated that ‘neither Article 8 nor any of the other articles of the Convention
are specifically designed to provide general protection of the environment as
such.’51 Human rights protection benefits only those whose rights have been
48 See for example Subhash Kumar v. State of Bihar (AIR 1991 SC 240) where the Indian Supreme Court held that the right to a safe environment was implied by the right to life existent under the Indian Constitution, and Lopes Ostra v. Spain (303-‐C E.Ct.H.R. (Ser. A) (1994)) where the European Court of Human Rights accepted that environmental degradation may negatively affect the right to the enjoyment of private and family life under the European Convention on Human Rights. Sam Adelman, ‘Rethinking Human Rights,’ p. 171. The right to life, in particular, has been used in such a fashion, especially in India, where the courts have shut down industries deemed to be causing harm to health and safety in its environs, stating that ‘the right to life includes the right to live with human dignity and all that goes along with it,’ which includes the right to live in a ‘healthy environment with minimal disturbance of ecological balance.’ Mullin v Union Territory of Delhi AIR 1981 SC 746. Patricia Birnie et al., International Law, pp. 282-‐283. 49 For example, the UN Human Rights Council has acknowledged the link between the effects of climate change and the negative effects on the fulfilment of human rights. Sam Adelman, ‘Rethinking Human Rights, p. 171. 50 John G. Merrills, ‘Environmental Rights,’ p. 664 51 Kyrtatos v Greece [2003] ECHR 242, para 52. Quoted in Patricia Birnie et al., International Law, p. 301. Article 8 of the European Convention on Human Rights states that public authorities are to protect the right to respect for private
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violated, and if existing human rights have not been sufficiently affected by
environmental degradation, they are rendered irrelevant.52
This fact points to a more general problem with rights-‐based approaches
to environmental protection and sustainability. The origins of modern human
rights lie, in the work of theorists such as Thomas Hobbes, who saw the
individual as an autonomous entity struggling for survival in a hostile state of
nature. As a result, the justification for the imposition of human rights rests on
the degree to which they engender opportunities for the self-‐fulfilment of
individuals, rather than on issues of broader normative significance.53 Indeed, as
individuals are viewed as ends in themselves, and are hence the best judge of
their own affairs, government’s must refrain from paternalistic prescriptions of
the ‘good life.’54 Sustainability, however, imposes a condition on human activity
through the perspective on just what the ‘good life’ should be.55 As a
consequence of the avoidance of such prescriptions, decisions related to
investment, production and consumption are viewed as being wholly contained
within the private realm, and are only interfered with in cases where
demonstrable harm is inflicted upon individuals. Thus, a considerable amount of
human activity which gives rise to negative ecological impact is depoliticized.56
Of course, such a narrow focus does not equate to the imposition of a right
to a decent environment being without merit. After all, such a right, constructed
in the proper manner, would still tie the fulfilment of the individual to his or her
ecological surrounds and the protection of them. Yet the environmental and family life from ‘disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. European Convention on Human Rights, 213 UNTS 221 (1950). Retrieved 20 October 2010, available from http://conventions.coe.int 52 Patricia Birnie et al., International Law, p. 301. 53 Conor Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?,’ p. 8. 54 Robyn Eckersley, ‘Greening Liberal Democracy,’ p. 212 55 Chukwumerije Okereke, Global Justice and Neoliberal Environmental Governance: Ethics, Sustainable Development and International Co-‐Operation, New York, Routledge, 2007, pp. 150-‐151. 56 Robyn Eckersley, The Green State: Rethinking Democracy and Sovereignty, Cambridge, Mass, MIT Press, 2004, p. 136.
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interests of the individual are not necessarily consistent with the interests of
‘larger social or ecological wholes.’57 Were the right to a decent environment to
be assigned to collective entities, rather than individuals, those communities as
the bearers of autonomy would be the responsible for choices related to
ecological management and protection. It has been argued, however, that in
attaching rights to entities beyond the individual, we are necessarily devaluing
traditional human rights.58 On the contrary, as individuals and communities are
mutually constitutive, we can understand individual rights as being held by
individuals as autonomous beings, and as members of social and ecological
communities. Accordingly, if the rights of one were to be infringed upon, so too
would the rights of the other.59
Unfortunately, human rights are severely limited in their practicality in
this regard. In order to be ‘justiciable,’ rights claimants must be contained within
clear boundaries. Unlike the case of individuals, the boundaries of and between
social and ecological wholes can be acutely difficult to define. For example, while
it may well be a simple matter to identify individual organisms and species, it is
far more difficult to determine the boundaries of ecosystems with any degree of
precision. In order to do so, for the purposes of a rights case, would require
complex decisions of an ultimately arbitrary nature. Indeed, who can say where
a river begins and ends? Is it not part of, and critical to a larger network or
ecosystem? And to what extent are social communities separate from the
ecological context in which they are constituted?60
This brings us to a second difficulty associated with the autonomous and
atomised self upon which human rights are based. By conceptualising humans
as capable of fulfilment within and of themselves, our dependency on the natural
world for survival is ignored. Further, this ‘apartness’ from nature underpins the
belief that through our exclusive capacity for instrumental reason humans can
57 Robyn Eckersley, ‘Greening Liberal Democracy,’ p. 227. 58 Patricia Birnie et al., International Law, pp. 271-‐2. 59 Robyn Eckersley, ‘Greening Liberal Democracy’, p. 227. 60 ibid., p. 190.
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achieve mastery over the external world.61 The ecological system that supports
us is thus taken entirely for granted, and we are immobilised in the face of a
rapidly deteriorating biosphere by a belief in our own supremacy over nature.62
In order to achieve sustainability in a broad sense, we need an understanding of
individuals as embedded in, and embodied by, the social and ecological
communities to which they are members, and to which their well-‐being is
indissolubly linked.63 While the rights discourse in no doubt appealing
rhetorically, the tendency to reduce complex sets of social, political and indeed
ecological, conditions to singular equations of one individual’s rights being
violated by another, does not lend itself to such an understanding.64
In order for rights to affect changes in the way we relate to the natural
world, the way in which they are constituted will need to be rethought. It has
been argued that the attachment of collective environmental rights to future
persons would place an onus on current generations to ensure the sustainability
of their interactions with nature. But it is difficult to talk coherently in the
language of rights when the entity to which they are attach is yet to exist (a right
to a decent environment must be assigned to someone, rather than be a free-‐
floating abstraction), and it does little to imagine them as waiting somewhere
amongst the ether.65 As Hillel Steiner put it, ‘it seems mistaken to think of future
persons as being already out there, anxiously awaiting either victimization by
our self-‐indulgent prodigality or salvation through present self-‐denial’.66 To do
otherwise would be, according to Jeremy Bentham, ‘nonsense on stilts’.67 For we
have no way of the determining who those ‘future persons’ will come to be, nor
by extension the content of their interests. Accordingly, it is argued, as a being
61 ibid., pp. 222-‐223. 62 Val Plumwood, 'Ecological Ethics From Rights to Recognition: Multiple Spheres of Justice for Humans, Animals and Nature,' in Nicholas Law (ed.), Global Ethics and Environment, London, Routledge, 1999, p. 190. 63 Val Plumwood, Environmental Culture: the Ecological Crisis of Reason, London, Routledge, 2002, p. 3. 64 Val Plumwood, ‘Ecological Ethics,’ p. 203. 65 John G. Merrills, ‘Environmental Rights,’ p. 669. 66 Quoted in Katherine Smits, Applying Political Theory, p. 243. 67 Quoted in Richard P. Hiskes, The Human Right to a Green Future, p. 8.
16
with no definable interests is incapable of being harmed or benefited, it has no
good or sake of its own upon which to base rights claims.68
But does their indeterminacy really matter? After all, people will come
into being during the normal course of events, and though we may not yet know
the content of their interests, except perhaps for a desire to have access to
breathable air and drinkable water, we can be certain that they will have
interests of some form. Further, as those interests can be affected by our actions
now, they are clearly of normative significance.69 Yet the very content of a future
person’s wants, desires and preferences can be partly determined by decisions
made in the present; the value placed by them in sensations related to natural
objects, for example, is determined upon them existing in the first place. It is
therefore somewhat spurious to appeal to the ‘interests’ of future people in
formulating decisions that affect their content.70 What the debate surrounding
rights for future generations reminds us though, is that should a right to a decent
environment be assigned to individuals or social communities in the present, it is
clear that these rights will also future bearers, which our actions and decisions
may one day come to violate.71 By thinking about human rights in this manner,
the link between rights, justice, and sustainability becomes clear.
Accordingly, for a right to a decent environment to sustain a certain level
of environmental quality into the future, justice must be secured in the present.
Justice is thus a means as well as an end.72 The rights discourse, however, faces a
further problem in the degree to which it is viewed as a wholly Western creation.
Certainly, it was primarily Western governments that developed the modern
conception of rights following World War II, and as a result it is heavily imbued
68 Robert Elliot 'The Rights of Future People,' Journal of Applied Philosophy, Vol. 6, No. 2, 1989, p. 160. For an indepth discussion of these arguments see Joel Feinberg, 'The Rights of Animals and Unborn Generations,' in William T. Blackstone (ed.), Philosophy and Environmental Crisis, Athens, University of Georgia Press, 1974, pp. 51-‐65. 69 Katherine Smits, Applying Political Theory, p. 243. 70 Christopher D. Stone, Should the Trees Have Standing?, p. 104. 71 Robert Elliot, ‘The Rights of Future People,’ pp. 160-‐163. 72 Nigel Dower, ‘Global Economy,’ p. 402.
17
with Western liberal ideology. This association raises the question as to what
extent the rights discourse is accepted by cultures and societies with different
political and social underpinnings, and divergent historical and ideological
backgrounds. Developing countries in particular may view a human right to a
decent environment, and corresponding restrictions on growth, as an extension
of colonial domination through the imposition of a particular form of political
philosophy.73 For those who have not reaped the benefits of ecological excess,
justice may well involve the ‘right’ to follow the same path of development.74 Yet
if developing countries pursue their own economic development with the same
utter disregard for environmental consequences displayed by developed
countries, it is clear that the chances of a sustainable world are greatly
diminished.75
Thus, the requirements for justice need to be framed within a universal
moral language, accessible to people of varied cultural and political backgrounds,
in order for a right to a decent environment to be effectual. Arguments of a
universal nature, however, are deemed by many to be baseless given the claim
that moral considerations are dependent upon culturally constructed contexts.
In response one could argue for such a language to be based upon a naturalist
ethic, determined by the shared relationship humans hold with nature, and upon
which rights could be reconstituted. As part of this reconstitution rights would
be extended to natural objects and ecosystems, thereby giving nature equal
standing in the human/nature relationship, and radically altering our
interactions with it.76
73 Stephen Turner, A Substantive Environmental Right, p. 54. 74 This would take the form of a ‘right to emit’ greenhouse gases in order to reach a certain level of development, taking the form of a property right. For an indepth discussion regarding the problems such a right would pose for sustainability see Tim Hayward, Human Rights versus Emissions Rights: Climate Justice and the Equitable Distribution of Ecological Space,' Ethics and International Affairs, Vol. 21, No. 4, 2007, pp. 431-‐448. 75 Henry Shue, ‘Subsistence Emissions and Luxury Emissions,' in Stephen M. Gardiner et al. (eds.), Climate Ethics: Essential Readings, Oxford, Oxford University Press, 2010, p. 101. 76 Brian Baxter, A Theory of Ecological Justice, London, Routledge, 2005, p. 14.
18
Indeed, the reconstitution of the rights discourse would be necessary
considering the difficulties it would face in accommodating natural objects
within it. As an anthropocentric view of the world, which is inherent in the term
human rights, the rights discourse assigns moral consideration solely to
humanity, thereby valuing natural objects only to the extent that humans ascribe
them value – they have no inherent worth of their own.77 This is justified on the
basis that natural objects cannot experience human prescriptions such as
pleasure, pain and suffering.78 The absence of a conscious moral being within a
natural object that can experience rights or wrongs brought upon it (it makes no
difference to a tree if we chop it down or not) means an ethic, and by extension
rights, cannot be grounded upon its interests. In contrast, the felling of a tree
may negatively affect, for example, humans that live in and off the forest where
the tree formerly stood.79 When determining the morality of actions affecting
the natural environment, all that need be asked is whether the consequences
were unfavourable to human well-‐being, and were the actions themselves
consistent with the realisation or otherwise of human rights? Thus, the
protection of the environment is not for its own sake, but for ours.80
The case of animals, especially those considered ‘higher animals,’ is
instructive in this regard. As conscious or sentient beings, they are thought by
some to have an inherent value or good similar to humans, and as such are
deserving of equal moral consideration.81 Yet are natural objects so dissimilar,
save for a supposed lack of cognitive capacity? They too can thrive or wither as
individuals in their pursuit of full development; they too have capacities for
growth and reproduction; they too display a desire for self-‐protection; and it is
77 Katherine Smits, Applying Political Theory, 236. 78 Robin Attfield, 'The Good of Trees,' Journal of Value Inquiry, Vol. 15, 1981, p. 37. 79 Peter Singer, ‘Ethics Across the Species Boundary,’ in Nicholas Low (ed.), Global Ethics and the Environment, London, Routledge, 1999, pp. 146-‐147. 80 Paul W. Taylor, ‘The Ethics of Respect for Nature,' Environmental Ethics, Vol. 3, Fall 1981, p. 198. 81 See for example Joel Fienberg, ‘The Rights of Animals,’ pp. 49-‐52; and Tom Reagan 'The Case for Animal Rights,' in Peter Singer (ed.), In Defence of Animals, New York, Blackwell, 1985, pp. 22-‐24; and Peter Singer, ‘Ethics Across the Species Boundary,’ pp. 146-‐147.
19
these interests that can be harmed or benefited.82 Under a naturalist ethic we
would not need to ascribe human characteristics such as cognisant wanting in
order for natural objects to have intrinsic value, and to be deserving of concern
and ethical consideration in their own right. As essential irreplaceable members
of the ecological context, the realization of their interests is intrinsically valuable,
and they are hence worthy of being preserved as an end in and of themselves.83
Moreover, as humans are constituted within their ecological surrounds, the
realization of the interests of natural objects is consistent with that of humans.84
There will, inevitably, be objections to the extension of rights to natural
objects on practical grounds. As they are unable to either seek legal remedies on
their own behalf, or receive the benefits of judicial relief, they cannot carry legal
rights in the traditional sense.85 Yet corporations, children, states, and the
incompetent, who also are unable to speak for themselves, have been granted
rights, and made claims upon them through legal representatives.86 Indeed, it
seems fallacious to claim that is necessary to possess the intellectual capacity
required to comprehend what a right is, or to initiate a claim upon one’s rights, in
order to be in the possession of rights.87 It is not beyond the realms of possibility
then, and indeed seemingly reasonable, that guardians could be assigned to
represent the interests of natural objects in much the same way.88 This is not to
deny that practical obstacles to the extension of rights to the natural
environment do not exist (the issue of boundaries comes to mind), but rather to
argue that they are not insurmountable.
82 Robin Attfield, ‘The Good of Trees,’ pp. 38-‐40. 83 Paul W. Taylor, ‘The Ethics of Respect for Nature,’ pp. 199-‐201. 84 Eric Katz et al., 'Introduction: Deep Ecology as Philosophy,' in Eric Katz et al. (eds.), Beneath the Surface: Critical Essays in the Philosophy of Deep Ecology, Cambridge, Mass, MIT Press, 2000, p. xiii. 85 See for example, Joel Feinberg, ‘The Rights of Animals,’ pp. 43-‐44 86 Christopher D. Stone, Should the Trees Have Standing?, p. 8. 87 Joel Feinberg, ‘The Rights of Animals,’ pp. 46-‐47. 88 Nor would it be difficult to locate suitable guardians; Friends of the Earth and The Sierra Club would be well suited to this task. Christopher D. Stone, Should the Trees Have Standing?, p. 9
20
Each extension of rights to new entities throughout legal history has,
moreover, encountered resistance.89 Opposition to the imposition of rights has
endured so long as that entity is not seen as having value in and of itself.
Typically though such a re-‐imagining does not occur until resistance is broken,
and rights are granted. Until then, those entities are seen only as objects whose
value lies in their usefulness to rights holders.90 It is this process, through which
rights emerge from social movements, that marks them as a construct rather
than being naturally bestowed entitlements.91 They have their own logic,
moving from ideal to practice, from moral aspiration to entrenchment as legal
instruments.92 As our understanding of our relationship to our ecological
surrounds evolves, so too must our understanding of rights. For just new harms
emerge which do not fit into the traditional language of rights, so to must new
rights emerge.93
My argument here is that the very real and very present threat of
ecological destruction requires a re-‐conception of the ways in which we interact
with our ecological surroundings. As opposed to the current policy response to
this threat, ‘sustainable development,’ which seeks merely to ‘green’ existing
structures of economic development, I have argued for a conception of
sustainability that would radically examine the viability of those structures
themselves. As those structures are not currently sustaining the conditions
required for human fulfilment, a radical alteration in our behaviours and
practices is required. Rights as they are traditionally conceived are ill suited for
this task, for reasons related to their original conception as the property of
autonomous individuals. In order to guarantee a more sustainable world
through rights mechanisms, therefore, the basis upon which rights are
constituted would need to be rebuilt such that the rights discourse could
accommodate the emergence of a collective environmental right, and extended 89 Examples would include the extension of rights to children, slaves, African Americans, colonial subjects, and of political rights to women. 90 Christopher D. Stone, Should the Trees Have Standing?, p. 3. 91 Conor Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?,’ p. 11. 92 Richard P. Hiskes, The Human Right to a Green Future, p. 144. 93 Ibid, p. 147.
21
to include the natural world upon which we are dependent. While the use of a
rights-‐based approach to environmental protection will inevitably be difficult
given the obstacles that have been discussed, if we are affect real changes in
attitudes, behaviours and ultimately practices, it is the most accessible and
effective path to take.
22
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