Human Rights and Sustainability

Moral responsibilities for the future

Gerhard Bos, Marcus Düwell

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317351764
• Edition: 1
• Topic: Economia
• Subtopic: Sviluppo sostenibile

The history of human rights suggests that individuals should be empowered in their natural, political, political, social and economic vulnerabilities. States within the international arena hold each other responsible for doing just that and support or interfere where necessary. States are to protect these essential human vulnerabilities, even when this is not a matter of self-interest. This function of human rights is recognized in contexts of intervention, genocide, humanitarian aid and development.

This book develops the idea of environmental obligations as long-term responsibilities in the context of human rights. It proposes that human rights require recognition that, in the face of unsustainable conduct, future human persons are exposed and vulnerable. It explores the obstacles for long-term responsibilities that human rights law provides at the level of international and national law and challenges the question of whether lifestyle restrictions are enforceable in view of liberties and levels of wellbeing typically seen as protected by human rights.

The book will be of interest to postgraduates studying Human Rights, Sustainability, Law and Philosophy.

1 Human rights and future people

An introduction

Gerhard Bos and Marcus Düwell

DOI: 10.4324/9781315665320-1

Introduction

From a normative perspective, although one of the main problems related to climate change is that CO₂ emissions are too high, perhaps the primary issue is that global and local institutions are failing to address this urgent issue.

On 24 June 2015, the environmental organization Urgenda ‘and nine hundred co-plaintiffs were victorious in the climate case …, forcing the Dutch government to adopt more stringent climate policies’. A court based in The Hague demanded This verdict is unique for several reasons, most of which are to do with the fact that a legal institution has taken a position in a new and perhaps unexpected way by giving a future-oriented interpretation of the state's responsibility to protect its citizens facing climate change. The verdict is surprising, at least for anyone who understands environmental concern as a private, if not insignificant, affair and as something that should not be on the agenda of politicians, whose main task is to protect personal liberty. The idea that climate change is a threat to many of our future interests and liberties will require a quite radical reframing of the approach to climate policy.

that the Dutch government do what the government itself has already deemed necessary in order to avert dangerous climate change. The court is ordering the Netherlands to reduce CO₂ emission by a minimum of 25% (compared to 1990) by 2020, while current ambitions are hovering at 16%

(Urgenda 2015)

Furthermore, the verdict implies a stance on the distribution of authority and responsibilities within a state facing climate change. In addition, the verdict respects the idea that law and politics should be independent, emphasizing that lawyers do not make policy and that politics does not apply the law. However, it does imply that the government should respect law and that law should have the authority and the responsibility to make sure the government does so, especially when it comes to the government's legal responsibility to protect its citizens. If the government does not do what on the basis of our best scientific knowledge would be required to protect its citizens against a threatening future, law can be used to require governments to generate and choose between policy options that meet this requirement. According to what can be implied from the verdict, science has a distinctive role to play with regard to law and politics. The question of whether the state fulfils its legal responsibility is decided by a judge on the basis of the effects of the actual policy interpreted in the light of scientifically predicted scenarios.

The idea of the state having responsibility to protect its citizens is not a peculiarity of the Dutch legal system. That is why this case is perceived as a test case for lawsuits against governments of different nations. So there is more to come. The general questions raised by this case are what responsibility a state has for people living in the future and, primarily, to what extent this is a responsibility grounded in rights.

Climate change is a global challenge that has a global cause and a global impact and that requires a global solution. Of course, any solution to it should be implemented via different national policies and diverse local practices of realization that take local side-constraints and the cultural and social peculiarities of different countries into account in order to enable an effective and broadly accepted realization. However, an adequate and effective response to climate change requires the distribution of the responsibility for implementing climate policy between relevant nations and probably the concerted action of global institutions. Hence, addressing climate change also requires international recognition of a common responsibility for climate policy as well as the distribution of climate policy between nations. Climate negotiations aimed at creating binding agreements for such distribution have thus far not been particularly successful – because of scepticism about climate change, because of a failure to agree on the distribution of responsibilities, because of tensions between rich and poor countries and because of different judgements with regard to the weight historical emissions should have when distributing responsibilities in the future.

However, if one thing is suggested in the Dutch context, it is that protecting the basic rights of people living in the future is not up for negotiation – neither at the local nor the global level. The air of optionality has disappeared, and a normative orientation towards the protection of basic rights has been provided as a basis from which to negotiate climate policy and distribute responsibility for implementing it.

From a philosophical perspective, the central question is whether national and international institutions that are building on basic rights require protection of these rights for the future. In this book, we explore whether and to what extent international human rights practice requires protection of the basic interests of vulnerable human beings that will exist in the future. The practice, and in particular what is legally binding in it, may have been developed in a context in which nobody would have thought that it would one day be used to address climate change. However, its normative commitment, understood as the responsibility to progressively secure the basic interests of vulnerable human beings, seems to invite application to climate change. It is crucial to see how anthropogenic climate change exposes human vulnerability within the lifetime of future generations, if not already within our current generation's future. Hence, a coherent commitment to human rights practice requires that the question of what can be done about climate change be asked in terms of it.

The leading research question in this book is whether long-term environmental responsibility is implied by an account of human rights. To address this question, our focus will be on spelling out to what extent human rights – conceived as a legal institution built on a moral idea – require respect for people living in the near or distant future. In doing so we will refer to the interpretation of long-term responsibilities in the contemporary, legally valid human rights regime. But primarily, the book will deal with philosophical conceptualizations and attempts to justify the normative authority of human rights in this regard. This strong focus on the philosophical perspective is motivated by the insight that a reinterpretation of human rights as a response to ecological challenges is of such fundamental importance that we have to refer to the basic understanding of what human rights are about, which has primarily and extensively been the topic of philosophical debate for quite a while.

The first part of the book will be legal in focus, explaining to what extent long-term environmental concern is consistent with, and can be framed in terms of, existing human rights practices and documents. In Chapter 2, Elina Pirjatanniemi addresses the issue of the obstacles to and promises for long-term environmental protection, with a focus on the European Convention of Human Rights. Via the idea of sustainable development, she distinguishes four forms of sustainability, ranging from very weak to very strong, and explores the extent to which these can be covered by the convention. Pirjatanniemi shows that the weaker forms of sustainability are more easily recognized under the convention, whereas stronger forms could be recognized but only if the scope of those with legal standing is widened and precautionary reasoning is more emphasized.

In Chapter 3, Peter Lawrence develops the idea of an ‘atmospheric trust’ as a reform option in international human rights law. Starting with an interpretation of international human rights, which advocates that its underlying ethical principles apply to future generations, Lawrence spells out a utopian human rights law that would protect the environment for future generations in terms of its scope, structure and effectiveness. The upshot of this is a utopian right to a healthy environment that can be claimed on behalf of future generations by an atmospheric trust, but that will continue to face challenges associated with balancing it against other interests, including the distribution of mitigation burdens between generations. The chapter ends by explaining the reform options of international human rights law in view of this utopian understanding.

In Chapter 4, Emilie Gaillard identifies the development of legal recognition of future generations and pleads that we need to change our mode of thinking in relation to contemporary human rights law so that it protects future generations. Here, the central ideas seem to be that various notions, justifications, divisions and symmetrical relations currently important in the theory and practice of human rights have to be rethought if we are to anticipate and prevent a human rights tragedy for future people.

In Chapter 5, Stephen Riley explores the possibility of having human rights-based sustainability duties via the idea of human rights law as an international constitution. Human rights have legal and moral dimensions that, although distinct in a relevant sense, are interdependent. Conceived as constitutional, international human rights law is the self-projection of an international community of human rights in the future. From this follows the recognition of duties that concern the rights of future human individuals. The chapter ends with an evaluation of this approach in terms of the specification of sustainability duties, the duty holder, the whole range of addressees of human rights and the claimants of such rights. The conclusion is that international human rights law has its own potential to transcend the generational limits it encounters today.

This chapter ends the part of the book that is about recognizing long-term environmental responsibility within existing human rights frameworks. The take-home message is twofold: there are obstacles to doing this, but – with creative will and effort – various reform options are possible, if not required, that would safeguard a healthy environment in terms of rights for future generations that could be justified in terms of core ideas of human rights law. The second part of the book will identify at a conceptual level the argumentative possibilities and obstacles that there are for framing long-term implications of human rights, primarily highlighting the extent to which central concepts in the analysis of human rights could imply long-term responsibilities.

In Chapter 6, Marcus Düwell argues that it should be recognized that human rights imply duties in terms of the protection of vulnerable human agents. The guiding idea behind this is that dignity, as the normative principle underlying human rights, requires acceptance of a responsibility to protect vulnerable human agents of the future. Düwell explores the conceptual possibilities and implications of a human rights regime from an intergenerational perspective.

Jos Philips, in Chapter 7, argues that a human rights approach to climate change fits the central requirements that basic rights are there to offer right-holders protection against standard threats up to a threshold level. The chapter starts with an explanation of the basic idea, followed by a positioning in relation to alternatives in order to clarify it further and understand its distinctive strengths and weaknesses. The chapter closes by rejecting the application to it of some of the general objections of sufficientarianism.

In Chapter 8, Adina Preda considers environmentally sustainable policies as elements of intergenerational justice, environmental justice and global justice. More specifically, she addresses the question of whether, in the contexts of these three forms, a sustainable policy would be required as a matter of rights or whether it should be framed differently. To answer that question, Preda operationalizes the distinction between an Interest theory and a Choice theory of rights. From this, she infers that the idea of future people's rights against us is best understood in terms of an Interest theory, and then notes how this may imply that future people will have rights, but not in the form of rights against us. Preda rejects the idea of a rights-based approach to environmental justice, and argues that a rights-based approach in the context of global justice, when taken to imply (long-term) environmental responsibilities, is problematic in view of the nature, content and addressees of the obligations.

In Chapter 9, Gerhard Bos argues that our individual status as a subject of human rights is connected with the possibility of future human persons having this status too. He identifies the challenges of thinking about long-term responsibility generationally, and claims that the first question we should ask about such a responsibility should concern individual and collective responsibility in relation to future people's future rights. Bos introduces the idea of a ‘chain of status’ as a compatible alternative line of argument to (i) the direct approach, which asserts that future people have rights against us and (ii) the chain style approach, which holds that we have duties regarding future people in terms of duties to specific interests or rights of contemporaries. Bos argues that the chain of status argument justifies enforceable and overriding long-term responsibilities without having to address the objections to the two approaches just mentioned.

This ends the part of the book in which the possibilities of a rights-based approach to long-term responsibility are explored on conceptual grounds. Combining this with the take-home message of the first part of the book, we find that – despite the challenges related to the existence and identity of future people – there appears to be a sufficient moral and philosophical reason to attribute human rights to future people. There may be disagreement about how environmental responsibilities in relation to future people have to be justified, but there are different ways of arguing that we should be concerned with future human persons and their interests.

The third part of the book considers various ways in which a rights-based approach to long-term responsibility makes a distinctive contribution. In this part, the pros and cons of a rights-based approach to long-term responsibility are assessed with regard to various forms that thinking about sustainability in terms of human rights could have in practice.

Michael Reder and Lukas Köhler argue in Chapter 10 that rights have a use apart from their function in legal review or courts in that they produce norms in a public sphere that accepts rights. The authors explore this function of human rights in a global sphere, in particular with regard to norms in the context of climate change. They emphasize that, interpreted in terms of the need for a decent life, freedom, equality, solidarity and participation give orientation to a global politics that is facing global challenges. As such, they should also give direction when responding to climate change at the global level.

In Chapter 11, Deryck Beyleveld advances an argument illustrating why and how a theory of rights, because of its internal logic, would demand recognition of the rights of future generations that would also entail duties towards them. Beyleveld introduces Alan Gewirth's Principle of Generic Consistency and two justifications of it, and shows how these address a variety of normative concerns and lack of clarity when it comes to recognizing and identifying duties to future generations.

Rutger Claassen, in Chapter 12, addresses the question of what the content of the rights of future generations is, focusing primarily on the function of rights to protect capabilities of future agents. Arguing for capability protection across generations, Claassen points out that this leaves open the issue of what resources should be left to future generations. He then goes on to criticize the total capital conception of such resources, and advances the idea that the preservation of specific forms of natural capital fits best with the capability approach to the rights of future generations.

Chapter 12 ends the part of the book that illustrates what the distinctive qualities would be of a human rights approach to long-term responsibility. Human rights have a use apart from their legal function, giving normative orientation in terms of their presuppositions. Furthermore, they can be used to decide substantial normative issues in the context of long-term responsibilities, primarily by accounting rationally for human rights and their content.

The fourth part of the book discusses what requirements long-term responsibilities based on human rights would entail f...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• 1 Human rights and future people: an introduction
• PART I Obstacles and promises in contemporary human rights law
• PART II Long-term responsibility and the theory of human rights
• PART III Human rights approaches to sustainability
• PART IV Implications and implementation
• Index