Environmental Human Rights

A Political Theory Perspective

Markku Oksanen, Ashley Dodsworth, Selina O'Doherty, Markku Oksanen, Ashley Dodsworth, Selina O'Doherty

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351742511
• Edition: 1
• Topic: Economia
• Subtopic: Sviluppo sostenibile

The nature of environmental human rights and their relation to larger rights theories has been a frequent topic of discussion in law, environmental ethics and political theory. However, the subject of environmental human rights has not been fully established among other human rights concerns within political philosophy and theory.

In examining environmental rights from a political theory perspective, this book explores an aspect of environmental human rights that has received less attention within the literature. In linking the constraints of political reality with a focus on the theoretical underpinnings of how we think about politics, this book explores how environmental human rights must respond to the key questions of politics, such as the state and sovereignty, equality, recognition and representation, and examines how the competing understandings about these rights are also related to political ideologies.

Drawing together contributions from a range of key thinkers in the field, this is a valuable resource for students and scholars of human rights, environmental ethics, and international environmental law and politics more generally.

1
The rights of humans as ecologically embedded beings

Kerri Woods¹

Introduction

Humans are ecologically embedded beings, that is to say, we are dependent upon, and in important ways vulnerable to, the non-human environments in which we live. We need air to breathe, water to drink, soil to grow food. We also need shelter from natural phenomena such as hostile weather, extremes of cold and heat, and we try to protect ourselves from viruses and bacteria. In short, our materiality renders us vulnerable to our environment (Grear 2013). We are said to have human rights in virtue of our humanity. Rights are a social phenomenon; we do not, and could not, have rights against weather or viruses. We have rights against other human beings, or, more specifically, against human institutions. For the most part, human rights are codified such that we have rights against our own governments. Human rights tell us much about what we understand human beings to be, both individually and in relation to one another.

Historically, human rights law and practice has had comparatively little to say about the rights, and much less any associated duties, that humans hold with respect to their environments. Indeed, while human rights have recognised the materiality of human beings to a degree, it is nevertheless clear that the vision of the human at the centre of human rights has not paradigmatically been an ecologically embedded being, that is, one whose dependence upon the non-human environment is central to the self-conception of the human. However, this historical omission need not lead us to reject human rights as a framework for addressing urgent environmental challenges. For a brief study of the history of human rights also tells us that, in both law and in political practice, human rights are malleable. While critics have worried that the ‘protean’ character of human rights is evidence of their ultimate meaninglessness (Glendon 1994), social movements have proven that the enduring appeal of human rights presents an opportunity to harness a dominant normative language to advance new causes.

In the process of adopting human rights, social movements have also served to redefine them (Stammers 1999). In redefining human rights, we begin to challenge the dominant idea of the human, and of the community, which practices of human rights affirm. Thus, the remarkable dominance of human rights as a global legal and political framework presents a strategic opportunity from an environmental point of view to foster a view of the human as an ecologically embedded being, and to fully articulate the rights and the duties that such a vision of the human might entail.

In this chapter, I begin by commenting briefly on the history of human rights, not to give a full account of how human rights came to be accepted as dominant norms, but rather to highlight the ways in which human rights practice has simultaneously defined and challenged dominant normative visions of what it is to be a human being and who falls within the scope of the community of justice demarcated by these rights. I endorse Henry Shue’s (1990) notion that human rights as codified in international law after World War II were enacted to protect the human against ‘standard threats’. In the second section, I outline some of the ways in which widely accepted human rights are severely threatened by environmental issues both now and in the future. This being accepted, there is a prima facie case for either an extensionist defence of environmental human rights, or the articulation and recognition of new, distinctly environmental human rights. I then proceed to a discussion of recent developments in human rights legal practice that point tentatively towards an emergent body of environmental human rights. Finally, I reflect on what these emerging trends suggest about the ways in which we understand the human and the scope of the community of rights.

The human in the history of human rights

There is a tendency in legal and political thought to downplay the historicity of human rights. For example, Charles Beitz’s (2009) influential analysis of human rights takes as its point of departure the advent of human rights institutions in the post–Second World War settlement. Yet, as historians and sociologists have long noted, human rights can trace their origins at least to the 18th century declarations of rights in revolutionary America and France, and to the texts and movements which shaped those events (Hunt 2007; Ishay 2008; Stammers 1999). Seventeenth- and eighteenth-century natural rights theorists had a palpable influence on the content of the rights proclaimed by the American and French revolutionaries. The anti-slavery movements, feminist movements and workers’ rights movements of the 19th century also profoundly shaped 20th-century understandings of human rights.

Human rights declarations are written by human beings in a particular historical and social context. It should not surprise us, then, that despite the purported universalism of human rights, they vary at times, as they are shaped by circumstance, time and place. Nor need it follow from this that human rights are not in an important sense true: We may accept as true the claim that there are certain forms of treatment that ought never to be visited on any human being anywhere, or that there are certain thresholds of well-being below which no human being should be permitted to fall, whilst at the same time affirming that particular legal or political declarations of rights have not accurately captured that truth (Woods 2014).

It is not always easy to identify the subject of human rights. There are national and international human rights laws, there are philosophical debates about what kinds of rights human beings (should) have and why, and there are political claims advanced by social movements and political actors who appeal to human rights as a moral standard. I take human rights practice to be the sum of all of these processes, and possibly more.

Understood in this way, the history of human rights is a history of contestation. For example, the Declaration of the Rights of Man and the Citizen which was proclaimed in France in 1791 was universalistic in its ambition – note it refers to the rights of ‘man’, so potentially all men. It was written by privileged men who had read the natural rights theorists, who were both excited by the ideas of the Enlightenment and caught up in the exhilaration and zeal of a revolutionary movement. It proclaimed many rights that we continue to recognise as human rights – rights against torture and political despotism, rights to freedom of conscience and assembly – but it restricted these rights to white men who were Catholics. Neither women, nor non-Europeans, nor Protestants, nor Jews were considered to belong within the community of justice demarcated by the status of rights-bearer. Vigorous debate ensued, within the National Assembly and in the wider public and press. Within months the community of justice was expanded to include all Christian men, and subsequently Jews. Yet claims for the rights of women, powerfully articulated by Olympe de Gouges, who was herself a significant political figure at the time, were dismissed, as were the rights of non-Europeans (van Kley 1994; Hunt 2007).

This process of contestation gives rise to a worry, that human rights are ‘protean’ in character – that they can be re-shaped to fit new demands as they arise, and that in fact they invite new demands. New claims that are comparatively trivial are presented in the same language, and thus on the same moral terms, as grave wrongs such as torture. Human rights, we are told, are inalienable and indivisible, but, the sceptic asks, is the right to freedom from discrimination on the grounds of gender really so very urgent and important as the right not to be tortured?² Persons previously considered to be outside the moral community demarcated by the status of rights-bearer demand a place within the community of rights. Hence, we now have human rights treaties affirming the rights of women, children, and all men of whatever colour or creed. Principles of universal rights for LGBT people have been the subject of global debate. As the community of rights expands, the picture of the paradigmatic rights-bearer changes.

But these changes are sometimes met with hostility, not just concerning objections to particular rights (e.g., social and economic rights), or particular rights-bearers (e.g., children), but also on grounds relating to the principle and standing of human rights themselves. This process of contestation and expansion, it is claimed, diminishes the potency of all human rights claims and betrays at best confusion on the part of the proponents for these new human rights. If anyone can be a subject of human rights, and anything can be an object, then human rights violations, far from becoming rare and serious and terrible, will become common and relatively trivial. Carried to its conclusion, this worry would lead us to dismiss the very idea of environmental human rights as just another manifestation of the endless proliferation of human rights claims, which dilutes the significance of those core rights that are really human rights.

There is not nothing in this worry, but I think it can be substantially resisted. Certainly, we need not be seduced by it into giving up on a moral idea and legal and political framework that has gained remarkable legitimacy since the Universal Declaration of Human Rights (UDHR) in 1948. Human rights do not guarantee a good life, or happiness; instead they denote a set of moral minimums for a decent human life. We might profitably follow Henry Shue (1990) in speaking of ‘basic rights’ which protect against ‘standard threats’ to human dignity. These standard threats speak to the universalism of human rights: Though human societies may differ radically, there are features and practices of social and political life which would be a threat to a minimally decent human life in any context. Human rights express the moral claim that no human being, no matter who or where they are, should be subjected to these things.

The protean character of human rights is explained when we consider that as the shape and content of such threats has changed over time, so the shape and content of what are widely held to be humans’ fundamental rights has likewise changed. On one level this is purely technical: Changes in technology have had a profound effect on the ways in which humans live and organise themselves politically and economically; we would expect the legal frameworks that we use to demarcate standards of a minimally decent life to similarly change. But the example of the scope of rights as understood in 18th-century France should also alert us to the ways in which our perception of standard threats is shaped by ideology as much as by practicalities. The content of rights is in part shaped by those who we take to be axiomatic of the category ‘human’. If you understand propertied white men to be the paradigmatic human being, then you will not consider food shortages to be amongst the ‘standard threats’ to the dignity of human beings. The Anglo-American revolutionary Thomas Paine was amongst the few natural rights theorists to take seriously the idea of welfare rights. It took the struggles of 19th-century socialist movements and the presence of socialist and communist state representatives on the drafting committee that created the UDHR to deliver a commitment to both civil and political rights as well as social, economic and latterly cultural rights (Ishay 2008; Woods 2014). Even so, the reception of social and economic rights was shaped by the history of their relative absence from texts that were accepted as authoritative accounts of natural rights – hence, the energetic and to some extent ongoing debate as to whether subsistence rights are really human rights (Cranston 1968; Shue 1990; Pogge 2002).

This history is relevant not just to understanding the ways in which contemporary innovations in human rights theory and practice might respond to environmental issues, but also to understanding both the potential and problematic heritage of human rights from an environmental point of view. Human rights express a vision of the paradigmatic human, which develops over time. If that is true, then, if it is the case that the human in human rights theory is one who stands independent of her environment, who is recognised as socially embedded (otherwise we would not have rights at all) but not really as ecologically embedded, then, insofar as human rights represent an authoritative set of global norms, they are in fact seriously troubling from an environmental point of view. Indeed, ecocentric theorists have long pointed to the traditions of thought to which human rights are substantially indebted as having articulated and perpetuated a vision of the human as apart from nature, as valuing nature at best instrumentally, and as ultimately conceiving of non-human nature as utterly disposable (see, inter alia, Marshall 1995, Davies et al. 2018).

The environment and/in human rights

What does it mean to say that humans are ecologically embedded beings? We are material, bio-physical beings: we need air, soil, water and shelter in order to survive. For our access to air, soil and water to be sustainable, we also need functioning ecosystem services, like a stable climate and sustainable levels of biodiversity. We are only beginning to fully understand the complexity of ecological systems. In profound ways, our very existence is utterly dependent upon non-human nature.

It is clear that currently dominant patterns of production and consumption of natural resources are unsustainable, given the scale of the human population and both the volume and nature of pollutants being produced. Though some steps are being taken to move towards cleaner modes of energy production and to reduce waste and pollution, it remains the case that the globalised economy wreaks massive and systemic environmental damage on the planet every year. To take only the example of climate change (which is arguably the most pressing environmental issue at a global level, but by no means the only one), there is a substantial body of scientific evidence of anthropogenic climate change generating profound impacts that threaten the human rights of current and future human beings.³

As Simon Caney has noted, climate change violates at least three human rights that are widely recognised and codified in international law: the right to life, the right to health, and the right to subsistence (Caney 2010). Climate change causes an increase in the frequency of severe weather events such as storms, flooding, landslides, tornadoes, and also increases the severity of extreme weather such as extreme heat and droughts (IPCC 2014). People have died and will die from these conditions. These phenomena will intensify if the worst predictions of climate change are not mitigated. Insofar as anthropogenic climate change has exacerbated these conditions, it is plausible to speak of these deaths not as natural tragedies, but as human rights violations. Similarly, climate change impacts upon human health. Changes in average temperatures and in patterns of rain are predicted to substantially increase the geographical spread of various tropical diseases, thereby exposing more people to the risk of (potentially severe) ill health. Finally, in disrupting global food supply chains and pushing up prices, climate change impacts upon human rights to subsistence. These human rights impacts will fall disproportionately on persons already burdened by poverty, disease and conditions of insecurity. Residents of low-lying areas, particularly those in Pacific Island States and indigenous groups in Arctic regions, will be especially affected and potentially face their homelands being submerged.

The existence of the human right to health, rights to water and food, as well as rights to self-determination with respect to territory, may be said to affirm the materiality of human beings, and to implicitly recognise the human as an ecologically embedded being. Such rights have certainly opened the door to an extensionist approach to environmental human rights, that is, an approach that takes currently recognised human rights and adapts them for environmental ends, essentially extending the human rights already accepted and affirmed in law rather than arguing for a more fundamental change in the shape of recognition of new rights. This approach has its merits: It is certainly less controversial, and in making use of existing resources has the potential to facilitate urgent environmental protections that cannot wait for the years of campaigning and negotiation that precede the agreement of new human rights laws nationally or internationally.

Yet, in taking human rights as they are currently to be found, the extension-ist approach does little to affirm the complexity of human dependence on non-human nature. Breathable air, usable soil and clean water are not simply resources that can be extracted and consumed. They exist within intricate ecological systems on which we ultimately depend, and which we have altered, to our palpable harm. If our rights to the tangible environmental resources are to be secure, our relationship to non-human nature must be fundamentally re-oriented towards one of stewardship, as Aldo Leopold suggested many decades ago, and away from an attitude of appropriation and mastery (Attfield 1999). This relationship potentially suggests a heightened salience for...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of table
• Notes on contributors
• Acknowledgements
• Introduction: environmental human rights and political theory
• 1 The rights of humans as ecologically embedded beings
• 2 Defining the natural in the Anthropocene: what does the right to a ‘natural’ environment mean now?
• 3 Reconciliation of nature and society: how far can rights take us?
• 4 The foundation of rights to nature
• 5 Rights to natural resources and human rights
• 6 Making sense of the human right to landscape
• 7 What’s so good about environmental human rights? Constitutional versus international environmental rights
• 8 Environmental human rights – concepts of responsibility
• 9 Future people’s rights: dispelling an ontological worry
• 10 Human rights–based precautionary approaches and risk imposition in the context of climate change
• Index