Do human rights and environmental law contradict each other?

Master

Reference

Do human rights and environmental law contradict each other?

DUELLA, Nitya

Abstract

Climate change is recognised today as an irrefutable threat to human development. However, in the face of this threat, countries have yet to respond with the urgency required, often citing the tradeoff between economic prosperity and the safeguarding of human rights and environmental protection efforts. By examining the place that human rights occupy in international environmental treaties and the philosophical foundations of human rights, this paper first seeks to determine whether these two fields of law find themselves in opposition.

This paper then provides interpretations for reconciling the interactions between human rights and international environmental law

DUELLA, Nitya. Do human rights and environmental law contradict each other?. Master : Univ. Genève, 2019

Available at:

http://archive-ouverte.unige.ch/unige:150859

Disclaimer: layout of this document may differ from the published version.

Do human rights and environmental law contradict each other?

M

T

Written by: Nitya Duella

Supervisor: Professor Thomas Schultz

Geneva, Novembre 2019

Table of contents

Introduction ... 3

Defining the Scope ... 4

The place of human rights in international environmental law ... 5

The founding texts of international environmental law ... 5

The Stockholm Conference and human rights ... 5

The Rio Declaration and human rights ... 6

Human rights ... 8

A brief history ... 8

The philosophical foundations underpinning the UDHR ... 9

Human dignity ... 9

Characteristics of Human Rights ... 10

Using human rights to protect the environment ... 13

Re-thinking the current model ... 15

Conclusion ... 18

Bibliography ... 19

Introduction

Over the past decade, environmental concerns and climate change have become part of public discourse. With increasing levels of greenhouse gases in the atmosphere, the place that human beings occupy in the global ecosystem has come under scrutiny. However, there is no denying, although some across the pond may try, that we are responsible for rising global temperatures, mounting sea levels and further imperilling endangered species daily. What remains to be answered however, is why environmental laws and climate action have failed to be successfully implemented in the face of irrefutable scientific data most recently summed up in the treaty of the Conference of Parties to the historical Paris Agreement (COP 21). Indeed many countries around the world have failed to implement their COP 21 commitments; as of 2019, only two countries have policies which are compatible with the Paris agreement and the 1,5°C ceiling¹.

When faced with the task of putting into place environmental policies, governments often throw in the safeguarding of their people’s rights as a predictable and maybe necessary wrench to any climate action. Protecting human rights has become the main concern in many modern states and is inextricably linked to democracy. Growth seems to be the altar against which all rights are being tested. Spurred by growing economies like China and India, the global energy demand grew by 2.3% between 2018-2019². For any climate-savvy individual, this is a figure that projects a nightmarish scenario of disappearing island states, ravaging epidemics and mass migration.

Without casting any aspersions on any country’s right to develop, this paper seeks to understand the place of human rights as countries begin a journey of course correction to save themselves.

The question that begs an answer is this: Do human beings have to forego or reduce climate action objectives to protect human rights? In other words, is the protection of human rights incompatible with the environmental law and related mechanisms that we have put into place over the past three decades?

What follows is not an exhaustive review of different interpretations of human rights and how these interact with the environment. My aim is to focus on the principles that underpin human rights and to analyse how these have influenced and shaped the climate narrative through the adoption of international climate conventions. I will therefore proceed in four parts. First, I will examine the relationship between human rights and international environmental law by looking at two international conventions that have set the framework for climate action. In the second part I will focus on the larger philosophical foundations of human rights and how their characteristics have contributed to creating this relationship with environmental law. In part three, I will look at the practical implications of using human rights for environmental protection. Finally, in the fourth part, I will look at some possible ways to rethink the existing model.

1 CLIMATE ACTION TRACKER. Note: Morocco and The Gambia are the two countries whose policies are consistent with the Paris agreement.

2 INTERNATIONAL ENERGY AGENCY.

Defining the Scope

These are my two assumptions:

The first is that we take human rights to mean the rights that derive from the 1948 Universal Declaration of Human Rights (“UDHR”). We will use what American author and scholar Jack Donnelly refers to as the “Universal Declaration model”, recognising “the central role of the 1948 Universal Declaration of Human Rights in establishing the contours of the contemporary consensus on internationally (recognised) human rights”³. The reason for choosing the UDHR as the reference for a reflection on human rights lies simply in the implicit consensus that exists, between states⁴ and authors in regarding the declaration as a founding text for modern human rights. This consensus gives the UDHR its legitimacy and is in my view a good starting point for a reflection on human rights.

The UDHR bears no force of law. Two additional covenants containing the mechanisms to enforce the principles provided in the declaration were adopted by the United Nations Human Rights Commission in 1966. These covenants, which include the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), were written into international law in 1976. As these instruments were based on the UDHR, I will limit myself to the analysis of the declaration, bearing in mind that these two additional documents, along with the UDHR, constitute the “International Bill of Human Rights”⁵.

The second assumption, which is a significant one, is that I will only examine the Western interpretation of these human rights. We must keep in mind that the UDHR has its roots in

“Western, mainly protestant”⁶ culture. As such “human rights are one window through which one particular culture envisages a just human order for its individuals”⁷. It is important to recognise that while many countries around the world are party to the UDHR and have accepted it, its interpretation has yet to find such global consensus. However, in the interest of narrowing the scope of my analysis, I will focus only on the Western interpretation the rights in the declaration, acknowledging that a different perspective would likely lead to very different conclusions.

With these two assumptions, my research question thus becomes: are human rights, as they are defined in the UDHR and interpreted by a Western lens, at the service of Man or nature?

Hypothesis

I will hypothesise that the instruments we have developed to protect the environment benefit Man, first and foremost. The relationship between these two fields of law is one of opposition, as human rights effectively limit the scope of international environmental law. To illustrate this opposition, the following chapter analyses the place of human rights in two international environmental conventions.

3 DONNELLY,p. 24.

4 Note: The UDHR was accepted in a vote of 48 to none with 8 abstentions. While this was considered a triumph, it is important to keep in mind that “most of Africa, much of Asia and parts of the Americas were still under colonial rule” (DONNELLY, p. 26) when this vote took place.

5 UNITED FOR HUMAN RIGHTS.

6 PANIKKAR, p. 79.

7 Idem, p. 78.

The place of human rights in international environmental law

While there is a consensus in considering the UDHR as being one of the foundational texts for modern human rights, international environmental law on the other hand, has developed as a patchwork of international texts and conventions. These agreements either outline general principles to tackle climate action or deal with highly specific and technical issues relating to one area of environmental protection⁸. It is a field of law that has grown mainly as a response to environmental degradations caused by human activity and is therefore regarded as a fragmented area of the law.

Despite the large number of international legislations regarding international environmental law, two conventions in particular can be considered as foundational texts. The first is the United Nations Conference on the Human Environment or Stockholm Conference (“SC”) that was held in Stockholm, Sweden, in 1972. Environmental issues were previously regulated through domestic legislation and bilateral treaties, but the SC sprung them to the front of international concerns. Moreover, the United Nations Environmental Programme (“UNEP”) was thereafter created to supervise the adoption of environmental laws. The SC also paved the way for establishing international laws on liability and compensation in relation with environmental degradations.

Two decades later, heads of states gathered in Rio for the United Nations Conference on Environment and Development. Over 175 countries adopted the 1992 Rio Declaration establishing two binding conventions on biodiversity and climate change and crystallising the principle of “common but differentiated responsibilities” ⁹ as one of the pillars of international climate action.

Because of the critical importance of these two texts in the development of international environmental law, I will use the principles set forth in these conventions to determine the values that underpin the measures taken to deal with environmental degradation. To be precise, I will examine the place human rights have within these two conventions to determine the interaction between these two fields of law.

The Stockholm Conference and human rights

In June of 1972¹⁰, as the Cold War raged, states adopted 26 principles to combat global pollution, in a text that would be known as the Stockholm Conference. As the first international treaty on the issue, the place given to human rights in this effort to combat environmental degradation is central to establishing the relationship between Man and nature in a legal context.

As the preamble of the SC proclaims, “man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth”¹¹. In other words, we are determinants of ourselves. This opening sentence is interesting for two reasons.

8 Note: See for example the 2013 Minamata Convention on Mercury, regulating the emission and uses of mercury and its compounds.

9 RIO DECLARATION,Principle 7.

10 HANDL, p. 1.

11 STOCKHOLM CONVENTION, Preamble.

The first part recognises the symbiotic relationship between humans and nature, placing Man within the context of his environment. We recognise that human beings influence and live off the environment that they inhabit as an integral part of this ecosystem. There is no hierarchy between Man and nature.

However, the latter part tempers this view by explaining ways in which nature serves the different purposes for Men. This utilitarian view of nature highlights the idea that our environment is worth preserving solely because of the enjoyment we derive from it. Moreover, nature must be preserved because “both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights”¹², the last sentence of the opening paragraph denotes. Human rights are referenced here for the first time in the preamble of the SC. The relationship that is established between human rights and environmental concerns is not a confrontational one, but a converging of interests; both human rights and environmental law protect human dignity. More precisely there is a clear hierarchy between the protection of human rights and the protection of the environment, where the second is considered relevant only through the lens of the preservation of human freedoms. Reminiscent of the UDHR, the first principle of the SC provides that “man has the fundamental rights to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”¹³. Respecting the heritage of modernity¹⁴, individual freedom is the first fundamental right recognised by this convention. As we will see in the following section, it is wholly in line with the UDHR as it places the protection of human dignity as the central principle of the convention.

This is also apparent for example in principle 13 of the SC where states have an obligation to

“ensure that development is compatible with the need to protect and improve (the) environment for the benefit of the population”¹⁵.

Where the opening part of the preamble spoke of Man, “moulder and creator of his environment”, a fulcrum as part of the whole, the SC goes on to institute a vertical relationship between humans and nature. As Principle 16 of the SC further stipulates demographic policies must be “without prejudice to basic human rights”.

If my initial hypothesis argued that there was a contradiction between human rights and environmental law, the SC shows that this relationship is one that uses the environment to serve human rights rather than there being an opposition between these two fields of law. By looking at the Rio Convention of 1992, adopted twenty years after the SC, I will determine how this hierarchy has changed within the framework of climate action.

The Rio Declaration and human rights

The Rio Declaration (“RD”) follows the SC as the second international convention on the environment. While the SC focused on the protection of the environment in order to safeguard human rights, the RD endorsed the practice of sustainable development as a global objective. This instrument was the first to recognise the adverse effects of human activity, such as consumption patterns, on the environment. As an answer to this issue, sustainable development presented itself as the perfect compromise between economic growth and environmental protection. It is defined as the “development that meets the needs of the present without compromising the ability of future

12 STOCKHOLM CONVENTION, Preamble.

13 STOCKHOLM CONVENTION, Principle 1.

14 Note: this is something we will explore in the following section.

15 STOCKHOLM CONVENTION, Principle 16.

generations to meet their own needs”¹⁶. I infer that through sustainable development, states seek to promote and safeguard human rights by providing higher standards of living through economic growth.

Much like the SC, the preamble of the RD recognises “the integral and interdependent nature of the Earth, our home”¹⁷ highlighting the reciprocal cause and effect relationship between human activity and nature. From the outset, human beings are placed “at the centre of concerns for sustainable development” and are “entitled to a healthy and productive life in harmony with nature”¹⁸. The purpose of sustainable development is clear: it provides entitlements to human beings to lead a healthy life in harmony with nature. The notion of harmony implies equilibrium between human needs on the one hand and preservation of nature on the other. This equilibrium, however, is skewed in favour of Man who is placed at the core of sustainable development concerns. Human beings are “entitled” to certain freedoms, a word which is in line with the subjective rights theory pervasive in much of Western legislation, including the UDHR. And as we will see in the following section it is one of the central characteristics of human rights.

To say that the RD tips the scale heavily on the side of Man against nature would be an exaggeration. As Principle 4 states, “in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”. We see here again a nod in the direction of the interdependent relationship Man entertains with nature. The hierarchy between the protection of human rights and the preservation of the environment is softened compared to the clear vertical relationship that was prevalent in the SC. Similarly, interdependence between states is reinforced by acknowledging that countries cannot be thought of as isolated actors in combating environmental degradation, and as such, must cooperate to reduce “significant adverse transboundary environmental effects”¹⁹. Global cooperation is at the heart of one of the “cardinal (notions)”²⁰ established by the RD, the “common but differentiated responsibilities”²¹ (“CBDR”) principle. This reflects the

“lasting political consensus that the widest possible cooperation by all countries is needed to combat climate change and the adverse effects thereof”²². More importantly, this principle implies the “adoption and implementation of differing commitments for different states while taking into account their diverse circumstances and capacities, their historical contributions to CO2

emissions and their specific development needs”²³.

The CBDR principle references this pervasive idea of “entitlements”, which is apparent throughout the RD. Human beings are entitled to a healthy life of dignity and as a corollary, states that have not reached this required level of development are entitled to pollute. “To achieve sustainable development and a higher quality of life for all people states should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies”²⁴. Nature is preserved as it impedes the realisation of sustainable development, which in turn serves to protect human rights. Even though the utilitarian approach to the preservation of nature is far less apparent in the RD, which frames human development in relation to environmental protection and not nature at the service of human needs, what is missing is the idea of protection of nature not as a means to an end but an end in itself.

16 BRUNDTLAND REPORT,Chapter 2, Principle 1.

17RIO DECLARATION,Preamble.

18 Idem, Principle 1.

19 Idem, Principle 19.

20 PAUW/BRANDI/RICHERZHAGEN/BAUER/SCHMOLE,p. 1.

21 RIO DECLARATION, Principle 7.

22 PAUW/BRANDI/RICHERZHAGEN/BAUER/SCHMOLE,p. 1.

23 Ibid.

24 RIO DECLARATION, Principle 8.

Albeit skewed, the relationship between human rights and environmental law has evolved from the SC to the RD from hierarchal one to a more tempered space. However, environmental protection still does not have a central place in international mechanisms as a goal to achieve outside of any human interest. My initial hypothesis, which placed these two fields of law in opposition to one another, is refuted by my analysis of the SC and the RD. International environmental law is not in contradiction with human rights but has been effectively developed to serve and protect human rights.

In the following section, I will examine at the characteristics of human rights to determine how they have contributed to creating the current relationship with international environmental law.

Human rights

To understand the foundations of human rights, the historical context that gave birth to this field of law needs to be examined briefly.

The United Nations General Assembly proclaimed the UDHR on 10 December 1948, in the wake of the Second World War. The limitations of legal positivism had shown themselves in the most horrific ways and the UDHR, became, in effect, a stopper to this theory, which proclaimed, “our rights are those which are found in law”²⁵. Jeremy Bentham, the British philosopher proponent of this theory, “argued that any suggestion that human possess rights beyond those that are accorded to them by the law is “nonsense on stilts””²⁶. But faced with the devastation of the war and concentration of power in the hands of few, reflections on what the law ought to be, became central to preventing the slide in progress. Legal tools became essential for people to defend themselves against their institutions beyond what was possible through domestic law. This led to the following questions: what would merit such a protection; what should states seek to protect by adopting the UDHR. It was decided that the rights conferred in the declaration would serve to safeguard inherent qualities in each person that make him or her fundamentally human. This was, and to this day remains, the basis for human rights²⁷.

This notion of inalienable rights enforceable against the state did not originate with the UDHR; it was born in the age of the Enlightenment, the dawn of modernity, marked by a “transition from a theocentric to an anthropocentric worldview”²⁸. It was a characteristic of the sixteenth and seventeenth century. Authors such as John Locke and Rousseau promoted the idea of autonomous individuals endowed with rights and bound to society by a social contract. According to the former, authorities are made legitimate by this contract “whose purpose is to ensure respect for and protection of life, liberty and property”²⁹.

Rousseau believed that the roots of this social contract resided with each citizen, born free and equal, participating in forming the general will, to which, he or she chooses to abide freely. The majority thus shapes the unlimited freedom of the individual. Our conception of human rights, as rights needed for the protection of intrinsic human nature, prevalent in each individual and enforceable against the state, is a heritage from this time.

25 LEWIS, p. 97.

26 Ibid.

27 UNITED NATIONS UDHR,Preamble.

28 KÄLIN/KÜNZLI,p. 21.

29 Idem, p. 22.

The philosophical foundations underpinning the UDHR

Before examining the basis of human rights in particular, a few general observations on the UDHR need to be addressed. Looking at the philosophical basis behind the UDHR will help us understand the normative structure behind human rights³⁰.

The UDHR, as its name implies, “declares” human rights; it neither claims to define, nor to have discovered these rights. They are simply stated or asserted, implying that they exist outside of legislative activity and only need humans to recognise their existence. The basis of this is that human rights are not endowed to humans by a superior authority; they are not imposed on humans through a top-down structure, like the commandments of God or the laws of an impotent ruler.

Identifying these rights is the work of human reason, and as article 1 of the UDHR proclaims, all humans “are endowed with reason and conscience”. Since every human possesses reason, and human rights are discovered through reason, it follows that every human being can discover his/her human rights without any intervention by the State.

In my opinion, it follows that the UDHR is based on natural law theories, which postulate that

“the characteristic activity of all natural objects results from God’s plan”³¹. Therefore “nature itself has a purpose, and the harmonious functioning of nature reveals the goodness of God’s plan”³². The laws of nature—natural laws—thus transcend time and are discovered rather than created by Man. While classical philosophers, such as Thomas Aquinas, believed the source of these laws to be divine, modern natural law thinkers—influenced in large part by the Danish philosopher Hugo Grotius—secularised and rationalised these theories. They replaced God with human reason. For Grotius, all human laws are discovered by reason, reason that is eternal, universal, and transcendental, and constitutes the first source of our modern human rights.

Human dignity

If human rights are discovered by reason, according to the UDHR their basis lies in the inherent dignity found in each human being ³³. We possess human rights by virtue of our human nature to preserve our inherent dignity. This “ultimate value”³⁴ gives human rights their coherence and represents the foundational basis for International Human Rights. While the basis for these rights lies undeniably in human dignity, it is not clear how this inherent quality provides the foundation for these rights, namely because the declaration does not offer any definition of what constitutes human dignity. According to Greek-Australian legal philosopher John Tasioulas, human dignity is

“an intrinsically valuable moral status inhering in being human, a status that is shared equally by all human beings, elevating them above non-human animals”³⁵. Donnelly, a proponent of the UDHR model, believes that “dignity indicates worth that demands respect”³⁶. Regardless of a definition “it has been generally assumed that a violation of human dignity can be recognised

30 LEWIS, p. 97.

31 DESJARDINS, p. 29.

32 Ibid.

33 UNITED NATIONS UDHR, Preamble.

34 DONNELLY p. 28.

35 TASIOULAS,p. 49. Note: He also argues that a more adequate basis for human rights should not be human dignity but human interest, that is: human rights are the rights that serve a particular human interest needed to live a life of dignity.

36 DONNELLY, p. 29.

even if the abstract term cannot be defined”³⁷. Therefore, even if a clear definition of human dignity does not seem to exist, what is certain is that it is found in every individual human being and that human rights were developed to protect this inherent quality. From this, it is also apparent that human rights are not defined by our membership to a community or through social cooperation³⁸. If we are stripped of these rights, we cease to live a life of safety and dignity. In this respect, human nature is “different from the rest of reality”³⁹. By conferring humans with rights that only they can hold, to protect qualities that only they can possess, we are drawing a line between Man and every other living being. The SC and RD recognise this difference, as human beings are not placed on an equal footing with nature. And our environment, as we have seen, serves to protect human rights, which are without direct concern for other living beings. “Natural resources of the earth, including the air, water, land, flora and fauna” for example, “must be safeguarded for the benefit of present and future generations”⁴⁰. We think of nature in relation to our rights because our inherent dignity is fundamentally different from that of other beings. This difference justifies protecting Man at the expense of nature. It explains why legal instruments were developed to mirror this hierarchy and place human rights at the centre of climate action.

Characteristics of human rights

Human rights, discovered by reason and ensuing from human dignity, are characterised in their Western interpretation by certain traits:

Human rights are interdependent. Since human rights all serve the same purpose of protecting human dignity, it follows that they are all interconnected in achieving this goal. Indeed, the protection from torture, inhumane treatment (Article 4 UDHR) cannot be ensured without the protection of the law provided by Article 7 UDHR, which stipulates: “all are equal before the law entitled without any discrimination to equal protection of the law”. This means that to protect human dignity, all the human rights outlined in the declaration must be respected. States cannot pick and choose the rights that they enforce and the ones they ignore.

Human rights are universal. If they are the work of human reason, which belongs to every human being, they must exist for everyone in every society everywhere in the world. This constitutes one of the fundamental characteristics of these rights. They are not bound by the geographical borders and can be invoked against any state, regardless of religion, nationality, sex or gender⁴¹. Through human rights “a state’s treatment of its own citizens” has ceased to be “exclusively an internal affair”⁴². This universality of human rights is a theory that is as beautiful as it is problematic. To say that human rights are universal is to imply that the universe is homogenous, negating societal differences and the plurality of cultures. What is certain is that human rights, by their definition, serve to protect a quality that belongs to every human being. The use of the term universal however, is inadequate because these human rights cannot, by definition, be homogenous without a homogenous global society. By universal, I believe it would be more adequate to understand that human rights have an equivalent in every society. Raimon Panikkar, Indian-Spanish priest and professor of philosophy, refers to this as a “homeomorphic equivalent”, that is, “a kind of existential functional analogy” whereby human rights are not exactly the same in every society but “perform a certain type of respectively corresponding function in the two different

37 SCHACHTER, p. 848.

38 LEWIS, p. 100.

39 PANIKKAR, p. 81.

40 STOCKHOLM CONVENTION, Principle 2.

41 Note: See Article 2 UDHR.

42 KÄLIN/KÜNZLI, p. 4.

traditions”⁴³ where they exist. Right A to society B is equivalent to right C in society D. A is equal to C if and only if B is equal to D⁴⁴:

𝐴 𝐵= 𝐶

𝐷

𝐴=𝐶 ⟺ 𝐵=𝐷

Another approach to the claim of the universality of human rights is to recognise that “human rights [relate] not to what “is” but to what “ought to be””⁴⁵. They are universal because they define an ideal towards which each society must tend, even though this ideal manifest itself in different forms. This definition of universality is appealing in that it speaks directly to the natural rights’ theories from which we derive our human rights. Natural rights effectively correct positive law, much like our human rights give us the tools to defend ourselves against unlawful state action.

Regardless of which definition of universality we chose to use, what is clear is that modern human rights are independent of the context in which they are invoked. They must be protected irrespective of place and time. In a purely theoretical sense, relating to the environment, this means that human rights must be upheld even in places where the environment cannot sustain a quality of life that measures up to a life of dignity. Because human rights supersede environmental concerns, to protect these rights, we can sacrifice our habitat. Although the principle of sustainable development was anchored in the RD in order to articulate human needs with the environment, the first principle of the RD, which proclaims, “Human beings are at the centre of concerns for sustainable development” clearly outlines the hierarchy of interests.

Even though human rights protect human beings, the primary recipients of these rights are states. In fact, as we outlined in the history of human rights, their purpose is to provide individuals with the instruments to defend themselves against their states. By recognising human rights, states have an obligation to implement these rights in their domestic legislation. The rights that appear in the UDHR do not, as such, directly give rise to claims by individuals against their State. There are two consequences that ensue from this.

The first is that human rights are defensive rights that are used only when states do not respect their positive or negative obligations towards their citizens⁴⁶. They can be wielded if a state infringes on a human freedom or fails to put into place the necessary conditions to exercise this freedom.

Secondly, human rights create a vertical relationship between citizens and states. The former cannot claim these rights in his/her relationships with other individuals. Therefore, it is said that human rights do not have, in general, a horizontal effect. This vertical rapport contributes to negating the relationship to the “other”. This is an important shift from thinkers, such as Thomas Aquinas, who believed the opposite: other members of our society are a constitutive part of our

43 PANIKKAR, p. 77-78.

44 Note: This is the same idea as Aristotle’s conception of distributive justice: “justice in accordance with geometrical proportion”, ARISTOTLE, Nichomachean Ethics, Book V Chapter III.

45 KÄLIN/KÜNZLI, p. 18.

46 Note: Positive obligations imply the state must take action to prevent a violation of a human right. By opposition, negative obligations mean that the State must abstain from adopting certain behaviours, such as the prohibition of torture and inhumane treatment.

identity⁴⁷. For him, we have rights because we are members of a society and these rights are fundamental to building social interactions. If the “other” changes, my rights are not the same and therefore, I am changed too. However, in the modern Western interpretation of human rights, they are thought of as rights given to individuals rather than citizens who belong to a particular community. We are endowed with these rights outside of any social connection and attachment by the sole virtue of our human-ness. And this is the last but an essential characteristic of our modern human rights. As a heritage of the Enlightenment, our human rights are essentially individual rights. “With the exception of the right to self-determination (…) all the rights in the Universal Declaration and the Covenants are the rights of individuals”⁴⁸. Groups do not have human rights.

This echoes the theory of subjective rights, where laws endow individuals with rights that can be used against the state or other individuals. This is an interpretation of human rights that is widely accepted in Western societies and is criticised by many countries that do not descend from modern European traditions⁴⁹. For these societies, human beings are, first and foremost, part of a community to which they owe certain obligations. Like the ancient Greeks believed—aside from the Stoïcs who spoke already of the individual—a person outside his/her community has no identity. For Aristotle for example, the goal of human life was to find one’s place in society in order to live the life of a “zoon-politikon”⁵⁰: a social and political animal. Belonging to a community thus becomes central to our identity and the relationships with other members of that society are a constitutive part of this identity. If “an individual is an isolated knot; a person is the entire fabric around the knot, woven from the total fabric of the real”⁵¹. Human rights, as the Western interpretation posits, takes the individual outside his/her social fabric. We lose the interwoven relationship between rights and obligations that is characteristic of any group interaction. And especially, “in the field of the environment […], there is no right without corresponding liability”⁵².

Depicting human rights as serving the interests of just one person would be an unfair characterisation. A corollary to the universality of human rights is the decline in state sovereignty.

Human rights serve the interests of the international community by protecting values that are fundamental to international relations. Respecting and enforcing human rights has become a yardstick against which the democratic effectiveness of governments and regimes has been measured. “Regimes that refuse to promote human rights, the independence of the judiciary, the limitation of government power and pluralism of opinion cannot be described as democracies.

Modern democracy is inseparable from a requirement of universality: it refuses to reserve citizenship for a minority of individuals”⁵³.

The preamble of the UDHR proclaims that protecting human rights means working towards a larger goal of ensuring “peace in the world”⁵⁴. While this may be true, it is only through the enforcement of individual—as opposed to collective—rights that this ideal is achieved. From this we can infer that communities or groups are simply thought of as the sum of their constituents and do not have an existence or an identity in themselves that extends beyond the total of their parts.

As an example, it would mean that “a society is merely the sum of every individual living in that community or that a forest is simply the addition of every tree”⁵⁵. If we translate this to

47 Note: see for example, PAPAUX, p. 82-84, explaining the shift from interpreting law solely as a vertical relationship between God and the individual, characteristic of the Saint Augustinian school of thought, to Thomas Aquinas’ interpretation which reinstates the horizontal relationship to the “other”.

48 DONNELLY, p. 29

49 Note: See for example the cultural critique of human rights in KÄLIN/KÜNZLI,p. 24.

50 PAPAUX, p. 51.

51 PANIKKAR, p. 90.

52 MARTENET, p. 306 (free translation).

53 LACROIX/PLANCHÈRE, p.16.

54 UNITED NATIONS UDHR, Preamble.

55 PAPAUX LECTURE, 12.12.2018 (free translation).

environmental law, it means that the protection of our environment does not serve a common goal that is bigger than the sum of each individual’s interest in its preservation. It is a fundamentally anthropocentric view of the world, which is apparent in both the SC and the RD where climate action is required to protect individual freedoms, embodied by human rights, and not nature in itself. The aim is that by ensuring an adequate standard of living for each individual (article 25 UDHR) through sustainable development, our habitat is protected as a biproduct. However, in the face of conflicting interests between the individual and the collective, our modern conception of human rights does not allow for the sacrifice of the one for the benefit of the whole. Our international environmental efforts have been adopted around this logic, that the sum of the parts constitutes the whole. In doing so, we have lost the notion of the common good; a concept that is entirely different from maximising individual fulfilment and freedoms but aims to achieve equilibrium. This, in my opinion, is the biggest impact that human rights have had on international environmental law; “far from enshrining a common good, that is, a right for the environment, (human rights) are satisfied with individual interests, a right to the environment”⁵⁶. In the final part of this paper, I will look at what this means in practical terms and examine different interpretations of our existing model.

Using human rights to protect the environment

In the UDHR, some rights are interpreted to possess an environmental dimension, either directly or indirectly. The dimension is direct when a human right is directly impacted by environmental degradation. It is indirect when the realisation of this right is impeded or prevented by a poor environment. “A good environment can therefore be seen as precondition to the enjoyment of a particular rights or because a good environment facilitates the enjoyment and fulfilment of human rights generally”⁵⁷.

A few rights in the UDHR are recognised as having an environmental dimension. In this following paragraph we will focus on four freedoms in particular: the right to an adequate standard of living, the right to life, the right to property and the right to privacy.

First, article 25 (1) of the UDHR provides the right to an adequate standard of living:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”.

The environment has a direct impact on the realisation of this right. As an example, a pollution- free environment is a necessary condition to the right to health. This freedom is central to the articulation of human rights and environmental law. While on the one hand, this provision may be wielded against a state to ensure the safeguard of the environment, it also has an impact on the environment in itself. Resources must be used to fulfil the freedoms outlined in this provision; the right to shelter means an increased need for wood and the right to food implies more farming. As stated earlier, the object of my work is not to undermine people’s rights to the basic needs guaranteed by article 12 of the UDHR. Inequitable distribution of existing resources if often to blame for violation of human rights, meaning that guaranteeing the right to food for example does not necessarily require an increase in food production but rather a better and more transparent

56 PAPAUX/FRIGERIO, p. 303 (free translation).

57 LEWIS, p. 16.

redistribution of what exists already. What I seek to do however is to recognise that some of the human rights in the UDHR entertain a complicated relationship with our habitat, irrespective of corrupt policies.

Secondly, the right to life, article 3, also possesses an environmental dimension. “In cases of severe environmental degradation the right to life may be threatened”⁵⁸. In 1984 the United Nations Human Rights Committee recognised the adverse effects of environmental degradation on the right to life in the case of Hope Environmental Group v. Canada, where nuclear waste was buried near a residential area⁵⁹. More recently, in 2015, 21 young plaintiffs brought a case against the United states government’s executive branch claiming that their failure to protect them against climate change has harmed their right to life and liberty. This case, Juliana v United States, has yet to be decided by the courts.

The right to property, article 17 of the UDHR, can also be applied in the face of environmental degradation. For example, the risk of a methane explosion from a dumpsite “(constitutes) a violation of the peaceful enjoyment of (one’s) possessions”⁶⁰, as recognised in the case Oneryildiz v Turkey (2004) in front of the European Court of Human Rights (“ECHR”). On the other hand, the same court, in cases where restrictions were proportionate and justified to achieve environmental protection, has also limited the enjoyment of the right to property. In the Fredin v Sweden 1991 case, the ECHR recognised that “in today’s society the protection of the environment is an increasingly important consideration”⁶¹, and as such, the decision of revocation with regards to a permit to operate a gravel pit was not disproportionate to this aim⁶².

The environment can indirectly impact the fourth provision, article 12 UDHR, concerning the right to privacy and family life. In the 1994 ECHR case López Ostra v. Spain, the court recognised the “ripple effect”⁶³ of damages to the environment on the freedoms provided in the European Convention of Human Rights (ECHR). Article 8 of the ECHR, whose content is almost identical to article 12 of the UDHR, was used to emphasize that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely”⁶⁴. The right to privacy and a private life can be used indirectly to prevent environmental degradations. However, a few years later the Court ruled in 2003 in the case Kytatos v. Greece that article 8 of the ECHR does not provide a general protection of the environment. The protection granted by this provision can be accessed only when individuals’ rights are impacted as opposed to general harm to the environment. We can draw an analogy and extend this interpretation of article 8 ECHR to article 12 UDHR in view of their very similar content.

In line with anthropocentric Western liberal interpretation of human rights it is clear that human freedoms must be violated for these rights to be activated. When questions about individual rights arise, the right to food, the right to shelter, the environment inevitably loses in this battle of interests. Our habitat must give way to sustaining our goals of achieving a life of dignity, with certain exceptions sometimes granted by the courts. Perhaps there are other models of human rights where the balance is not tipped so heavily in favour of Men. How can nature be given an

58 LEWIS, p. 33.

59 Note: the ruling was based on art. 6 ICCPR.

60 LEWIS, p. 28.

61 ECHR, Case of Fredin v. Sweden, 18 February 1991, § 48.

62 Note: for similar considerations by the ECHR see also: ECHR, Case of Hamer v. Belgium, 27 November 2007, ECHR, Case Depalle v. France, 29 March 2010.

63PAPAUX/FRIGERIO,p. 302 (free translation).

64 ECHR, López Ostra v. Spain, 9 Decembre 1994, 51.

identity in itself, protected for itself, outside of human interest? In the next section, I will examine different models that reframe and re-think environmental law in order to address this question.

Re-thinking the current model

One possible answer to this question would be to make the right to a clean and healthy environment a human right in and of itself. In other words, the answer to environmental degradations lies in creating a new right to a clean environment rather than using other human rights to address the issue indirectly. In my opinion, this strategy is insufficient as it is incompatible with the foundations of human rights, which, as we have seen lie in natural rights’

theories.

According to Bridget Lewis, a researcher and senior lecturer at the Queensland University of Technology, if we choose to interpret human rights through natural rights, then in order for the right to a good environment to become a human right, natural rights’ requirements must be satisfied⁶⁵. Lewis provides the following three conditions to meet the requirements:

1) “The right must be necessary to advance human dignity and a life worthy of a human being;

2) The right must be independently worthy, that is, it must not be a mere restatement of existing rights (…); and

3) The right must be an individual right, deriving from individual dignity not social membership”⁶⁶.

Although the first condition seems to be met quite easily, it is erroneous to justify a right to the environment in terms of human dignity without bringing in other established human rights, such as the right to life and shelter. Besides, the natural rights theory requires us to determine why the right to a good environment in itself benefits human dignity. Instinctively, we should be able to say that a good environment benefits us and therefore caters to our dignity. However, there is no justification presented. A good environment does not have any intrinsic utility for human dignity.

What contributes to our well-being is living in harmony with nature, in a relationship that is reciprocal and balanced. Realising this balance is what ultimately leads to a life of dignity.

It is important to remember that a human right to a good environment would be, following the natural rights theories, an individual right. We would need to construct an individual right to something that is inherently collective and common to all human beings⁶⁷. This in my opinion is a misfit. Once again we forget the notion of the collective and the obligations that individuals have towards it, which I believe is a central part of addressing the climate issue. Again, we define the whole as the sum of its individual parts, without that whole having an existence in itself outside of any human interest.

For these reasons I agree with Lewis, according to whom the right to a good environment cannot be constructed as a natural right and therefore as a human right, under our modern interpretation of the UDHR. However, if I agree with the author on this point, I disagree with her proposal of adopting a “human rights-based approach to climate change”⁶⁸. It is widely recognised that

65 LEWIS, p. 100.

66 LEWIS, p. 93.

67 Note : see CULLET Philippe, Human Rights and Climate Change: Broadening the Right to Environment in The Oxford Handbook of International Climate Change Law [GRAY Kevin R./ TARASOFSKY Richard/ CARLARNE

Cinnamon, edit.], November 2016, p. 512-514, on the idea of solidarity rights and collective rights.

68 LEWIS, p. 152.

climate change has become a human rights issue as environmental degradations impact the enjoyment of many freedoms provided by the UDHR. Through a human rights-based approach, Lewis proposes to analyse the environmental degradation issues through the lens of human rights by reinterpreting the various provisions within the context of climate change. As an example, she refers to article 6 of the ICCPR, the right to life, imposing on states “positive obligations to protect against threats to life, including specifically, malnutrition and epidemics”⁶⁹. With this in mind, the right to life is threatened by climate change by “an increase in hunger and malnutrition” as well as “weather-related disasters, which already kill thousands of people each year”⁷⁰. In effect, she proposes to widen the interpretation of already existing human rights to address the issue of environmental degradation. While this solution is appealing as it uses existing and well-established mechanisms provided by human rights, I fail to see how this re-interpretation provides a new perspective on the relationship between human rights and environmental law. I also fail to see how this reinterpretation differs from the methods used by the courts so far in cases involving the coordination of environmental issues and human rights.

It bears mention that with these mechanisms, action can be taken only when prejudice to the individual is caused. In order for environmental law to be given a place alongside human rights, I believe that there needs to be a shift from an anthropocentric perspective to an eco-centric one.

For this to happen, we need to distance ourselves from the current interpretation of human rights, which, because of their foundation in human dignity, place humans above nature. Humans cannot be set apart from nature because their needs and survival depend on it. The philosophical current that addresses this issue in a truly different way is the deep ecology movement, founded by Norwegian philosopher Arne Naess. Deep ecology is the belief in the inherent worth of nature and living beings outside of human interests. It is a view of the world where Man is no longer at the centre but is thought of as a member of the ecosystem, equal to other living beings. It is the idea of balance and not hierarchy between Man and his habitat. Three of the eight tenets of this school of thought are formulated by Naess as follows: “(1) The well-being of nonhuman life on Earth has value in itself. This value is independent of any instrumental usefulness for limited human purposes. (2) Richness and diversity in life forms contribute to this value and is a further value in itself. (3) Humans have no right to interfere destructively with nonhuman life except for purposes of satisfying vital needs”⁷¹.

Critics of this movement, such as French philosopher Luc Ferry, fear that deep ecology aims to

“devalue man for the benefit of animals”⁷² denying him “the exclusive status of “legal subject””⁷³, ultimately leading our modern democratic societies to transform into totalitarian regimes. This is a far cry from the Naess’ though, which does not call into question the rule of law or individualism, two fundamental precepts of modern democracy. “Naess' first concern is to put an end to the dramatic situation of the homo industrialus, who lives in ignorance of his effects on the biosphere”⁷⁴. Human beings must eat, drink, clothed themselves and live in adequate housing.

What deep ecology seeks to do is to replace Man within the ecosystem so that he can make an informed judgement on his real needs and how they impact the environment around him. “If nature can be thought of as an economic capital, we must live off the interests without jeopardising the capital”⁷⁵. In other words, we must not consume more than what nature can regenerate.

69 LEWIS, p. 158.

70 Ibid.

71 NAESS, p. 266.

72 FLIPO (free translation).

73 Ibid.

74 Ibid.

75 OST SEMINAR (free translation).

“The conflict is not between "humanity" and "nature", between "the West" and "the East" but on the level of values, between the unlimited quest for an ever higher "standard of living" and self- realisation”⁷⁶. Naess calls into question modern freedom and promotes a relationship to the other that is reminiscent of the Greeks; a form of freedom that is a question of balance and not unlimited agency. By conflating “higher standards of living”, synonymous with modern freedom, with “self-realisation” we adopt lifestyles that in reality degrade our quality of life. And herein lies the crux of the problem. The search for higher standards of living, ensured in part by the liberal interpretation of human rights, and which takes precedence over environmental policies, is harming our environment and jeopardising the very realisation of these freedoms.

If we relate this to human rights, deep ecology can provide an interpretation that can perhaps solve this contradiction. One way to proceed could be by restricting fundamental rights for environmental protection, if the following conditions are met⁷⁷:

- The restrictions must be prescribed by law;

- They are necessary in a democratic society to ensure public interests;

- They must respect the principle of proportionality; and

- Under no circumstances may certain fundamental freedoms such as the right to life and the prohibition from torture be restricted.

Aside from these fundamental rights, restrictions to certain rights may restore the balance between human interests and environmental protection.

Some countries have enshrined in their constitutions the protection of the environment as a public interest. This is the case in Ecuador, where article 14 § 2 of the 2008 constitution provides that

“environmental conservation, the protection of ecosystems, biodiversity and the integrity of the country's genetic assets, the prevention of environmental damage, and the recovery of degraded natural spaces are declared matters of public interest”.

The constitution goes further in recognising nature or Pacha Mama, as a legal subject. “Where it produced and performs life, (Pacha Mama has) the right to have (his/her) existence fully respected”⁷⁸. Moreover, “any person, community, people or nationality may demand to the public authority the fulfilment of the rights of the nature”. The aim is to create “a new form of citizen coexistence, in diversity and harmony with nature, (…), the sumak kawsay”⁷⁹. Far from sacrificing humans to nature, the Ecuadorian constitution is an example of how human rights and environmental policies can exist on a horizontal relationship, fulfilling mutual and converging interests. Nature “of which we are a part and which is vital to our existence”⁸⁰ is protected outside of any human rights violations, precisely to protect humans from environmental degradation which occur over time and whose adverse effects are felt often much later down the line.

In 2010, Bolivia adopted the Law of the Rights Mother Earth, endowing rights to nature and imposing a dynamic balance between human activity and the processes inherent to the environment. That same year, Bolivia hosted the World People’s Conference on Climate change where the Universal Declaration on the Rights of Mother Earth was adopted, reaffirming the interconnected and common faith of all living beings on earth⁸¹.

76 FLIPO (free translation).

77 Note: see articles 2-7 of the ECHR.

78 CONSTITUTION OF ECUADOR, article 71.

79 Idem,Preamble.

80 Ibid.

81OST, p. 370.

Other countries have taken similar steps towards environmental protection. For example, the Indian Supreme Court granted the Ganges and Yamuna rivers the status of “living human entities”

in a landmark case in the State of Uttarakhand in 2015. These natural objects were granted rights as legal minors, with members within the state government ensuring their guardianship⁸². Likewise in 2017, the New Zealand parliament enacted a bill conferring the Wanhanui River the legal personality, in a move to protect the Whanganui iwi’s ancestral relationship this natural object.

In all these examples, states have recognised the protection of nature as goal to achieve in itself outside of any human utility. The rights given to these natural objects effectively limit the rights of human beings. This in my opinion constitutes an innovative way to address the relationship between human rights and environmental law. So much of our modern society is built on the balancing of claims and obligations from individuals that often take the form of a contract, a social contract. Since we are still entrenched in the principles that were inherited from the Enlightenment period, rethinking the social contract⁸³ by conferring rights to natural objects is a way of attaining a balance between human interests and those of the environmental.

Conclusion

Do human rights and environmental law contradict each other?

My initial hypothesis postulated that human rights and international environmental law were in opposition to one another, the latter effectively limiting the scope for climate action. The analysis of two international instruments for environmental protection revealed that international environmental law developed as an instrument to ensure the protection of human rights, rather than to protect the environment. A closer look at the characteristics of human rights enabled us to understand the establishment of this hierarchy, the biggest impact being the loss of appreciation for the common good and promoting an anthropocentric vision of the world.

In practical terms, proceeding through the lens of human rights to protect the environment is a good one, because it is one of the only mechanisms we have. With the aggravation of climate change accelerating and the consequences reaching new ceilings every year, it is important to use all the tools we have to address this issue. However, I do believe that while human rights must be used in courts to fight environmental degradation, they are not enough and only provide symptomatic relief. When a violation to a human right is caused by harm to the environment, it is already too late. That is why movements such as deep ecology, which seek to reintroduce an appreciation for nature in itself, can pre-empt harm to the environment. Nonetheless, for these movements to permeate our understanding of environmental law, there needs to be a fundamental change in our interpretation of human rights. Human dignity, the inherent quality in Man, cannot be thought of as separate from other living beings. This is an important shift required if we are to transition from an anthropocentric to an ecocentric interpretation of our world. So much of law is interpretation and places responsibility on lawmakers, courts, and advocates of policy to enable this transition.

82 O’DONNELL, p. 135.

83 Note: see OST on re-thinking the social contract, p. 358, 361 – 382.