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The Oxford Handbook of International Environmental Law edited by Bodansky, Daniel; Brunnée, Jutta; Hey, Ellen (7th August 2008)

Part V Key Concepts, Ch.28 Environmental Rights

John G. Merrills

From: The Oxford Handbook of International Environmental Law

Edited By: Daniel Bodansky, Jutta Brunnée, Ellen Hey

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 12 November 2019

Subject(s):
Marine environment, protection — Precautionary principle — Sustainable development

(p. 663) Chapter 28  Environmental Rights

(p. 664) Introduction

International environmental law and the law of human rights embody distinct but related concerns of the modern world. On the one hand, since the future of humanity depends on maintaining a habitable planet, effective measures to protect the environment are crucial to any project for advancing human rights. In this sense, then, human rights rely ultimately on achieving a secure environment. On the other hand, because human rights law already protects interests such as those concerned with life and the home, claims at the international level relating to a variety of environmental matters are now possible by those affected. Accordingly, the exercise of established human rights is already contributing something to environmental protection.

The relation between the environment and human rights has led, as might be expected, to considerable interest in the subject of ‘environmental rights’—meaning by that the possibility of formulating claims relating to the environment in terms of human rights.1 As well as the case law concerned with specific human rights mentioned earlier, we therefore find environmental treaties with provisions on freedom of information and similar guarantees and, at the most general level, a discussion of the advantages of adding a broad ‘right to environment’ to the list of traditional human rights. Indeed, in a regional context, this latter step has already been taken in the 1988 Protocol of San Salvador (San Salvador Protocol), which provides in Article 11(1) that ‘[e]veryone shall have the right to live in a healthy environment and to have access to public services,’ and in the 1981 African Charter on Human and Peoples’ Rights (African Charter), which lays down in Article 24 that ‘[a]ll peoples shall have the right to a generally satisfactory environment favourable to their development.’

Now to say that, as part of their basic human rights, individuals have the right to live in a healthy environment, or to speak, as the African Charter does, of the right to ‘a generally satisfactory environment’ as a collective right, is, like other invocations of environmental rights, to use the language of human rights to promote or consolidate certain social values. In this respect, debates about ‘environmental rights’ are no different from those over abortion, self-determination, euthanasia, the right to development, and many other issues in which rights are asserted, challenged, and argued about from different points of view. As these examples show, rights talk is both pervasive and exciting. However, it is plainly also often confused and inconclusive, partly, no doubt, on account of genuine disagreements, but sometimes because theoretical considerations that should underpin the discussion of legal and moral (p. 665) questions are ignored or taken for granted. This chapter reviews some of these considerations as they relate to the issue of human rights in general and environmental rights in particular.

Value of Rights

Moral, legal, and social issues of current concern are now so often discussed in terms of human rights that it may seem odd to begin by asking whether the concept is really needed or whether what may seem to be gained by framing questions in terms of rights could not be achieved just as effectively in other ways. However, this is the right place to start because the answer can help to avoid some common misunderstandings about what it means to have a right and, more fundamentally, because without a grasp of the justification for rights—that is, an appreciation of what they are for—it is scarcely possible to have a sensible discussion about the case for new human rights, such as environmental rights, in a moral or legal context.

The first mistake that reviewing the need for rights can help to avoid is assuming that rights are no more than a way of expressing preferences or interests. Preferences are commonly dressed up as ‘rights’ for rhetorical purposes, but the two are far from synonymous and appreciating the distinction between them is crucial for thinking clearly about either. Whereas rights concern entitlements—that is, things to which morality or valid rules of law give us a claim—preferences are just that, things we may want, but that we have no warrant for other than personal desire. Thus, I may want the last jam tart (or a healthy environment for my children), but whether I can claim these things as my human rights is an entirely separate question.

A second mistake is to think that human rights are co-extensive with morality. In other words, it is to assume first that the language of rights is essential to bring any moral considerations into play, and then that dealing with a matter in terms of rights exhausts moral argument. Of course, discussion of human rights involves morality, but the reverse is not true, and it is perfectly possible to examine the morality of a course of action without bringing rights into the picture at all. For example, it may be clear that my desire for the last jam tart (or for a clean environment) is nothing more than a preference (that is, that I have no right to these things), but it might nevertheless be morally right for me to have them. As Loren Lomasky puts it, ‘if P enjoys chocolate cake and I do not, it is right for me to give my piece to him although he has no right to it.’2 Similarly, because there is a difference between asking whether I have a moral right to something and asking whether it is morally right for me to have it, (p. 666) finding that a right exists may only be the first step in the process of moral reasoning. Thus, assuming that I could establish that I have a right to that last jam tart or to a clean environment, it would remain to be determined whether exercising my right was morally the right thing to do in the particular circumstances. So in Lomasky’s example, the morally right thing for me to do with my piece of chocolate cake is obviously not to eat it myself (thereby exercising my right) but to give it to P instead.

Why, then, is there a need for rights and what would be lost if they did not exist? Rights and preferences tend to be confused—sometimes it must be said deliberately—because when there are conflicting demands, whether in relation to jam tarts or the environment, having the desired objective recognized as a right is a crucial means of establishing priorities. When preference confronts preference the result in moral terms is a stand-off. When right confronts preference, on the other hand, the holder of the right has a trump card with which to pre-empt preferences and other non-moral considerations. What is true here of moral rights is true a fortiori when such rights are translated into law. Thus, the incorporation of environmental rights into national constitutions or their adoption into international treaties does not guarantee that the holder of such rights will always be successful when they come into conflict with other rights, but it certainly means that environmental rights must always be taken into account and also that good reasons will be needed for denying them effect.

If rights are a good way of ensuring that something is taken seriously, designating an entitlement a human right is even better, on account of the status of this class of rights in legal and moral discourse. However, what are human rights for? The most convincing justification, it is submitted, is that human rights are intended to ensure the basic conditions needed for rights-holders to pursue their various goals.3 Originally developed as a way of recognizing the unique value of every individual, human rights have now been extended to collectivities where they fulfil a similar function in promoting and protecting the autonomy of ethnic and religious minorities, indigenous peoples, and other groups.4 A comparable development has been the extension of rights to cover economic, social, and cultural matters, as well as the civil and political sphere. These broadenings of the field of human rights are not without their own conceptual problems, which are further considered later in this chapter, and even in the original sphere, the individual’s rights have, of course, provided endless scope for debate among philosophers and lawyers. For present purposes, however, the significant point is that a persuasive rationale for human rights is that they enable us to address the realization of individual and group autonomy, which would be difficult, if not impossible, to achieve in other ways, thereby giving them a special place in legal and moral argument.

(p. 667) What Rights Do We Have?

Having established that the concept of human rights can be grounded in the idea of autonomy and self-realization, it is now possible to consider whether, or to what extent, this provides a basis for treating environmental concerns as involving rights. Whether it is correct to say that environmental rights exist in a moral sense raises wider issues than can be considered in this chapter (see Chapter 13 ‘Ethics and International Environmental Law’), so the present inquiry is not concerned with this question, but with the preliminary question of whether recognizing environmental rights is consistent with the rationale of human rights. The legal status of environmental rights is clearly also a separate question, although one to which the current inquiry is relevant because if the conclusion were to be that the idea of environmental rights as moral entitlements made no sense, it would be difficult to argue the case for their recognition as legal rights, given the close relation between law and morals in this area.

If we take first the proposition that individuals may be said to enjoy certain moral rights with regard to environmental matters, it is not difficult to see how conceptually such things as a right to compensation for harm, a right to be consulted and to make representations on issues of concern, and a right of access to environmental information can all be accommodated within the idea that rights exist in order to promote self-realization and individual development. The same can plainly be said of the broader ‘right to live in a healthy environment,’ or the equivalent, when expressed as an individual right. Whether or not there are legal rights to give these entitlements effective expression, as in the San Salvador Protocol, it is not unreasonable to see the rights of the individual as in issue when what is at stake is bound up with life, property, and control of one’s affairs as the above matters unquestionably are. Although therefore the notion of environmental rights would probably have seemed strange to the pioneers of human rights, there is nothing in this concept or its rationale that looks to be incompatible with their thinking.

What about the proposal that the right to a clean, healthy, or ‘satisfactory’ environment should be regarded as a collective right? In this case, the proposition is that groups or communities, defined in some way, should be the beneficiaries of a right on the ground that it is vital to their existence or survival. The right would be an economic, social, or cultural right and, as such, constitute a claim on the resources of a wider community, which is also to be defined, rather than simply a protection from interference, but this distinction, already well recognized in human rights law, is not in itself problematic. Likewise, there would appear to be no obvious reason why groups as well as individuals should not enjoy rights of this kind. It is easy to imagine situations in which environmental conditions may be so bound up with the life of communities as to justify placing groups in a position analogous to that of (p. 668) individuals.5 Indeed, it could be argued that by formulating the right to a satisfactory environment as a collective, rather than an individual, right, the African Charter more accurately captures its essence. Group rights, as will be seen, do present conceptual problems, but if the question is whether as a matter of principle there is a justification for treating a ‘right to environment’ as a collective right, the answer must be yes.

It is tempting to leave the discussion of the possible justification for environmental rights at this point and move on to other matters. Before doing so, however, a word should be said about why in terms of legal policy there may be a case for not recognizing such rights and the alternatives to doing so. From the earlier discussion of the difference between preferences and rights, it will be recalled that if a preference can be turned into a right, the position of the new rights-holder is much strengthened, especially in comparison with rivals whose preferences have not been so transformed. There may also be other effects, however. Suppose that instead of being confronted with a mere preference, our rights-holder is confronted with another rights-holder. We are now back to the same position of preference being confronted with preference, with the important difference that, as Lomasky has explained,6 since both parties are armed with rights, accommodation through compromise may now be much less appealing.

The tendency for disputes to become more acrimonious when rights are at stake can also be seen elsewhere. A rights-holder confronted by a rival with a mere preference will expect to get his way, and, although the purpose of rights is to ordain such priorities, the natural tendency to ‘stand on our rights’ cannot be said to do much to promote social harmony or, in some cases, social welfare. When there are only competing preferences, we can try to maximize social welfare by utilizing a cost-benefit analysis. However, once a preference is converted into a right, trade-offs can no longer be considered in the same way. Moreover, a proliferation of rights and rightsholders not only multiplies the opportunities for rights-holders to come into conflict with each other, but also generates a tension between rights as a basis for actions and other moral considerations. Thus, a society that over-emphasizes legal and moral rights may find it difficult to maintain community values such as cooperation, generosity, and civic duty, which are not identified with the concept of rights.

Does it follow from these gloomy prognostications that there is never a good case for recognizing new rights? Certainly not. As consideration about the importance of different aspects of life evolves and the world itself changes, so new rights are bound to emerge and must be acknowledged if the concept of human rights is to fulfil its purpose. What the above warning is intended to induce is a certain caution. Not everything that could be recognized as a new human right needs to be so treated and evaluation should take account of the disadvantages as well as the benefits of doing so.

(p. 669) This leads to a more specific point. In deciding whether new rights are needed, it is important to take account of what is already in place. There is no need to create new rights to deal with matters that are already covered by existing rights. Indeed, to do so may be counter-productive. An example of such a case is the proposal that the ‘right to sleep’ should be recognized as a human right.7 Would this really serve any useful purpose? There is already a prohibition of torture and inhuman or degrading treatment, which would cover many situations. Working conditions are regulated by many conventions of the International Labour Organization, while domestic noise may raise an issue under the right to respect for the home, and so on. Consideration of the kinds of cases to which environmental rights might be relevant suggests that their position may be very similar. It is not that the interests guarded by environmental rights are unworthy of protection; it is rather that in many instances they are adequately protected already. For example, the violation of the collective right to a ‘general satisfactory environment’ found by the African Commission on Human and Peoples’ Rights in The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria8 was accompanied by violations of so many other individual and collective rights as to add relatively little to the decision.

When a new right is suggested, it is therefore always worth asking both how what is proposed is to be defined and whether the putative right is sufficiently distinct from established rights for it to be sensible or useful to create another conceptual boundary. Thus, to take again the proposed right to sleep, it may be better to address the very different situations in which harmful sleep deprivation can occur via established principles concerned with torture, labour standards, and so on, which can put these issues in their appropriate context, than to invent a new somewhat amorphous right. Similarly, with regard to environmental rights, someone’s right to know about environmental projects may not really be so different from the right to know about other matters as to justify the creation of a new right. Accordingly, deciding what rights to recognize is more than a matter of deciding what might be justified in theory, but it also requires attention to how rights affect social behaviour and to what rights may already exist.

Who Can Have Rights?

Rights cannot exist as free-floating abstractions but need rights-holders, for the function of rights, as has been seen, is to protect potential growth areas for the benefit of someone or something, and, hence, the idea of a right without a rights-holder (p. 670) is a contradiction in terms. The identity of the rights-holder is clearly crucial to the content of the right concerned. Thus, the contrasting formulations in the San Salvador Protocol and the African Charter of, respectively, an individual and a collective environmental right necessarily give the right concerned different meanings on account of their very different rights-holders. A more fundamental point is that, in any system in which rights are important, an entity has to fulfil certain criteria in order to qualify as a rights-holder at all, and what those criteria are (that is, how rights-holders are defined), moulds the contours of the legal or moral system concerned. What then is needed to be a rights-holder?

Considering first the question of group rights, it is clear that identifying the proper rights-holders presents extremely controversial issues.9 With the possible exception of ‘inter-generational rights’, which are discussed later in this chapter, the problems of identification appear to be similar for all types of collective rights and are not peculiar to environmental rights. However, it is also worth noting that deciding who holds a particular collective right depends very much on the nature of the right concerned. Therefore, it should not be assumed that establishing who is entitled to self-determination, for example, will also establish who is entitled to claim any collective environmental rights that may be recognized or vice-versa.10 In this respect, there is an obvious difference between individuals as rights-holders and groups. Whereas the former normally stand on a footing of equality, the latter, lacking as they do an intrinsic identity, must be constructed conceptually for particular purposes, which plainly complicates the problem of identification.

When the relevant rights-holder has been identified, further questions arise concerning membership of the group and the authority to act on its behalf. In regard to membership, allowing the group to decide eligibility, leaving it for individuals to decide for themselves, or adopting external criteria such as race, religion, or culture all have advantages and limitations. With respect to the authority to act, groups, however composed, cannot function like individuals and so need suitable arrangements for authorizing action. At the legal level, such arrangements are usually quite precise. In less formal settings, however, the position will often be more obscure, and it may be unclear who has the right to speak for the group and to assert (or waive) its claims.11 A great deal must depend on the organization and cohesiveness of the group. Consequently, one test of whether a particular group right can be recognized should perhaps be whether there is a constituency to which the new right belongs (p. 671) such that we are not only able to identify the collective rights-holder, but also to determine who is entitled to act on its behalf.

Identifying rights-holders in the case of individual rights is an altogether more straightforward matter. Since we are now concerned with the rights of individual human beings rather than groups, the problem of identifying the standard claimant, which causes so much difficulty with collective rights, simply does not arise. Accordingly, if environmental rights are recognized as human rights, it can be on the same basis as other rights, which means treating them as legal or moral entitlements of all humans. There is, of course, a need to consider the position of children, the insane, people in comas, and the like, whose capacity to possess the full range of rights, or to exercise them, may be questionable or, in some cases, may call for additional rights. Yet these are familiar problems and do not require further discussion in this chapter.12 There are, however, other cases of particular interest in the context of environmental rights about which something should be said.

One such case concerns the position of future generations and whether we should think of those not yet born as possible holders of environmental rights.13 This is different from the controversial question whether foetuses should be treated as having rights, since the present issue concerns not the rights of a person (or something) that in the normal course of events will emerge as an individual but, rather, with the ‘rights’of everyone born in the future in relation to our management of the environment today. This might therefore be thought of as a special type of collective right rather than as an indefinite number of individual rights and, as such, poses the conceptual problem of defining the rights-holder, which has already been discussed. It also raises other difficulties, however.

First, there is the question of who is to be regarded as competent to assert and exercise the rights concerned. Although the idea of one person being authorized to act on behalf of another is familiar in other contexts, the type of delegation involved in inter-generational rights would plainly have to derive not from designation by the principal (as in most cases of agency), but on authorization from the present community (as in guardianship, for example). Although there would probably be no shortage of volunteers for the role of ‘guardian of the rights of future generations,’ the problems of deciding who should exercise this role and securing legitimacy for the appointee’s decisions are plain. And this consideration leads to a second issue, namely the standard by which the activities of such guardians could be judged.

The content of any notional inter-generational rights could obviously not depend on the guardians’ discretion. For rights of this kind to perform their function, there would need to be a standard to allow an assessment of whether a posited claim was for (p. 672) too much or too little. Such a standard could be formulated only by reference to a current assessment of what future generations might need in order to pursue their goals. As the expectations here relate to the whole of future human history, it is only necessary to ponder the question to appreciate the impossibility of providing a sensible answer. No one can know what life will be like in future centuries or how future generations will view our present concerns. Consequently, there can be no useful debate about rights in this context. Instead of treating future generations as shadowy rights-holders, we would therefore be better occupied reviewing the claims to rights of those currently alive, along with their various responsibilities.

A similar conclusion follows if we consider the claims of another supposed class of rights-holders, namely animals. By definition, ‘animal rights’ cannot be human rights, but animals are sensate creatures, are affected by our treatment of the environment, and, unlike future generations, are part of the here and now. All of these factors might lead one to think that, if there are to be human environmental rights, there ought to be animal environmental rights too. However, on closer analysis, the case for such rights turns out to be unconvincing. If, as suggested earlier, the moral case for rights rests on the concept of autonomy and self-realization, then animals fail to qualify for membership of the moral community on the ground that they are not generators of personal value.14 This does not mean that how we treat animals, including their fate as part of the natural environment, is a matter of moral indifference. However, acknowledging that there is a moral dimension to the treatment of animals is quite different from thinking of them as having rights.

The proposal that various inanimate objects such as mountains, rivers, trees, or Earth itself should be held to have rights is even less convincing.15 As in the case of animals, the argument for creating new classes of rights-holders is that these are all elements of the biosphere and, as such, are affected by human activity. Assigning rights in this wholesale manner certainly avoids anthropocentrism, which can be a drawback of a human rights approach to environmental protection. As with animals, however, presenting the issue as one of rights not only runs counter to the theoretical basis of rights but is also quite unnecessary. We have no difficulty in accepting that it is morally wrong to destroy a masterpiece by Rembrandt, yet do not regard this as any kind of argument for giving rights to paintings. In the same way, how we treat mountains and other parts of the natural world, including animals, raises significant moral issues irrespective of their supposed rights. This is also true of how our treatment of the environment may affect future generations. Since rights are not the whole of morality, the idea that only by creating new rights and new classes of rights-holders can we encourage a responsible attitude towards the environment is one to be rejected.

(p. 673) Issues of Determinacy and Consistency

When investigating rights, it is not enough to find that there may be justification for holding that a particular right exists and to establish who can hold it. It is also necessary to consider who has an obligation by virtue of the right, what the scope of that obligation is, and how the right relates to other rights. Although in the nature of things it is not always possible to deal with these matters with absolute precision, it is important to move as far as possible in that direction, as indeterminacy on such questions in the moral sphere tends to weaken the case for having such rights at all, while, in law, it burdens judges and other decision-makers with a legislative responsibility that may be beyond their capacity or inappropriate constitutionally. The issue of environmental rights illustrates these points rather clearly.

5.1  Who Bears the Corresponding Obligations?

Dealing first with the question of the bearers of the obligation, it is evident that, in relation to the individual, the primary obligation in regard to whatever environmental rights exist must be owed by the state. Under domestic constitutions and international human rights law, obligations are owed to individuals by the state, and the function of rights is to provide a means for such obligations to be enforced. At the moral level, things are more complicated, for while it is obvious that a case can be made for imposing such obligations on the state, moral responsibility does not stop there but extends also to individuals, corporations, and others whose activities can affect us adversely. Naturally, such wider moral responsibilities can be translated into legal duties in suitable cases, since there is no reason to treat the state as exclusively responsible where activities affecting the environment are concerned.

In regard to collective rights, the issue of who has the corresponding obligation is just as important but more difficult to resolve. A good deal depends on the prior question of who is regarded as the rights-holder. To take the example of an assumed ‘right to a clean environment’, if the rights-holder is regarded as the state, which is a possible approach, then the corresponding obligation must rest on other states. In contrast, if we follow the African Commission on Human and Peoples’ Rights and consider the rights-holders to be groups within the state,16 then it will be the state itself that has the primary obligation. As with individual rights, it is again worth noting that the primary obligation need not be the exclusive obligation. Thus, it has been pointed out that so-called peoples’ rights in international law, (p. 674) such as the environmental right in Article 24 of the African Charter, might well involve obligations for non-state entities as well, although the issue is far from clear.17

5.2  Content of Rights

Turning now to the content of rights, we encounter a different type of indeterminacy. In this case, the problem is to establish the extent of a given right—that is to say, what may properly be claimed—so that whoever owes the obligation can know when it has been discharged. Knowing what the justification for rights is helps by indicating what we should be looking for and ruling certain things out, which makes agreement or disagreement on the question of justification very significant. So, for example, basing rights on autonomy and self-realization can provide a broad indicator of their scope and implications. At the same time, establishing an agreed basis for rights can only go so far, and an operational concept of rights calls for close attention to the scope of rights individually. Human rights guarantees are normally drafted in quite general terms and so typically feature a good deal of indeterminacy, and, at the moral level, where we lack an authoritative procedure for resolving such problems, indeterminacy is even more pronounced. In other words, there is all the more reason for not rushing to embrace new rights without considering their implications.

Individual environmental rights relating to compensation, information, and so on appear sufficiently focused for their scope as moral rights to be reasonably clear, and, although they must be sharpened if they are also to function as legal rights, they do not seem to present any unusual definitional problems. However, the same can hardly be said of the right of peoples to ‘a generally satisfactory environment favourable to their development,’ as set out in Article 24 of the African Charter or the individual’s right ‘to live in a healthy environment,’ proclaimed in Article 11(1) of the San Salvador Protocol. The problem of deciding what these, or similar formulations of economic, social, and cultural, rights actually mean has been noted by Alan Boyle18 and need not be reiterated. It may, however, be worth making a couple of points about this form of indeterminacy in relation to the concept of rights in general.

One point is that there is nothing in the above or similar provisions that is inconsistent with the concept of a right per se. In other words, there is no basis for saying that rights exist only if their content can be precisely defined. Thus, rights ‘to all you can eat’ or ‘to stay with Aunt Doris whenever you like’ are perfectly intelligible as rights although both are somewhat indeterminate in content. The difficulty with such rights, and this is the other point, is not a conceptual one but a practical one, (p. 675) stemming from the vague and apparently open-ended nature of the commitment.19 This can obviously lead to disagreement about what it means to have such a right20 and, at an earlier stage, produce an understandable reluctance to enter into imprecise commitments of this type. Both consequences may be seen at the international level where certain recognized rights such as the right to self-determination have spawned endless argument, and a general resistance to the idea of ‘peoples’ rights’ reflects a wariness of their implications. If the aim therefore is to improve protection of the environment, the effort put into promoting general environmental rights might be better directed to more specific aims.

5.3  Relationship between Different Rights

Advocates of new human rights or those seeking to extend existing rights sometimes argue their case in terms that appear to ignore the existence of other rights or the need to relate the right under consideration to them. This is understandable, given that proponents of particular issues often come to these matters from a background of special expertise or interest. Nevertheless, the tendency for rights to be discussed, as it were, in separate compartments, which is encouraged by the practice already noted of formulating certain rights in rather vague terms, is to be deplored. A coherent concept of rights calls for a given right, whether actual or proposed, to be considered alongside other rights, for only in this way is it possible to appreciate what any current right really means or to understand the possible significance of a new right for a legal or moral system.21

The need to avoid extravagant thinking, which is a real risk if rights are treated in isolation, may be seen by considering the way in which nearly all rights have to be qualified to take account of other legitimate interests. Thus, the International Covenant on Economic, Social and Cultural Rights speaks in Article 2 of each party’s obligation ‘to take steps … to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the present Covenant,’ while Article 4 of the International Covenant on Civil and Political Rights allows derogation from most of its provisions ‘in times of public emergency.’ Although not framed in terms of other rights, these are, in effect, different ways of recognizing that the guarantees of the respective covenants are qualified by such considerations. Plainly, any ‘environmental human rights’ already in existence, or which may be created in the future, are likely to be subject to similar limitations.

(p. 676) Provisions such as those just quoted, which have their counterpart in moral argument about rights, cannot take care of all possible conflicts between rights or conflicts between rights and other interests such as public order or social welfare. Although priorities can sometimes be established by means of other explicit arrangements, there are many situations in which resolution of such matters must emerge from practice. This is, of course, not a reason for refusing to think about such issues in advance, and it is important when introducing new rights to try to do so. It must be recognized, however, that only so much can be achieved—a reasonable aim being to deal with obvious cases of potential inconsistency.22 It is not possible to review these exhaustively in this chapter, but it may be useful to briefly indicate the kinds of issues that supporters of environmental rights may need to address in order to deal with the question of consistency.

The types of conflicts that may arise can for convenience be divided into three broad groups. First, there are conflicts between individual rights. Does a right to environmental information, for example, include the right to information that is commercially sensitive or that relates to a person’s private life? Then there are possible conflicts between collective rights. Does group A’s right to a clean environment entitle it to prevent group B from carrying out an ecologically damaging practice that may be part of its indigenous culture?23 Finally, there are the possibilities for conflict between individual rights and collective rights. Does group A’s right to a clean environment entitle it to interfere with X’s property rights? Conversely, should the individual’s right of access to decision-making processes entitle a person to participate in, say, the deliberations of an ethnic minority of which he is not a member?24 It is not necessary to work out how these and other conflicts might be resolved to appreciate that new rights should not be created without considering their relation to existing concepts.

Legal Rights and Moral Rights

Much of the discussion so far has concerned moral rights, although a substantial proportion of it is no less relevant in the legal sphere. It is now time to say something about legal rights and, more specifically, about the conceptual issues that arise when legal rights are closely linked to moral rights, as is the case with human rights law in general and environmental rights in particular. For the lawyer, the starting point (p. 677) must be that whatever the procedure for identifying moral rights, law has its own processes and criteria, which must be utilized in legal contexts, frustrating though this can sometimes be for activists. Another way of putting the point is to say that legal rights and rules, and their moral counterparts, make up distinct normative systems, each with their own logic and criteria of identification. Although a natural rights theorist might disagree, it is therefore an error to maintain that a certain moral right (the right to a clean environment, say) must automatically be considered a right in international law, just as it would be to make the same argument about the rules of chess or any other normative system.

To avoid misunderstanding, it should be appreciated that the point being made in this case is concerned only with how we identify legal rights, not with what may be termed their pedigree. It goes without saying that the inspiration for legal rights has often come from morality, just as we might see the game of chess as a stylized representation of a medieval battlefield. However, we do not identify the rules of chess by studying medieval battles, and we should likewise identify legal rules by legal, not moral, criteria. In a similar way, to insist on the distinction between legal rights and moral rights is not to deny that morality exercises an important influence on how legal rules develop and are applied. Thus, an increasing interest in environmental issues generally has led in recent years to greater attention to these considerations in judicial decision-making, but whether this consequence means we can yet speak of ‘environmental rights’ is an entirely different question.

Since international law is grounded in treaties and state practice, there is a temptation to use the proliferation of environmental treaties and the development of rules of customary international law concerned with states’ rights and duties with regard to the environment as a basis for deriving rights for individuals and groups. It is, of course, true that an increasing number of treaties now deal with environmental matters, that principles of customary law have developed, and that there is an abundance of ‘soft’ law in this area. However these, like the International Court of Justice’s creation of an environmental chamber, show recognition of the environment’s significance as a legal and political issue, but are no more evidence of individual or collective environmental rights than Article 2(4) of the Charter of the United Nations proves the existence of a ‘right to peace’.25 Naturally what begins as a matter for states may inspire developments in human rights, as has happened at the regional level in the African Charter and in the San Salvador Protocol. Yet, such a result is different from being able to show that it has happened generally.

More plausible perhaps is the attempt to derive environmental rights from references to the environment in human rights case law.26 This has the merit of utilizing legal material that is genuinely concerned with human rights, but the evidence (p. 678) should not be made to take more weight than it can bear. As already mentioned, environmental considerations can be, and in practice are, recognized as relevant in human rights cases under treaties such as the European Convention on Human Rights that make no mention of the environment specifically. Examples are cases concerning planning issues in relation to property rights, aircraft noise in relation to the right to respect for private life and the home, and the dumping of nuclear waste in relation to the right to life.27 It is useful to gather such cases together for illustrative purposes or to support an argument that in some form environmental rights ought to be recognized in international law. However, using such cases to show that these rights are already part of the law is more questionable (although they are, of course, a reminder that human rights practice today must regularly address environmental issues).

To suggest that there are improper ways of identifying environmental rights is not the same as saying that such rights cannot be created. It is worth noting, however, that the potential for confusion is not confined to the situation in which the question is whether the declaration of a new right would be premature. Even if the evidence is compelling, there is also the problem, mentioned earlier, of determining the precise significance of what has been found, specifically the relation between environmental (or other) emergent human rights and the rest of the legal system. International law provides a good illustration of this kind of problem, although a similar issue can arise in domestic legal systems, especially with regard to constitutional rights.

One pitfall stems from what may be characterized as the fragmentation of complex systems of law into distinct specialities (see Chapter 7 ‘Relationship between International Environmental Law and Other Branches of International Law’).28 The danger is that having identified legal rights of unquestionable authenticity on a given subject, the specialist in this field may lose sight of the fact that ‘human rights law’, ‘environmental law’, ‘the law of the sea’, ‘international criminal law’, or whatever are not separate disciplines in the sense that law is distinct from moral philosophy, but are simply convenient divisions for teaching, research, and other purposes. Claims that this or that speciality needs its own rules on, say, sources, treaties, or state responsibility should therefore be treated rather sceptically, if international law is to retain coherence. Assuming, then, that, in some form, environmental rights are to form part of international law now or in the future, it will be just that—a part of international law—and not a component of a discrete subject whether styled ‘international environmental law’ or ‘human rights’.

Another pitfall is that when new rights are recognized, not only are conceptual walls erected around them but other parts of the system, when they cannot be ignored, are treated as subordinate to the new arrival. In the human rights field, this can be done by insisting (1) that the chosen right or set of rights are so important that (p. 679) they should take precedence over all other human rights, and (2) that they have the status of ius cogens and so should prevail over all other norms of international law as well.29 The motives behind such moves are obvious enough. If securing recognition for environmental rights—first as moral, and then as legal, rights—dramatically increases the force of environmental arguments, as it does, then it is logical to try to go one step further and attempt to climb to the top, using the foothold that one has established on the legal ladder. As with the question of whether such rights exist, however, these moves are allowable only if they satisfy the system’s established criteria of legitimacy. The scope of rights and their relation to other rights are not matters for mere assertion, but questions to be settled by reference to the specific content of norms and the evidence of practice. Likewise, although there will always be room for argument about the content of ius cogens at a given time, international law has criteria for determining the status of its norms, including human rights norms, which are no less relevant for ‘environmental rights’ than for other elements in the system.

Conclusion

Rights play a key role in the debate about law and morals, but they raise conceptual issues that need clarification. In this chapter, I have tried to make this clarification by examining the idea of environmental rights and bringing out its implications. We have seen that the concept of rights plays a vital role by marking out growth areas for individuals or for groups. This can provide a theoretical basis for environmental rights of various kinds, although whether it is necessarily appropriate to address environmental issues through the concept of human rights is another matter. Three specific questions were then examined: (1) the need to establish who can be a rights-holder; (2) the need to identify who is under corresponding obligations; and (3) the need to consider the scope of a given right and its relation to other rights. Finally, to take account of some specific features of law and legal argumentation, this chapter has briefly reflected on the evidence needed to establish rules of international law and to determine their relative status within the system.

As far as possible, I have sought to relate the points made to environmental law in particular, although I have refrained from detailed consideration of certain matters, such as environmental ethics and equity, which are discussed in other chapters (see Chapter 13 ‘Ethics and International Environmental Law’ and Chapter 27 ‘Equity’). I am conscious that in this rapid survey of the conceptual issues surrounding rights, I have dealt rather briefly with several matters that could be examined in greater (p. 680) depth. Questions such as the basis of human rights or the relation between legal and moral rights will no doubt continue to exercise lawyers and philosophers as long as their disciplines exist. The value of a rights-based approach to the legal and policy challenges posed by the environment is, of course, also a subject for continuing debate. If this chapter has done nothing else, I hope that it has at least demonstrated that environmental rights generate conceptual problems that are complex, interesting, and central to this issue.

Recommended Reading

  • P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 A.J.I.L. 607.
  • A. Boyle and M. Anderson, eds., Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996).
  • J. Crawford, ed., The Rights of Peoples (Oxford: Clarendon Press, 1988).
  • P.S. Elder, ‘Legal Rights for Nature: The Wrong Answer to the Right(s) Question’ (1984) 22 Osgoode Hall L.J. 285.
  • L.E. Lomasky, Persons, Rights and the Moral Community (Oxford: Oxford University Press, 1987).
  • W. Shutkin, ‘International Human Rights Law and the Earth: the Protection of Indigenous Peoples and the Environment’ (1990–1) 31 Va. J. Int’l L. 479.
  • D. Shelton, ‘Environmental Rights,’ in P. Alston, ed., Peoples’ Rights (Oxford: Oxford University Press, 2001) 185.
  • M. Thorne, ‘Establishing Environment As a Human Right’ (1991) 19 Denver J. Int’l L. & Pol. 301.
  • UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, Final Report of the Special Rapporteur, UN Doc E/CN. 4/Sub. 2/1994/9 (6 July 1994).

Footnotes:

See, for example, A. Boyle and M. Anderson, eds., Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996); and D. Shelton, ‘Environmental Rights,’ in P. Alston, ed., Peoples’ Rights (Oxford: Oxford University Press, 2001) 185.

See L.E. Lomasky, Persons, Rights and the Moral Community (New York: Oxford University Press, 1987) at 8.

This theme is developed in Lomasky, see note 2 above at chapters 2 to 4.

For excellent surveys of this issue, see J. Crawford, ed., The Rights of Peoples (Oxford: Clarendon Press, 1988); and Alston, see note 1 above.

For examples of such situations, see W. Shutkin, ‘International Human Rights Law and the Earth: The Protection of Indigenous Peoples and the Environment’ (1990–1) 31 Va. J. Int’l L. 479.

See Lomasky, note 2 above at 5.

For discussion of this and other ‘new’ human rights, see P. Alston, ‘Conjuring Up New Human Rights: a Proposal for Quality Control’ (1984) 78 A.J.I.L. 607.

See The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria (2001), text reprinted in (2003) 10 I.H.R.R. 282 [Ogoni]; see also D. Shelton, ‘Case-Note’ (2002) 96 A.J.I.L. 937; and F. Coomans, ‘The Ogoni Case before the African Commission on Human and Peoples’ Rights’ (2003) 52 Int’l & Comp. L.Q. 749.

See, for example, J. Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’ in Crawford, see note 4 above, at 55.

10  See J. Crawford, ‘Some Conclusions,’ in Crawford, see note 4 above, at 159 and 169–70.

11  See D. Makinson, ‘Rights of Peoples: Point of View of a Logician,’ in Crawford, see note 4 above, 69 at 77–8.

12  For a suggested approach to such problems, see Lomasky, note 2 above at 152–228.

13  The issue was raised but not resolved in the case of EHP v. Canada, Comm no. 67/1980, which was decided by the Human Rights Committee, reprinted in Selected Decisions of the Human Rights Committee, volume 2 (October 1982–April 1988) 20.

14  See Lomasky, note 2 above at 223.

15  See P.S. Elder, ‘Legal Rights for Nature: The Wrong Answer to the Right(s) Question’ (1984) 22 Osgoode Hall L.J. 285.

16  See the Ogoni case, note 8 above.

17  See Makinson, note 11 above at 80.

18  See A. Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment,’ in Boyle and Anderson, eds., see note 1 above at 43.

19  See Makinson, note 11 above at 80–1.

20  For instance, a report in the British press described a dispute between the proprietor of a seafood restaurant and a client, which occurred when the latter, having accepted an offer to consume ‘all he could eat’ for a fixed price, ordered his fourth plate of oysters. How the dispute was resolved is not recorded.

21  For exploration of this point with reference to the issues of self-determination, development, and cultural identity, see Makinson, note 11 above at 83–92.

22  For one approach to resolving such problems, see T. Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 A.J.I.L. 1.

23  See the example of the Dogrib Indians, cited by Brownlie, in Crawford, see note 4 above at 7.

24  Conflicts of this type are discussed in G. Triggs, ‘The Rights of Peoples and Individual Rights: Conflict or Harmony?’ in Crawford, see note 4 above at 141.

25  See Brownlie, note 23 above at 14.

26  See, for example, M. Thorne, ‘Establishing Environment as a Human Right’ (1991) 19 Denver J. Int’l L. & Pol. 301.

27  See R. Desgagne, ‘Integrating Environmental Values into the European Convention on Human Rights’ (1995) 89 A.J.I.L. 263.

28  See Brownlie, note 23 above at 15.

29  For an example of such reasoning, see Thorne, note 26 above at 332.