1 The case for hindrance
For many detached observers, the immediate response to the question our title poses would be that of course human rights hinder environmental protection. They would note as being quite natural and understandable the fact that supporters of progressive forces are invariably loath to acknowledge that there are any fundamental differences between their various causes, regardless of how different their campaigns for change appear to be. But even allowing for such intuitive solidarity, they would wonder how in this particular case such an obvious divergence on fundamentals could possibly be avoided or explained away. The subject of human rights is, as it declares for all to see in the way that it describes itself, a field that is concerned not only with humans but also with the rights that flow from being human, rather than from being anything else: not an animal (even a Great Ape) 1
See for a good general account of the issue of animal suffering which necessarily goes beyond the language of rights A Linzey, Why Animal Suffering Matters (OUP, Oxford 2009).
See D Ivison, Rights (Acumen, Stocksfield 2008), especially chs 1–4.
J Griffin, On Human Rights (OUP, Oxford 2008) is a recent and excellent treatment of human rights from this kind of philosophical point of view.
This separateness of each and every human, one from the other, has caused human rights to struggle to create a credible theory of how humans can sensibly get along together in a way that accords with their individualistically based human rights – the arguments are still being gone over today, with their modern form being in the shape of questions about how you can reconcile democracy and human rights, majority rule with judicial oversight. One of the tricks employed by human rights activists in the past to get over this problem of individual self-absorption and therefore to secure support for marginalized people – native Americans for example – has been to contrast their plight with that of animals, to the benefit of the human for sure but at a cost to the nonhuman living community, the whole point of insisting that you should not treat people like animals being that if they were animals it would be absolutely fine to exploit, beat and treat them as you desired. 4
B de Las Casas, In Defence of the Indians (c 1548), reprinted in part in MR Ishay, The Human Rights Reader (2nd edn Routledge, New York and London 2007) 165–8.
The law on human rights provides little relief from this philosophical speciesism. 5
See C Gearty, ‘Is Human Rights Speciesist?’ in A Linzey (ed), The Link Between Animal Abuse and Human Violence (Sussex Academic Press, Brighton 2009), ch 12.
CB Macpherson, The Political Theory of Possessive Individualism (OUP, Oxford 1962).
Many of which are usefully collected in Ishay (n 4), ch 15.
The classic example with regard to race is the US Supreme Court decision determining that slaves were in law the property of their masters, Dred Scott v Sandford 60 US 393 (1856), 60 US 393 (How).
Two of the best critiques, albeit from different perspectives, are MA Glendon, Rights Talk: The Impoverishment of Political Discourse (The Free Press, New York 1991) and JAG Griffith, The Politics of the Judiciary (5th edn Fontana Press, London 1997).
An extreme case along these libertarian lines is developed in R Nozick, Anarchy, State and Utopia (Basil Blackwell, Oxford 1974).
For a regional example see Article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), now part of United Kingdom law: Human Rights Act 1998 s 1 and sched 1.
International law has made a different but in some ways also problematic contribution. Of course, the human rights commitment shown by the international community, reflected in the deepening of the framework for the protection of international human rights standards, has been admirable. But it has come at a certain price, which has been the strengthening of the position of sovereign states, and in particular the integrity of the independence of governments over the geographic areas that states have been able to call their own. Human rights law is not responsible for this withdrawal of international engagement from internal affairs of course but it has been what has made it possible: respect for human rights has been the quid pro quo for national sovereignty in the global settlement achieved in the aftermath of the Second World War. 12
A brilliant account is AWB Simpson, Human Rights and the End of Empire (OUP, Oxford 2001).
This species-centred trend is exemplified by the Declaration on the Right to Development, proclaimed by the General Assembly in 1986. 13
UNGA Res 41/128 (4 December 1986) UN Doc. A/Res/41/128.
1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
2. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
1. The human person is the central subject of development and should be the active participant and beneficiary of the right to development.
What is depressing for present purposes is that while this right to development has certainly been controversial in the human rights community, this has been mainly on account of its breadth and the degree of the obligation it places, if any, on developed countries to assist developing nations. The issue has not been about the potential damage that is done by such a profoundly human-oriented approach to the world's resources – explicable perhaps in human rights terms but worryingly narrow nevertheless. The human-rights-respecting nations began this destruction of the world just around the same time they were adopting their various rights charters, the argument runs, so why should these states be allowed now to slow down the growth of nations whose only ‘fault’ has been to have their own progress stymied by colonial domination? 14
See generally M Bedjaoui, ‘The Right to Development’ in M Bedjaoui (ed), International Law: Achievements and Prospects (UNESCO and Martinus Nijhoff, Dordrecht 1991), ch 53.
We can conclude this section by acknowledging that the debit side of the human rights account clearly stacks up against its value in the field of environmental protection. But this is by no means the end of the story: the subject of human rights did not achieve the trans-disciplinary power it enjoys today by being easily tied down. The phrase oozes with multiple meanings, of which we have so far only referred to three (those rooted in philosophy, constitutional law and international law). There are international relations approaches which see human rights as a tool of diplomacy and as such are neither here nor there from an environmental point of view – unless they underpin military invasions with all the astonishing environmental damage that such marauding entails (among its many other excesses). Anthropological perspectives are more benign but similarly off-centre so far as the environment is concerned, save insofar as they have assisted in the emergence of the concept of the rights of indigenous peoples, a point of important convergence between our two subject areas to which we shall return. There is one approach however which fits more comfortably than these, and which suggests that we should be careful before we write off entirely the possibility of effective support between our two fields.
2 Help at hand
The discipline of sociology is often thought of as inimical to human rights, but in its subversion of the established fields we can detect a possible route to effective mutual reciprocity as between our two areas of enquiry. The sociological attitude to human rights is relaxed about finding truth and happy to delink itself from the certainties of law and philosophy. It sees human rights as a term whose meaning is constructed, not discovered and which is therefore capable of change, indeed has changed over the generations, and will alter again in the future – is constantly on the move in fact. 15
This is of course an absurdly conflated account. For a general treatment see L Morris (ed), Rights: Sociological Perspectives (Routledge, Abingdon 2006).
C Douzinas, Human Rights and Empire (Routledge-Cavendish, Abingdon 2007) is particularly good on this power point. The author is a lawyer albeit one with a strong sociological feel.
Proponents of this vibrant, fluctuating, intentionally indefinable approach to human rights are always at risk of veering into cynicism. They acknowledge that revolutions go wrong, that human rights victories can turn to defeat in the hands of human-rights-warriors-turned-despots. They recognize too that what they can do their opponents can do as well and that the powerful moreover are often better equipped (precisely because of who and what they are) to deploy the language to suit themselves. 17
See U Baxi, The Future of Human Rights (OUP, New Delhi 2002) for an exceptionally powerful account along these lines.
Expressed in these terms, the link between human rights and environmental activism is much easier to make. Shed of its layers of philosophical and legal mystification, human rights advocacy emerges as a social movement of the very first importance. In their commitment to change, their attitude to power and in their mode of organizing, human rights groups resemble the green and environmental activists who have done so much to bring the need for environmental protection to public attention. Indeed the human rights movement could learn a great deal from the environmentalists in this regard, not least how to think about human rights. For one of the interesting aspects of comparing these two social movements is to see quite how imaginatively and in tactical terms astutely the environmentalists have used the language of rights. They have been much better – more creative – than the human rights people themselves. As Neil Stammers puts it in his excellent recent study of human rights and social movements, ‘activists from a wide variety of social movements have been potentially showing us how to think about human rights for a very long time’. 18
N Stammers, Human Rights and Social Movements (Pluto Press, London 2009) 145.
Whatever might be the reason, it is clear that, in Stammers' words again, ‘the green movement … has generated a range of claims to environmental rights and environmental justice’. 19
See <http://www.unep.org/Documents/Default.asp?documentID=9> accessed 16 September 2009.
Report of the UN Conference on Environment and Development, 3–14 June 1992, Annex 1. <www.un.org/esa/dsd/agenda21/> accessed 16 September 2009.
Commission on Human Rights. Sub-Commission on Prevention of Discrimination and Protection of Minorities. Review of further developments in fields with which the Sub-Commission has been concerned: Human Rights and the Environment. Final report prepared by Special Rapporteur General, Fatma Zohra Ksentini, E/CN.4/Sub.2/1994/9.
See <www.foei.org/en/publications/pdfs/climate.../human_rights.pdf> accessed 16 September 2009.
First, there is the way in which the authors cleverly link the delivery of human rights to environmental protection: it is ‘access to … unspoiled natural resources that enable survival, including land, shelter, food, water and air’. 24
The second observation to make about the Report is that it is impressively aware that ‘[e]nvironmental rights go hand-in-hand with civil and political rights’. 26
See n 24, above at 6.
For further elaboration of this approach to human rights, see C Gearty, ‘Principles of Human Rights Adjudication’ (OUP, Oxford 2004) and C Gearty ‘Hamlyn Lectures’ , Can Human Rights Survive? (CUP, Cambridge 2006).
Third, there is the FoEI Report's healthily pragmatic approach to human rights, its understanding that ‘the existing human rights declarations and covenants do carry significant moral weight, and can be used to bring global attention to violations happening in the most remote corners of the earth’ 28
Above n 24 at 6.
Ibid at 5.
We shall come back shortly to the specifics of the rights being claimed here. But the extract stands as a classic exposition of the positive effect of combining human rights and environmental activism. In particular the idea of rights already (as it were) in the legal womb, waiting to be born, breaks the grip that the old documents have on the subject, opening it up to respond to the need for ‘new rights’ to reflect not changes in human nature exactly but rather alterations in the habitat in which that nature has to exist. There is also the understanding that rights flow not from the discovery of some hitherto inaccessible truth but rather from struggle and the fighting of political battles, a classic sociological insight. Once we see human rights and environmental protection as forms of activism driven by a desire to make the world a better place both for its own sake and for the sake of all who live on it (animals [including humans] among them), we can see that there are in fact close bonds between the two fields, and that human rights are a help rather than a hindrance to progress in the environmental field.
Many of these rights, particularly the political ones, are well-established and enshrined in various conventions and agreements. We can credit the establishment of some of these rights, as well as the acceptance of others that are not yet legally recognized, to the ongoing struggles of communities and indigenous peoples around the world. Other ‘new’ rights, including rights for climate refugees, have arisen over recent years due to the acceleration of economic globalization and the accompanying environmental destruction and social disruption. Still others, like the right to claim ecological debt, have emerged as the result of years of campaigning by Friends of the Earth and others for the recognition of the impacts of northern resource depletion and natural destruction in southern countries. All of these rights are equally important, and they are all interdependent. Environmental rights are human rights, as people's livelihoods, their health and sometimes their very existence depend upon the quality of and their access to the surrounding environment as well as the recognition of their rights to information, participation, security and redress. 30
It is to a discussion of the practical way in which that help is delivered that we now turn, discussing first the various ways in which civil and political rights have been deployed to facilitate communication of the environmental message. We then consider the recent development of a range of new environmental (human) rights laws in the international arena. Following this we turn back, thirdly, to the social movements to assess the revolutionary power of human rights to assist in the radical transformation in governmental structures that many believe is urgently required (albeit almost impossible of achievement?) if the planet is to be saved for the future. The article ends with some concluding remarks about the vibrancy of the language of human rights in this field and its manifest importance in the coming crisis over climate change, at which point we suggest that not only might human rights as an idea be essential to environmental protection but that thinking about the environment might well be a key to the reinvigoration of the human rights movement as well.
3 Civil and political rights: protecting the messenger
The rights with which we are concerned here are the civil liberties of thought, conscience, expression, assembly and association, together with the guarantees of liberty and due process. These fundamental freedoms function collectively as important protectors of activism in all political arenas. Two caveats must be entered if we want to address not only their importance but also their efficacy. First, it is a sad fact that the protection of these freedoms is in very short supply in countries that are not organized along democratic lines. There is no necessary correlation between civil liberties and democracy but the reality is that under no other system of government are such freedoms likely to thrive: the benign absolute monarch is either a daydream or a lie so far as the protection of civil liberties is concerned. Paradoxically, therefore, we find discussion of the relevance of civil and political rights restricted to those countries in which such basic freedoms are at least notionally available. This problem is compounded by the second caveat which needs also to be entered, namely that the legal enforcement of civil and political rights at the international level is very weak indeed. True there is an international covenant on civil and political rights and this even has a protocol to which states can sign up which permits quasi judicial proceedings to be launched against them for alleged infractions of the rights set out in the document. But in the absence of a world court of human rights or some analogous judicial body, 31
For the limited role of the International Court of Justice and other judicial bodies organized on an international basis see G Oberleitner's Global Human Rights Institutions (Polity, Cambridge 2007), ch 6.
With avenues of true judicial redress at the international level cut off, those looking for hard evidence of the value of civil and political rights protection to the environmental movement invariably find themselves turning their gaze to regional human rights instruments, and in particular to the European Convention on Human Rights and Fundamental Freedoms, overseen by a truly independent and confident judicial tribunal, the European Court of Human Rights, based in Strasbourg in France. While it cannot be denied that the record of this court is somewhat mixed, there is no denying that at least some of its cases have done valuable work in the protection of environmental activists. A very good example is the remarkable decision of Steel and Morris v United Kingdom. 32
(2005) 41 EHRR 403.
See F Donson, Legal Intimidation (Free Association Books, London 2000).
The same Strasbourg court has also been solicitous towards certain forms of direct action, a style of protest that environmental activists have made their own. In Hashman and Harrup v United Kingdom 34
(1999) 30 EHRR 241.
These have been good decisions but the sociologist in all of us warns against over-reliance on judges. In Steel and Others v United Kingdom 35
(1998) 28 EHRR 603.
(2003) 37 EHRR 783.
The value of civil and political rights to the environmental movement probably lies more in the fact of their acceptance within a culture than in any particular decision of this or that human rights court. One or two exceptional decisions aside, the legal tool is more often a reflection of a culture rather than a maker of it. The assertion of civil and political rights give activists a universal language – understandable even to those who do not share their substantive concerns – with which to fight back against a state intent on silencing them. Because of their central position in human rights law, civil and political rights are usually more open to legal avenues (national and regional) than are other rights, and inevitably this has tempted some activists to seek to smuggle their true goals into law cases camouflaged as traditional legal actions concerned only with civil rights. This worked well for a while in Strasbourg where serious problems of pollution about which (in the two leading cases) the Spanish and Italian governments were doing nothing led to successful litigation under the European Conventions guarantee, in Article 8, of the right to respect for private and family life. 37
Lopez Ostra v Spain (1994) 20 EHRR 277; Guerra v Italy (1998) 26 EHRR 357.
(2001) 34 EHRR 1 para 107.
(2003) 37 EHRR 611.
4 An international right to environmental protection?
Agenda 21, the Rio Declaration on Environment and Development and the Statement of Principles for the Sustainable Management of Forests were adopted by the United Nations Conference on Environment and Development, the famous Rio Conference referred to earlier, held in 1992. 40
See n 21, above.
It is perhaps understandable that the finalized declaration did not include any generalized ‘right to a good environment’ – it is hard to see what credibility such an assertion would have enjoyed and its appearance may well have added little to what was already being addressed. The report of the Special Rapporteur on Human Rights and the Environment, Mrs Fatma Zohra Ksentini, in July 1994, did include a draft Principle to the effect that ‘[a]ll persons have the right to a secure, healthy and ecologically sound environment’ and that ‘[t]his right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible’ (Principle 2 in Annex 1). 41
Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
See n 22, above.
Viewed overall, however, less progress in this generalized field has been achieved than might perhaps have been first thought possible in the early 1990s. It is true that Article 24 of the African Charter on Human and Peoples' Rights states that ‘[a]ll people shall have the right to a general satisfactory environment favourable to their development’. The Additional Protocol to the American Convention on Human Rights (San José, 1969), which relates to economic, social and cultural rights, adopted at San Salvador in 1988, also contains a clause concerning the right to an environment, Article 11 providing that ‘everyone shall have the right to live in a healthy environment and to have access to basic public services', the states parties then being required to promote the protection, preservation, and improvement of the environment’. The Convention on the Rights of the Child, dated 20 November 1989, explicitly refers to the need for the education of the child to be directed, inter alia, to ‘the development of respect for the natural environment’ (Article 29, para. (e)). But this hardly amounts to a strong momentum towards a new legal framework.
The UN Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly in September 2007, provides protection for the environment in the time-honoured human rights way of looking at habitat through people. 42
UNGA Res 61/295 (13 September 2007).
We may conclude that the overall international human rights law record in this field is pretty modest. This is not necessarily a bad thing in itself. The risk in too much apparent success in this sphere is that the right to environmental protection joins the ranks of those other human rights guarantees which are more honoured in the breach than in the observance, with weak governmental commitment and ineffective enforcement structures combining to make the supposed advance worse than useless.
1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.
5 Doing human rights
Lest it be thought that the last section ended on too dismal, perhaps even too cynical a note, the sociological insight into human rights that has been at the heart of this essay needs to be recalled: you do not have to succeed in achieving a new law to have triumphed in your deployment of the language of human rights. The legal arena is not the only test of utility. Nowhere is this clearer than in relation to environmental protection. We have already seen in the FoEI Report how valuable the language of human rights can be made to be in the hands of a campaigning organization. There is a radical, transformative power here, rooted in the emancipatory history of these words, that fits well with the goals of many environmental movements, those groups for whom winning this or that case is neither here nor there. What has been interesting has been how the idea of human rights has been appealing to radical critics of capitalism who want at the same time to frame their opposition in terms that are not traditionally Marxist in approach. One of the key drivers of this brand of thinking and doing have been the Zapatistas, for whom the claims of their people (the indigenous people of Chiapas) have long been articulated in rights terms. Their declarations have spoken of the ‘inalienable right’ of the people ‘to alter or modify their form of government’ and their actions have been justified on account of the ‘impossibility of struggling peacefully for our elemental rights as human beings’. 43
The Second Declaration from the Lacandona Jungle (adopted 19 June 1994) <http://flag.blackened.net/revolt/mexico/ezln/ccri_2nd_dec_june94.html> accessed 17 September 2009.
The World Social Forum which has been developed in an explicit contrast with the World Economic Forum and which has over the years generated regional spin-off versions of itself has seized on human rights as an effective communicative tool. Among its Charter of Principles are the following:
Here we have in summary why human rights as a term comes so much to the fore when its supposed precision by reference to the disciplines (in both senses) of philosophy and law is junked and in their place is put a much vaguer but more urgent awareness of a need for action to combat manifest injustice. The radicalism and idealism of Marxism remains, but now equipped with the ethical imperative of buttressing universal human dignity (in all its fragile manifestations) rather than the altogether more confident (albeit desiccated) dialectical materialism that drove the revolutionaries of past generations. It speaks meaningfully across the whole spectrum of a community, from the weak across to the powerful, deploying the convictions of the latter – rooted in the battles of the past – to force recognition of the need for similar struggles today. At the right level of generality, fighting for human rights can be a transformative project as well as a conciliatory one, appealing to those who seek to build a new world order, as well as to those who want to construct coalitions across political divides. This chameleonism is often a source of frustration for sure, but it is what gives the idea of human rights the power that it undeniably enjoys in the world today.
10. The World Social Forum is opposed all totalitarian and reductionist views of economy, development and history and to the use of violence as a means of social control by the State. It upholds respect for Human Rights, the practices of real democracy, participatory democracy, peaceful relations, in equality and solidarity, among people, ethnicities, genders and peoples, and condemns all forms of domination and all subjection of one person by another.
11. As a forum for debate the World Social Forum is a movement of ideas that promotes reflection, and the transparent circulation of the results of that reflection, on the mechanisms and instruments of domination by capital, on means and actions to resist and overcome that domination, and on the alternatives proposed to solve the problems of exclusion and social inequality that the process of capitalist globalization with its racist, sexist and environmentally destructive dimensions is creating internationally and within countries. 44
See <http://www.wsfindia.org/?q=node/3> accessed 17 September 2009.
6 Conclusion: mutual reciprocity as a necessary future
The need to bring the environmental and human rights movements together has been rendered both urgent and vital by the impending climate change catastrophe. For just as the human rights protagonist has often given the impression that he or she does not care about the natural world, so too have some environmentalists seemed at times to despise people. There is in such activists a potential casualness about humankind which may be understandable emotionally (it is our reckless species which has brought us to the verge of collapse) but which when worked through into policies and positions will – if left unchallenged – invariably involve the poor and the vulnerable (whose personal responsibility for environmental change is nonexistent) paying a heavy price for the polluting and destructive recklessness of others. It will be the Maldives that disappears, the Bangladeshi millions who will find their homes inundated, and the Inuit whose habitats will be destroyed. To put this another way, an approach to meeting the climate change challenge which is indifferent to human suffering will inevitably lead to decisions in which the world's poor are once again made to pay a price for the selfishness of others. The human rights approach can stop this happening. By focusing on equality and respect for individual dignity, an insistence on attention to human rights has the effect of forcing all decision-makers to look outside their own circle, to see the human as well as the global consequences of their actions. 45
As the Commonwealth Secretariat neatly puts it in its title to a recent intervention: Human Rights and Climate Change: An Approach That Puts People in the Forefront of the Debate Commonwealth Secretariat Discussion Paper 5 (July 2009).
See generally International Council on Human Rights, Climate Change and Human Rights: A Rough Guide (International Council on Human Rights Policy, Versoix 2008); and S Humphreys (ed), Human Rights and Climate Change (Cambridge University Press, Cambridge 2010).
And what can the environmentalist offer human rights in return? The problem with all branches of human rights is lack of confidence in the foundations of the subject. There are historical reasons for this: a commitment to equal dignity made sense when the field was dominated by an explicitly Judeo-Christian ethic, but in the postreligious world (where most human rights activism is to be found) this theological basis for belief in equality is much harder to sustain. Why are we all equal? Why should not one be favoured over the other? Where does this morality come from, if not from God and His representatives on earth? What is so wrong about abusing power if you are lucky enough to have it? Human rights thinkers are far from being able to answer these questions effectively, but thinking hard about the embedded nature of humans in the world around them at least points the enquiry in the right direction. It is only through reflecting upon our species as a part of the natural world that we can come to a renewed sense of the wonder of our existence and the beauty (as well as the immense productivity) of our seemingly innate propensity to think about others as well as solely about ourselves and our kin. And if we can expand our horizons to include an imaginative leap beyond the living into the realm of the billions of as yet unborn (indeed not-yet-conceived) humans of the future, we will be able to see that here is a vast category of the powerless who demand our attention. 47
See further C Gearty, ‘Can Human Rights Survive?’ above n 27, ch 5 and on evolution and human rights ‘Human Rights After Darwin: Is a General theory of Human Rights Now Possible?’ at <http://www.conorgearty.co.uk/pdfs/Human_Rights_after_DarwinLECTURE7May2009.pdf> accessed 17 September 2009.
Conor Gearty - London School of Economics and Political Science, UK