1. A
Right
to
a
Decent
Environment:
Are
Human
Rights
Sustainable?
The
capacity
of
our
ecological
surroundings,
on
which
we
depend
for
survival,
to
sustain
current
modes
of
consumption
and
production
is
under
threat.
It
has
been
argued
that
a
rights-­‐based
approach
to
environmental
protection
would
guide
policy
formulation
at
all
levels
of
governance
towards
a
more
sustainable
world.
To
that
end,
I
shall
argue
here
that
what
is
required
is
an
alteration
in
the
way
in
which
our
interactions
with
nature
take
place,
which
the
imposition
of
a
right
to
a
decent
environment1
may
well
provide.
As
we
shall
see,
however,
the
rights
discourse
itself
will
need
to
be
reconstructed
so
that
it
can
accommodate
a
naturalist
ethic,
and
the
extension
of
rights
to
the
natural
world.
While
there
are
still
pockets
of
dissent,
a
general
scientific
consensus
now
exists
surrounding
the
role
of
human
activity
in
bringing
about
rapid
climate
change.2
As
part
of
this
consensus
increases
predicted
in
aggregate
global
temperatures
have
been
attributed
to
industrial
development,
the
pace
of
which
has
intensified
considerably
post-­‐World
War
II,
and
particularly
to
a
heavy
reliance
on
the
burning
of
fossil
fuels.
Without
immediate
and
rapid
reductions
in
greenhouse
gas
emissions,
which
are
associated
with
fossil
fuel
use,
temperatures
are
predicted
to
rise
by
as
much
as
6.4
degrees
over
the
course
of
the
twenty-­‐first
century.3
The
impact
of
a
rise
greater
than
2
degrees
over
that
timeframe
would
be
catastrophic
to
human
societies
–
warming
oceans
and
1
During
this
paper
I
will
use
the
phrase
‘right
to
a
decent
environment,’
though
it
is
important
to
note
that
several
formulations
have
been
put
forward,
and
indeed
that
there
are
problems
associated
with
defining
the
kind
of
environment
that
equates
to
a
sustainable
world.
So
for
example,
it
has
been
variously
referred
to
as
a
right
to
a
healthy,
clean,
decent,
safe,
adequate,
satisfactory,
and
viable
environment
at
different
times,
and
this
list
is
by
no
means
exhaustive.
Unfortunately
there
is
not
space
here
to
examine
the
implications
of
various
definitions.
Stephen
Turner
A
Substantive
Environmental
Right:
an
Examination
of
the
Legal
Obligations
of
Decision-­‐Makers
Towards
the
Environment,
Alphen
aan
den
Rijn,
Kluwer
Law
International,
2009,
pp.
46-­‐47.
2
This
paper
will
assume
that
the
scientific
consensus
is
well
grounded,
and
that
climate
change
is
an
inevitability;
all
that
can
be
determined
through
mitigation
and
adaptation
is
the
degree
to
which
human
societies
are
affected.
3
Stephen
Turner,
A
Substantive
Environmental
Right,
p.
60.
1

2. melting
ice
caps
leading
to
the
destruction
of
coastal
cities
and
agricultural
areas,
as
well
as
an
increased
frequency
and
severity
of
extreme
weather
events
such
as
heat
waves
and
flooding
–
particularly
in
the
developing
world,
which
occupies
the
most
vulnerable
areas
of
the
planet.4
The
notion
that
localized
decisions
may
have
grave
global
consequences
forces
us
into
a
radical
rethinking
of
ethics
(and
by
extension
rights)
on
the
one
hand,
and
underscores
the
need
for
truly
global
solutions
on
the
other.5
Unfortunately,
strategies
for
climate
change
mitigation
based
on
international
co-­‐operation
have
encountered
significant
obstacles.
Market-­‐based
approaches,
such
as
the
Kyoto
Protocol,
have
suffered
from
extended
delays,
insufficient
funding,
and
United
States
obstructionism.
They
have
also
had
their
effectiveness
blunted
by
abuse-­‐prone
flexibility
mechanisms
designed
to
appease
the
concerns
of
both
developing
and
developed
countries.6
Further,
the
affirmation
of
the
geographic
dominance
of
states
over
their
territories
by
the
United
Nations
(UN)
in
the
aftermath
of
World
War
II
continually
acts
a
barrier
to
the
growth
of
global
and
regional
solutions,
with
the
catastrophic
failure
of
the
recent
Copenhagen
negotiations
being
but
one
example.7
Taken
together
these
obstacles
have
contributed
to
the
current
political
impasse,
leading
many
climate
scientists
to
predict
temperature
increases
consistent
with
ecological
catastrophe.8
4
Katherine
Smits,
Applying
Political
Theory:
Issues
and
Debates,
Basingstoke,
Palgrave
Macmillan,
2009,
p.
233.
5
Our
current
ethical
system
is
based
on
clear
defined
responsibilities
and
harms,
such
that
if
you
cause
harm
to
someone
it
is
clear
who
did
what
and
to
whom.
Peter
Singer,
One
World:
the
Ethics
of
Globalization,
Melbourne,
Text
Publishing,
2002,
p.
19.
6
Sam
Adelman,
'Rethinking
Human
Rights:
the
Impact
of
Climate
Change
on
the
Dominant
Discourse,'
in
Stephen
Humphreys
(ed.),
Human
Rights
and
Climate
Change,
Cambridge,
Cambridge
University
Press,
2010,
pp.
166-­‐167.
7
Conor
Gearty,
'Do
Human
Rights
Help
or
Hinder
Environmental
Protection?,'
Journal
of
Human
Rights
and
the
Environment,
Vol.
1,
No.
1,
2010,
p.
9.
8
See
for
example,
Juliette
Jowett
and
Christine
Otter,
‘Global
Emissions
Targets
will
lead
to
4C
Temperature
Rise,
say
Studies,’
Guardian,
5
July
2010.
Retrieved
25
October
2010,
available
from
http://www.guardian.co.uk/
2

3. The
consequences
of
unabated
industrial
development,
however,
extend
beyond
the
risk
of
rapid
climate
change.
The
threat
to
fragile
ecosystems,
and
hence
their
ability
to
sustain
human
life,
is
cause
for
as
much
concern.
For
example,
in
1998
the
severe
flooding
of
the
Yangtze
River
in
China
was
attributed
to
the
conversion
of
forest
areas
on
its
banks
into
agricultural
land.
The
resulting
loss
of
vegetation
and
subsequent
soil
erosion
amplified
the
run-­‐off
from
the
storms,
and
contributed
to
over
4,000
deaths.9
Events
such
as
this
help
to
underscore
a
more
general
need
to
radically
reassess
our
relationship
with
our
ecological
surrounds,
as
well
as
the
viability
of
our
current
modes
of
production
and
consumption.10
Challenges
to
our
understanding
of
humanity’s
relationship
with
nature
have
of
course
been
mounted
previously.
The
discourse
of
industrialism,
which
has
dominated
Western
political
thought
since
the
very
beginnings
of
industrial
society,
has
served
as
a
framework
within
which
we
have
understood
that
relationship.
It
is
based
on
the
assumption
that
perpetual
growth,
well
into
the
foreseeable
future,
is
not
only
desirable,
but
also
sustainable.
Indeed,
to
the
extent
that
limits
are
recognised
at
all,
they
are
considered
flexible;
the
available
stock
of
natural
resources
can
be
expanded
through
their
progressively
efficient
utilisation.11
With
the
publishing
of
the
seminal
Limits
to
Growth12
in
1972,
and
the
emergence
of
the
environmentalist
movement
more
generally
during
the
1970s,
the
supremacy
of
this
discourse
began
to
be
challenged.
The
image
of
the
9
Stephen
Turner,
A
Substantive
Environmental
Right,
p.
60
10
Christopher
D.
Stone
Should
Trees
Have
Standing?:
Law,
Morality,
and
the
Environment,
Oxford,
Oxford
University
Press,
2010,
p.
25.
11
Industrialism
has,
despite
its
dominance
in
Western
political
thought,
been
questioned
on
occasion.
For
example,
the
Romantics
of
the
nineteenth-­‐century
decried
the
destruction
of
the
environment
and
society
that
resulted
from
rapid
industrialization,
while
John
Stuart
Mill
argued
that
industrial
growth
was
progressing
at
a
superior
rate
than
the
advancement
of
society,
and
as
such
should
be
slowed
to
allow
society
to
catch
up.
Yet
until
the
emergence
of
environmentalism,
such
arguments
existed
at
the
margins
of
mainstream
thought.
Katherine
Smits,
Applying
Political
Theory,
p.
230.
12
In
the
book
the
authors
used
modelling
to
investigate
the
consequences
of
interactions
between
natural
and
man-­‐made
systems
in
order
to
explore
the
limits
to
exponential
growth.
See
Donella
H.
Meadows
et
al.,
The
Limits
to
Growth:
a
Report
for
the
Club
of
Rome’s
Project
on
the
Predicament
of
Mankind,
London,
Earth
Island
Ltd.,
1972.
3

4. Earth
as
finite
and
fragile,
as
opposed
to
a
cornucopia
put
at
the
disposal
of
humanity,
placed
doubts
upon
the
sustainability
of
the
relentless
pursuit
of
growth.13
Throughout
the
1970s,
and
into
the
early
80s,
this
‘growth
versus
the
environment’
dichotomy
polarised
international
debate.14
Of
concern,
particularly
to
developing
countries,
were
the
implications
for
justice
that
a
limit
to
growth
implied
–
industrial
development
had
led
to
a
standard
of
living
in
developed
countries
that
others
feared
they
would
be
prevented
from
obtaining.15
In
response
to
such
concerns
the
UN
convened
Bruntland
Commission
published
Our
Common
Future
in
1987,16
which
advocated
the
normative
framework
of
‘sustainable
development’
as
a
compromise
between
economic
and
social
development
on
the
one
hand,
and
the
requirements
for
sustained
environmental
protection
on
the
other,
now
and
into
the
future.17
The
Commission
defined
sustainable
development
as
‘development
that
meets
the
needs
of
the
present
without
compromising
the
ability
of
future
generations
to
meet
their
own
needs’.
Contained
within
the
definition,
as
stated
by
the
report,
are
two
concepts
–
‘needs’
and
‘limitations’.
The
former,
to
which
‘overriding
priority
should
be
given,’
specifies
the
meeting
of
the
‘essential
needs
of
the
world’s
poor’
as
the
condition
under
which
development
is
realised,
while
the
later
recognises
the
‘limitations
imposed
by
the
state
of
technology
and
social
13
Douglas
Torgerson,
'The
Uncertain
Quest
for
Sustainability:
Public
Discourse
and
the
Politics
of
Environmentalism,'
in
Michael
Black
and
Frank
Fischer
(eds.),
Greening
Environmental
Policy:
the
Politics
of
a
Sustainable
Future,
New
York,
Martin's
Press,
1995,
p.
3.
14
Andrew
Jordan,
'The
Governance
of
Sustainable
Development:
Taking
Stock
and
Looking
Forwards,'
Environment
and
Planning
C:
Government
and
Policy,
Vol.
26,
p.
20.
15
Lisa
D.
Hawke
and
Daniel
B.
Magraw,
'Sustainable
Development,'
in
Daniel
Bodansky,
Jutta
Brunée
and
Ellen
Hey
(eds.)
Oxford
Handbook
of
International
Environmental
Law,
Oxford,
Oxford
University
Press,
2007,
p.
617.
16
The
Bruntland
Commission,
originally
known
as
the
World
Commission
on
Environment
and
Development,
was
convened
in
1983
to
examine
policy
responses
to
the
deterioration
of
the
environment
and
its
consequences
for
sustained
economic
development.
Lisa
D.
Hawke
and
Daniel
B.
Magraw,
‘Sustainable
Development,’
p.
617.
17
Andrew
Jordan,
‘The
Governance
of
Sustainable
Development,’
p.
20.
4

5. organization
on
the
environment’s
ability
to
meet
present
and
future
needs’.18
Sustainable
development,
as
one
possible
response
to
the
limits
to
growth
theorem,
thus
sought
continuing
industrial
development
of
a
level
consistent
with
our
ability
to
expand
nature’s
carrying
capacity
for
that
development.19
By
its
very
nature
then,
the
Bruntland
Commission’s
compromise
between
development
and
environmental
protection
can
only
go
so
far.
For,
as
it
is
widely
recognised
amongst
international
actors,
of
the
two
concepts
contained
in
the
definition,
development
(needs)
is
afforded
primacy
over
the
requirements
for
sustainability
(limitations).
This
is
not
surprising
given
that
in
1986,
one
year
prior
to
the
publishing
of
Our
Common
Future,
the
UN
General
Assembly
adopted
the
Declaration
on
the
Right
to
Development.
It
stated,
in
article
1,
that
the
‘right
to
development
is
an
inalienable
human
right,’
and
further,
in
article
2,
that
the
‘human
person
is
the
central
subject
of
development’.20
Furthermore,
development
conceived
as
material
growth,
as
it
is
in
Our
Common
Future,
is
intimately
linked
to
the
dominant
structures
of
18
World
Commission
on
Environment
and
Development,
Our
Common
Future,
Oxford,
Oxford
University
Press,
1987,
p.
43.
While
this
definition
is
not
contained
within
any
international
legally
binding
instruments,
its
influence
is
such
that
it
has
attained
a
quasi-­‐official
status.
Lisa
D.
Hawke
and
Daniel
B.
Magraw,
‘Sustainable
Development,’
p.
618.
19
Timothy
W.
Luke,
'Sustainable
Develpment
as
a
Power/Knowledge
System:
the
Problem
of
'Governmentatlity,'
in
Frank
Fischer
and
Michael
Black
(eds.),
Greening
Environmental
Policy:
the
Politics
of
a
Sustainable
Future,
New
York,
Martin's
Press,
1995,
p.
23.
This
view
of
nature’s
carrying
capacity
as
malleable
is
evident
in
the
Commission’s
statement:
‘The
accumulation
of
knowledge
and
the
development
of
technology
can
enhance
the
carrying
capacity
of
the
resource
base.’
Hence,
nature’s
carrying
capacity
is
not
static,
but
rather
flexible.
World
Commission
on
Environment
and
Development,
Our
Common
Future,
p.
45.
It
should
be
noted,
however,
that
this
implicitly
implies
the
recognition
that
limits
do
per
se
exist.
William
M.
Lafferty
and
Oluf
Langhelle,
‘Sustainable
Development
as
Concept
and
Norm,’
in
William
M.
Lafferty
and
Oluf
Langhelle
(eds.),
Towards
Sustainable
Development:
on
the
Goals
of
Development
-­‐
and
the
Conditions
of
Sustainability,
New
York,
St.
Martin's
Press,
1999,
p.
6.
20
Declaration
on
the
Right
to
Development,
U.N.
Doc
A/RES/41/128
(1986).
Retrieved
20
October
2010,
available
from
http://www.un.org/
5

6. industrial
society,
which
developed
out
of
the
overexploitation
of
environmental
resources.21
Sustainable
development
also
suffers
from
a
vagueness
that
tends
to
belie
its
practical
use.
Our
Common
Future
itself
leaves
many
questions
unanswered:
sustainable
development
for
whom?
What
is
required
of
developed
countries
in
terms
of
assistance?
At
what
societal
level
should
sustainability
be
applied
to?
Or
indeed,
what
will
it
look
like
when
we
arrive
there?22
Of
course
its
generality
is
in
some
sense
necessary;
it
is
intended
to
garner
the
support
of
both
the
conservative
and
radical
elements
of
the
debate,
a
coalition
which
may
fall
apart
should
a
precise
definition
be
applied.
Moreover,
the
terms
value
arguably
lies
in
the
process
of
contestation
and
debate
that
has
led
to
an
examination
of
the
issues
it
addresses
in
the
years
that
have
followed.23
In
any
case,
the
denial
of
the
term’s
usefulness
as
either
an
analytical
concept
or
a
normative
one
is
immaterial
to
its
political
import.24
This
of
course
speaks
of
its
true
nature;
rather
than
being
a
concept,
much
less
one
of
scientific
certainty,
it
is
a
discourse.
Furthermore,
sustainable
development
has
come
to
dominate
international
affairs,
much
as
the
discourse
of
industrialism
did
before
it.
In
a
similar
fashion
too,
it
crowds
out
and
rejects
other
discourses,
among
them
the
limits
to
growth,
on
the
basis
that
ecological
limits
are
malleable,
and
green
radicalism,
on
the
basis
that
drastic
changes
to
international
economic
structures
are
unnecessary.25
21
Michael
Redclift,
Sustainable
Development:
Exploring
the
Contradictions,
London,
Methuen,
1987,
p.
199.
22
Lisa
D.
Hawke
and
Daniel
B.
Magraw,
‘Sustainable
Development,’
p.
621.
23
Andrew
Jordon,
‘The
Governance
of
Sustainable
Development,’
pp.
20-­‐21.
Debate
has
centred,
for
example,
on
the
wording
of
the
term
itself,
with
developing
countries
attempting
to
emphasize
‘sustained
economic
growth’
as
the
framework
under
which
development
would
take
place.
See
Lisa
D.
Hawke
and
Daniel
B.
Magraw,
‘Sustainable
Development,’
pp.
616-­‐618
for
a
detailed
discussion.
24
William
M.
Lafferty
and
Oluf
Langhelle,
‘Sustainable
Development
as
Concept
and
Norm,’
p.
2.
25
John
Dryzek,
'Paradigms
and
Discourses,'
in
Daniel
Bodansky,
Jutta
Brunée
and
Ellen
Hey
(eds.),
Oxford
Handbook
of
International
Environmental
Law,
Oxford,
Oxford
University
Press,
2007,
p.
56.
6

7.
Yet
it
is
those
very
discourses
that
seek
a
deeper
understanding
of
sustainability,
and
a
re-­‐examining
of
our
relationship
to
nature.
For
sustainability
is
far
broader
than
‘sustainable
development’
in
the
normative
sense.
Whereas
the
latter
is
an
attempt
to
locate
ecologically
rational
means
within,
and
in
order
to
sustain,
the
existing
structure
of
economic
development,
the
former
refers
more
generally
to
the
relationship
between
nature
and
society
conducive
to
the
sustaining
of
the
whole
range
of
conditions
under
which
human
social
activity
takes
place,
or
indeed
develops.26
In
other
words,
rather
than
being
simply
the
‘greening’
of
the
current
patterns
of
production
and
consumption,
sustainability
requires
a
normative
judgement
on
those
patterns.27
At
present
those
conditions,
including
ecological
integrity,
justice,
and
prosperity,
are
not
being
sustained
by
current
patterns
in
any
meaningful
sense.
Thus
ecological
sustainability,
both
now
and
in
the
future,
requires
more
radical
changes
in
human
practices
and
priorities.28
One
means
through
which
a
transformation
in
our
interactions
with
the
environment
could
take
place
is
by
the
imposition
of
a
basic
human
right
to
a
‘decent
environment’.
Using
a
rights-­‐based
approach
would
certainly
have
its
advantages
in
this
regard.
For
one,
the
hegemonic
nature
of
the
rights
discourse
in
international
society
affords
claims
articulated
in
its
language
a
certain
level
of
political
legitimacy
and
authority.29
More
practically,
as
the
imposition
of
a
right
to
a
decent
environment
implies
its
realization
is
as
a
condition
of
human
fulfilment,
we
radically
alter
in
favour
of
environmental
quality
the
process
by
which
decisions
on
matters
affecting
that
quality
are
made.
Currently
those
processes
rest
upon
cost-­‐benefit
analysis,
a
rather
blunt
utilitarian
framework
that
views
utility
solely
in
economic
terms
at
the
expense
of
ecological
26
Nigel
Dower,
‘Global
Economy,
Justice
and
Sustainability'
Ethical
Theory
and
Moral
Practice,
Vol.
7,
No.
4,
2004,
p.
402.
27
Barry
1996
116-­‐117
28
Nigel
Dower,
‘Global
Economy,’
pp.
403-­‐4.
29
Catherine
Redgwell,
‘Life,
the
Universe
and
Everything:
A
Critique
of
Anthropocentric
Rights,'
in
Alan
Boyle
and
Michael
Anderson
(eds.),
Human
Rights
Approaches
to
Environmental
Protection,
Oxford,
Oxford
University
Press,
1996,
p.
81.
7

8. concerns.30
By
raising
the
preference
for
a
decent
environment
to
the
status
of
a
moral
obligation,31
governments
will
be
forced
to
consider
the
environmental
impacts
of
all
policy
decisions
within
their
jurisdiction.32
Further,
as
rights
are
universal
in
their
application,
the
effects
of
industrial
development
that
are
trans-­‐boundary
in
nature
(such
as
those
contributing
to
climate
change)
will
also
have
to
be
taken
into
account
in
decision-­‐making
processes.
Both
of
these
outcomes
would
be
further
strengthened
by
the
recognition
that
other
human
rights,
including
the
rights
to
life
and
health,
are
dependent
upon
a
decent
level
of
environmental
quality.33
Lastly,
through
the
enforcement
of
a
right
to
a
decent
environment
now,
we
are
indirectly
protecting
the
environment
for
future
generations,
and
hence
enhancing
the
prospect
for
sustainability
over
time.34
Given
the
status
of
rights-­‐based
approaches
in
international
affairs
it
is
not
surprising
that
the
formulation
of
a
substantive
environmental
right
has
been
attempted,
and
it
is
to
these
efforts
that
we
now
turn.
The
non-­‐binding
Stockholm
Declaration,35
issued
following
the
UN
Conference
on
the
Human
Environment
in
1972,
was
the
first
international
30
Robyn
Eckersley,
'Greening
Liberal
Democracy:
The
Rights
Discourse
Revisited,'
in
Brian
Doherty
and
Marius
de
Geus
(ed.),
Democracy
and
Green
Political
Thought:
Sustainability,
Rights
and
Citizenship,
London,
Routledge,
1996,
p.
216.
31
Rights
are
that
to
which
we
are
due,
or
obligated
to
receive,
while
preferences
are
simple
wants
or
desires.
So
we
may
want
a
healthy
environment
for
our
children,
but
whether
it
can
be
claimed
as
a
human
right
is
an
entirely
separate
question.
John
G.
Merrills,
‘Environmental
Rights,'
in
Daniel
Bodansky,
Jutta
Brunée
and
Ellen
Hey
(eds.),
Oxford
Handbook
of
International
Environmental
Law,
Oxford,
Oxford
University
Press,
2007,
pp.
665-­‐666.
32
Patricia
Birnie
et
al.,
International
Law
and
the
Environment,
Oxford,
Oxford
University
Press,
2009,
p.
269.
33
ibid.,
p.
302.
34
Richard
P.
Hiskes,
The
Human
Right
to
a
Green
Future:
Environmental
RIghts
and
Intergenerational
Justice,
Cambridge,
Cambridge
University
Press,
2009,
p.
148.
35
Non-­‐binding
in
the
sense
that,
as
a
‘soft-­‐law
declaration,’
its
prescriptions
are
not
considered
international
law.
Rather,
it
is
a
normative
statement
on
what
the
law
is
believed
to
be
or
what
in
fact
it
should
be,
and
hence
can
be
subsequently
entered
into
international
customary
law.
Patricia
Birnie
et
al.
International
Law,
p.
114.
8

9. articulation
of
an
environmental
right.36
It
proclaimed
man
to
be
both
‘creatures
and
moulders’
of
his
environment,
and
that
these
aspects,
the
natural
and
the
man-­‐made,
are
‘essential
to
his
well-­‐being
and
to
the
enjoyment
of
basic
human
rights.’
Having
recognised
the
connection
between
environmental
quality
and
established
human
rights,
it
declares
‘Man
has
the
fundamental
right
to
freedom,
equality
and
adequate
conditions
of
life,
in
an
environment
of
quality
that
permits
a
life
of
dignity
and
well-­‐being,
and
he
bears
a
solemn
responsibility
to
protect
and
improve
the
environment
for
present
and
future
generations’
(principle
1).37
As
part
of
this
responsibility
the
safeguarding
of
the
earth’s
natural
resources,
including
‘air,
water,
land,
flora
and
fauna
and
especially
representative
samples
of
natural
ecosystems,’
is
to
be
ensured.
Notwithstanding
its
gendered
construction,
the
Stockholm
Declaration
seemingly
pointed
to
the
emergence
of
a
universal
human
right
to
a
decent
environment
and
the
corresponding
duty
of
environmental
protection.
Despite
its
promise,
however,
the
impact
of
the
Stockholm
Declaration
has
been
modest.
Its
successor,
the
Rio
Declaration
on
Environment
and
Development,38
produced
at
the
‘Earth
Summit’
of
1992,
framed
a
decent
environment
as
an
entitlement
rather
than
a
right.
In
stark
contrast,
it
affirmed
the
sovereign
right
of
states
to
‘exploit
their
own
resources’
and
endorsed
a
‘right
to
development’
(principles
2
and
3
respectively),
in
an
apparent
confirmation
of
the
primacy
of
developmental
needs
over
environmental
protection.
For
while
development
must
be
pursued
‘so
as
to
meet
equitably
the
developmental
and
environmental
needs
of
present
and
future
generations,’
as
a
right
it
necessarily
takes
precedence
over
concern
for
environmental
impact.39
36
Katherine
Smits,
Applying
Political
Theory,
p.
231.
37
Stockholm
Declaration
on
Environment
and
Development,
U.N.
Doc.
A/Conf.48/14/Rev.
1
(1972).
Retrieved
20
October
2010,
available
from
http://www.unep.org/
38
Rio
Declaration
on
Environment
and
Development,
U.N.
Doc.
A/CONF.151/26
(1992).
Retrieved
20
October
2010,
available
from
http://www.unep.org/
39
Admittedly,
in
the
case
law
that
has
followed
the
Rio
Declaration
there
has
been
a
tendency
to
pursue
a
balance
between
development
and
environmental
protection.
For
example,
the
Gabcíkovo-­‐Nagymaros
case
brought
before
the
International
Court
of
Justice,
referred
for
the
first
time
to
‘this
need
to
reconcile
economic
development
with
protection
of
the
environment
[which]
is
aptly
9

10. Furthermore,
the
Rio
Declaration
was
explicitly
anthropocentric
in
nature,
leaving
out
any
reference
to
animal
rights
and
the
conservation
of
ecosystems.40
Perhaps
the
most
substantive
formulation
of
an
environmental
right
thus
far
came
in
a
1994
report
by
the
UN
Sub-­‐Commission
on
the
Prevention
of
Discrimination
and
Protection
of
Minorities.
During
a
five-­‐year
study
into
the
connections
between
human
rights
and
the
environment,
the
Sub-­‐Commission
surveyed
trends
in
national
and
international
human
rights
and
environmental
law.
It
concluded
that
a
progressive
shift
away
from
the
enactment
of
environmental
laws,
and
towards
a
substantive
right
to
a
decent
environment
was
occurring.
Included
in
an
annex
to
the
report
was
a
Draft
Declaration
of
Principles
on
Human
Rights
and
the
Environment.
Much
closer
in
substance
to
Stockholm
than
Rio,
it
proclaimed
that
‘All
persons
have
the
right
to
a
secure,
healthy
and
ecologically
sound
environment
[and
to]
an
environment
adequate
to
meet
equitably
the
needs
of
present
generations
and
that
does
not
impair
on
the
rights
of
future
generations
to
equitably
meet
their
needs.’41
Such
a
right,
the
drafters
argued,
would
redefine
the
balance
between
environmental
protection
and
competing
objectives,
while
recognising
a
decent
and
healthy
environment
as
vital
to
human
dignity
and
welfare,
and
hence
to
the
realisation
of
other
rights.42
The
response
from
the
UN
Human
Rights
Commission
and
the
UN
member
states,
however,
was
wholly
unenthusiastic,
and
no
further
progress
was
made.
Those
dissenting
claimed
that
a
separate
right
to
a
decent
environment
is
unnecessary,
in
part
due
to
the
extent
to
which
international
environmental
law
already
attends
to
such
concerns.43
Certainly,
states
are
required
by
international
law
to
take
appropriate
precautions
in
relation
to
possible
risks
of
trans-­‐boundary
environmental
harms
emanating
from
within
expressed
in
the
concept
of
sustainable
development.’
ICJ
Reports
1997,
p.
7
para
140.
Quoted
in
Patricia
Birnie
et
al.,
International
Law,
p.
116.
40
Ibid,
pp.
114-­‐116
41
Rio
Declaration
on
Environment
and
Development
42
Patricia
Birnie
et
al.,
International
Law,
p.
278.
43
See
ibid.,
p.
279.
10

11. their
territories.44
Otherwise
known
as
the
precautionary
principle,45
this
has
become
a
mandatory
requirement
of
customary
international
law,
and
is
contained
within
a
wide
range
of
global
and
regional
treaties,
as
well
as
the
Stockholm
and
Rio
Declarations.
Yet,
just
what
constitutes
a
‘foreseeable’
threat
is
by
its
very
nature
indeterminate,
and
leaves
ample
room
for
legal
manoeuvring
by
states.46
While
no
doubt
commendable,
the
precautionary
principle
is
not
an
adequate
substitute
for
a
substantive
and
binding
environmental
right.
The
field
of
international
human
rights
law
has
been
somewhat
more
productive
in
regards
to
environmental
protection
mechanisms.
While
none
of
the
international
human
rights
treaties
contain
a
substantive
human
right,47
the
link
between
established
human
rights,
such
as
the
right
to
life,
and
44
Resource
use
by
states
is
traditionally
regulated
based
upon
whether
that
resource
is
considered
sovereign,
shared
by
several
states,
or
held
in
common.
Generally
the
use
of
resources
held
in
common
or
by
several
states
is
dealt
with
through
international
treaties
that
seek
to
define
what
constitutes
reasonable
use,
while
those
resources
considered
sovereign
may
be
disposed
of
as
states
see
fit.
Despite
such
a
guarantee
of
sovereign
right,
in
practice
international
treaties
and
the
rules
of
customary
international
law
that
concern
environmental
protection
and
resource
conservation
qualify
that
sovereignty.
Ibid,
pp.
190-­‐2.
45
The
Rio
Declaration’s
Principle
15
stated,
in
relation
to
the
precautionary
principle
that
‘[w]here
there
are
threats
of
serious
or
irreversible
damage,
lack
of
full
scientific
certainty
shall
not
be
used
as
a
reason
for
postponing
cost-­‐effective
measures
to
prevent
environmental
damage.’
Rio
Declaration
on
Environment
and
Development.
46
For
example,
in
the
Rio
Declaration
the
precautionary
principle
was
referred
to
as
an
approach
rather
than
a
principle
due
to
US
insistence
that
no
consensus
had
yet
been
built
determining
when
such
a
principle
would
apply.
Ibid,
p.
143.
47
Some
regional
treaties,
however,
do
contain
an
environmental
right
in
this
form.
Article
24
of
the
African
Charter
of
Human
and
Peoples’
Rights
of
1981
states
that
people
have
a
right
to
a
‘generally
satisfactory
environment
favourable
to
their
development,’
while
the
Additional
Protocol
to
the
American
Convention
on
Human
Rights
in
the
Area
of
Economic,
Social
and
Cultural
Rights
of
1989
grants
individuals
the
right
to
‘live
in
a
healthy
environment,’
thereby
obligating
states
to
‘protect,
preserve
and
improve
the
environment.’
Stephen
Turner,
A
Substantive
Environmental
Right,
p.
17.
Furthermore,
at
the
national
level
for
example,
the
French
Constitution,
amended
in
2005
to
include
a
Charter
of
the
Environment,
grants
French
citizens
the
right
to
live
in
a
‘balanced
environment,
favourable
to
human
health.’
Dinah
Shelton,
'Developing
Substantive
Environmental
Rights,'
Journal
of
Human
Rights
and
the
Environment,
Vol.
1,
No.
1,
p.
97
11

12. environmental
protection
has
been
made
in
a
number
of
cases.48
Furthermore,
human
rights
bodies
have
begun
to
re-­‐interpret
basic
human
rights
as
having
an
environmental
dimension.49
This
so-­‐called
‘greening’
of
existing
human
rights
is
certainly
appealing
given
that
they
are
already
well
entrenched
within
law
instruments
and
institutions,
and
that
their
use
avoids
potential
conflict
with
a
new
environmental
right.
It
is
also
true
that
the
very
threat
of
legal
action
in
relation
to
human
rights
violations
caused
by
ecological
degradation
may
contribute
indirectly
to
environmental
protection.50
Still,
such
a
process
falls
short
of
guaranteeing
sustainability
or
a
decent
environment,
if
we
understand
those
concepts
in
terms
broader
than
impacts
on
isolated
individuals.
For
example,
in
Kyrtatos
v
Greece,
a
recent
case
before
the
European
Court
of
Human
Rights
involving
the
illegal
draining
of
a
wetland
that
occurred
in
the
vicinity
of
the
claimants
place
of
residence,
the
court
found
no
violation
of
their
right
to
private
life
or
property.
According
to
the
court,
they
were
not
entitled
to
live
in
any
particular
environment,
or
to
have
that
environment
indefinitely
preserved,
and
stated
that
‘neither
Article
8
nor
any
of
the
other
articles
of
the
Convention
are
specifically
designed
to
provide
general
protection
of
the
environment
as
such.’51
Human
rights
protection
benefits
only
those
whose
rights
have
been
48
See
for
example
Subhash
Kumar
v.
State
of
Bihar
(AIR
1991
SC
240)
where
the
Indian
Supreme
Court
held
that
the
right
to
a
safe
environment
was
implied
by
the
right
to
life
existent
under
the
Indian
Constitution,
and
Lopes
Ostra
v.
Spain
(303-­‐C
E.Ct.H.R.
(Ser.
A)
(1994))
where
the
European
Court
of
Human
Rights
accepted
that
environmental
degradation
may
negatively
affect
the
right
to
the
enjoyment
of
private
and
family
life
under
the
European
Convention
on
Human
Rights.
Sam
Adelman,
‘Rethinking
Human
Rights,’
p.
171.
The
right
to
life,
in
particular,
has
been
used
in
such
a
fashion,
especially
in
India,
where
the
courts
have
shut
down
industries
deemed
to
be
causing
harm
to
health
and
safety
in
its
environs,
stating
that
‘the
right
to
life
includes
the
right
to
live
with
human
dignity
and
all
that
goes
along
with
it,’
which
includes
the
right
to
live
in
a
‘healthy
environment
with
minimal
disturbance
of
ecological
balance.’
Mullin
v
Union
Territory
of
Delhi
AIR
1981
SC
746.
Patricia
Birnie
et
al.,
International
Law,
pp.
282-­‐283.
49
For
example,
the
UN
Human
Rights
Council
has
acknowledged
the
link
between
the
effects
of
climate
change
and
the
negative
effects
on
the
fulfilment
of
human
rights.
Sam
Adelman,
‘Rethinking
Human
Rights,
p.
171.
50
John
G.
Merrills,
‘Environmental
Rights,’
p.
664
51
Kyrtatos
v
Greece
[2003]
ECHR
242,
para
52.
Quoted
in
Patricia
Birnie
et
al.,
International
Law,
p.
301.
Article
8
of
the
European
Convention
on
Human
Rights
states
that
public
authorities
are
to
protect
the
right
to
respect
for
private
12

13. violated,
and
if
existing
human
rights
have
not
been
sufficiently
affected
by
environmental
degradation,
they
are
rendered
irrelevant.52
This
fact
points
to
a
more
general
problem
with
rights-­‐based
approaches
to
environmental
protection
and
sustainability.
The
origins
of
modern
human
rights
lie,
in
the
work
of
theorists
such
as
Thomas
Hobbes,
who
saw
the
individual
as
an
autonomous
entity
struggling
for
survival
in
a
hostile
state
of
nature.
As
a
result,
the
justification
for
the
imposition
of
human
rights
rests
on
the
degree
to
which
they
engender
opportunities
for
the
self-­‐fulfilment
of
individuals,
rather
than
on
issues
of
broader
normative
significance.53
Indeed,
as
individuals
are
viewed
as
ends
in
themselves,
and
are
hence
the
best
judge
of
their
own
affairs,
government’s
must
refrain
from
paternalistic
prescriptions
of
the
‘good
life.’54
Sustainability,
however,
imposes
a
condition
on
human
activity
through
the
perspective
on
just
what
the
‘good
life’
should
be.55
As
a
consequence
of
the
avoidance
of
such
prescriptions,
decisions
related
to
investment,
production
and
consumption
are
viewed
as
being
wholly
contained
within
the
private
realm,
and
are
only
interfered
with
in
cases
where
demonstrable
harm
is
inflicted
upon
individuals.
Thus,
a
considerable
amount
of
human
activity
which
gives
rise
to
negative
ecological
impact
is
depoliticized.56
Of
course,
such
a
narrow
focus
does
not
equate
to
the
imposition
of
a
right
to
a
decent
environment
being
without
merit.
After
all,
such
a
right,
constructed
in
the
proper
manner,
would
still
tie
the
fulfilment
of
the
individual
to
his
or
her
ecological
surrounds
and
the
protection
of
them.
Yet
the
environmental
and
family
life
from
‘disorder
or
crime,
for
the
protection
of
health
or
morals,
or
for
the
protection
of
the
rights
and
freedoms
of
others’.
European
Convention
on
Human
Rights,
213
UNTS
221
(1950).
Retrieved
20
October
2010,
available
from
http://conventions.coe.int
52
Patricia
Birnie
et
al.,
International
Law,
p.
301.
53
Conor
Gearty,
‘Do
Human
Rights
Help
or
Hinder
Environmental
Protection?,’
p.
8.
54
Robyn
Eckersley,
‘Greening
Liberal
Democracy,’
p.
212
55
Chukwumerije
Okereke,
Global
Justice
and
Neoliberal
Environmental
Governance:
Ethics,
Sustainable
Development
and
International
Co-­‐Operation,
New
York,
Routledge,
2007,
pp.
150-­‐151.
56
Robyn
Eckersley,
The
Green
State:
Rethinking
Democracy
and
Sovereignty,
Cambridge,
Mass,
MIT
Press,
2004,
p.
136.
13

14. interests
of
the
individual
are
not
necessarily
consistent
with
the
interests
of
‘larger
social
or
ecological
wholes.’57
Were
the
right
to
a
decent
environment
to
be
assigned
to
collective
entities,
rather
than
individuals,
those
communities
as
the
bearers
of
autonomy
would
be
the
responsible
for
choices
related
to
ecological
management
and
protection.
It
has
been
argued,
however,
that
in
attaching
rights
to
entities
beyond
the
individual,
we
are
necessarily
devaluing
traditional
human
rights.58
On
the
contrary,
as
individuals
and
communities
are
mutually
constitutive,
we
can
understand
individual
rights
as
being
held
by
individuals
as
autonomous
beings,
and
as
members
of
social
and
ecological
communities.
Accordingly,
if
the
rights
of
one
were
to
be
infringed
upon,
so
too
would
the
rights
of
the
other.59
Unfortunately,
human
rights
are
severely
limited
in
their
practicality
in
this
regard.
In
order
to
be
‘justiciable,’
rights
claimants
must
be
contained
within
clear
boundaries.
Unlike
the
case
of
individuals,
the
boundaries
of
and
between
social
and
ecological
wholes
can
be
acutely
difficult
to
define.
For
example,
while
it
may
well
be
a
simple
matter
to
identify
individual
organisms
and
species,
it
is
far
more
difficult
to
determine
the
boundaries
of
ecosystems
with
any
degree
of
precision.
In
order
to
do
so,
for
the
purposes
of
a
rights
case,
would
require
complex
decisions
of
an
ultimately
arbitrary
nature.
Indeed,
who
can
say
where
a
river
begins
and
ends?
Is
it
not
part
of,
and
critical
to
a
larger
network
or
ecosystem?
And
to
what
extent
are
social
communities
separate
from
the
ecological
context
in
which
they
are
constituted?60
This
brings
us
to
a
second
difficulty
associated
with
the
autonomous
and
atomised
self
upon
which
human
rights
are
based.
By
conceptualising
humans
as
capable
of
fulfilment
within
and
of
themselves,
our
dependency
on
the
natural
world
for
survival
is
ignored.
Further,
this
‘apartness’
from
nature
underpins
the
belief
that
through
our
exclusive
capacity
for
instrumental
reason
humans
can
57
Robyn
Eckersley,
‘Greening
Liberal
Democracy,’
p.
227.
58
Patricia
Birnie
et
al.,
International
Law,
pp.
271-­‐2.
59
Robyn
Eckersley,
‘Greening
Liberal
Democracy’,
p.
227.
60
ibid.,
p.
190.
14

15. achieve
mastery
over
the
external
world.61
The
ecological
system
that
supports
us
is
thus
taken
entirely
for
granted,
and
we
are
immobilised
in
the
face
of
a
rapidly
deteriorating
biosphere
by
a
belief
in
our
own
supremacy
over
nature.62
In
order
to
achieve
sustainability
in
a
broad
sense,
we
need
an
understanding
of
individuals
as
embedded
in,
and
embodied
by,
the
social
and
ecological
communities
to
which
they
are
members,
and
to
which
their
well-­‐being
is
indissolubly
linked.63
While
the
rights
discourse
in
no
doubt
appealing
rhetorically,
the
tendency
to
reduce
complex
sets
of
social,
political
and
indeed
ecological,
conditions
to
singular
equations
of
one
individual’s
rights
being
violated
by
another,
does
not
lend
itself
to
such
an
understanding.64
In
order
for
rights
to
affect
changes
in
the
way
we
relate
to
the
natural
world,
the
way
in
which
they
are
constituted
will
need
to
be
rethought.
It
has
been
argued
that
the
attachment
of
collective
environmental
rights
to
future
persons
would
place
an
onus
on
current
generations
to
ensure
the
sustainability
of
their
interactions
with
nature.
But
it
is
difficult
to
talk
coherently
in
the
language
of
rights
when
the
entity
to
which
they
are
attach
is
yet
to
exist
(a
right
to
a
decent
environment
must
be
assigned
to
someone,
rather
than
be
a
free-­‐
floating
abstraction),
and
it
does
little
to
imagine
them
as
waiting
somewhere
amongst
the
ether.65
As
Hillel
Steiner
put
it,
‘it
seems
mistaken
to
think
of
future
persons
as
being
already
out
there,
anxiously
awaiting
either
victimization
by
our
self-­‐indulgent
prodigality
or
salvation
through
present
self-­‐denial’.66
To
do
otherwise
would
be,
according
to
Jeremy
Bentham,
‘nonsense
on
stilts’.67
For
we
have
no
way
of
the
determining
who
those
‘future
persons’
will
come
to
be,
nor
by
extension
the
content
of
their
interests.
Accordingly,
it
is
argued,
as
a
being
61
ibid.,
pp.
222-­‐223.
62
Val
Plumwood,
'Ecological
Ethics
From
Rights
to
Recognition:
Multiple
Spheres
of
Justice
for
Humans,
Animals
and
Nature,'
in
Nicholas
Law
(ed.),
Global
Ethics
and
Environment,
London,
Routledge,
1999,
p.
190.
63
Val
Plumwood,
Environmental
Culture:
the
Ecological
Crisis
of
Reason,
London,
Routledge,
2002,
p.
3.
64
Val
Plumwood,
‘Ecological
Ethics,’
p.
203.
65
John
G.
Merrills,
‘Environmental
Rights,’
p.
669.
66
Quoted
in
Katherine
Smits,
Applying
Political
Theory,
p.
243.
67
Quoted
in
Richard
P.
Hiskes,
The
Human
Right
to
a
Green
Future,
p.
8.
15

16. with
no
definable
interests
is
incapable
of
being
harmed
or
benefited,
it
has
no
good
or
sake
of
its
own
upon
which
to
base
rights
claims.68
But
does
their
indeterminacy
really
matter?
After
all,
people
will
come
into
being
during
the
normal
course
of
events,
and
though
we
may
not
yet
know
the
content
of
their
interests,
except
perhaps
for
a
desire
to
have
access
to
breathable
air
and
drinkable
water,
we
can
be
certain
that
they
will
have
interests
of
some
form.
Further,
as
those
interests
can
be
affected
by
our
actions
now,
they
are
clearly
of
normative
significance.69
Yet
the
very
content
of
a
future
person’s
wants,
desires
and
preferences
can
be
partly
determined
by
decisions
made
in
the
present;
the
value
placed
by
them
in
sensations
related
to
natural
objects,
for
example,
is
determined
upon
them
existing
in
the
first
place.
It
is
therefore
somewhat
spurious
to
appeal
to
the
‘interests’
of
future
people
in
formulating
decisions
that
affect
their
content.70
What
the
debate
surrounding
rights
for
future
generations
reminds
us
though,
is
that
should
a
right
to
a
decent
environment
be
assigned
to
individuals
or
social
communities
in
the
present,
it
is
clear
that
these
rights
will
also
future
bearers,
which
our
actions
and
decisions
may
one
day
come
to
violate.71
By
thinking
about
human
rights
in
this
manner,
the
link
between
rights,
justice,
and
sustainability
becomes
clear.
Accordingly,
for
a
right
to
a
decent
environment
to
sustain
a
certain
level
of
environmental
quality
into
the
future,
justice
must
be
secured
in
the
present.
Justice
is
thus
a
means
as
well
as
an
end.72
The
rights
discourse,
however,
faces
a
further
problem
in
the
degree
to
which
it
is
viewed
as
a
wholly
Western
creation.
Certainly,
it
was
primarily
Western
governments
that
developed
the
modern
conception
of
rights
following
World
War
II,
and
as
a
result
it
is
heavily
imbued
68
Robert
Elliot
'The
Rights
of
Future
People,'
Journal
of
Applied
Philosophy,
Vol.
6,
No.
2,
1989,
p.
160.
For
an
indepth
discussion
of
these
arguments
see
Joel
Feinberg,
'The
Rights
of
Animals
and
Unborn
Generations,'
in
William
T.
Blackstone
(ed.),
Philosophy
and
Environmental
Crisis,
Athens,
University
of
Georgia
Press,
1974,
pp.
51-­‐65.
69
Katherine
Smits,
Applying
Political
Theory,
p.
243.
70
Christopher
D.
Stone,
Should
the
Trees
Have
Standing?,
p.
104.
71
Robert
Elliot,
‘The
Rights
of
Future
People,’
pp.
160-­‐163.
72
Nigel
Dower,
‘Global
Economy,’
p.
402.
16

17. with
Western
liberal
ideology.
This
association
raises
the
question
as
to
what
extent
the
rights
discourse
is
accepted
by
cultures
and
societies
with
different
political
and
social
underpinnings,
and
divergent
historical
and
ideological
backgrounds.
Developing
countries
in
particular
may
view
a
human
right
to
a
decent
environment,
and
corresponding
restrictions
on
growth,
as
an
extension
of
colonial
domination
through
the
imposition
of
a
particular
form
of
political
philosophy.73
For
those
who
have
not
reaped
the
benefits
of
ecological
excess,
justice
may
well
involve
the
‘right’
to
follow
the
same
path
of
development.74
Yet
if
developing
countries
pursue
their
own
economic
development
with
the
same
utter
disregard
for
environmental
consequences
displayed
by
developed
countries,
it
is
clear
that
the
chances
of
a
sustainable
world
are
greatly
diminished.75
Thus,
the
requirements
for
justice
need
to
be
framed
within
a
universal
moral
language,
accessible
to
people
of
varied
cultural
and
political
backgrounds,
in
order
for
a
right
to
a
decent
environment
to
be
effectual.
Arguments
of
a
universal
nature,
however,
are
deemed
by
many
to
be
baseless
given
the
claim
that
moral
considerations
are
dependent
upon
culturally
constructed
contexts.
In
response
one
could
argue
for
such
a
language
to
be
based
upon
a
naturalist
ethic,
determined
by
the
shared
relationship
humans
hold
with
nature,
and
upon
which
rights
could
be
reconstituted.
As
part
of
this
reconstitution
rights
would
be
extended
to
natural
objects
and
ecosystems,
thereby
giving
nature
equal
standing
in
the
human/nature
relationship,
and
radically
altering
our
interactions
with
it.76
73
Stephen
Turner,
A
Substantive
Environmental
Right,
p.
54.
74
This
would
take
the
form
of
a
‘right
to
emit’
greenhouse
gases
in
order
to
reach
a
certain
level
of
development,
taking
the
form
of
a
property
right.
For
an
indepth
discussion
regarding
the
problems
such
a
right
would
pose
for
sustainability
see
Tim
Hayward,
Human
Rights
versus
Emissions
Rights:
Climate
Justice
and
the
Equitable
Distribution
of
Ecological
Space,'
Ethics
and
International
Affairs,
Vol.
21,
No.
4,
2007,
pp.
431-­‐448.
75
Henry
Shue,
‘Subsistence
Emissions
and
Luxury
Emissions,'
in
Stephen
M.
Gardiner
et
al.
(eds.),
Climate
Ethics:
Essential
Readings,
Oxford,
Oxford
University
Press,
2010,
p.
101.
76
Brian
Baxter,
A
Theory
of
Ecological
Justice,
London,
Routledge,
2005,
p.
14.
17

18. Indeed,
the
reconstitution
of
the
rights
discourse
would
be
necessary
considering
the
difficulties
it
would
face
in
accommodating
natural
objects
within
it.
As
an
anthropocentric
view
of
the
world,
which
is
inherent
in
the
term
human
rights,
the
rights
discourse
assigns
moral
consideration
solely
to
humanity,
thereby
valuing
natural
objects
only
to
the
extent
that
humans
ascribe
them
value
–
they
have
no
inherent
worth
of
their
own.77
This
is
justified
on
the
basis
that
natural
objects
cannot
experience
human
prescriptions
such
as
pleasure,
pain
and
suffering.78
The
absence
of
a
conscious
moral
being
within
a
natural
object
that
can
experience
rights
or
wrongs
brought
upon
it
(it
makes
no
difference
to
a
tree
if
we
chop
it
down
or
not)
means
an
ethic,
and
by
extension
rights,
cannot
be
grounded
upon
its
interests.
In
contrast,
the
felling
of
a
tree
may
negatively
affect,
for
example,
humans
that
live
in
and
off
the
forest
where
the
tree
formerly
stood.79
When
determining
the
morality
of
actions
affecting
the
natural
environment,
all
that
need
be
asked
is
whether
the
consequences
were
unfavourable
to
human
well-­‐being,
and
were
the
actions
themselves
consistent
with
the
realisation
or
otherwise
of
human
rights?
Thus,
the
protection
of
the
environment
is
not
for
its
own
sake,
but
for
ours.80
The
case
of
animals,
especially
those
considered
‘higher
animals,’
is
instructive
in
this
regard.
As
conscious
or
sentient
beings,
they
are
thought
by
some
to
have
an
inherent
value
or
good
similar
to
humans,
and
as
such
are
deserving
of
equal
moral
consideration.81
Yet
are
natural
objects
so
dissimilar,
save
for
a
supposed
lack
of
cognitive
capacity?
They
too
can
thrive
or
wither
as
individuals
in
their
pursuit
of
full
development;
they
too
have
capacities
for
growth
and
reproduction;
they
too
display
a
desire
for
self-­‐protection;
and
it
is
77
Katherine
Smits,
Applying
Political
Theory,
236.
78
Robin
Attfield,
'The
Good
of
Trees,'
Journal
of
Value
Inquiry,
Vol.
15,
1981,
p.
37.
79
Peter
Singer,
‘Ethics
Across
the
Species
Boundary,’
in
Nicholas
Low
(ed.),
Global
Ethics
and
the
Environment,
London,
Routledge,
1999,
pp.
146-­‐147.
80
Paul
W.
Taylor,
‘The
Ethics
of
Respect
for
Nature,'
Environmental
Ethics,
Vol.
3,
Fall
1981,
p.
198.
81
See
for
example
Joel
Fienberg,
‘The
Rights
of
Animals,’
pp.
49-­‐52;
and
Tom
Reagan
'The
Case
for
Animal
Rights,'
in
Peter
Singer
(ed.),
In
Defence
of
Animals,
New
York,
Blackwell,
1985,
pp.
22-­‐24;
and
Peter
Singer,
‘Ethics
Across
the
Species
Boundary,’
pp.
146-­‐147.
18

19. these
interests
that
can
be
harmed
or
benefited.82
Under
a
naturalist
ethic
we
would
not
need
to
ascribe
human
characteristics
such
as
cognisant
wanting
in
order
for
natural
objects
to
have
intrinsic
value,
and
to
be
deserving
of
concern
and
ethical
consideration
in
their
own
right.
As
essential
irreplaceable
members
of
the
ecological
context,
the
realization
of
their
interests
is
intrinsically
valuable,
and
they
are
hence
worthy
of
being
preserved
as
an
end
in
and
of
themselves.83
Moreover,
as
humans
are
constituted
within
their
ecological
surrounds,
the
realization
of
the
interests
of
natural
objects
is
consistent
with
that
of
humans.84
There
will,
inevitably,
be
objections
to
the
extension
of
rights
to
natural
objects
on
practical
grounds.
As
they
are
unable
to
either
seek
legal
remedies
on
their
own
behalf,
or
receive
the
benefits
of
judicial
relief,
they
cannot
carry
legal
rights
in
the
traditional
sense.85
Yet
corporations,
children,
states,
and
the
incompetent,
who
also
are
unable
to
speak
for
themselves,
have
been
granted
rights,
and
made
claims
upon
them
through
legal
representatives.86
Indeed,
it
seems
fallacious
to
claim
that
is
necessary
to
possess
the
intellectual
capacity
required
to
comprehend
what
a
right
is,
or
to
initiate
a
claim
upon
one’s
rights,
in
order
to
be
in
the
possession
of
rights.87
It
is
not
beyond
the
realms
of
possibility
then,
and
indeed
seemingly
reasonable,
that
guardians
could
be
assigned
to
represent
the
interests
of
natural
objects
in
much
the
same
way.88
This
is
not
to
deny
that
practical
obstacles
to
the
extension
of
rights
to
the
natural
environment
do
not
exist
(the
issue
of
boundaries
comes
to
mind),
but
rather
to
argue
that
they
are
not
insurmountable.
82
Robin
Attfield,
‘The
Good
of
Trees,’
pp.
38-­‐40.
83
Paul
W.
Taylor,
‘The
Ethics
of
Respect
for
Nature,’
pp.
199-­‐201.
84
Eric
Katz
et
al.,
'Introduction:
Deep
Ecology
as
Philosophy,'
in
Eric
Katz
et
al.
(eds.),
Beneath
the
Surface:
Critical
Essays
in
the
Philosophy
of
Deep
Ecology,
Cambridge,
Mass,
MIT
Press,
2000,
p.
xiii.
85
See
for
example,
Joel
Feinberg,
‘The
Rights
of
Animals,’
pp.
43-­‐44
86
Christopher
D.
Stone,
Should
the
Trees
Have
Standing?,
p.
8.
87
Joel
Feinberg,
‘The
Rights
of
Animals,’
pp.
46-­‐47.
88
Nor
would
it
be
difficult
to
locate
suitable
guardians;
Friends
of
the
Earth
and
The
Sierra
Club
would
be
well
suited
to
this
task.
Christopher
D.
Stone,
Should
the
Trees
Have
Standing?,
p.
9
19

20. Each
extension
of
rights
to
new
entities
throughout
legal
history
has,
moreover,
encountered
resistance.89
Opposition
to
the
imposition
of
rights
has
endured
so
long
as
that
entity
is
not
seen
as
having
value
in
and
of
itself.
Typically
though
such
a
re-­‐imagining
does
not
occur
until
resistance
is
broken,
and
rights
are
granted.
Until
then,
those
entities
are
seen
only
as
objects
whose
value
lies
in
their
usefulness
to
rights
holders.90
It
is
this
process,
through
which
rights
emerge
from
social
movements,
that
marks
them
as
a
construct
rather
than
being
naturally
bestowed
entitlements.91
They
have
their
own
logic,
moving
from
ideal
to
practice,
from
moral
aspiration
to
entrenchment
as
legal
instruments.92
As
our
understanding
of
our
relationship
to
our
ecological
surrounds
evolves,
so
too
must
our
understanding
of
rights.
For
just
new
harms
emerge
which
do
not
fit
into
the
traditional
language
of
rights,
so
to
must
new
rights
emerge.93
My
argument
here
is
that
the
very
real
and
very
present
threat
of
ecological
destruction
requires
a
re-­‐conception
of
the
ways
in
which
we
interact
with
our
ecological
surroundings.
As
opposed
to
the
current
policy
response
to
this
threat,
‘sustainable
development,’
which
seeks
merely
to
‘green’
existing
structures
of
economic
development,
I
have
argued
for
a
conception
of
sustainability
that
would
radically
examine
the
viability
of
those
structures
themselves.
As
those
structures
are
not
currently
sustaining
the
conditions
required
for
human
fulfilment,
a
radical
alteration
in
our
behaviours
and
practices
is
required.
Rights
as
they
are
traditionally
conceived
are
ill
suited
for
this
task,
for
reasons
related
to
their
original
conception
as
the
property
of
autonomous
individuals.
In
order
to
guarantee
a
more
sustainable
world
through
rights
mechanisms,
therefore,
the
basis
upon
which
rights
are
constituted
would
need
to
be
rebuilt
such
that
the
rights
discourse
could
accommodate
the
emergence
of
a
collective
environmental
right,
and
extended
89
Examples
would
include
the
extension
of
rights
to
children,
slaves,
African
Americans,
colonial
subjects,
and
of
political
rights
to
women.
90
Christopher
D.
Stone,
Should
the
Trees
Have
Standing?,
p.
3.
91
Conor
Gearty,
‘Do
Human
Rights
Help
or
Hinder
Environmental
Protection?,’
p.
11.
92
Richard
P.
Hiskes,
The
Human
Right
to
a
Green
Future,
p.
144.
93
Ibid,
p.
147.
20

21. to
include
the
natural
world
upon
which
we
are
dependent.
While
the
use
of
a
rights-­‐based
approach
to
environmental
protection
will
inevitably
be
difficult
given
the
obstacles
that
have
been
discussed,
if
we
are
affect
real
changes
in
attitudes,
behaviours
and
ultimately
practices,
it
is
the
most
accessible
and
effective
path
to
take.
21

22. Bibliography
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Material
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the
Right
to
Development,
U.N.
Doc
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European
Convention
on
Human
Rights,
213
UNTS
221
(1950).
Retrieved
20
October
2010,
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Rio
Declaration
on
Environment
and
Development,
U.N.
Doc.
A/CONF.151/26
(1992).
Retrieved
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October
2010,
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Stockholm
Declaration
on
Environment
and
Development,
U.N.
Doc.
A/Conf.48/14/Rev.
1
(1972).
Retrieved
20
October
2010,
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from
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Declaration
on
Human
Rights,
U.N.
Doc
A/810
at
71
(1948).
Retrieved
20
October
2010,
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from
http://www.un.org/
World
Commission
on
Environment
and
Development,
Our
Common
Future,
Oxford,
Oxford
University
Press,
1987.
List
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7
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Secondary
Source
Material
Adelman,
Sam,
'Rethinking
Human
Rights:
the
Impact
of
Climate
Change
on
the
Dominant
Discourse,'
in
Stephen
Humphreys
(ed.),
Human
Rights
and
Climate
Change,
Cambridge,
Cambridge
University
Press,
2010,
pp.
159-­‐
179.
Attfield,
Robin,
'The
Good
of
Trees,'
Journal
of
Value
Inquiry,
Vol.
15,
1981,
pp.
35-­‐54.
22