The Human Right to a Habitable Environment

I have personally seen pollution on this scale in the Philippines.

In Tim Hayward’s “The Case for a Human Right to an Adequate Environment,” he makes the argument that there is both a normative and legislative case to be made that humans have a right to an environment which is considered “adequate” for human flourishment (Hayward 2004). The terms used by Hayward are rife with arguments regarding the “rights holder to duty bearer” relationship, along with the difficulties in assigning meaning to words such as “adequate,” as there is an extensive debate on how to define words relating to political and environmental discourse (Godfray et al. 2010, 814). It is only through the lens of combining the driving forces of social norms and the enactment of legislative measures that the successfulness of human rights can be measured, specifically with regards to establishing a “new human right” such as environmental rights (Claeys 2012).

​I intend to show that Hayward promotes a well-rationalised argument for the “right to an adequate environment,” a term prone to semantics and speculation, while also providing new qualifying arguments which should strengthen Hayward’s position as new movements regarding environmental rights have surfaced since 2004. I also intend to show that these human rights do exist a priori and that they have become a part of the law in some of the world’s longest-standing liberal democracies. I also plan to introduce several new definitions (procedural slaves and participatory slaves) which will solidify the argument that humans have a right to any environment capable of protecting human and non-human life alike, and a right to their homes and culture. At the same time, a wide range of new environmental regulations/legislation has taken root at both the national and international levels. Human rights are an ever-evolving construct, and a right to any environment is relatively new. Rights are defined by the social norms and legal practices of any society. However, as Rawls states, these rights exist outside of any concept of politics or societal norms and are not susceptible to compromise (Ralws 2005, 4 a).

​Hayward lays out the reasons for considering that human rights are entwined in environmental rights by first looking at United Nations (UN) environmental rights (clean environment, informed consent, participatory justice, etc.), looks at anthropocentric and non-anthropocentric arguments, the theory behind the arguments for a new human right based on morals or institutional practices, and whether the right to any environment is encapsulated within the framework of international law (Hayward 2004). I take the stance that human rights exist with regards to the environment, in that humans have a right to whatever is considered “adequate” in terms of “human flourishment.” However, I refrain from debating the relevance of anthropocentrism.

​I accept Hayward’s argument that as anthropocentric rights and protections for the environment continue; the environment will be a recipient of a “spillover” effect where human and environmental issues intersect, as I will show (Hayward 2004, 8). Human rights are, by definition anthropocentric, but modern movements such as the student strike for climate and environmental justice have shown that the two sets of rights are the same. Since Hayward wrote this piece in 2004, there has been a visible effort within many developed nations to reduce individual environmental impacts. The individual action of every person is of paramount importance here, and there is a reasonable argument to be made that current parents owe it to their children (and potential future generations) to make every effort to mitigate the effects of climate change to ensure their future rights and prosperity (Cripps 2017). Parents supporting and taking kids to student strike introduce them to concepts of participatory and environmental justice movement.

​Hayward asserts that a human right must first be recognised before receiving the requisite approval both nationally and internationally before becoming a human right (Hayward 2004, 11). From this reasoning, a human right is a moral and/or legal desideratum which receives its force through enforceable rights (Hayward 2004, 12).

​To test whether there is any “genuine human right” to any form of an environment which promotes human wellness or dignity—however, these terms are defined—the right itself must pass a series of tests regarding the relationship between moral rights and their recognition as legal rights (Hayward 2004, 10). The most straightforward summary of this assertation is that the concept that any moral right is developed through societal norms and values based on their place and time in history, and whether these norms are actualised in national or international legislation (Hayward 2004, 10). In this light, Hayward quotes Habernass in that “human rights are Janus-faced” meaning that they are looking towards the normative force driving the conversation regarding the creation of a new or evolving human right, while also looking towards legal institutions to protect those rights in both national and international legal institutions (Hayward 2004, 15).

​Hayward presents his argument by contrasting it within the context of two frameworks. The first is that human rights exist simply through the virtue of the human condition; the second is where human rights are actualised through legal force (Hayward 2004, 10). Hayward asserts that human rights are actualised through legal frameworks following their recognition through normative force (Hayward 2004, 10). This has been the traditional route throughout history. However, the idea that human rights must be recognised through normative force, which eventually gains legal priority, may underestimate the very nature of human rights. The Declaration of Independence for the United States may offer one of the most significant arguments that human rights exist a priori to their discovery lies within the lines “we hold these truths to be self-evident that all men are created equal” (archives.gov). The very idea that truths regarding the equality of humanity—excluding gendered language—shows that human rights exist before being conceptualised and that human rights will not come into existence. Instead, they will make themselves apparent as time progresses. In this light, all human rights exist regardless of recognition, because when all humans are equal, they all have equal rights. When everyone has equal rights, everyone has equal duties not to infringe upon those rights. While this implies a lengthy and controversial list of rights and corresponding duties, these are issues of practicality. Human rights are “truths” which are self-evident, which means that they lie waiting to be realised, and they are not abstractions created by the human mind.

​Another argument that human rights exist prior to discovery or social acceptance is that even those who practice racism believe in human rights—even though their version of rights is exclusionary—with no reason to believe that they do not assert that they have a right to an “adequate” environment, as humans are self-interested and will not vote to have their environment polluted to the detriment of their health (Rawls 2005, 178 b; Shrader-Frechette 2002, 8). Rawls states that within the context of fairness in justice, rights exist outside of any concept of politics or societal norms, and are not susceptible to compromise (Ralws 2005, 4 a). The qualifier for whether any human right will pass the test of normative force is how well it is suited for public acceptance. This is what John Stuart Mill would call the “marketplace of ideas,” where society judges whether any evolving norm or right, to determine whether they pass the test of public acceptance with regards to “the nature and limits of the power which can be legitimately exercised by society over the individual” (Mill 1859, Ch 1).

​As Hayward states, it is through this public examination of any right, that the evolution of public discourse and normative force, forms the framework of human rights legislation which is enacted into law (Hayward 2004, 10). This is the mechanism through which any human rights are formed, even if they exist prior to their discovery. It is reasonable to state that any human right exists prima facie, as they evolve through the simple recognition that all people are equal. This is in line with the statement by Hayward that human rights exist whether or not they have yet to be recognised in legal institutions (Hayward 2004, 11). Unfortunately, the existence of any human rights based on morals is not granted any immediate legal status regardless of the validity of the argument. Hayward makes the assertation that “genuine human rights” are those which are able to pass the test where the logic behind the need for recognition causes it to go through the process of being a thought, passes through Mill’s marketplace, and then gains legal force, preferably through becoming constitutionalised (Hayward 2004, 17). Martin Luther King Jr. best summarised this concept by stating that the purpose of nonviolent direct action to create a new right was to “create such a crisis within a community” which had refused to recognise the need for the recognition of a right, that the issue at hand must be faced and examined because the desideratum cannot continue to be ignored (King 1986). The end result of this action was the Civil Rights Act of 1964 which made discrimination based on sex, religion, skin colour or race illegal and granted procedural and participatory political rights to many Americans (nps.gov). This is not an environmental right, but it is an example of how a “moral human right” becomes a one with legal—and in this case constitutional—force (Hayward 2004, 11). ​Having shown how rights are transformed from an idea to one which has gained legal force, Hayward looks at the institutional right holder/duty bearer relationship. In their arguments; Hayward, Rawls, and King state that morals are the standard by which the justness of laws and institutions are measured (Hayward 2004, 10; Rawls 2005, 165 b; King 1986). King quite famously showed that segregation laws are unjust, and the US has been forever changed both morally and legally.

​Hayward states that he favours the argument presented by Pogge, that from an institutional standpoint—with regards to the right not to be enslaved—that those who are members of a society that violates human rights, there is a duty to protect those suffering unjust practices or to use their position to reform institutions that create injustices (Hayward 2004, 13). In this light, it seems reasonable to assert that those who live in a nation which is an aggregate polluter such as the United States, should make every effort to either reduce their aggregate pollution or to pressure their government to create institutional reforms to reduce pollution. This fits with Hayward’s criticisms of the arguments regarding the nature of the right holder to duty bearer relationship. Hayward states that even though it may be difficult or impossible to enforce or assign specific duties, these are problems of practicality which do not factor into a purely moral argument (Hayward 2004, 22). 

​A 2019 report generated by the United Nations (UN) demonstrates that there is a link between how climate change (CC) negatively impacts the ability of some nations to maintain food production, leaving many undernourished and in poor health (news.un.org 2019, 1). A separate UN report shows that there is a clear link between CC and food production and that when CC creates food scarcity, mass migration and armed conflict are the natural by-products of this phenomenon (fao.org 2018, vi). This data was not available to Hayward in 2004, which shows that aggregate polluting effects of some degrade the environment of others so severely that they are faced with the potential loss of life and community. There has been a trend of people finding that they have no other option than to face a dangerous journey to migrate with the hopes of finding safety, providing that they survive the trip, which all too many do not (Dehghan 2017). When arguing whether there is any “genuine human right” to an adequate environment, Hayward uses the argument by James Nickel that because CC endangers and shortens the lives of countless people—even when only considering the previous example regarding CC, food, and conflict—it can be compared with programmes of mass extermination (Hayward 2004, 18). The residents of Mossville, Louisiana, have been suffering from pollution caused by industrial plants, which have caused many health problems and deaths (Roberts 2011, 257). The people of Mossville have no legal recourse and no ability to use their voting power to improve their situation, they are faced with the prospect of continuing to consume pollutants which they have no participatory justice measures to prevent, which makes them participatory slaves, which the US and Louisiana governments have a duty to prevent (Roberts 2011, 258).

​There is no reason to believe that anyone would voluntarily submit themselves to these conditions. They are not only being robbed of their ancestral homes or potentially their nationality, but they are also being denied procedural and participatory justice in controlling their environment as they are experiencing the harms caused by others. This process of degrading the environment to the point where people must flee and/or seek asylum, they have been robbed of the process of self-determination, a right which appears to be taken for granted by the fortunate few who live in the liberal democracies where this freedom seems a given. While a slave is generally considered to be a human that is owned as the property of others, there are other definitions which are better suited here. In Nicomachean Ethics, Aristotle provides a simpler definition where a slave is someone who does not have control over their destiny (Morgan 2011, 14479 of 48856). Without the ability to participate in procedural or participatory justice, I will define those who cannot mitigate the inequalities that they suffer in this manner as procedural and participatory slaves. Definitions matter, and I do not intend to overlook the violations that chattel slaves have suffered. However, I feel that there needs to be a sufficiently strong word to describe how dire some situations are to eliminate any ambiguity regarding the conditions imposed upon others. Aggregate polluters can then be said to have a duty to mitigate their contributions to CC while promoting and protecting the self-determination of others. 

​Hayward examines the arguments by Cranston against the difficulties of establishing this right. The simplest summary is that Hayward shows that Cranston sees too much of a hurdle regarding practicality. However, Hayward rather correctly states that practicality is not a consideration of a moral argument (Hayward 2004, 23).  

​Since Hayward presented his argument, it is worth examining how these ideas have stood the test of recent history, and whether “new human rights” have received both normative and legal force, along with looking at how current rights movements are shaping the nature of this argument, and whether they present any future guidance. The government of India has recognised the Ganges and Yamana rivers as having the same rights as persons (Daly 2018, 52). Environmental rights cases have been presented to the International Court of Justice in Ecuador v. Colombia where herbicide spraying by Colombia caused transboundary air pollution in Ecuador, although the case was settled without judgement (Atapattu 2018, 255). ​In August 2018, Greta Thunberg sat alone in front of Swedish Parliament each Friday, skipping school to protest the causes of CC and to challenge governments to enact measures to fix practices which degrade the global environment and fight for environmental justice (Irfan 2019). In September 2019, her seemingly simple action led to millions of students striking in over 150 nations (Irfan 2019). Unlike previous rights movements such as women’s suffrage, the abolition of slavery in the US, and the Voting Rights Act; the student climate strike has exploded into a global normative force demanding that governments enact legislation which provides human environmental rights, or the demand for what Hayward’s human “universal moral right” (Hayward 2004, 23).

​In conclusion, the case for any right is never straightforward or easy, and these issues often take time to see legal backing. It took nearly a century from the end of the US Civil War for the Voting Rights Act to see skin colour-based discrimination become illegal, so the struggle for environmental rights continues. Unlike with the slow process of voting rights, recent trends and movements working to change national and international laws provide hope for a fast transformation. As the debates around the future of the environment have continued, so has their intensity. There is now a demand for governments to recognise human environmental rights, and that action must be taken now. Prominent leaders of other environmental justice groups like George Monbiot of Extinction Rebellion, have made rather bold claims and are demanding for more radical reforms such as challenging the very nature of the global capitalist system (Monbiot 2019). What is essential here, as someone born in 1981, is that I have been a spectator to this global normative transition. I have seen nothing like it, and like Hayward in 2004, I could not have foreseen how fast, modern communications technologies would spread these ideas and demands for a new type of rights and justice. The world’s youth—tomorrow’s voters and legislators—are standing up and realising that they not only have the power to make their voices heard, they also realise that they will soon be voting and directing the actualisation of their climate demands. The case and need for a human right to an adequate environment must simply wait, as there is no reason to believe that these rights will not receive legal priority from today’s youth. Finally, I hope that I have strengthened the moral case and legal cases for this environmental human right, and that I have shown the immorality of robbing people of self-determination and the duty to protect their right to self-determination in support of Hayward’s argument. I also hope that I have shown that degrading the environment degrades human rights.

References

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Claeys, P., (2012). The Creation of New Rights by the Food Sovereignty Movement: The Challenge of Institutionalizing Subversion. Sociology : the Journal of the British Sociological Association, p.844.

Cripps, E., (2017). Do parents have a special duty to mitigate climate change? Politics, Philosophy & Economics, 16(3), pp.308–325.

Daly, E. and May, J. R. (2018) “Learning from Constitutional Environmental Rights,” in Knox, J. H. and Pejan, R. (eds) The Human Right to a Healthy Environment. Cambridge: Cambridge University Press, pp. 42–58. doi: 10.1017/9781108367530.003.

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Roberts, M. (2011). Mossville Louisiana: a community’s fight for the human right to a healthy environment. Clearinghouse Review, 45(5 6), pp.257–258.

Shrader‐Frechette, K., (2002). Distributive Justice, Participative Justice, and the Principle of Prima Facie Political Equality. In Environmental Justice. Oxford University Press, pp. Environmental Justice, Chapter 2.

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