Commentary on "The enforceability of environmental rights"
Human Rights Dialogue: "Environmental Rights" (Spring 2004)
April 28, 2004
In order to enforce any right, it must be articulated with sufficient specificity to permit a tailored remedy. In the case of “environmental rights,” for which there is no unanimous definition, the lack of clarity regarding meaning and content leads to difficulties of enforcement. Once environmental rights are well-defined, our strongest tool for their enforcement is the judicial system, given that the courts alone have the power not only to render judgments but also to execute those judgments through financial or other means.
Before one can take legal enforcement action, however, one must first understand the content of these rights, which are complex and hybrid in nature, given that they combine aspects of human rights and environmentalism, substantive, and procedural rights. Therein lies the initial challenge to the enforcement of environmental rights: the multiple interpretations as to their scope and content. The term “environmental rights” manages to be both elusive and controversial: elusive because there is no universal definition, controversial because many from the environmental sector define it from an ecocentric perspective (environment first) while the human rights constituency is predominantly anthropocentric (humans first).
The subsequent difficulties of enforcement -- judicial confusion, no specific international treaties, economic pressures -- flow from the failure thus far to establish a global consensus on the nexus of human rights and the environment. Courts view the invocation of customary international law, with its lack of fixed parameters and the absence of a written code, as a risky proposition for anything other than the most well-accepted human rights violations (for example, can anyone really argue that torture and extrajudicial murder are not universally condemned?). Given the hybrid nature of environmental rights and the dearth of specific binding international instruments, the concept has yet to attain the status of international law.
The most complete definition of environmental rights is the broadest one, encompassing both procedural (e.g., right to know) and substantive (e.g., right to life) rights. While some of these rights are separately enshrined in international treaties or jurisprudence, there is no one place where they are all delineated and contextualized as environmental rights. Furthermore, a comprehensive definition of environmental rights includes “new” rights as well, such as the right to a healthy environment. Even though this third-generation right is derived from existing first- or second-generation rights (such as the right to life and the right to health), it is more problematic, less easily defined, and more controversial. These third-generation rights -- which also include the right to development and the right to peace -- are “collective,” meaning that they vest in the group rather than an individual, which flies in the face of the traditional understanding of human rights. These are also hybrid rights, combining aspects of both substantive and procedural rights, and this lack of clarity breeds confusion and suspicion. Finally, they seek to give equal status to both humans and the environment, turning the traditional hierarchy of people over nature on its side.
The enforcement of environmental rights claims in U.S. courts -- or, more accurately, the failure of enforcement -- illustrates the problem of definition, as Hari Osofsky describes in her article. A number of plaintiffs have sued multinational corporations, including Texaco and Freeport-McMoRan, for environmental rights abuses under a federal statute, the Alien Tort Claims Act (ATCA, also called the Alien Tort Statute). While ATCA has been used successfully to prosecute civil suits against individuals for violations of well-established, first-generation human rights (e.g., torture, summary execution), it has failed to provide a legitimate basis for environmental rights claims. ATCA allows suits brought by foreigners alleging violations of customary international law, which U.S. courts have yet to interpret to include environmental rights abuses. Because of what Osofsky describes as a characterization problem, U.S. courts fail to recognize that environmental wrongs resulting in human harms constitute violations of international law. This suggests that enforcement of environmental rights is unlikely until such rights are perceived as not only mainstream, but as rights that are sufficiently “specific, universal, and obligatory” (in the words of U.S. courts) to be actionable as violations of customary international law.
How to accomplish this task? Jorge Daniel Taillant, in his article about human rights and the environment in the Americas, suggests a strategy that has led to some success in the Inter-American Commission. In detailing the burgeoning awareness that human rights and the environment are connected and the increased advocacy to promote such linkages in the Organization of American States, Taillant notes that a conceptual framework focused on development rather than environmental rights has been, and continues to be, critical. The term environmental rights, he correctly notes, is inherently ambiguous: Are we talking about the rights of people with respect to their environmental surroundings, or the human obligation to protect nature for its own sake, or some other formulation? Furthermore, some of those interpretations, particularly those that prioritize environmental protection over human profit, are objectionable to powerful interests. Articulating human rights and the environment through a development lens, which posits a people-centered approach to protecting well-accepted rights such as the right to life and the right to health, may be less daunting to some judges. It is unclear that this strategy would be as effective in U.S. courts, however, since development issues are less a part of the national or judicial consciousness. Nonetheless, the strategy is instructive for its recognition that U.S. courts are likelier to oppose corporate interests in the name of protection of people as opposed to preservation of the environment.
Identifying shared goals is critical to the successful implementation of rights at the intersection of environmental and human rights concerns. Viewing these rights from the development perspective is one way; another is to examine the places where popular notions about human rights principles and environmental protection meet. The process of discovering common concerns varies according to cultural context; strategies that work in the developing world may fall flat, for example, in some European countries or the United States. The term “human rights” in the United States readily conjures up images of civil and political rights, while in other countries social and economic rights may take precedence. Environmental defenders -- those who exercise (or try to exercise) fundamental human rights such as the rights to speech, association, information, and due process -- are the physical embodiment of the human rights/environment intersection for some constituencies. Their work on behalf of the environment presents traditional, well-settled human rights concerns, those first-generation human rights issues that get articulated in a domestic context as civil liberties. As Folabi Olagbaju and Stephen Mills suggest, by focusing on popular, established civil and political rights such as freedom of speech and the right to vote, NGOs are able to put forth a broader agenda that addresses environmental problems as well.
On a practical level, defending environmental defenders has been an excellent first step in the enforcement of human rights and the environment; it provides concrete results (saving environmentalists) and paves the way for a broader understanding of the nexus of human rights and the environment. However, while this kind of campaign does allow organizations such as Amnesty International, Sierra Club, and others (including my own, EarthRights International) to address the root causes of second- and third-generation (social, economic, cultural, and environmental) rights to some extent, it only begins to address the larger issues.
Systematic and effective enforcement of human rights and environmental concerns requires not only the protection of individuals; it necessitates a reexamination of the structural conditions leading to what EarthRights International calls “earth rights” abuses. Olagbaju, Mills, and Taillant are clearly aware of the role that transnational corporations play as both perpetrators of earth rights abuses and impediments to the enforceability of earth rights. The human rights and environmental communities must unite around a complex, multifaceted definition of earth rights, one that, in the words of Taillant, includes both “the rights of individuals or communities to environmental quality” as well as “human rights more generally, affected by the quality of the environment.”
Environmental rights comprise a hybrid new idea of rights; they cannot easily be labeled as procedural or substantive, first- or second-generation, anthropocentric or ecocentric. As such, they reflect the complexity of a world in which globalization erases borders and old categories no longer apply. However, that they are “new” does not mean they are infinite and undefinable. It is up to the NGO community to identify common concerns around human rights and the environment, and to posit a definition of environmental rights that is both broad enough to account for varying cultural contexts and specific enough to be comprehensible. Once we reach some consensus on what Osofsky terms the “characterization” problem, we can then push for a global enforcement strategy that has pieces addressing the need for both injunctive relief (stopping the abuses before they happen) and damages (holding corporations accountable by making them pay) as well as the need for international norms and standards (international treaties). Absent a comprehensive understanding and approach that seeks to promote and protect earth rights in their many incarnations, our efforts to enforce these rights -- that is, to make them real -- for all peoples will be unavailing.