As globalisation and technological advancement progress so as to make pursuit of the aspirational ideals of the Sustainable Development Goals ever more realistic, so may the jurisprudence of international human rights law develop to as to provide a legal framework to protect the achievements that pursuit of those goals represents.
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By Matthew Parish
Environmental causes have been topical for a long time. Significant convergence of scientific opinion indicates that human industrial activity and extraction of commodities are damaging the planet. There are dissenting views, but they are surely in the minority. The purpose of this essay however, as its title might suggest, is not to explore a debate between empirical arguments as to whether the environment is being damaged by human industrialism (which in my own view it is but I accept that my view can hardly be canonical). What I want to explore instead is the extent to which the vocabulary of human rights – essentially a branch of law and legal reasoning – can contribute to debates about what ought to be done in the face of this credible danger to the environment and to the planet.
There are human rights that relate to the enjoyment of environmental resources. Every person requires use of the natural world in order to live. We all need to drink water and to eat food. We all need land to live upon, and air to breathe. These essential components of human life are incidents of nature. It cannot be proper that some people dominate these resources to the exclusion of others, to such an extent that the excluded people suffer the most heinous privations as a result.
To offer an example, let us imagine that different groups of people live along a river; they are riparians. Were people living further up the river to create a damn that deprived persons living further down the river from access to water, to the extent that the excluded people might die, this would be a grave injustice. Reasonable people could not credibly argue with this. The coalition of a moral consensus around such an issue might be regarded as giving rise to a human right. Human rights are conventionally conceived as moral entitlements inhering to all persons equally, in so fundamental a way that they ought to be accorded some level of significantly unqualified legal support. It is therefore fair to infer that the right to water – that is to say, the right of access by riparians to the water of a river in such a way that other riparians cannot cut off that water causing the excluded group gross misery or even death – should be protected by law.
The United Nations itself has explicitly recognised the right to water as “the right of everyone to sufficient, safe, acceptable and physically acceptable affordable water for personal and domestic uses”. This definition is supported by the UN Special Rapporteur on Human Rights and the Environment, a position widely supported by UN member states. There is a substantial international consensus that such a right exists.
That is about as far as one can get within a moral or legal analysis before any discussion necessarily starts to become more nuanced. As soon as we acknowledge a right to water, a plethora of other questions, many of which are vexed, may start to present themselves. How much water do we each have a right to? What if there is not enough water to go around? Is the right to water of the same force for a person who has voluntarily moved to a place knowing there is an absence of water? What if the water is dirty? How dirty does it have to be before the right to water is violated? What if a population grows, such that whereas there was once enough water to meet everyone’s needs that no longer can be said to hold true? Who then is responsible for the lack of water? Is there an obligation to create infrastructure to distribute water? How far does this extend, and how is it to be balanced against the financial resources of an authority that might construct and maintain the infrastructure and might have other compelling mandates to which those resources might justifiably be applied in competition? These questions are important, because there is little value in the assertion of a legal right without the prospect of holding somebody to account for breach of the legal right. Or to put matters another way, a right without a responsibility to uphold it is empty.
At this juncture, one temptation is to ask whether the language of legal and moral rights contributes significantly to the quality of the discussion. The problem might appear to be one of the efficient distribution of limited resources, which more naturally may be suggested to be within the sphere of economics. If there is not enough water for everyone, then arguably the only proper question is how to distribute such water as may be available so as to maximise utility and/or equity. It might be argued that the language of human rights, being absolutist in nature (a human right is conventionally conceived as something that cannot justifiably be breached in any circumstances, with the consequence that the law ought to impose criminal sanctions upon any such breach), is not appropriate to what are essentially fungible empirical problems of efficient distribution. This the argument against the existence of a human right to water. So the argument goes, as soon as one tries to become specific about how much water anyone has a right to, and who has a right to which body of water, the issues cease to be absolutist such that the language of human rights, which has an unconditional moral quality to it, ceases to be appropriate.
Nevertheless this seems too quick. Every human right has a proportionate quality to it. This applies as much to so-called “civil and political rights” as to “social and economic rights” (a distinction drawn in various UN instruments). Rights of due process – that is to say, to a fair judicial or quasi-judicial procedure in the administration of government decisions – falls into the former category, whereas a right to water falls into the latter category. But rights of due process are fungible as well. Every country has its own legal and political culture, to varying degrees distinctive from others although certain countries have common historical routes in the way that their legal systems have developed. It follows from this that rights of due process in the way that government authorities make decisions may fall to be assessed through different historical and political lenses. All civilised nations have rights traditions. But they have developed in different ways. Questions of due process in the administration of government services and justice also fall to be assessed by reference to a society’s resources. The greater the institutional and financial resources available to a country, the higher the relevant standards by which standards of administrative due process may fall to be assessed.
Indeed it turns out that very few human rights are not fungible in the sense of their contents and concomitant obligations upon states being relative to a series of historical and cultural attributes and to the financial and other resources available to a state in upholding and enforcing those rights. That is not to say that all human rights discourse is useless because it is fungible. It is rather that we need to take the view that while at least some human rights discourse was originally conceived as absolutist in the original UN human rights instruments in which it was inscribed (at the end of the Second World War, there was a compelling case for transcribing some principles of moral absolutism), contemporary human rights discourse has since developed to become more nuanced because the horrors of the contemporary world, while horrendous, are not in general terms as horrendous as those that occurred during the Second World War.
Consider another example. One putative candidate for a human right so fundamental that there can be no latitude for fungibility might be regarded as the right not to be tortured. No state, no matter how limited in capacity its judicial system might be by virtue of lack of resources or other factors, ought to use torture as a tool in the criminal justice process (or in any other process). This is as undeniable as it is clear. Torture is horrific and no state ought to countenance it. But even here, at the hardest end of the spectrum of non-fungibility of human rights, there are nuances.
The human right not to be tortured may become intertwined with debates about prison conditions. The question of what quality of prison conditions is morally acceptable itself turns upon resource issues for a society: for example how much money is realistically available to a state in administering detention facilities, or the apprehended level of violent danger of the inmates, which may justify greater or lesser restrictions upon liberty. Moreover there is a contemporary trend in human rights law to say that in certain circumstances a state (conventionally conceived as the party liable for human rights violations) may be liable for abuses of human rights by third parties. One such example might be torture of civilians during armed conflict by non-state actors, if the state has a responsibility to prevent such actions. The scope of that responsibility must surely in turn depend upon the capacities and/or intentions of the state during the conflict. The capacities of states during armed conflicts may be diminished, because they may not have control over the entirety of their territories; or that control may not be absolute.
The point I am making here is that the apparent fungibility of a human right to water does not mean that there is no human right to water at all. There are surely plenty of human rights relating to the environment. I believe that humankind has a responsibility to take care of the environment so that my children might enjoy it, just as do I. I also believe that we can frame this responsibility in terms of the human rights of my children. That is why socio-economic rights are important, just as are civil and political human rights.
The question of what the appropriate human rights standard is in any particular instance may be a mixed empirical, legal and moral question. Human rights may be a standard to aspire to, as well as a simple regulation that is either breached or is not. Evaluation of human rights standards in any specific case may require study with legal rigour, ethical nuance and scientific care. Judgments about human rights standards in any given society need to be approached with the proper judicial tenor. As with any legal standard, the starting point may need to be a complaint that a right has been breached, together with prima facie evidence supporting this. There may then need to a legal process by which the submissions and observations of relevant parties are sought, obtained, and adjudicated in a fair process. Any person adjudicating human rights must themselves observe human rights standards, one of which is the right of due process. This way, we might make sense of a currently occasionally confused terrain.
The United Nations has established a set of 17 global goals for human development, called the Sustainable Development Goals. They are broad. They include matters such as the promotion of potable water and sanitation, and access to judicial and other institutions. These are also palpably fungible goals. They are aspirational standards, intentionally formulated in fungible terms. But the point is this. As globalisation and technological advancement progress so as to make pursuit of the aspirational ideals of the Sustainable Development Goals ever more realistic, so may the jurisprudence of international human rights law develop to as to provide a legal framework to protect the achievements that pursuit of those goals represents. In other words: there is no point pursuing goals if nobody is held accountable should they suddenly be taken away at the arbitrary and unlawful instance of a governing authority. The goals of the UN’s development agenda should surely be a system of ratchets: once you get so far, the law develops so as to protect them.
Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He is a scholar of ethnic conflict and civil war, and he has published two books and over two hundred articles. He is an Honorary Professor of Civil Law and Litigation at the University of Leicester and a Young Global Leader of the World Economic Forum. Bilan magazine named him as one of the three hundred most influential people in Switzerland. www.matthewparish.com
The views expressed in this piece do not necessarily reflect those of TransConflict.