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Barley, Spencer --- "Emerging approaches to environmental rights and human obligations" [2022] NZJlEnvLaw 7; (2022) 22 NZJEL 151

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Emerging approaches to environmental rights and human obligations [2022] NZJlEnvLaw 7 (31 December 2022); (2022) 22 NZJEL 151

Last Updated: 14 May 2024

151

Emerging Approaches to Environmental Rights and Human Obligations

Spencer Barley*

During the second half of the 20th century, the concepts of rights and obligations attained new political and legal significance, as demonstrated by the rapid growth of international human rights law.1 It appears such developments will continue in the 21st century, albeit in new directions, as emerging approaches to environmental rights and human obligations seek solutions to the global environmental crisis. This article critically analyses such approaches and suggests an outline for how they might be implemented.

1. INTRODUCTION

Part two of this article analyses three human rights-based approaches to addressing environmental challenges, namely: the environmental use of existing human rights; the creation of new procedural environmental human rights; and the creation of new substantive environmental human rights. Part three discusses rights of nature, while part four examines human obligations. Finally, part five discusses how these approaches should be implemented; specifically, whether any approach should be prioritised. It concludes that, in the long term, all the approaches could be implemented to form a comprehensive rights- and obligations-based environmental protection regime. However, it argues that it is nonetheless desirable in the short term to focus our limited resources on implementing a single approach (in particular, human obligations) as quickly as possible.

*The author is currently completing a LLB with Honours and a BA at the University of Auckland, while working as a summer clerk at Chapman Tripp. This article is based on an Honours Seminar paper originally submitted at the University of Auckland in 2022. Email: sbar447@aucklanduni.ac.nz.

1 Stefan-Ludwig Hoffmann “Human Rights and History” (2016) 232 Past Present 279.

2. HUMAN RIGHTS-BASED APPROACHES TO THE ENVIRONMENT

Human rights-based approaches to the environment are numerous and diverse. This article discusses only three: the environmental use of existing human rights; the creation of procedural human rights focused on environmental issues; and the creation of substantive human rights to the environment.

However, before discussing these approaches, it will be helpful to first examine what human rights are as well as their ideological background. This will provide valuable context and a useful point of comparison for all the approaches discussed within this article.

2.1 What are Human Rights?

There are many different definitions and theories of human rights. From a bottom-up perspective, the term is generally used to refer to inherent entitlements that all humans possess.2 However, different top-down principles or theories disagree about the origins of this entitlement. The theory of personhood claims that humans’ unique status as conscious moral and intellectual agents naturally gives rise to the protection of human rights.3 Alternatively, instrumentalists view human rights as socially constructed legal tools used to achieve desirable ends,4 such as political stability, freedom, or peace.5 Different theories have different ramifications for the content and application of human rights. However, this debate largely falls outside the scope of this article. Instead, for simplicity’s sake, this article will adopt the UN definition and presume that human rights are universal, inalienable, indivisible, interdependent, equal and non-discriminatory.6

It is also important to note that, like all rights, human rights are accompanied by corresponding duties.7 For example, A’s right to life obligates others not to deprive A of life. Accordingly, human rights impose numerous obligations on states, individuals and other actors. However, human rights law typically emphasises rights rather than obligations. This is further reinforced by the rules

  1. United Nations “Human Rights” <www.un.org/en/global-issues/human-rights>.
  2. James Griffin On Human Rights (Oxford University Press Inc, New York, 2008) at 32–33.
  3. Susan Emmenegger and Axel Tschentscher “Taking Biocentrism Seriously” (1994) 6 Geo Int’l Envtl L Rev 545 at 574.
  4. See Universal Declaration of Human Rights UN Doc A/810 (10 December 1948), preamble.
  5. Office of the United Nations High Commissioner for Human Rights “What are Human Rights?” <www.ohchr.org/en/what-are-human-rights>.
  6. WN Hohfeld “Fundamental Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710.
of legal standing, which typically require claims to be brought only by persons whose rights have been violated.8

In the West, human rights are commonly separated into three generations.9 The first generation are civil and political rights, which set limits on state interference with individual liberty. The second generation are economic and social rights, which require positive state action on practical issues and inequalities (such as rights to access to food, healthcare and education). Lastly, the third generation are solidarity rights, which are concerned, not with individuals, but with the rights of groups and peoples (such as the right of indigenous peoples to self-determination).10

However, this generational approach has received criticism arguing that it is not universally chronologically accurate, offers little normative guidance, and that the distinctions between the different categories tend to blur in practice.11 While these criticisms are forceful, the generational classification of human rights remains useful, and is used in this article, as a simplified means of distinguishing between different kinds of human rights.

In Western states, each subsequent generation of human rights has encountered increased political resistance and, consequently, lesser implemen- tation in law. For example, the New Zealand Bill of Rights Act 1990 (NZBORA) only guarantees first-generation rights. Some commentators suggest that this trend reflects the neoliberal and capitalist ideologies inherent in the human rights movement.12 They argue that, historically, human rights were perceived to be the less radical alternative to the demands made by “the anti-colonial movement or international communism”;13 an alternative that was compatible with, and some argue actively promoted,14 the values of neoliberal capitalism.15 Accordingly, the firm entrenchment of human rights within neoliberalism could limit their ability to take on new meanings which diverge from neoliberal ideals.

Lastly, the growth of international human rights law led to the creation of corresponding institutions and infrastructure.16 In particular, international

  1. Christopher D Stone “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (1972) 45 S Cal L Rev 450.
  2. Dinah Shelton “Human Rights, Environmental Rights, and the Right to Environment” (1991) 28 Stan J Int’l L 103 at 122.
  3. Declaration on the Rights of Indigenous Peoples UN Doc A/RES/47/1 (13 September 2007) at art 3.
    1. Shelton, above n 9, at 122–125.
  4. Peter D Burdon “Obligations in the Anthropocene” (2020) 31 Law & Crit 309. 13 At 315.
  5. Jessica Whyte The Morals of the Market: Human Rights and the Rise of Neoliberalism (Verso, London, 2019) at 12.
  6. Burdon, above n 12, at 315–317.
  7. Thomas Buergenthal “International Human Rights Law and Institutions: Accomplishments and Prospects” (1988) 63 Wash L Rev 1.
instruments now obligate states to incorporate human rights into their national law, to establish reporting processes and committees to monitor compliance, and to set up courts to adjudicate alleged violations.

With this context in mind, the article will now discuss emerging approaches to environmental human rights, beginning with the environmental use of existing human rights.

2.2 The Environmental Use of Existing Human Rights

Historically, human rights have not expressly referred to the environment.17 This is especially true of civil and political rights, such as those within the NZBORA. Nonetheless, courts have begun interpreting and applying these rights in ways that address environmental issues. In particular, they have begun to recognise that environmental degradation can adversely affect, and thereby violate, existing human rights. Importantly, such judgments do not create new rights, they merely apply existing rights to cases involving environmental harm.

A clear example of this approach is the emerging environmental case law of the European Court of Human Rights (ECHR). The European Convention on Human Rights does not discuss the environment nor environmental rights.18 However, the Convention is seen as a living instrument that adapts to reflect changing social values and which is interpreted in light of present- day conditions.19 Accordingly, it has been increasingly interpreted in ways that address the environment. The rights most invoked in environmental cases include the right to life, the right to respect for private and family life, the right to peaceful enjoyment of possessions and property, and the right to a fair hearing.20

For example, in López Ostra v Spain, pollution from a nearby waste treatment facility was causing the applicant’s daughter to suffer from nausea, vomiting, allergic reactions and anorexia.21 The facility was also operating without the licences required by national environment law, but the local authorities failed to intervene. The ECHR held that, even though the daughter’s life was not seriously threatened, the environmental pollution adversely affected the applicant’s right to respect for private and family life. Furthermore, they found that the government had not fairly balanced the town’s economic interests

  1. Alan Boyle “Human Rights or Environmental Rights? A Reassessment” (2007) 18 Fordham Envtl LJ 471 at 476–477.
  2. Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (signed 4 November 1950, entered into force 3 September 1953).
  3. Boyle, above n 17, at 485.

20 At 485–486.

21 López Ostra v Spain [1994] Series A no 303-C (ECHR).

against the applicant’s Convention rights and, therefore, had violated those rights.

Cases such as Guerra,22 Taşkin 23 and Fadeyeva 24 similarly found that when a breach of national environmental law infringes upon a citizen’s Convention rights, the states’ failure to act will itself amount to a human rights violation. These cases and others led to the creation of the Manual on Human Rights and the Environment,25 which sets out the general principles derived from ECHR case law; notably, that states have an obligation to regulate and control environmental problems where they impair the exercise of Convention human rights, and to ensure that these laws are enforced.26

The ECHR example illustrates how existing human rights can be applied to environmental problems, and lead to new bodies of environmental law, without the creation of new rights.

The primary advantage of this approach is its simplicity and ease of imple- mentation. It can utilise existing international human rights instruments, committees and courts. This saves time and resources.

It also has clear means of determining a breach. A breach exists where environmental harm adversely affects one’s existing human rights. Legal standing requirements apply a litigation threshold and exclude trivial claims. Furthermore, given the history of human rights litigation, there is a great deal of case law and guidance on the degree of adverse impact sufficient to constitute a rights violation and qualify for standing. It is merely a matter of applying these existing thresholds to environmental cases.

However, legal standing requires that complainants be identified individuals whose existing human rights have been violated. This narrows the scope of protection human rights can provide. For example, it fails to protect victims of environmental harm who are not identifiable individuals, such as members

22 Guerra and others v Italy ECHR 14967/89, 19 February 1998. 23 Taşkın and others v Turkey [2004] 10 ECHR 179.

  1. Fadeyeva v Russia [2005] 4 ECHR 301.
  2. Council of Europe Manual on Human Rights and the Environment (3rd ed, 2022). 26 Boyle, above n 17, at 486.
of future generations,27 or even the environment itself.28 It also fails to protect victims who suffer indirectly from environmental harms, such as from rises in global temperature, who cannot establish a direct causal link between their injuries and any specific defendant.29 This was recently demonstrated in the ongoing case of Smith v Fonterra, in which the plaintiff has, so far, had his public nuisance, negligence and “novel duty of care” claims against seven major greenhouse gas emitters struck out.30 This resulted partially because of an inability to establish a causal nexus between the emissions and the pleaded harm,31 leading to difficulties identifying a discrete class of defendants and potential future plaintiffs.32 In short, Smith could not distinguish his climate change-related harm from that suffered by many others in New Zealand and elsewhere, and neither could he show that, but for the named defendants, such harm would not have occurred.33 Accordingly, Smith’s claims could not succeed. Lastly, legal standing requirements fail to protect the disempowered (those without financial, political or social influence) who may be directly affected but lack the resources to bring a claim, while those with sufficient resources lack the legal standing to advocate on their behalf.34

It is also unclear whether courts could adjudicate transboundary disputes in which the complainant and defendant are in different territories and jurisdictions. Normally, international human rights agreements give rise to intra- national human rights obligations that states owe only to their own citizens.35 Nonetheless, there is some case law supporting transboundary obligations in non-environmental contexts.36

This limited scope for protection is exacerbated by, and partially stems from, the inherent anthropocentrism of existing human rights. Notably, this approach is not concerned with protecting the intrinsic value of the environment as a good unto itself. Instead, it is concerned with the adverse effects of environmental degradation on humans and their enjoyment of human rights. Accordingly, harm to the environment that does not result in clearly observable harm to humans

  1. See Communication No 67/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol UN Doc CCPR/C/OP/2 (1990).
  2. Jan G Laitos “Standing and Environmental Harm: The Double Paradox” (2013) 31 VA Envtl LJ 55.

29 At 69.

30 Smith v Fonterra Co-Operative Group Limited [2021] NZCA 552, [2022] 2 NZLR

284.

31 At [88]–[93] and [104].

32 At [111]–[113] and [116].

33 At [82] and [112].

  1. James K Boyce Inequality and Environmental Protection (Political Economy Research Institute, Working Paper Series No 52, January 2003).
  2. Boyle, above n 17, at 500.
  3. Cyprus v Turkey [2001] 4 ECHR 1.
and their human rights falls outside the scope of the approach. This not only fails to protect the intrinsic value of nature but also, ultimately, the long-term interests of humanity. This is because humanity relies on a well-functioning biosphere, which in turn depends on the “conservation of the collection of micro-ecosystems which comprise it. Each sector of the environment is critical, whether useful or not”.37 Accordingly, environmental degradation that appears not to harm humans or infringe their human rights still damages the biosphere and thereby imperils humanity’s long-term survival.

Anthropocentrism also creates issues in balancing exercises. The use of existing rights preserves the hierarchy in which human rights and interests generally take precedence over environmental considerations. Accordingly, environmental concerns, even when accompanied by an affected human right, may be easily overridden in balancing exercises when in conflict with other, non-environmental, human rights or interests, such as those regarding property or economic development.38

Finally, this approach relies upon the judiciary to determine when environ- mental harm is unacceptable. This has potential advantages because judicial bodies may often have greater independence from politics and lobbyists, thereby giving them greater freedom to enforce meaningful environmental protections.39 On the other hand, judicial bodies are also less accountable to the public and generally less competent to determine policy issues. Furthermore, case law can be an inefficient and slow mechanism by which to create environ- mental standards, especially given the urgency of the environmental crisis.40 Accordingly, although judiciaries may be the appropriate body to adjudicate environmental laws and rights, they may be the wrong body to develop them.41

2.3 The Creation of Procedural Environmental Human Rights

An alternative approach is to create procedural environmental human rights. These rights are usually civil and political in nature and include such rights as access to information about the environment, participation in decision- making affecting the environment, and access to justice. Notably, creating new procedural rights does not provide any substantive entitlement to better

  1. Shelton, above n 9, at 110.
  2. Boyle, above n 17, at 494–496.
  3. Lal Kurukulasuriya, Chief of the Environmental Law Programme “The Role of the Judiciary in Promoting Environmental Governance and the Rule of Law” (prepared for Global Environmental Governance: the Post-Johannesburg Agenda, New Haven, 23–25 October 2003).
  4. Boyle, above n 17, at 484.
  5. See Dinah Shelton “Developing Substantive Environmental Rights” (2010) 1 JHRE 89 at 119–120.
environmental outcomes. However, it does guarantee involvement in, and information about, processes, policies and projects affecting the environment. This is thought to lead to better environmental outcomes by assisting citizens to advocate for environmental protections.42

A clear example of this approach is the Aarhus Convention.43 Although the Aarhus Convention’s preamble endorses the right to live in an adequate environment,44 its operative provisions are limited to procedural measures.45 The Convention grants varying levels of rights of access to information,46 access to justice,47 and public participation in decision-making relating to: specific activities (oil and gas refining, waste management, etc);48 the preparation of plans, programmes and policies relating to the environment;49 and the preparation of executive regulation and legal instruments that significantly affect the environment.50

Procedural rights under the Aarhus Convention are generally more accessible than substantive rights. For example, the Convention provides for passive access to information without requiring proof of any adverse impact or interest.51 Furthermore, it expressly extends certain rights beyond individuals by incorporating environmental non-governmental organisations (NGOs) within its definition of “the public concerned”.52

The accessibility of procedural rights provides better protections for those whom substantive rights generally fail, as discussed above. For example, procedural rights to information and participation facilitate advocacy by non- affected individuals and environmental NGOs on behalf of future generations, the disempowered, and even on behalf of the environment itself. Furthermore, the indirectly affected can advocate on their own behalf.

  1. Ole W Pedersen “Environmental Human Rights and Environmental Rights: A Long Time Coming?” (2008) 23 Geo Int’l Envtl L Rev 73 at 92.
  2. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters UNECE 2161 UNTS 447 (opened for signature 25 June 1998, entered into force 30 October 2001) [Aarhus Convention].
  3. Aarhus Convention, above n 43, preamble. 45 Boyle, above n 17, at 477.
  4. Aarhus Convention, above n 43, arts 4 and 5.
  5. Article 9.
  6. Article 6.
  7. Article 7.
  8. Article 8.
  9. Article 4(1)(a).
  10. Article 2(5).
The procedural rights approach also has the virtue of political palatability.53 By focusing on process rather than substance, the approach infringes state sovereignty to a lesser degree than substantive rights. States remain free to make their own decisions regarding the environment, so long as they follow transparent and participatory processes.54 This political palatability may enable procedural rights to gain political acceptance and implementation more quickly, which, in the context of an urgent environmental crisis, could be crucial.

The primary disadvantage of the procedural rights approach is that it fails to ensure any substantive protections for the environment. This is because procedural rights guarantee process, not outcomes. Although the public has the right to be informed and to participate, decision-makers are not prohibited from making choices that harm the environment.55 Instead, the approach relies solely on the persuasiveness of environmental advocacy by the public and environmental NGOs.

Notably, public sentiment does not inherently align with environmental interests. There are situations where they diverge, particularly where an activity harms the environment but also benefits the public or the local population. A simple illustration is found in economies reliant on industries such as coal or gas. In such places, public sentiment and participation in decision-making may prioritise economic gains and individual livelihoods over environmental protection. However, this could be mitigated by granting environmental NGOs similar rights because their interests are more likely to align universally with environmental protection.

On the other hand, a lack of interest also poses a significant problem. The public may not be motivated or capable of informing themselves about, and participating in, every important environmental issue.56 This directly limits the effectiveness of procedural rights whose effectiveness relies on their use by the public. However, again this can be mitigated by extending rights to environmental NGOs, who have both the mandate and better resources to search out and engage in environmental issues.

Lastly, there is a risk that under this approach environmental protection will depend, not on the merits of each case, but instead on the attention and media

  1. Shelton, above n 41, at 90–91.
  2. Marianne Dellinger “Ten Years of the Aarhus Convention: How Procedural Democracy is Paving the Way for Substantive Change in National and International Environmental Law” (2012) 23 Colo J Int’l Envtl L & Pol’y 309 at 332–333.
  3. Shelton, above n 41, at 91.
  4. Dellinger, above n 54, at 316.
coverage each receives. This could lead to unequal treatment of like cases and invites evasion through media management and greenwashing.

2.4 The Creation of Substantive Environmental Human Rights

The final human rights approach discussed in this article concerns the creation of substantive environmental human rights. Such rights recognise an inherent human entitlement to enjoy a certain kind of environment. Various international instruments and national constitutions have already adopted such a right, and their different formulations include:

The case of Ogoniland demonstrates how substantive environmental human rights operate.61 In that case, the Nigerian government was accused of involvement in irresponsible oil development practices in the Ogoni region.62 The African Commission on Human and Peoples’ Rights held that this breached art 24 of the African Charter on Human and Peoples’ Rights, provided above. The Court held this article imposed an obligation on the Nigerian government to take reasonable measures to prevent pollution and ecological degradation, promote conservation, and secure ecologically sustainable development and use

  1. African (Banjul) Charter on Human and Peoples’ Rights 1520 UNTS 217 (opened for signature 27 June 1981, entered into force 21 October 1986), art 24.
  2. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Protocol of San Salvador E/CN.4/2004/ WG.21/5 Compendium of international and regional standards against racism, racial discrimination, xenophobia and related intolerance 413 (adopted 17 November 1988, entered into force 16 November 1999), art 11.
  3. Constitution of the Portuguese Republic 1976 (Portugal), art 66. 60 Draft Global Pact for the Environment, art 1.
  4. The Social and Economic Rights Action Center for Economic and Social Rights v Nigeria (Ogoniland ) (2001) Comm No 155/96, African Commission on Human and Peoples’ Rights.
  5. Fons Coomans “The Ogoni Case before the African Commission on Human and Peoples’ Rights” (2003) 52 ICLQ 749.
of natural resources.63 The Nigerian government had breached these substantive obligations and was asked to restore the damaged lands and rivers, ensure appropriate environmental impact assessments and oversight for any future oil development, and provide access to information and participation for affected communities.

Unlike procedural rights, substantive rights provide concrete environmental protections that prohibit certain outcomes. In this way, they impose real constraints on the freedom of decision-makers.64

Substantive rights also treat like cases alike, regardless of how much or little media attention or public interest each one receives. They establish a baseline of environmental protection which, in all cases, cannot be infringed without prima facie incurring liability.

The substantive rights approach also gives environmental considerations greater weight in balancing exercises. This is because the change of status from an interest to a human right gives such considerations greater weight when competing against mere interests and prevents them from being automatically subordinated to other human rights.65 Furthermore, the change in status could also assist environmental advocacy and activism, by signalling the environment’s importance. The political and social stigma associated with breaching human rights could also deter breaches in addition to the legal consequences.

Finally, substantive rights also have a capacity, albeit a limited one, to depart from strong anthropocentrism. Although only humans can hold rights under this approach, substantive environmental human rights can protect non- anthropocentric values. For example, they could guarantee an environment with ecological integrity or biodiversity. Accordingly, these rights could prohibit activities which infringe these values even if they do not directly harm humans in traditional terms. However, it is important to note that such “non- anthropocentric” values would ultimately be determined by human law-makers and, therefore, would necessarily come from an anthropocentric perspective.

As discussed above in relation to existing rights, the scope of protections offered by substantive environmental human rights may be narrowed by the

  1. Boyle, above n 17, at 474.
  2. Shelton, above n 41, at 91–92.
  3. Boyle, above n 17, at 471 and 483.
legal standing requirement for an identified individual whose rights have been directly affected.66 This could prevent such rights from protecting future generations, the disempowered, the environment itself, and those who are only indirectly affected.

However, this risk partially depends on how such rights are framed. For example, the right to a “healthy environment” might be anthropocentric in nature. In other words, it might not apply where someone’s local environment is healthy but there is pollution elsewhere causing no observable harm to living humans. On the other hand, perhaps the “right to biosphere integrity” would be less-anthropocentric and provide broader protections for both living humans and the other groups mentioned above. However, even then, it may struggle to address transboundary disputes, as it remains unclear whether human rights can be invoked against a state by the citizens of a foreign jurisdiction.

A separate concern is whether, in practice, substantive environmental rights are too vague and non-specific to be of normative value.67 For example, it is unclear what constitutes a “healthy environment”, let alone a “general satisfactory environment favorable to [human] development”. These generalisations and abstractions only serve as guidance for courts to develop specific standards on a case-by-case basis. As discussed above, this is potentially inefficient, slow, and judiciaries might lack the institutional competency required. Accordingly, in practice, the standards arising from substantive environmental rights may prove ineffective.

This risk is potentially exacerbated by the neoliberal ideological context in which the law, the courts and human rights primarily operate.68 This may lead judiciaries to prioritise individual liberties and first-generation rights over substantive environmental rights, or to grant states broad discretion in balancing exercises.69 This risks the baseline of environmental protections being set too low.

Alternatively, some argue that implementing substantive environmental rights would distort and weaken existing human rights.70 Substantive environ- mental human rights’ divergence from individualism and the emphasis on negative liberty could, within a neoliberal paradigm, undermine the legitimacy and acceptance of human rights generally — thereby endangering the gains made by decades of human rights law and activism.

  1. Laitos, above n 28.
  2. Shelton, above n 41, at 91; and Boyle, above n 17, at 483–484.
  3. Louiza Odysseos “Human Rights, Liberal Ontogenesis and Freedom: Producing a Subject for Neoliberalism” (2010) 38 Millennium: Journal of International Studies 747.
  4. Burdon, above n 12, at 315–317.
  5. Shelton, above n 9, at 138 and 105.

2.5 Summary

This part analysed three environmental human rights approaches. Each was shown to have unique strengths and weaknesses; varying in the breadth and effectiveness of their environmental protections, their political palatability and their ease of implementation. Nonetheless, all three approaches also shared several significant similarities. They are all, to different extents, inherently anthropocentric — being rights determined and held uniquely by humans or groups of humans (eg NGOs).71 To varying degrees, they all can also utilise the existing infrastructure and institutions of human rights law. For example, unlike rights of nature, they do not require the creation of new representative bodies. Finally, in comparison to rights of nature and human obligations, they represent the closest approaches to the traditional human rights framework.

3. RIGHTS OF NATURE

The rights of nature (RON) approach recognises that rights are often held by non-human entities such as companies and government bodies. It argues that the law should similarly acknowledge the environment, or parts of it, as legitimate rights-holders.72 This would empower the environment to bring legal action through appointed representatives whenever its rights are violated.73

For example, a forest could have the right to ecological integrity or biodiversity. Where this right is violated, perhaps by a logging company, the forest’s representatives could initiate court proceedings. If successful, the forest could obtain: an injunction preventing harmful logging activities from continuing; an order compelling restoration work to be undertaken; or even a punitive order (such as exemplary damages) to deter future breaches and to censure the wrongdoing. Similarly, the forest would also have corresponding duties. Therefore, the forest could be sued if (through its appointed representative) it licensed activity causing harm and pollution affecting others.74 Within the RON movement, there are several theories which each recognise

different entities as legitimate rights-holders:

  1. Boyle, above n 17, at 484.
  2. Stone, above n 8.
  3. Laitos, above n 28, at 100–101.
  4. Christopher Rodgers “A new approach to protecting ecosystems: The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017” (2017) 19(4) Environ Law Rev 266 at 274.

Theories also disagree about the relationships between rights-holders. For example, ecocentrism urges harmony between all natural entities and dis- courages competition.79 In contrast, biocentrism permits competition between species, even if it leads to some species’ extinction, so long as the rules of the competition are fair.80

Therefore, the scope and content of RONs depend on which theory is adopted.

It is also clear that RONs are either a departure from, or a dramatic expan- sion of, the anthropocentric framework of human rights. This framework traditionally interprets rights and obligations in anthropocentric terms.81 Freedom of movement is interpreted as humans’ freedom of movement; liberty is human liberty. Even obligations are solely imposed on humans — it intuitively strains the anthropocentric nature of human rights to say that when a lion eats a human the lion has breached its obligations under human rights. Although RONs are allocated, determined and adjudicated by humans and therefore cannot truly escape an anthropocentric lens, they attempt to minimise their anthropocentrism by recognising non-human rights-holders.

This step can be philosophically supported in one of two ways. First, it can be supported by content-based arguments. One can argue that non-human rights- holders fulfil the requirements for rights.82 This can stem from adaptations to the theory of personhood discussed above or from other non-anthropocentric theories of rights. Alternatively, it can be supported on instrumentalist grounds. One can argue that there are no universal requirements for recognition as a

  1. Emmenegger and Tschentscher, above n 4, at 577.

76 At 577.

77 At 577–578, 580 and 591.

78 At 578.

79 At 578.

80 At 577–578 and 591.

  1. Louis J Kotzé “Human Rights and the Environment in the Anthropocene” (2014) 1 The Anthropocene Review 252 at 263.
  2. Burdon, above n 12, at 315.
rights-holder.83 Instrumentalists infer this claim from examples of rights-holders (such as companies, new-borns and those in permanent vegetative states) that contradict the theory of personhood and other non-instrumentalist theories.84 Instrumentalists argue that rights are merely legal tools used to protect things of value to us. Accordingly, there are no conceptual barriers preventing the implementation of RONs to protect the environment in the same way that human rights were implemented to protect peace, stability and prosperity, and company rights were implemented to promote economic growth.85

Practical examples of RONs can be seen in New Zealand’s Whanganui River and Te Urewera. In 2017, the Whanganui River was recognised as a legal person as part of a settlement agreement with Whanganui iwi.86 This agreement established Te Pou Tupua, a co-governance framework in which a representative of the Crown and a representative of Whanganui iwi each serve on behalf of the river.87 Similarly, in 2014, Te Urewera was recognised as a legal person.88 A co-governance framework was also established with six members appointed by trustees of Tūhoe Te Uru Taumatua and three members appointed by the Minister for Treaty of Waitangi Negotiations.89 However, these frameworks were not solely implemented to protect, or to recognise, the environment’s rights. They were settlements of long-running litigation of Māori claims asserting Crown breaches of obligations under the Treaty of Waitangi.90 Accordingly, they served a dual purpose — to both protect the environment and to recognise the mana of indigenous iwi over the environment, and their relationship to it.91 Therefore, some argue that, although the granting of legal personality to Te Urewera and the Whanganui River is symbolically significant, their co-governance frameworks merely divide the incidents of ownership (and political authority) between the Crown and iwi rather than recognising the environment as a truly independent and ownerless entity.92

  1. Emmenegger and Tschentscher, above n 4, at 574.
  2. Joel Feinberg “The Rights of Animals and Unborn Generations” in WT Blackstone (ed) Philosophy and Environmental Crisis (University of Georgia Press, Athens (GA), 1974) 42 at 60.
  3. Emmenegger and Tschentscher, above n 4, at 575–576.
  4. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
  5. New Zealand Parliament “Innovative bill protects Whanganui River with legal personhood” (28 March 2017) <www.parliament.nz/en/get-involved/features/ innovative-bill-protects-whanganui-river-with-legal-personhood/>.
  6. Te Urewera Act 2014.
  7. Te Urewera Act 2014, ss 16 and 21(2).
  8. Katherine Sanders “‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New Zealand” (2018) 30 J Environ Law 207 at 209.
  9. Rodgers, above n 74.
  10. Sanders, above n 90, at 209.
While the long-term impacts of these examples are yet to be seen, and although they are both complicated by the context of post-colonial settlement processes, they demonstrate two important points regarding RONs. First, that non-human natural entities cannot speak or bring legal action on their own behalf — representative bodies are needed to act in their interests.93 This inherently reintroduces human bias. Secondly, it matters who participates in these representative bodies. For example, local or indigenous communities may be better placed to monitor environmental conditions and may be more passionate when environmental degradation occurs. They may also be less likely than the state to permit local pollution in order to promote wider economic benefits. Alternatively, local interests may also conflict with the interests of nature. For example, the Supreme Court of Bangladesh has recognised all rivers within the country as legal persons under the guardianship of the National River Conservation Commission (NRCC).94 Local traditional fishing communities are not involved in the governance of these rivers and are concerned that the NRCC may evict them to prevent river pollution.95 In this case, the local fishing communities’ interests seem to directly conflict with the interests of the river. This illustrates the fact that inclusion of local communities on representative bodies may give rise to conflicts of interest because such communities are directly affected, for better or worse, by any environmental measures put in place. Similarly, examples such as Whanganui River and Te Urewera demonstrate how RONs, and the governance structures they require, can be tied up with political issues and the settlement of historical grievances. This may also lead to conflicts between the interests of the environment, and the interests of its appointed representatives.

3.1 Advantages

A significant advantage of the RON approach is its attempt to recognise the intrinsic value of nature which exists regardless of its utility to humans. Unlike human rights approaches, RONs seek to protect nature from harm whether or not any human has been adversely affected. Furthermore, by recognising non- human rights-holders it, in theory, avoids “species chauvinism” and the pitfalls

  1. See the “guardianship approach” within Stone, above n 8.
  2. Mari Margil “Bangladesh Supreme Court Upholds Rights of Rivers” (25 August 2020) Center for Democratic and Environmental Rights <https://www. centerforenvironmentalrights.org/news/bangladesh-supreme-court-upholds-rights- of-rivers>.
  3. Rina Chandran “Fears of evictions as Bangladesh gives rivers legal rights” (5 July 2019) Thomson Reuters <https://www.reuters.com/article/us-bangladesh- landrights-rivers-idUSKCN1TZ1ZR>.
of anthropocentrism.96 In practice, however, because the scope, content and application of RONs are determined by humans, it is impossible for it to escape anthropocentrism entirely. Therefore, RONs represent a “less-anthropocentric” approach, rather than a non-anthropocentric one.

However, this less-anthropocentric approach, in practice, provides better protection for humanity, particularly in the long term.97 As discussed above, environmental harm which only affects future generations, the disempowered or the indirectly affected is not clearly prohibited by the more-anthropocentric human rights approaches. However, such harm would fall within the scope of RONs. This is because RONs only require that environmental harm adversely affects the rights of a recognised non-human rights-holder, such as the environment itself. Therefore, depending on which entities are recognised as rights-holders, RONs could provide much broader protections for both the environment and humanity.

Much like substantive environmental human rights, RONs may also provide environmental considerations greater weight in balancing exercises through their status as rights.98 This could help them compete against conflicting human rights or interests. Nonetheless, this depends on how successfully RONs shift legal thinking and frameworks away from strong anthropocentrism and achieve equal status between RONs and human rights.99

3.2 Disadvantages

The ongoing theoretical debate within the RON movement leads to uncer- tainty about the scope and content of such rights. Biocentrism seems to be the most politically plausible theory given its quite limited departure from anthropocentrism and its permission of competition (which aligns with neoliberal free-market thinking).100 This would be the smallest step away from the current human rights framework and would therefore make sense to be the first.

Nonetheless, there remains a great deal of uncertainty even within bio- centrism. For example: whether rights should be given to plants, microbes or viruses; how granular should the allocation of rights be — ie should the tree or the forest be the rights-holder; and what would fair rules for competition

  1. Boyle, above n 17, at 484.

97 Stone, above n 8, at 489–490 and 492–493.

98 Craig M Kauffman and Pamela L Martin “Testing Ecuador’s Rights of Nature: Why Some Lawsuits Succeed and Others Fail” (Paper presented at the International Studies Association Annual Convention, Atlanta, 18 March 2016) at 16–17.

99 At 9–14.

100 Emmenegger and Tschentscher, above n 4, at 578–579.

consist of ?101 Furthermore, there is uncertainty about what the content of biocentric RONs would require in terms of environmental protection.102 For example, what would a lake’s rights to “exist, flourish and naturally evolve” protect in practice,103 and how can their interests be determined?104

Nonetheless, these conceptual challenges do not necessarily need to be resolved before RONs are implemented. Ambiguities can be resolved on a case- by-case basis by the courts. Although, as discussed above, this raises issues of inefficiency and the courts’ competency to determine policy matters.

Secondly, there are practical concerns regarding monitoring and enforce- ment. As discussed above, RONs require the creation of representative bodies to bring legal action on nature’s behalf. This comes with potentially very high administration costs. Representative bodies (necessarily consisting of humans) also, as discussed above, introduce a degree of inherent anthropocentrism.105 Humans are more likely to notice and engage with issues that affect humans. Accordingly, a degree of human bias likely cannot be eliminated. This human bias also affects the enforcement of RONs by the courts, which are also composed of humans. For example, courts may intuitively favour human rights and interests over nature’s,106 particularly where the non-human rights-holder is unsympathetic, such as a virus.107

Finally, the RON approach will likely struggle with political palatability because of its departure from the more-anthropocentric tradition of human rights and neoliberalism.108 Although there is growing political support in some countries, particularly within Latin America, for such a departure,109 large Western states have generally expressed reluctance.

  1. Compare Richard A Watson “A Critique of Anti-Anthropocentric Biocentrism” (1983) 5 Environmental Ethics 245.
  2. Emmenegger and Tschentscher, above n 4, at 581–584.
  3. Kathleen M Mannard “Lake Erie Bill of Rights Struck Down: Why the Rights of Nature Movement is a Nonviable Legislative Strategy for Municipalities Plagued by Pollutions” (2021) 28 Buff Env LJ 39 at 40.
  4. PS Elder “Legal Rights for Nature — The Wrong Answer to the Right(s) Question” (1984) 22 Osgoode Hall LJ 285 at 289.

105 At 289.

  1. Kauffman and Martin, above n 98, at 9–14.
  2. See Emmenegger and Tschentscher, above n 4, at 585–586. 108 See Kauffman and Martin, above n 98.

109 Alex Latta and Hannah Wittman “Environment and Citizenship in Latin America: A New Paradigm for Theory and Practice” (2010) 89 European Review of Latin American and Caribbean Studies 107.

3.3 Summary

RONs could potentially provide broad substantive protections for the envi- ronment and, consequently, for humanity. Notably, they can establish environmental standards that emphasise and seek to protect nature’s intrinsic value. However, their implementation would likely require the creation of many representative bodies, which could entail high administrative costs and delays. Furthermore, RONs may lack political palatability due to their conceptual uncertainty and inherent conflict with anthropocentric neoliberalism.

4. HUMAN OBLIGATIONS

As discussed above, rights are generally accompanied by corresponding obligations.110 However, human rights law, as exemplified by its very name, traditionally focuses on rights and rights-holders. The human obligations approach reverses this traditional emphasis and focuses on obligations and obligations-holders. Importantly, the approach imposes obligations on individuals that can be directly enforced regardless of whether an identifiable rights-holder has had their rights violated.111 In this sense, enforcement of human obligations is “victim-independent”.

In the environmental context, the human obligations approach recognises that humans have a unique obligation towards the environment due to their unique power and position on the planet.112 This can be a free-standing obligation or one incorporated as a limitation within other rights, such as rights to property.113 This human obligation can be more-anthropocentric, framed as a “solemn responsibility to protect and improve the environment for present and future generations”.114 Alternatively, it can be less-anthropocentric, phrased in terms such as: “all human beings, individually and collectively, share responsibility to protect Nature, of which we are an integral part, the integrity of Earth’s ecological systems and Earth as a whole, home of all living beings”.115

  1. WN Hohfeld “Fundamental Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710.
  2. Laitos, above n 28, at 95–100.
  3. Burdon, above n 12, at 321–323.
  4. Joan McGregor “Property Rights and Environmental Protection: Is this Land Made for You and Me?” (1999) 31 Ariz St LJ 391.
  5. Report of the United Nations Conference on the Human Environment

A/CONF.48/14/Rev.1, at principle 1.

  1. Earth Trusteeship “The Hague Principles for a Universal Declaration on Respon- sibilities for Human Rights and Earth Trusteeship” <https://www.earthtrusteeship. world/the-hague-principles-for-a-universal-declaration-on-human-responsibilities- and-earth-trusteeship/> at principle 1.1.
The human obligations approach also departs from traditional neoliberal- ism in that it shifts the emphasis away from the rights and liberties of the individual and, instead, towards the individual’s obligations to the collective. A prioritisation of the collective (potentially including the environment itself ) is common in non-liberal traditions — for example, in many indigenous and socialist societies.

Nonetheless, this approach is not entirely at odds with liberal philosophy. For example, within the Lockean concept of property lies the famous proviso requiring “enough, and as good, [be] left in common for others”.116 In the context of the environmental crisis, this has been interpreted as an environmental limitation on individual property rights and as an obligation to act sustainably.117

The human obligations approach is also consistent with Mill’s harm principle.118 An analogy can be made with littering and speeding offences. When someone litters, it harms people generally, but not any specifically identified person. Moreover, speeding causes no harm at all. Rather, it causes a risk of harm to people generally. In either case, the state is entitled to interfere, not on behalf of a specifically identified affected person, but on behalf of people generally.119 Similarly, where environmental degradation harms, or risks harming, people generally it can warrant state intervention even within a liberal system.

4.1 Advantages

Human obligations provide broad protections. They are victim-independent and, therefore, can be invoked whenever a party breaches their environmental obligations, regardless of whether an affected complainant is identified. Much like RONs, this provides broad protections for the environment and, consequently, for future generations, the indirectly affected and the disempowered.

The human obligations approach also facilitates the adjudication of transboundary disputes. Victim-independence allows judiciaries to prosecute breaches of obligations even when the victims reside in another jurisdiction. This is because victims are simply not relevant to establishing the breach of

  1. John Locke, Andrew Bailey (ed) The Second Treatise of Civil Government

(Broadview Press, Toronto, 2015) at 43.

  1. Bas van der Vossen “Property, the Environment, and the Lockean Proviso” (2021) 37 Econ & Phil 395.
  2. John S Mill On Liberty (John W Parker and Son, London, 1859).
  3. Frank P McKenna “The Perceived Legitimacy of Intervention: A Key Feature for Road Safety” in AAA Foundation for Traffic Safety Improving Traffic Safety Culture in the United States: The Journey Forward (Washington DC, 2007).
environmental obligations, in the same way that locating victims is irrelevant to determining whether someone has littered or sped.

Additionally, unlike the RON approach, human obligations do not require the creation of representative bodies. Because breaches of human obligations are victim-independent they can, in theory, be prosecuted by anyone, or by any centralised agency, without the complainant needing to establish that they have been adversely affected.120 This avoids the high administrative costs of RONs and facilitates widespread environmental advocacy, including by environmental NGOs.121

Furthermore, the human obligations approach can quickly and cost- effectively utilise existing human rights infrastructure and institutions. Bodies such as the ECHR are already experienced in dealing with human obligations because they are intrinsic to their work in dealing with human rights. Accordingly, these institutions could likely be adapted to apply human obligations without undergoing fundamental changes.

Lastly, because human obligations can be more- or less-anthropocentric, and can even align with liberal principles, they may also be more politically palatable to Western states than RONs.

4.2 Disadvantages

Much like human rights and RON approaches, generalised formulations of human obligations, such as might be found in international conventions, will likely leave uncertainty as to what precisely such obligations require. Furthermore, this uncertainty may be exacerbated by the approach’s victim- independence. As discussed above, rights can assist in determining a breach. Where a victim’s rights are violated, an obligation is prima facie breached. Without the guidance of rights, it may be more difficult to clearly outline the threshold for breach. Case law can, over time, create clarity and guidelines. However, as discussed above, a case-by-case approach raises concerns about inefficiency, slow development, and the competency of judiciaries to determine policy. Therefore, it would be preferable for human obligations to be given more detailed expression through industry-specific laws and regulations.

The victim-independent nature of human obligations also raises the issue of appropriate compensation. Typically, compensation is calculated based on the harm caused to the complainant. While this can still apply in obligation cases where a victim has been identified, compensation may be trickier to calculate where there is no identified victim but a breach of environmental obligations

  1. Laitos, above n 28, at 95–100.

121 At 95–99.

has still occurred.122 In such cases, an alternative approach could focus on restoration. Courts could ascertain the state the environment would have been in but for the breach of obligations. Then, the court can order the breaching party to restore the environment to that, or a comparable, state.123

Finally, in practice, the human obligations approach may struggle to achieve equal status with human rights. This could result in balancing exercises in which human obligations are routinely overridden by human rights and possibly even mere interests. This difficulty is likely unavoidable because of the firmly entrenched neoliberal emphasis on individual rights over obligations owed to the collective.124 This divergence may likely also reduce the approach’s political palatability, particularly in Western states.125

4.3 Summary

The human obligations approach provides broad substantive protections for the environment, which consequently benefit future generations, the indirectly affected and the disempowered. Furthermore, they are likely cheaper and easier to implement than RONs because they do not require the creation of representative bodies. Nonetheless, human obligations may struggle with uncertainty and political palatability, particularly given their deviation from the neoliberal emphasis on individualist rights.

5. IMPLEMENTATION AND PRIORITISATION

Each of the approaches discussed above has unique strengths and weaknesses. Some offer stronger protections while others offer a broader scope of protection. Some better align with the existing rights framework and enjoy greater political palatability, while others diverge from the framework’s neoliberal anthropocentric roots and struggle with political acceptance. None of them is clearly superior on all fronts, nor do any provide a magic bullet against the environmental crisis. Nonetheless, they all represent viable options for the future development of global environmental law.

122 Stone, above n 8, at 473–480.

123 At 476–478.

  1. Salvador SF Regilme “Constitutional Order in Oligarchic Democracies: Neoliberal Rights versus Socio-Economic Rights” (2019) Law, Culture and the Humanities 1.
  2. Bradley A Stephens “Understanding the Tea Party Response to Local Environ- mental Initiatives: A Conflict Between Individualism and Collectivism” (MSc Thesis, Virginia Polytechnic Institute and State University, 2016).
The final part of this article discusses their implementation. Specifically, it explores whether one of the approaches should be prioritised and, if so, which one.

5.1 The Case Against Prioritisation

Pursuing each approach simultaneously may lead to considerable synergies and a comprehensive environmental protection regime greater than the sum of its parts.

First, the approaches may mutually reinforce one another. For example, stronger environmental human rights can reinforce stricter environmental human obligations and vice versa. Similarly, RONs can also align with and reinforce human rights and obligations to the environment. For example, if the environment has a right to biodiversity, this can reinforce corresponding human rights to a biodiverse environment and obligations to protect it. One can imagine a comprehensive regime that uses all the approaches discussed in this article to protect the environment, resulting in stronger protections than could be achieved by any approach in isolation. If one imagines a nested diagram of concentric circles, the area where all approaches overlap would receive stronger environmental protections than might be provided by any approach alone.

Procedural Rights
Human Obligations
RONs

Substantive Human Rights

2022_700.png

Secondly, the broader approaches (eg procedural environmental human rights and human obligations) can address the blind spots of narrower ones (eg substantive environmental human rights). In this way, the overall scope of the regime remains as broad as possible. In the nested diagram, this breadth of protection is represented by the areas of lesser or no overlap. Accordingly, pursuing the simultaneous implementation of all the approaches might achieve both the strongest and broadest environmental protections possible.

Therefore, substantial advantages could be gained by pursuing all the approaches at once and establishing a comprehensive rights and obligations- based environmental protection regime.

5.2 The Case for Prioritisation

Although such a regime may be desirable in the long term, it may be crucial in the short term to prioritise the quick and effective implementation of only one of the approaches. This is due to the limited time, resources and political capital currently available to combat and mitigate the environmental crisis.126 Dividing these resources between multiple approaches could delay the implementation of any effective environmental protections, and such delays could lead to greater irreversible environmental degradation. By prioritising the effective implementation of a single approach, environmental protections can begin minimising environmental degradation as soon as possible. Once such protections are established, implementing other approaches can and should be pursued to achieve the long-term benefits of a comprehensive rights- and obligations-based environmental protection regime. However, given the limited resources and time available, the approach with the greatest returns on investment should be prioritised first.

5.3 The Prioritisation of Human Obligations

This article argues that the human obligations approach offers the greatest return on investment and should be prioritised first.

As discussed above, the human obligations approach offers broader protections than substantive human rights approaches due to its victim- independence. This better protects the environment and, consequently, future generations, the indirectly affected and the disempowered. Furthermore,

  1. See Xiaoxi Li “An Urgent Call for Building Green Civilization: The Natural Environment is Rapidly Deteriorating” in Green Civilization: Human Consensus on Global Collaboration for Sustainable Development (Springer, Singapore, 2020) 1; and Helen Tregidga and Matias Laine “On Crisis and Emergency: Is it time to rethink long-term environmental accounting?” (2022) 82 Critical Perspectives on Accounting 102311.
unlike procedural environmental human rights, its protections are concrete and substantive. On the other hand, implementing human obligations is also easier and cheaper than implementing RONs, which require the creation of many representative bodies. Human obligations may also be more politically palatable than RONs because they are can be more- or less-anthropocentric and may align better with liberal principles.

Ultimately, human obligations balance the need for broad and substantive environmental protections while being relatively cost-effective and politically plausible. Accordingly, they represent the best return on investment and should be prioritised in the short term.

6. CONCLUSION

This article critically analysed emerging approaches to environmental rights and obligations. It argued that they all represent viable options for the future of global environmental law. Moreover, it proposed that together they could provide broad and strong environmental protections through a comprehensive rights- and obligations-based regime. However, the article concluded that it is nevertheless preferable in the short term to prioritise the quick and effective implementation of the human obligations approach. This ensures that broad protections can be put in place as quickly as possible to mitigate and minimise irreversible environmental degradation. The remaining approaches can then be pursued to establish a comprehensive regime which recognises human rights and the rights of nature, as well as humanity’s unique obligation to protect and promote both.

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