Home | Databases | WorldLII | Search | Feedback New Zealand Journal of Environmental Law

MacMillan, Hamish --- "Environmental trusteeship and responsibilities: should the Universal Declaration of Human Rights be supplemented by a Universal Declaration of Human Responsibilities" [2022] NZJlEnvLaw 8; (2022) 22 NZJEL 177

New Zealand Journal of Environmental Law

Environmental trusteeship and responsibilities: should the Universal Declaration of Human Rights be supplemented by a Universal Declaration of Human Responsibilities [2022] NZJlEnvLaw 8 (31 December 2022); (2022) 22 NZJEL 177

Last Updated: 14 May 2024

177

Environmental Trusteeship and

Responsibilities: Should the Universal Declaration of Human Rights be

Supplemented by a Universal Declaration of Human Responsibilities?

Hamish MacMillan*

The concept of trusteeship has seen much discussion over the years as a promising mechanism for a broad and intergenerational environmental management, with notable champions in Joseph Sax and Elizabeth Brown Weiss. This article reviews the history, literature, and actual implementation of the concept, and arrives at the conclusion that the concept does indeed have the promise it purports to have, with evidence of international implementation to support that. Nonetheless, it is still currently constrained by the lack of a greater global guidance on rights and responsibilities, which it relies upon to act effectively from the envisaged broad environmental perspective. The idea of whether a new Universal Declaration of Human Responsibilities sitting side by side with the Universal Declaration of Human Rights (UDHR) would serve to fill that void is explored. Reviewing the background of the UDHR and subsequent instruments (from both the UN and NGOs) there is no shortage of material that would address such a gap. A consideration of wider context such as recent discussion papers in the United Kingdom and some of the debates triggered by the COVID­19 pandemic confirms that not only would trusteeship as a mechanism for environmental protection benefit from a such a document, but so would society in general. The tools and thinking is already there, we just need to act.

*BE with First Class Honours, University of Auckland (2012). The author is an IT consultant with a passion for working in industries and roles with significant regulatory involvement. This article is based on one written as part of the Master of Legal Studies programme at the University of Auckland. Email: hmac083@aucklanduni.ac.nz.

1. INTRODUCTION

The concept of trusteeship of the natural environment (or elements of it) as a mechanism for environmental protection is not a new one and has been steadily developing in countries around the world, even in the absence of constitutional or international drivers to do so.

Championed by the likes of Joseph Sax and Elizabeth Brown Weiss, it is generally held up as being a concept with a long-standing history but with the flexibility to be adapted to a wide range of applications, not least among which is the potential for it to serve as the basis for a broad and intergenerational method for environmental management, providing a mechanism by which the needs of current and future generations and the wider earth system can be managed in a way that does not adversely affect any one “beneficiary”.

This article will review the origins and literature of trusteeship in an envi- ronmental management context, focusing on the works of Sax and Brown Weiss, and the actual international experience to date in its implementation in order to validate the promise it purports to have, and expose any themes that would support or hinder its growth towards the envisaged end state, and then review the findings of that in light of the Universal Declaration of Human Rights (UDHR) and its history and related subsequent development.

A couple of contextual notes to bear in mind: Firstly, it is recognised that “responsibilities” and “duties” are not the same, but the difference is minor, and in many cases they can be and are used interchangeably in common usage. While this article will generally refer to responsibilities as opposed to duties, it does not take a position on one being more appropriate than the other and is not intended to imply anything to that effect. Secondly, this article will generally refer to the concept of a separate “Universal Declaration of Human Responsibilities” to sit alongside the UDHR. It is recognised that the same effect thereof could be achieved by an amendment or expansion to the UDHR rather than a new document, so again this article, while framed in the context of a separate document, does not take a position either way and is not intended to imply one.

2. EARTH TRUSTEESHIP AND THE PUBLIC TRUST DOCTRINE

Trusteeship as a mechanism of environmental protection is not new. However, its application, particularly from an intergenerational and transnational or broad-reaching perspective, has been relatively limited and has largely developed in isolation within select countries. In this part of the article, the history and ongoing international evolution of trusteeship will be reviewed,

with a particular focus on what other factors have enabled (or restricted) its development, facilitating a conclusion to be drawn on the viability of trusteeship to develop into a globally consistent means of environmental management, and what might be needed to enable that to occur.

2.1 Origins and Theory

The origin of trusteeship as a method for environmental management and protection is generally held to be the “public trust doctrine” (hereafter referred to as PTD) which can be traced back to the writings of the Roman emperor Justinian and the concept that some things cannot be held by individuals but are rather owned by everyone or no one:¹

Of these, some admit of private ownership, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one.

Characterisation of the development of the PTD doctrine can be thematically approached from a couple of perspectives. First, the ongoing progressive evolution of the PTD, both from an actual and conceptual perspective;² and secondly, what Brown Weiss articulates as an “end state” type perspective on a global “planetary trust”,³ loosely summarised as the current generation being the trustees of the “planet” on behalf of future generations.

The ongoing development of the PTD and its application provides the most fertile ground for any analysis of its effectivity and enablers with a wealth of commentary and evidence, including criticism of the approach. Joseph Sax, commonly held to be the father of the use of PTD for wider environmental management such that it is sometimes referred to as the “Saxion vision”, summarises it nicely and articulates three basic requirements for it to be effective which we can use for further analysis:⁴

Of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful

1. Justinian Institutes of Justinian (John Baron Moyle (translator), 5th ed, Clarendon Press, Oxford, 1913) at 35.
2. See generally Joseph L Sax “Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” (1970) 68 Mich L Rev 471 and Mary Turnipseed and others “Reinvigorating the Public Trust Doctrine: Expert Opinion on the Potential of a Public Trust Mandate in U.S. and International Environmental Law” (2010) 52(5) Environment 6.
3. Edith Brown Weiss “The Planetary Trust: Conservation and Intergenerational Equity” (1984) 11 Ecology LQ 495.
4. Sax, above n 2, at 474.

as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. If that doctrine is to provide a satisfactory tool, it must meet three criteria. It must contain some concept of a legal right in the general public; it must be enforceable against the government; and it must be capable of an interpretation consistent with contemporary concerns for environmental quality.

If we put to the side for the moment the first two criteria and pick up on whether it is capable of an interpretation consistent with “contemporary concerns for environmental quality”, Brown Weiss provides a detailed comparison of the “fiduciary trust framework” (conceptually analogous to the PTD)⁵ against two other more economically based approaches for environmental protection or management, arriving at the conclusion that the trustee approach rather than being hindered by the lack of an inherent specific method of analysis, is rather a strength as it provides the scope for whatever methods and considerations may be appropriate for specific questions or litigation that may arise, including the ability to work with inherently intangible elements. This aspect of the PTD has been held up as a particular advantage for the purposes of environmental management as it results in a method that scales easily and is not dependent on, or limited by, detailed administrative or legislative requirements, as articulated concisely by Sax:⁶

[There is] enormous disparity in legal standards which govern different resource problems. Our legal system tends to provide specific and limited responses to particular problems. ... [This] inconsistency has promoted a search for some broad legal approach which would make the opportunity to obtain effective judicial intervention more likely.

To illustrate, consider two situations: a small business application to discharge waste to a local stream, and a proposal for a large-scale open-cast mine. Under an intergenerational trusteeship model, the question in both cases boils down to: Is this action holistically detrimental to current and future generations (and not just from an environmental perspective)? Each can be considered on its own merits, and supported by analysis specific to that activity, locale, benefit, and so on, as necessary.⁷ It also has the effect of it being

5. See “Is the Public Trust Doctrine a Fiduciary Trust?” in Rafael D Sagarin and Mary Turnipseed “The Public Trust Doctrine: Where Ecology Meets Natural Resources Management” (2012) 37 Annu Rev Environ Resour 473 at 486.
6. Sax, above n 4, at 474.
7. See generally Michael Blumm “Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine” (2003) 3(1) Issues in Legal Scholarship.

much more easily applied in a proactive manner, as it was applied to a case in Montana:⁸

The Court also held that because the constitutional right to a clean and healthy environment is not just prohibitive but also anticipatory and preventative, the groups need not demonstrate a threat to public health or water quality standards, and the degradation of high-quality waters was sufficient.

The flexibility of the PTD is also a notable advantage when it comes to the incorporation of traditions and culture of indigenous peoples in its application. Not being bound to particular methods of economic analysis, as well as facilitating the traditionally intangible considerations, mean it is uniquely suited for facilitating greater respect for and input from indigenous communities.⁹ The possibilities in this regard (at least of the concept of trusteeship, if not the public trust doctrine specifically) are aptly illustrated by the relatively recent investiture of the Urewera area and Whanganui River in New Zealand with legal status roughly equivalent to a person, and the formalisation of a trusteeship arrangement to look after them, including the many associated intangible elements:¹⁰

The principal innovation in the 2017 legislation will arguably be, therefore, not simply the legal recognition of the spiritual and cultural significance of the river as part of its wider ecosystem — but rather the incorporation of a specific trusteeship duty to respect and uphold the spiritual relationship between the Whanganui iwi and the river in the public trust over the river and its ecosystem established by the 2017 Act.

8. Carl Brunch, Wole Coker and Chris VanArsdale “Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa” (2001) 26 Colum J Envtl L 131 at 161. The Court was utilising the PTD in conjunction with the con- stitutional right to a clean and healthy environment: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations”; The Constitution of the State of Montana (1972), art IX s 1.
9. See generally Joseph Orangias “Towards global public trust doctrines: an analysis of the transnationalisation of state stewardship duties” (2021) 12 Transnational Legal Theory 550 and Christopher D Stone “Should Trees Have Standing — Toward Legal Rights for Natural Objects” (1972) 45 S Cal L Rev 450 for a more general perspective on the usage of trusteeship to look after the rights of entities that are less easily tangible.
10. Christopher Rodgers “A New Approach to Protecting Ecosystems: The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017” (2017) 19 Envtl L Rev 266 at 278.

2.2 Criticism of the PTD

Somewhat ironically, it is this flexibility that has also been a source of criticism. With its historical application and case law largely restricted to dealing with public versus individual property rights, and primarily in relation to the development of waterways and coastal areas,¹¹ PTD has attracted some criticism that, given its history, it should not be or is ill-suited to being extended and developed into a broader method for environmental management, as put by one commentator:¹²

... advocates of the modern public trust doctrine seek to achieve purposes not contemplated by the traditional doctrine. In the process, they would disappoint reasonable expectations based upon the previously accepted interpretation of the doctrine.

This does seem to be a rather shallow criticism though; surely it is not reason- able to expect legal doctrine to remain static in a changing world? Particularly where it could be reasonably adapted to the field of general environmental management and protection? It would appear that a possible driver behind some of the criticism, at least according to Blumm, is a result of the generally individualistic tendencies of western society (a theme that will emerge later in the article when considering rights and responsibilities):¹³

The bias against the PTD is culturally ingrained: Most property law teachers and editors of casebooks think that property is fundamentally about individual rights. This notion of property as based in individual sovereignty dominates, and does so at the expense of greater recognition and improved management of inherently common resources.

11. See generally Peter H Sand “The Rise of Public Trusteeship in International Environmental Law” (2014) 44 Envtl Pol’y & L 210 for a summary of the origins and historical application of PTD; and “The Ecological Expansion of the Public Trust Doctrine” in Sagarin and Turnipseed, above n 5, at 478.
12. James L Huffman “A Fish out of Water: The Public Trust Doctrine in a Consti- tutional Democracy Symposium” (1988) 19 Envtl L 527 at 532. See also, generally, Steven M Jawetz “The Public Trust Totem in Public Land Law: Ineffective — and Undesirable — Judicial Intervention” (1982) 10 Ecology LQ 455, who argues that PTD lacks the substantive content to be effective.
13. Michael C Blumm as cited in Turnipseed and others, above n 2, at 7.

2.3 Application and Global Development

To provide some further weight to the rejection of the above criticism and attempt to expose the key enablers of successful environmental management via trusteeship, it is useful to look at the global application and evolution of the PTD to date, which will also reveal insight into the first two criteria given by Sax (being a legal right in the general public and enforceability against the government).¹⁴ Without repeating analysis others have done far more capably,¹⁵ a couple of core themes emerge: first, there are numerous examples of its successful application across the globe across a broad range of issues¹⁶ (which in itself appears to serve as a conclusive response to aforementioned criticism of the PTD); and secondly that in all those cases its application has been enabled by constitutional-level provisions which serve to meet the first and second criteria outlined by Sax. To illustrate this, a couple of key themes will be picked out from developments in the United States and India.

Given that the bulk of the literature on the PTD arises from the United States, it is unsurprising there has been a significant amount of legal activity on the matter, albeit primarily at the state level (although there are building blocks at the federal level too).¹⁷ Although it is observed that constitutional- level environmental protection measures in the United States, such as a right to a healthy environment (or something to a similar effect) is uncommon,¹⁸ it is

14. Sax, above n 2, at 474.
15. See generally Turnipseed and others, above n 2; Brunch and others, above n 8; Jona Razzaque “Application of Public Trust Doctrine in Indian Environmental Cases” (2001) 13 JEL 221; Edith Brown Weiss “The Future of the Planetary Trust in a Kaleidoscopic World” (2020) 50 Envtl Pol’y & L 449; Michael C Blumm and Rachel D Guthrie “Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision Symposium — The Public Trust Doctrine: 30 Years Later” (2011) 45 UCD L Rev 741; Peter H Sand “The Concept of Public Trusteeship in the Transboundary Governance of Biodiversity” in Louis J Kotzé and Thilo Marauhn (eds) Transboundary Governance of Biodiversity (BRILL, Leiden, 2014) 34; and Louis J Kotzé and Paola Villavicencio Calzadilla “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador” (2017) 6 Transnational Environmental Law 401.
16. See generally Turnipseed and others, above n 2.
17. Turnipseed and others, above n 2, at 1: “Though rarely acknowledged, there are several federal statutes that contain clear public trust language. For instance, the Comprehensive Response, Compensation, and Liability Act of 1980 (the ‘Superfund Act’) describes the President as ‘trustee’ of ‘natural resources over which the United States has sovereign rights, or natural resources within the territory or the [EEZ] of the United States’ ...”.
18. Brunch and others, above n 8, at 161.

conversely observed that states where these do exist would appear to have been generally successful at achieving the desired outcome:¹⁹

Although most state constitutions’ environmental provisions have proven to be largely ineffective, courts in at least four states — Louisiana, Alaska, Pennsylvania, and Florida — have used environmental provisions in their respective constitutions to review state action. ... A number of the constitutions’ environmental protection provisions, including all of those in this successful minority, share some affinity with the ancient common law doctrine of the public trust. ... Each of the successful provisions invokes some combination of the concepts undergirding the public trust doctrine: conservation, public access, and trusteeship.

From the perspective of an entirely different jurisdiction, India in particular has advanced the application of the doctrine significantly, developing a significant body of case law extending the PTD to a wide-ranging method of environmental trusteeship, underpinned by the interpretation of the constitutional right to life, right to a healthy environment, and right to a livelihood.²⁰ Razzaque’s analysis of the case law provides a good background there, including a notable observation that it has gained such standing as to be applied even when there is relevant specific municipal law:²¹

If there is no suitable legislation to preserve the natural resources, the public authorities should take advantage of this doctrine to protect the public status of the land. In M.I. Builders, however, the Supreme Court applied public trust doctrine in addition to the fact that there was a breach of municipal law.

Anderson offers a particularly useful insight into the development of the Indian system, being that it has picked up or referred to (and, by extension, incorporated) numerous international soft law and influencing artifacts on concepts such as sustainable development and intergenerational equity, such as the Brundtland Report, which other common law countries have not:²²

19. Matthew Thor Kirsch “Upholding the Public Trust in State Constitutions” (1997) 46 Duke Law Journal 1169 at 1172–1173.
20. Jona Razzaque “Application of Public Trust Doctrine in Indian Environmental Cases” (2001) 13 JEL 221 at 229. Refer The Constitution of India (2021), arts 21, 48A and 51A(g).
21. Razzaque, above n 20, at 233.
22. Michael R Anderson “International Environmental Law in Indian Courts” (1998) 7 RECIEL 21 at 21 and generally.

... the judge-made law of environmental protection in India recognizes international principles which tend to be treated in a more circumspect manner in other common law jurisdictions. Not only have Indian courts explicitly recognized a human right to environmental protection, they have also incorporated the polluter pays principle, the precautionary principle, and the principle of sustainable development into domestic law.

This is of particular interest in the context of the third part of this article; the implication that a legal system has drawn upon some of the more aspirational international artifacts dealing with environmental protection gives a lot of insight into how its implementation at state level can be guided by high-level international action, even without binding agreements, while also exposing the somewhat depressing conclusion that the necessary building blocks appear to already exist (albeit not necessarily in a singular definitive artifact), but have not been acted on.

With regard to how the PTD can be manifested within a state system, there is evidence to suggest that the simple incorporation of rights to a healthy environment (or some conceptual equivalent thereof ) is an implicit PTD imple- mentation, which leads in turn to a formalisation thereof in subsequent statutes and case law.²³ South Africa has clear evidence of this occurring, including an intergenerational element as well, as articulated by Blackmore:²⁴

Section 24 of the Bill of Rights in the Constitution of the Republic of South Africa requires the State (as the ultimate regulator) “to have the environment protected, for the benefit of present and future generations”. This is the foundation for South Africa’s environmental civil rights, and the incorporation of the public trust doctrine into the country’s environmental legislation.

Despite the obvious promise of the PTD and the Saxion vision as it con- tinues to evolve and promulgate internationally, it is also valuable to review an “end state” vision, such as that articulated by Brown Weiss’s “Planetary Trust” vision “that the human species holds the natural and cultural resources of the planet in trust for all generations of the human species”.²⁵ There is, curiously, very little literature directly comparing or contrasting the Saxion vision to the Planetary Trust, despite — at least in this author’s opinion — the Planetary Trust vision essentially articulating what the Saxion vision is likely to evolve into given time and the right conditions. Indeed, it has already begun to evolve

23. See generally Orangias, above n 9.
24. Andrew Craig Blackmore “Rediscovering the origins and inclusion of the public trust doctrine in South African environmental law: A speculative analysis” (2018) 27 Rev Eur Comp & Int’l Envtl L 187 at 189.
25. Brown Weiss, above n 3, at 498.

to include a key differentiating aspect of Brown Weiss’s vision in the distinct intergenerational perspective it brought,²⁶ as evidenced by the developments in India.²⁷

In a recent follow-up article,²⁸ Brown Weiss speculates that a de facto Planetary Trust implicitly exists, and offers suggestions on measures, both concrete and conceptual, that would assist with progression towards the vision of the Planetary Trust, such as a new United Nations Undersecretary for Future Generations. However, considering that the key element of the Planetary Trust is that it is intergenerational, and the evidence of the evolution and success of the PTD/Saxion vision to date in most cases has not explicitly focused on that aspect (with the notable exception of India), it is curious that there is not more focus on the simple matter of making that responsibility very clear and very global.

2.4 Conclusions on Trusteeship

In conclusion, the concept of trusteeship appears to offer great potential as a broad method of environmental management, with the demonstrable ability to be adapted to a very broad range of situations, and without the need for a large body of supporting material and lower-level legislation of administrative materials.

From the literature and global experience to date, it would seem obvious that provided the right high-level rights and duties are put in place, particularly around environmental rights, an intergenerational perspective thereof, and a clear position that the onus is on the state to ensure those are upheld, then the concept of trusteeship will essentially “take over from there” and enable a level of environmental management which has not existed to date, although it is not likely to happen overnight. The exact wording and content of such rights and responsibilities and how they should be captured is a question for more learned minds than mine, but the next part will attempt to at least offer some insight into the matter.

26. Sand, above n 11, at 212.
27. See generally “Intergenerational Equity” in Anderson, above n 22. Note the linkage between Brown Weiss’s influence into the Brundtland Report, which in turn has influenced the Indian application of PTD.
28. Brown Weiss, above n 15.

3. A DECLARATION OF HUMAN RESPONSIBILITIES AND DUTIES

As shown in the previous part of this article, the concept of trusteeship shows great promise in being able to evolve into a method for providing global-scale environmental protection in a way that does not currently exist, provided the right building blocks are put in place. While it could be argued that these blocks are already in place, and indeed there is evidence to support that assertion with what has evolved in India, the fact that that is the exception rather than the rule suggests that whatever already exists is not sufficiently effective.

Drawing on the conclusions that can be drawn from the previous part, that a right to a healthy environment and a responsibility to future generations would likely go a long way towards facilitating an effective environmental trusteeship model, is there value in pushing for a Universal Declaration of Human Responsibilities to supplement the Universal Declaration of Human Rights? As will be discussed, it would appear both advantageous and timely to do so, and not only from the perspective of facilitating effective global environmental management; it would likely go a long way towards addressing other issues too.

To answer this question, it is prudent to review some of the history and criticism of the UDHR, as well as certain other notable international instruments in a similar vein, as, despite most existing official global instruments dealing primarily with rights rather than responsibilities, responsibilities are markedly more prominent in regional or unofficial²⁹ instruments.

3.1 Early Development

The concept of human duties as opposed to human rights is not a new one; one of the notable predecessors to the UDHR, the American Declaration of the Rights and Duties of Man,³⁰ contains two distinct chapters: one for rights and one for duties, and includes the following preamble statement that rights and responsibilities are intrinsically linked:³¹

The fulfillment [sic] of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity

29. Unofficial in the sense that they are the products of NGOs, think tanks, expert bodies, or other like organisations, but are not the product of “official” inter- governmental bodies such as the United Nations or regional equivalents such as ASEAN or OAS.
30. American Declaration of the Rights and Duties of Man Organisation of American States (OAS) Res XXX (1948). Reprinted in (1949) 43 Am J Int’l L Sup 133.
31. At preamble.

of man. While rights exalt individual liberty, duties express the dignity of that liberty.

If that linkage is taken as valid, and it would seem philosophically challenging to assert that one could have rights without at least some form of responsibilities to go with those rights,³² it is curious that the UDHR contains barely any reference to responsibilities or duties, with but a single general reference in art

29.³³ However, if the development process of the UDHR is reviewed (a detailed and eloquent summary of which is given by Morsink)³⁴ it becomes obvious that, despite much discussion on the matter, it was ultimately determined that the Declaration would be largely limited to the articulation of rights, with the formulation of corresponding duties of states deferred for future attention,³⁵ and with the responsibilities or duties of individuals limited to the resulting single article.³⁶ Article 29 does, however, contain a key nuance that rights can be limited under certain conditions; generally summarised, rights only extend so far as they do not impinge on the rights of others.³⁷ Unfortunately art 29 has not attained quite the same status as the rest of the Declaration, at least in the public mind, an attitude that has become quite obvious in recent years as will be discussed later.

From the perspective of the duties or responsibilities of states specifically (as opposed to individuals), there is even less directed content, limited to the preamble and promotion of respect of human rights, and art 16 and protection of the family unit by the state. One of the arguments for not including further detail was that it was perceived that such duties, if codified, could be nefariously

32. See generally “Report on the Conclusions and Recommendations by a High- level Expert Group Meeting”, addendum to InterAction Council “A Universal Declaration of Human Responsibilities” (1997).
33. See art 29(1): “Everyone has duties to the community in which alone the free and full development of his personality is possible.” Compare with art XXIX of the American Declaration of the Rights and Duties of Man.
34. See Johannes Morsink The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press, Philadelphia, 1999), particularly ch 7. See also Office of the United Nations High Commissioner for Human Rights [OHCHR] “Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles — Article 29” (press release, 8 December 2018).
35. Morsink, above n 34, at 239.
36. At 240 and generally. Of particular note is the tension between “western” interests focused on rights (as characterised by arguments by the delegate from the United States and France), and the Latin American delegates who were in favour of including responsibilities in line with the American Declaration on the Rights and Duties of Man.
37. Nehemiah Robinson The Universal Declaration of Human Rights; Its Origin, Significance, Application, and Interpretation (Institute of Jewish Affairs, New York, 1958) at 77–79.

relied upon to restrict individual rights.³⁸ Somewhat ironically, art 30 was intended as a general protection against such situations.

While a noble attempt to reduce the possible avenues by which the content of the Declaration could be used in unintended ways to restrict rights instead, such distortion has unfortunately (and perhaps unsurprisingly) come to pass.³⁹ It would not be an indefensible perspective to hold that a state without genuine intent to uphold the given rights would find some pretext to do so, or simply ignore it, so on that basis alone I would assert that that was a rather poor excuse (albeit of noble intent).

Unfortunately, the subsequent covenants intended to give more formal force to the principles of the UDHR, the 1966 International Covenants on Civil and Political Rights⁴⁰ and on Economic, Social and Cultural Rights,⁴¹ made little meaningful addition to the duties or responsibilities content of the UDHR. And coupled with little progress via other instruments at a similar level, it can be concluded that a lot of original intent and plans for the UDHR with respect to responsibilities has not yet been achieved.

3.2 Criticism of the UDHR

The Universal Declaration of Human Rights is most definitely not short of criticism, particular from eastern and dominant religious communities, which tarnishes its image as a global and culturally agnostic document. The main theme of criticism can be loosely summarised in it being rooted in “Western-oriented individualism rather than in the larger community”.⁴² That responsibilities formed a significant part of the development of the UDHR yet did not feature in the final Declaration itself is perhaps quite unfortunate, as it would seem that the incorporation of duties and responsibilities would likely have alleviated at least some of this criticism:⁴³

From its inception, the UDHR has thus been challenged as being overly individualistic in orientation (rather than oriented toward the family or group), rights-oriented (rather than emphasizing duties and responsibilities), and secular and thereby disconnected from religious and moral foundations.

38. OHCHR, above n 34.
39. OHCHR, above n 34.
40. International Covenant on Civil and Political Rights GA Res 2200A(XXI) (1966). 41 International Covenant on Economic, Social and Cultural Rights GA Res

2200A(XXI) (1966).

42 Jeremy T Gunn “Do Human Rights Have a Secular, Individualistic & Anti-Islamic Bias?” (2020) 149(3) Daedalus 148 at 153.

43 At 150.

There is no shortage of literature on these criticisms and the themes behind them, particularly from the perspective of how the generally western individual rights-based approach of the UDHR differs from some of the underlying values of eastern and strongly religious communities.⁴⁴ Whilst beyond the scope of the topic of this article to delve deeply into it, I hold the opinion that the addition of responsibilities or duties would go a long way towards alleviating some of the criticism of the UDHR, and more closely align it with the view of at least some of the delegates who were part of its original development, as succinctly summarised by the Chinese delegate:⁴⁵

... “the aim of the United Nations was not to ensure the selfish gains of the individual but to try and increase man’s moral stature. It was [therefore] a necessity to proclaim the duties of the individual, for it was a consciousness of his duties which enabled man to reach a high moral standard” ...

In perhaps a sign of the level of unease towards the UDHR in some regions, two notable regional variations of the UDHR arose subsequently to it: the Cairo Declaration on Human Rights in Islam (CDHRI) in 1990;⁴⁶ and the ASEAN Human Rights Declaration (AHRD)⁴⁷ in 2012. While they are both subject to criticisms of their own,⁴⁸ there is some content within them which is pertinent to the topic of environmental protection. Article 17(a) of the CDHRI gives a right to a clean environment and places the onus on both the state and the individual to afford that right, and art 28(f ) of the AHRD “The right to a safe, clean and sustainable environment”. While the AHRD does not explicitly put the onus of protection of human rights on the state, it can be inferred from art 5 that individuals have a “right to an effective and enforceable remedy, to be determined by a court or other competent authorities”.

44. See generally Gunn, above n 42; Fareed Zakaria “A Culture is Destiny: A Conversation with Lee Kuan Yew” (1994) 73(2) Foreign Affairs 109; Abdulaziz Sachedina Islam and the Challenge of Human Rights (Oxford University Press, New York, 2009).
45. Morsink, above n 34, at 240.
46. Organisation of the Islamic Conference “The Cairo Declaration on Human Rights in Islam” (1990) as reprinted in UN Doc A/CONF.157/PC/62/Add.18.
47. ASEAN Declaration of Human Rights (1993).
48. See generally Sachedina, above n 44; Yogeswaran Subramaniam “The ASEAN Human Rights Declaration and Indigenous Rights” (2012) 8 Indigenous L Bull 3; and Mathew Davies “The ASEAN Synthesis: Human Rights, Non-Intervention, and the ASEAN Human Rights Declaration Forum: The Integration of Regions” (2013) 14 Geo J Int’l Aff 51.

3.3 Modern Developments

The 1990s began to see a significant volume of activity in international instruments, both official and unofficial,⁴⁹ that touched on responsibilities, trusteeship, and environmental rights and responsibilities, and even more recently western societies have begun to show more appetite towards considering and codifying responsibilities, something that has only been exacerbated by the COVID-19 pandemic.

The 1998 UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations⁵⁰ is a particularly pivotal instrument, and in many ways it is unfortunate that this was not conferred with a similar status to that the UDHR enjoys. The content contained in it, at least from a perspective of trusteeship and environmental management, contains the key elements of responsibilities to the environment and to future generations.⁵¹ It is also worth noting that despite the title indicating it specifically covers responsibilities towards future generations, the language of the articles themselves very much includes the current generation as being the beneficiaries of those responsibilities too, further aligning it with Brown Weiss’s Planetary Trust vision. The only weakness that could be raised is that it uses rather soft language (“should”) and only “encourages” states (and other actors) to promote and encourage the recognition and application thereof.⁵² While this should not be fatal to its content, and indeed the likes of India have evidenced no issue with taking it under stronger effect, it nonetheless does it no favours.

The year 1998 also saw the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms emerge.⁵³ Despite the title, this document is still very light on duties or responsibilities, with the bulk of the content devoted to what can be summarised as a restatement of much of the content of the UDHR and related documents. But despite that, there are

49. Re usage of “unofficial”, refer above n 29. See generally InterAction Council A Universal Declaration of Human Responsibilities (1997); Keith Suter “The quest for human responsibilities to complement human rights” (2010) 26 Medicine, Conflict and Survival 199; Mary Maxwell “Toward a Moral System for World Society: A Reflection on Human Responsibilities” (1998) 12 Ethics & International Affairs 179.
50. UNESCO “Declaration on the Responsibilities of the Present Generations Towards Future Generations” (1997).
51. Arts 1 and 5.
52. Article 12.
53. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms GA Res 53/144 (1998).

three key elements relating to duties and responsibilities contained therein that are particularly pertinent.

First, the preamble and art 2(1) states that the “State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms”. Whilst this ought to have been obvious to all but the most misguided and easily implied from preceding documents, it is nonetheless a useful codification for the context of other elements of the Declaration.

Secondly, the preamble “[recognises] the right and the responsibility of individuals, groups and associations to promote respect for and foster knowledge of human rights and fundamental freedoms”. Although contained in the preamble and thus without quite the status as the listed rights or responsibilities, this is curious from a couple of aspects: that it is given as both a right and a responsibility in the same context; and that it is an individual responsibility to promote respect for rights. While this seems entirely logical and uncontentious on the face of it, as will be discussed later it is an aspect that appears to be frequently disregarded in the individualistic nature of western society.

And thirdly, art 18(1) states: “Everyone has duties towards and within the community, in which alone the free and full development of his or her personality is possible.” This statement is conceptually very similar to art XXIX of the American Declaration of the Rights and Duties of Man, representing a convergence back to some of the content of that document which was such an influence on the original UDHR; it only took half a century.

Comparing the content of the UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations and the UN Declaration on the Right and Responsibility of Individuals yields an interesting observation. Why, given they both arose from the United Nations system, does one document go so deeply into responsibilities, and yet another (the one with arguably greater standing as a resolution of the General Assembly) continue to tread so lightly on the topic of responsibilities? Without delving deeply into the development of each it is only possible to speculate, but given the reluctance to include significant responsibilities content in the UDHR, it would not seem implausible to suggest that many of the same perspectives at that time still apply, whereas the UNESCO document, perhaps due to its perceived lesser status, was not subjected to such reservations.

3.4 UK Bill of Rights and Responsibilities

Notwithstanding the UN system and NGO activity in the domain of respon- sibilities, there has also been some notable discussion on the matter within the United Kingdom, ostensibly to codify responsibilities into an expanded Bill of Rights and Responsibilities. A 2009 discussion paper released by the Ministry

of Justice sought to frame the matter and offers an interesting and coherent discussion. Interestingly in the context of the history of the responsibilities debate in relation to the UDHR, it offers a perspective that very strongly implies that a “Declaration of Responsibilities” is not only desirable but necessary:⁵⁴

The Government believes that any Bill of Rights and Responsibilities should seek to articulate what we owe, as much as what we expect. Responsibilities and rights are equally necessary for a healthy democracy. ... When rights are seen through a prism of selfish individualism, this harms both the philosophical basis of inalienable, fundamental human rights and public support for them. Far from undermining rights, a clear statement of the proper relationship between rights and responsibilities could foster a better understanding of those rights.

Responses to the paper,⁵⁵ at least according to the summary prepared by the organisation that prepared the paper itself, provided some interesting insight into public sentiment on the matter.⁵⁶ The general consensus of the responses supported the notion that responsibilities needed additional emphasis and articulation at a legislative or constitutional level, albeit with some variation. It is disappointing that a more detailed collection of the responses was not made available, as the limited academic commentary on it was quite critical.⁵⁷ While the 2009 proposals did not result in revisions to the existing Act, more recent proposals to reform the 1998 Act referred to and advanced many of the same discussion points and concepts,⁵⁸ and has resulted in introduction of a Bill to replace the existing Act.⁵⁹ However, the draft Bill curiously contains very little content on responsibilities, despite the apparent support for that, and the seemingly strongly held position put forward by the discussion papers, and notably (at least in the context of this article) contains no reference to the environment or any intergenerational responsibility, again despite the discussion papers doing so.

54. UK Ministry of Justice “Rights and responsibilities: developing our constitutional framework” (Cm 7577, 2009) at s 2.18.
55. UK Ministry of Justice “Rights and responsibilities: developing our constitutional framework — Summary of responses” (Cm 7860, 2010).
56. I was unable to ascertain whether the responses could be considered a compre- hensive representation of the breadth of responses and societal views on the matter and do not purport to imply as such. Also note that this consultation was performed during the Global Financial Crisis period, the effects of which may have influenced results.
57. See generally Pavlos Eleftheriadis “On rights and responsibilities” (2010) 1 Public Law 33.
58. UK Ministry of Justice “Human Rights Act Reform: A Modern Bill of Rights” (CP 588, 2021).
59. UK Bill of Rights Bill (Bill 117 2022-23).

It would perhaps have been quite a different result if an overarching Universal Declaration of Human Responsibilities existed by which a state’s compliance could be judged in much the same way as the UDHR is seen as the yardstick to which states and communities are compared:⁶⁰

Conceived as “a common standard of achievement for all peoples and all nations”, the Universal Declaration of Human Rights has become just that: a yardstick by which to measure the degree of respect for, and compliance with, international human rights standards.

3.5 The Hague Principles

The 2018 Hague Principles, the most recent significant NGO attempt to trigger high-level UN action to create a “Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship”⁶¹ differs slightly from other recent approaches with a similar goal, in that it attempts to articulate a set of three even higher-level principles on the basis of which a Declaration of Responsibilities could be derived by the wider UN system, a remarkably ambitious goal.

A brief analysis of the three principles presented reveals a useful com- pilation, but nothing that does not appear to already exist elsewhere, at least from the perspective of derivative responsibilities. In particular, it appears to align closely with the UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations. Principle 1 of the Hague Declaration aligns closely with arts 4 and 5 of the UNESCO Declaration when read in conjunction with art 12. Principle 3 is covered as well by art 12, as well as being covered by the preamble of the UN Declaration on the Right and Responsibility of Individuals. The content of principle 2 is harder to align on the basis of the use of the “grounded in” operator, which I would interpret as having been met if the resulting responsibilities included in the target Universal Declaration show due consideration to the breadth of what the “community of life” entails. Without delving deeply into the specifics of the “community of life”, it would appear again as though the intent is covered by the wider contents of the UNESCO Declaration. The one potentially notable omission is an explicit mention of an intergenerational perspective; while it could be seen as implicit in the references to trusteeship of the earth and community of life, an explicit mention likely would have been a valuable addition in light of the

60. Office of the United Nations High Commissioner for Human Rights Fact Sheet No. 2, The International Bill of Human Rights (Rev. 1, United Nations, Geneva, 1996).
61. Earth Trusteeship Initiative The Hague Principles for a Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship (2018).

evidence and literature around the development of the public trust doctrine and Planetary Trust concept discussed earlier.

Based on the above, it succeeds as a succinct summary of high-level principles, which given that is what it sought to do is not surprising, but does not appear to add any new or highlight any new concepts that have not already been touched on elsewhere.

3.6 COVID-19 and Rights and Responsibilities

While it may seem as though the COVID-19 pandemic is an unusual topic to bring up in the context of an article on trusteeship and a declaration of human responsibilities, the pandemic has brought the debate on the fundamental rights and where they stop or can be curtailed to the forefront of the public psyche in a way that likely never has been before, particularly in western societies historically very wedded to the concept of individual rights and freedoms. The pandemic has caused significant tension between these, although the concept of responsibilities has largely been absent from the general discussion on the matter (discussion is perhaps an overly optimistic description in some cases).⁶² The imposition of mask mandates, social distancing requirements, and perhaps most notably vaccination mandates (or restrictions on those unvaccinated) has brought forth a vocal response of “this breaches my rights!”. What was generally missing though from the public debate was the response that “you are breaching others’ rights if you do not accede to those requirements”:⁶³

One of the more fundamental hypocrisies comes from ignoring the respon- sibility that comes with every right. You want the right to live? Then you have a responsibility to the rights of others to live.

From a more academic perspective, Matose and Lanphier⁶⁴ examine the imposition of social distancing requirements from a rights and responsibilities perspective in response to another article⁶⁵ in which they:⁶⁶

62. Lucy Cramer and Praveen Menon “New Zealand’s parliament protest ends with clashes, arrests” Reuters (online ed, Asia Pacific, 2 March 2022).
63. Luke Zaphir “With rights come responsibilities: how coronavirus is a pandemic of hypocrisy” The Conversation (online ed, 19 August 2020).
64. Takunda Matose and Elizabeth Lanphier “Rights Don’t Stand Alone: Respon- sibility for Rights in a Pandemic” (2020) 20(7) Am J Bioethics 169.
65. Amy Fairchild, Lawrence Gostin and Ronald Bayer “Vexing, Veiled, and Inequitable: Social Distancing and the ‘Rights’ Divide in the Age of COVID-19” (2020) 20(7) Am J Bioethics 55.
66. Matose and Lanphier, above n 64, at 170. While the assertion by Matose and Lanpheir that the Fairchild article has a singular focus on the question of rights is a valid observation, it appears to mistake the point of the article which is more focused on the equitability of sweeping social distancing requirements.

... worry that the authors’ singular focus on the question of rights misses how rights do not stand alone. Social distancing, like all interventions that uphold or curtail rights, is also importantly about responsibilities and obligations.

There they provide an argument that a state would be in breach of its obligations to uphold the rights of its populace if it did not impose such measures — somewhat ironically when considered in the context of the vocal opposition to mask mandates and other pandemic measures on the basis that it infringes rights.

Extending this logic further, there is an implicit “trusteeship” type relation- ship emerging here: the state, acting as trustees of the (in this case, the current generation) has taken action to protect the interests of the beneficiaries. And by not complying (or, more likely, complaining about having to comply under threat of sanction), individuals are not discharging their own obligations to the wider beneficiary group.

The thrust of the argument here is that the figurative (and literal at times) noise around the restriction of rights is likely at least contributed to by a lack of clarity on responsibilities that go with rights, and it would seem logical that having an articulation of responsibilities of equal prominence to the UDHR would go some way to alleviating that.

4. CONCLUSION

In summary, there is significant potential for the concept of trusteeship to be extended from its origins into a broad and effect mechanism for global environmental management. Both the commentaries and visions based on the concept, as well as the actual global experience, as evidenced by progressive expansion and implementation across multiple jurisdictions, supports this argument. It has been shown to be able to easily adapt to incorporate normally difficult, intangible inputs and traditional indigenous knowledge and values, elements that are not as easy to achieve with more administrative approaches to environmental management.

However, from both the vision and the actual experience to date the concept of trusteeship is not sufficient in itself, as it requires the guidance of a set of overarching rights and responsibilities to shape and guide its application into a broad method of environmental management. While implementations such as that in New Zealand have achieved that via specific legislation for specific areas, other examples in India, South Africa and the United States have shown that a high-level constitutional content such as a right to a healthy environment and responsibilities to future generations can achieve the same result more efficiently. While such rights and responsibilities are progressively

being incorporated into state constitutions (or equivalent thereof ), there is no global yardstick to measure countries against in the same way that human rights are measured against the UDHR.

The analysis then turns to whether it would be advantageous for there to be a Universal Declaration of Human Responsibilities to sit alongside the UDHR to support and guide the use of trusteeship as a mechanism for global environmental management. Looking into the history of the UDHR, it becomes obvious that there was much discussion, and a lot of appetite initially, for there to be more extensive and detailed responsibilities content in that document from its inception, and yet for some reason it does not yet, despite the existence of multiple other artifacts, including from other parts of the UN system such as the UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations, that provides a comprehensive expansion of rights and responsibilities that would aptly provide the basis needed for the concept of trusteeship.

Looking at the wider debate on rights and responsibilities, recent evidence would suggest that even in traditionally very individualistic western societies, the debate has become quite prominent, and work on a Universal Declaration of Responsibilities would go quite some way to addressing some of the regional criticism of the UDHR.

So where to from here? The concept of trusteeship already exists and is more than capable of achieving the desired outcome given the right conditions. The basic content and thinking to underpin a Declaration of Responsibilities already exists. So now all that can be done is plead that the UN does it.