SHOULD ENVIRONMENTAL RIGHTS TRUMP HUMAN RIGHTS?
This study aims to present the findings of research on the link between environmental rights and human rights. Rights are normative principles, meaning that in the context of law, they are viewed according to a valued position. However, values can be inconsistent with each other hence the reason why rights, and in this case, human and environmental rights, may come into conflict. Another justification for this is the “flexibility” of rights explained by Birnie and Boyle (2002) in that not only can they be extended but are also open-ended and therefore can trump other claims or values. In a context where certain rights may have priority over others, should environmental rights trump human rights? During the conduct of this study, a number of points come up in order to build the arguments in an attempt to answer this question. The first point to be discussed will aim to understand the current status and the debate on environmental rights. There will also be an in-depth analysis of the link between environmental and human rights, presenting the similarities, differences and overlaps. Ultimately, the anthropocentricity of the right to a ‘clean and decent’ environment will be analysed within the framework of current debates and according to various studies as well as the shortcomings of human rights in addressing environmental concerns.
The link between environmental and human rights
Can one right trump another?
There are several points with regards to the ability of one right to trump another. The metaphor of rights as “trumps” originated from Dworkin (1985). This implies that certain rights have priority with respect to another. Rights are normative principles but from another point of view, a “specificationist” view, rights do not conflict and overlap in a given case. Whether rights are viewed as being “trumps”, thus conclusive or rather open, there are often links and overlaps between rights. According to Shue (1980), a right that is genuinely basic trumps those rights which may assist in the further development of human potential but which are not essential for basic functioning in cases where the two kinds of rights conflict.
Environmental rights and the links with human rights
In order to understand discuss the priority of rights it is essential to highlight first of all the intricacy of the links between the two. To achieve this, examples will be used and the status of environmental rights will de defined as well as its relation to human rights.
The links between the two subjects were apparent at least from the first international conference on the human environment, held in Stockholm in 1972. At the Stockholm concluding session, the linkage was reflected in the preamble of the concluding declaration, wherein the participants proclaimed that: Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. . . . Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights –even the right to life itself (Shelton, 2009).
Human rights and environmental rights are distinct
Human rights law aims to ensure the equal rights and fundamental freedoms of all human beings while environmental protection is concerned with broader issues of nature protection, which has intrinsic value irrespective of its utilization by or worth to human beings. For this reason, the focus or objective of human rights law and environmental law remains different to some degree (Sanjeev et al, 2003). There are also international environmental conventions which grant a right to information which are not human rights based e.g. 1991 ESPOO Convention on Environmental Impact Assessment (EIA) (Fitzmaurice, 2009) and many characteristics have been used over the years in order to attempt to define...
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