The previous century saw the emergence of two major strands of intellectual thought which symbolised a conscious turn in how human societies viewed not only themselves, but their fundamental interaction with the world in which they lived. Sixty years later, these separate discourses are now, slowly, being connected — and their integration may be pivotal in re-thinking our strategy towards the greatest global challenge of our time.
Environmentalism is often said to have began with Rachel Carson’s harrowing book, Silent Spring. In simple but detailed prose, Carson evoked the bleak future of our planet under the sustained gross negligence of humanity, and in doing so, she is claimed to have engendered a moment of ecological self-realisation, sparking a new radical anger against the modern world.
The subsequent environmentalist movement was the hallmark of a species in freshly-awoken existential panic, and it triggered a renewed critical analysis of the relationship between humans and our environment. In 1962, the publication of The Historical Roots of our Ecological Crisis by Lynn White Jr. purported that humankind’s dominion over nature stemmed from, in the West, a Judaeo-Christian interpretation of nature as inferior to humans. These religions made it clear that only humans were made in God’s image, and that, accordingly, humans had the inherent right to control nature. Other scholars have traced parallel roots of the ongoing environmental catastrophe to the secular political philosophy of Hobbes and Locke. Their work has been viewed as historically intrinsic to our contemporary capitalistic mechanism of property rights, which — as a corollary — bestows us with the right to exploit nature and thus drive economic growth. In the West, it is arguably axiomatic that humans and the state exists, partly, in order to tame the wild. But Roderick Neumann, in his classic book Imposing Wilderness, ironically noted that our very conception of “wilderness” as a force to be controlled was a false reflection of our own colonial vanity: in which lay not nature red in tooth and claw as so commonly perceived by our ancestors (and a myth that persists today too, splayed on the brochures of travel agents) but rather the inedible stamp of humans in conflict with not only each other but nature itself. In hollow landscapes of human exploitation and environmental degradation we had seen – or, foolishly imagined – an ever-fictitious Eden come to life.
The conceptualisation of the environment as subordinate to humans was ultimately crystallised by the most iniquitous violation of nature by humanity: a mushroom cloud blooming into the stratosphere, inflated, bloated, and rapidly absorbing its natural surroundings into its hazy maelstrom.
That same image – the splitting of the atom – was also, of course, viewed as the grandest violation of humanity by humanity itself. And it, along with other atrocities of the World Wars, gave rise to a second essentially modern school of thought: human rights. The writing of the Universal Declaration of Human Rights in 1942 stands as a milestone in the history of humanity. This universal ethical code outlines the norms and rules of conduct in which we can find the embodiment of the expression of our collective compassion. These concepts — that recognise the “inherent dignity and … the equal and inalienable rights of all members of the human family” — stand as the benchmarks against which we judge societies; and their breach is the evidence of an absence: the absence of a fundamental societal solicitude for all fellow humans.
These two concurrent reactions to modernity – environmentalism and human rights – also, in turn, gave rise to mirrored responses in the legal sphere. The upholding of human rights falls under the cooperation of all members of civil society – from individuals to NGOs and campaign groups to politicians – but the foundational arbitrator of human rights are the courts. International human rights law now stands as an independent body of law, and its invocation in litigation is one of the strongest arguments a lawyer can put forward: suggesting the defendant’s actions are not only a violation of international law, but arose through a fundamental disregard of our common morality.
In a matching fashion to the evolution of human rights law, environmental law has been perhaps the only effective barrier between humans and environmental degradation to date. It has created the foundation for regulating human impacts on the environment: for punishing wildlife traffickers, for sentencing polluters, for criminalising some of the most violent aspects of our treatment of nature. Almost all environmental progress has its foundations in law: whether that be through ground-breaking international legislation such as the Aarhus Convention, which gives procedural rights of access to environmental justice across Europe; or through the most basic protections at the national level – such as the Clean Air Act, which arguably led to greatest upheaval of Britain’s skylines, replacing thick “pea soup” smog with a transparent, life-supporting atmosphere across the nation’s industrialised cities.
But the power of environmental law is arguably diminishing. In particular, it has come across a stumbling block in the form of climate change. The United Nations Framework Convention of Climate Change (UNFCCC) was ratified in 1992, setting the international legislative climate change agenda ever since. And yet only in 2015 were its ambitions first realised in the Paris Agreement. For over two decades, environmental law has failed to tackle the greatest environmental problem of its age. And it is this static policy landscape that has spurred on recent calls for a human rights approach to climate change.
The logic behind a human rights approach to climate change is strikingly simple. The impacts of climate change are of such a magnitude that, in the words of Mary Robinson – former President of Ireland and former UN High Commissioner for Human Rights – “climate change is the greatest threat to human rights in the 21st century”. Climate change poses significant and potentially irreversible threats of such as the loss of entire towns, cities and even nations (such as small island states like Kiribati): with the inevitable extinction of life, liberty and security associated with such effects. The severity of climate change demands a response of equal magnitude. To quote environmental lawyer and legal scholar Amy Sinden, the introduction of a human rights approach to climate change “invokes a sense of profundity and moral weight that comports with the enormity and gravity of the climate change problem”. In other words, conventional fields of environmental law have been the dagger-in-a-gunfight approach – and it is time for the disruption of this fragile paradigm.
There are also profoundly ethical reasons for invoking human rights law. A human rights approach shifts the social frame of climate change: from an issue understood as the fight against greenhouse gases and limiting warming to a finite temperature increase, to instead perceiving it as a struggle to protect the most vulnerable in society, who at present are an excluded and invisible minority in the eyes of politicians and policymakers.
The legal integration of climate change and human rights has had some limited success to date, particularly in the field of climate litigation – that is, the use of the courts in order to gain climate change victories. The most famous example of this was in Gbemre v. Shell – a ground-breaking case in climate litigation in which gas-flaring activities by Shell Petroleum Development Company were found to violate the right to life of local Nigerians, in part due to its greenhouse gas emissions. The judgment’s expansive interpretation of right to life as including the right to a healthy and clean environment has been construed by legal scholars as implying a right to security from climate change. This case set the precedent for similar cases, and an expanding field of jurisprudence now questions whether there is greater scope for this type of “climate litigation” in the future. Importantly, the marriage of human rights and environmental law provides a powerful and complementary means of applying legal pressure for emissions reductions onto those responsible for climate change. In combination with exogenous forces from the UNFCCC and existing domestic legislation (such as the UK’s Climate Change Act), a human rights approach to climate litigation may provide an all-important back-stop to preventing dangerous climate change.
But, though noting its potential gains, we must also stop and challenge the central assumptions of a human rights approach to climate change. For all its worth as a means to re-direct climate change action to aid the most vulnerable in society, it also contains within it the same conception that brought us to this fragile situation initially. The anthropocentric relationship between humanity and the natural world necessarily entails the continued destruction of the environment; and a human rights approach to climate change does naught to address this. Instead, perhaps, it ever more firmly embeds humans at the centre of how we respond to this challenge, and in doing so, it binds us tighter to the myths of White and Neumann. Instead of learning from these fallacies, we might end up mistakenly prioritising humans instead of the blindingly obvious: the environment in itself.