Environmental Protection and the Limits of Rights Talk

By Peter Burdon

By Peter Burdon. This article is part of our August theme, which focuses on the environment and human rightsRead more articles on this theme.

There is a long history in environmental studies of locating and developing methods to combat the “root causes” of the current environmental crisis. Canadian philosopher John Livingston explains this approach, noting: “Oil spills, endangered species, ozone depletion and so forth are presented as separate incidents and the overwhelming nature of these events means that we seldom look deeper.” “However” Livingston argues, “these issues are analogous to the tip of an iceberg, they are simply the visible portion of a much larger entity, most of which lies beneath the surface, beyond our daily inspection.”

Human beings exploit the environment because they conceive it as existing for their own personal use and benefit

In my view, the most sophisticated attempt to locate a root cause was developed by social ecologist, Murray Bookchin. According to Bookchin, the domination of nature by human beings stems from and takes the same form as the myriad of ways human beings exploit each other. The key to this analysis is “hierarchy” – a term that encompasses “cultural, traditional and psychological systems of obedience and command”. This includes the domination of the young by the old, of women by men, of one ethnic group by another, of the wealthy over the poor and of human beings over nature.

What attracts me to this analysis is that it allows one to acknowledge and go beyond the common explanation for environmental exploitation advocated by many environmental philosophers – namely anthropocentrism. According to this view, human beings exploit the environment because they conceive it as existing for their own personal use and benefit. This conception is so intricately woven through the fabric of western culture that it exists as a largely unquestioned presupposition in dominant discourse. Thus, in a recent discussion I was having with a mining proponent about groundwater pollution, my discussant was able to proclaim – “what are you so concerned about, the groundwater is so salty you could not even feed it to cattle!” The assumption being that if the groundwater did not have a human use, it did not have value and consequently could be polluted.

While certainly instructive, the belief that social change occurs solely by shifting cultural ideas (such as anthropocentrism) suffers from mental determinism – the notion that ideas are the sole determiner of social reality. Adopting such a narrow perspective is a critical shortcoming in social theory. Indeed, mental determination is as limited an explanation as technological determinism, class-struggle determinism or changes arising out of (cultural) shifts in everyday life (this is the political position taken by Paul Hawken in his influential text, Blessed Unrest). In practice, major social transformations occur through a dialectic of transformations across a range of moments and develop unevenly in space and time to produce all manner of local contingencies. This is evidenced in the contrast between the Occupy movement and the second Arab uprising (or Arab Spring). A deterministic stance fails to capture this complex interplay and produces a contingency in human evolution (in much the same way that unpredictable mutations produce contingency in Darwinian theory).

No amount of eco-literature, bush walking or Buddhist retreats will release a corporate director from the structural economic and legal pressures that pertain to a capitalist mode of production

Another reason for moving away from a strict mental explanation for the environmental crisis is that it ignores those structural forms, which perpetuate exploitation without relying on a particular worldview. The most important of these is industrial capitalism. It is a truism, but one that must be constantly stressed, that capitalism’s inherent thirst for short-term growth is fundamentally inconsistent with environmental protection. Further, the structural attributes of capitalism mean that the personality and worldview of individual capitalists is largely irrelevant.

It simply does not matter if the director of Exxon Mobile or BHP Billiton is a good person or holds an ecological worldview. No amount of eco-literature, bush walking or Buddhist retreats will release a corporate director from the structural economic and legal pressures that pertain to a capitalist mode of production. Karl Marx makes this point forcefully in volume one of Das Kapital. The capitalist, according to Marx, has no real freedom. They are mere cogs in a mechanism, who have to reinvest a portion of their profits to grow their enterprise because the “coercive laws of competition” force them to. The alternative is to go out of business and lose social status. As capital personified, their psychology is focused on the augmentation of exchange-value and the accumulation of social power in limitless money-form. If a capitalist shows any sign of drifting away from their central mission, the pesky laws of competition bring them back into line. Thus “accumulation for the sake of accumulation, production for the sake of production” becomes the central mantra of a capitalist mode of production.

Many commentators have voiced serious concerns that a human rights model cannot address the root causes of environmental exploitation. To begin, the approach is overtly anthropocentric

The rise of environmental human rights

During the 1970s the language of human rights began to make sense to broad communities of people as an “umbrella concept” for combating multiple forms of injustice. Most recently, there has been an attempt to extend human rights for environmental protection. There are two main arguments. First, that human beings have a right to a healthy environment i.e. a right to clean water. Second, that there are ecological limitations to human rights. While not yet implemented in “hard law” the latter argument refers to the idea that individual freedom is not only determined by a social context – but also by an ecological context.

Human rights discourse has assumed hegemonic status and is widely billed as “the only game in town” for environmental protection. Yet, many commentators have voiced serious concerns that a human rights model cannot address the root causes of environmental exploitation. To begin, the approach is overtly anthropocentric. Even the phrase “human rights and the environment” is species specific, focuses on “rights” which is an inherently individualistic concept and sets up an immediate dichotomy between the “human” and the “environment”.

Linguistics aside, the very existence of environmental human rights reinforces the idea that the environment and natural resources exist only for human benefit and have no intrinsic worth. In the example I cited above concerning groundwater pollution, my discussant’s rebuff could easily be viewed as consistent with the ethical framework of environmental human rights. Indeed, no human rights were being infringed, so what is the problem? Thus, while the language of environmental human rights has been seen as a politically useful tool for environmental groups to sway public opinion, it does not fundamentally challenge the mental ideas that partially explain environmental exploitation.

A second major critique of environmental human rights is that it seeks to adopt bourgeois legal concepts and treat them as both universal and foundational for the development of an alternative social form. In reality, this is no alternative at all since it merely re-inscribes dominant conceptions of value in a supposedly new framework. Foundational documents for environmental human rights discourse, such as the UN Universal Declaration of Human Right (1948), have also been used as central documents for market-based individualism. As such, it is doubtful whether they can provide the basis for a thoroughgoing critique of liberal or neoliberal capitalism. Indeed, whether it is politically useful to insist that the capitalist political order live up to its own foundational principles is one thing, but to imagine that this politics can lead to a radical displacement of capitalist growth economics is a serious error.

The rights of nature: an alternative approach?

The recent history of rights of nature advocacy is stunning and cannot be described in full here. Nearly 30 municipalities in the United States have drafted and adopted municipal ordinances to help protect local ecosystems from industries such as coal mining, water bottling and gas drilling (fracking).  For example, in 2008 the township of Barnstead, New Hampshire adopted an ordinance that reads: “Natural communities and ecosystems possess inalienable and fundamental rights to exist and flourish within the Town of Barnstead.” These developments were mirrored at the level of constitutional law in the Republic of Ecuador, which in 2008 adopted a new constitution. Article one of the Constitution reads:

Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms.

These developments have led to the pronouncement of a wide variety of ethical and legal approaches including: legally enforceable rights for nature (as envisaged in the legislation above); so-called “biotic rights” (being moral imperatives which are not legally enforceable); moral “responsibilities” for human beings; and “rightness” (a norm which prescribes a need for a proper healthy relationship between humanity and nature). What is common to each is an attempt to give concrete and meaningful recognition to the intrinsic value of nature.

Yet, the limitations of the rights of nature discourse must also be borne in mind. Its reliance on legal rights retains an individualistic perspective, which may be problematic when applied to integrated ecosystems. Further, it is ultimately a quick legal fix, which precludes deeper questioning about social values and economic forms. While I am sympathetic to the need for such a solution in the face of global ecosystemic collapse, I also wish to be clear that there is little hope for achieving radical social change by simply adding “rights of nature” to the catalogue of legally recognised rights. I think many advocates for the rights of nature would agree with me on that point. Indeed, failing to recognise the limits of a rights discourse risks perpetuating an individualistic and market-orientated tradition which was foundational to the global environmental crisis in the first place.

Rights and struggle

While limited, current advocacy for the recognition of the rights of nature has highlighted important lessons for environmental protection. What interests me the most about these developments is that they have arisen from popular struggle – that is from the bottom-up. This is important, because it has meant that groups of people have organised and worked cooperatively to identify a tangible solution to a specific problem. The people have ownership of the idea and a particular understanding of its meaning that matches their own unique history, geography and problem. Further, they have practice in building networks of solidarity, participating in democracy and a confidence that comes from political victory. Each of these attributes may assist the people to play an ongoing role in governance and ensure that the laws are interpreted and applied in a way that is consistent with what they intended. Moreover, it provides the foundation for making bolder demands which have the power to address root causes and institute alternative social, legal and economic forms.

The experience of collaborative struggle is essential for social change and cannot be given by political leaders via the standard top-down legislative process. In the end, legal rights are empty signifiers – everything depends on how the right comes into existence. This in turn relates to who gets to fill the right with meaning. As is common today, the financiers and corporations can influence the political process so that their own interests are protected. But then, so can environmentalists, anti-capitalists, the homeless and the sans-papiers. We inevitably have to confront the question of whose rights are being identified, while recognising, as Marx puts it, that “between equal rights force decides.” The definition and interpretation of the “right” itself is an object of struggle – and that struggle has to proceed concomitantly with the struggle to materialise it.

Dr Peter Burdon is a Lecturer at the Adelaide Law School. His PhD thesis on Earth Jurisprudence won the University Medal & Bonython Prize for best original thesis and will be published as “Earth Jurisprudence: Private Property and the Environment” in the Routledge Law, Justice and Ecology series in 2013. Peter has also volunteered with Friends of the Earth since 2005.


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