A Human Right to a Healthy Environment? Moral, Legal, and Empirical Considerations
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Description
Should there be a human right to a healthy environment? In this chapter, I aim to analytically and empirically unpack this question. Analytically, I draw on moral and legal theory in order to examine the premises of the question, reframe it, and offer an answer to it. Empirically, building on socio-legal studies of rights, I explore the potential benefits and costs of using “rights talk” in environmental debates in general, and of adopting the right to a healthy environment in an international legal instrument in particular. My argument is threefold. First, I posit that the terms of the question seem to assume a theory of human rights that views legal recognition as a constitutive component of rights. Implicit in the question of whether the time has come to consider a right to a healthy environment is the claim that the status of the latter as a right hinges on it being incorporated into a formal legal instrument. In line with Amartya Sen’s criticism of such a “legally parasitic” view of rights, I argue that a strong case can be made that the aspiration to live in a healthy environment already is a human right. Second, I contend that, even from a narrower, purely legal perspective, it can be said that a global right to a healthy environment is already in existence within customary international law. Third, I therefore argue that it is useful to reframe the question in the following terms: Should the right to a healthy environment be formally adopted in an international legal instrument? Thus restated, the question raises a host of issues regarding efficacy and impact that are common to efforts to turn moral and political claims into legal claims in general, and into international legal claims in particular. Based on an overview of these issues, I answer the question in the affirmative. This chapter is divided into three sections, each related to one of the arguments, followed by a conclusion. In the first section, I briefly discuss Sen’s objection to “legally parasitic” theories of rights in order to substantiate my claim that, understood as a moral right, a right to a healthy environment already exists. In the second section, I succinctly review the legal evidence and arguments in favor of the existence of such a right in customary international law. In the third section, I examine the trade-offs involved in the potential recognition of the right in an international legal instrument, whether a global treaty or an instrument of soft law. In the concluding section, I summarize the argument and wrap up my case for an international right to a healthy environment.
Source Publication
The Human Right to a Healthy Environment
Source Editors/Authors
John H. Knox, Ramin Pejan
Publication Date
2018
Recommended Citation
Rodríguez-Garavito, César, "A Human Right to a Healthy Environment? Moral, Legal, and Empirical Considerations" (2018). Faculty Chapters. 1886.
https://gretchen.law.nyu.edu/fac-chapt/1886
