Bi-Polar and Polycentric Approaches to Human Rights and the Environment

Burger, Michael

Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment.' To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key issue, namely, the realization of individual and group autonomy, which we could not do using other concepts and which gives them a unique place in moral and legal argument." Parsing out the above statement reveals several central presuppositions of this paper. First, the pragmatism that underlies any discussion of creating a new right to a clean environment, lawyering for the recognition of such a right under existing regimes, or advocating for the inclusion of protections within existing rights, must be balanced with the more philosophical underpinnings of the rights-based discourse. In this paper, I limit the discussion primarily to what little concrete has been poured to build a foundation for environmental rights, rather than analyzing the more abstract designs of eco-rhetoric. Second, the utility of such advocacy approaches is to be found in contrast to the failure of other methods and regimes -- domestic and international -- to adequately address certain existing problems. Finally, there is an important distinction to be drawn between (1) the justifications for creating a new right to a healthy environment; and (2) the act of litigating under existing conventions for recognition or inclusion of environmental rights.


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Columbia Journal of Environmental Law

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Sabin Center for Climate Change Law
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July 13, 2015