This is a question that is to be considered in public deliberations of the Global Citizenship Commission that holds its inaugural meeting in Edinburgh this week.  Ahead of that, the Just World Institute organised an Ethics Forum meeting to think through some aspects of the question.  My own contribution to the debate is to make four interconnected suggestions: 1) rights and duties regarding the environment should be explicitly mentioned; 2) the significance of the fact we live in a crowded planet should be foregrounded in the preamble; 3) the limits to the justification of property in general, and intellectual property in particular, should be more clearly stated; 4) the point that human rights set standards of right and wrong conduct should be emphasised against possessive individualist interpretations of rights as ‘things’.

For anyone interested, the summary reasoning behind these is as follows.

 

1. Should an updated UDHR not have an article setting out rights and duties concerning the environment?

Environmental change in general, and climate change in particular, are now recognized to be among the greatest threats to human rights.  Environmental rights and duties are mentioned in pretty much every constitution drafted or amended these days, and for good reason.ⁱ

We should affirm that everyone has a right to an environment adequate for their health and well-being.  Speaking of natural resources along with environmental quality signals the indivisible human need for both.  A right of access to the means of a minimally decent life includes access to the necessary natural resources and environmental quality.ⁱⁱ

Such a right needs to be matched by an equally strong emphasis on duties to take care of the environment and not deprive people of access to what they require for a minimally decent life and livelihood.

i)               Tim Hayward, Constitutional Environmental Rights, Oxford UP 2005

ii)              Tim Hayward, ‘International Political Theory and the Global Environment’, Journal of Social Philosophy 40(2) (2009) : 276-95)

[Incidentally, one sometimes hears repeated the suggestion of a human right to a certain level of carbon emissions, where these are for the purpose of subsistence rather than luxury.  That distinction and the argument based on it originated with Henry Shue(1); but the argument is mistaken (2), as he has since acknowledged (3).

1) Henry Shue, ‘Subsistence Emissions and Luxury Emissions’, Law & Policy 15(1) (1993): 39-60.

2) Tim Hayward, ‘Human Rights vs Emissions Rights: Climate Justice and the Equitable Distribution of Ecological Space’, Ethics & International Affairs 21(2) (2007): 431-450.

3) Henry Shue, ‘Climate Hope: Implementing the Exit Strategy’, Chicago Journal of International Law 13(2) (2013): 381-402,  392.]

 

2. Should the preamble refer to the fact that we live in a crowded planet – crowded in the sense that the demands placed by the world’s human population on its ‘ecological space’ are such that some members do not have adequate for their health and well-being?

Reasons for this suggestion:

• Needs for human rights protection on grounds of severe economic poverty, of insecurity due to conflict over resources, and of precarious living or displacement due to environmental degradation and climate change tend to coincide in afflicting the same people – those whose plight, at root, can be described as one of ecological marginalization.

• Although the UDHR is framed in terms of rights, it needs to stress that these entail responsibilities and duties; more specifically, insofar as the rights imply the possibility of growing aspirations, it needs to be pointed out that indefinitely large claims on the planet’s resources and environmental capacities cannot be justified on a human rights basis.  The better off have a responsibility to allow enough ecological space to the worst off.

• If human rights are, first and foremost, basic rights, in Henry Shue’s sense, and they correspond to the ‘morality of the depths’, then a right of access to the basic means of life that are furnished in what we can conceptualise as ecological space is as basic a right as any.

(The term ‘ecological space’ is chosen to indicate both the natural resources intentionally used for economic purposes and the environmental services incidentally used in the process.  There is only one world; keeping separate economic and ecological accounts will ultimately prove unsustainable in a finite world.  For a summary account see T.Hayward, ‘Ecological Space: the concept and its ethical significance’, forthcoming in the Oxford Handbook of Environmental Ethics, and currently available as Just World Institute Working Paper 2013/02.)

 

3. Could a revised UDHR make clearer the limits on the extent to which property rights have a human rights justification?  This in relation to Art.17 on property in general, but also Art.27(2) on intellectual property in particular?  Perhaps it could expand a little the differences between human rights and property rights?

The purpose of human rights being to protect human beings’ fundamental interests, the rights persons have against one another in respect of other kinds of interest should not be allowed to have a human rights justification.

We know that the right to property is controversial and its implications uncertain.  But what ought to be possible is to rule out entirely disingenuous appeals to it. ‘The slogan that property is a human right can be deployed only disingenuously to legitimize the massive inequality that we find in modern capitalist countries.’ (Jeremy Waldron The Right to Private Property (1988), p.5) Such inequalities are compounded globally.

It is possible to distinguish very clearly between human rights and property rights, I show in Tim Hayward, ‘Human Rights Vs Property Rights’, Just World Institute Working Paper 2013/04. I provide arguments that could help guide appropriate interpretation of Article 17.

The same considerations should be expressly applied to interpretations of Article 27(2).  Some of the uses of intellectual property rights to support dominant economic interests against the vulnerable are as shameful for humanity as the concerns that originally prompted the drafting of the UDHR.

 

4. Could it be made more express that to speak of human rights is to speak of standards of conduct rather than ‘things’ that individuals ‘possess’? 

The entire content and normative force of human rights talk can be conveyed without using the countable noun ‘a right’.  What is right and wrong, what people ought and ought not do, are terms that suffice.

Some benefits of doing so:

• If we get back to talking about what is right and wrong conduct, it may also be easier for e.g. China to agree to the moral sentiments the UDHR is intended to convey.

• It would generally serve to defuse criticisms of the UDHR as too individualistic in its assumptions.  Individuals can be the focus of moral concern without needing to be deemed possessors of supposed things called rights.

• A benefit for scholars as well as practitioners would be to undercut a lot of equivocal agonising over what kind of ‘thing’ a right is and what it means to ‘possess’ one, and get attention back to what matters: what should we expect one another to do or refrain from?

To say that a person  ‘has’ a right is a shorthand way of conveying the point that the person is in a certain normative position in relation to other human beings.  Speaking of being rather than having pre-empts too possessive an understanding of ‘what rights are’.  (Some people have queried whether human rights are really a species of right at all.  My own suggestion is that we should have doubts about whether there is even a genus.)

Rights talk will continue for a while yet, I am sure.  But some of the confusions and equivocations attending it need not!

 

For more see:

Tim Hayward, ‘On Prepositional Duties’, Ethics 123(2) (2013): 264-91.

Tim Hayward, ‘The Sense and Significance of Rights Talk’, SSRN Working Paper (2013).

 

 Tim Hayward