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The Human Right to a Clean and Healthy Environment

Human rights signal a public order of human dignity, for which environmental well-being is a prerequisite. They trump most other legal obligations, being juridically more elevated than commonplace “standards,” “laws,” or mere policy choices, and carry with them a state of entitlement on the part of the rights-holder, facilitating legal and political empowerment. To assert human rights is to challenge and make demands upon state sovereignty as well as on the parochial agendas of private elites.

For these and other reasons, the human right to a clean and healthy environment can be a powerful tool for imagining and securing a system of ecological governance in the common interest. Yet, despite many efforts championing the right worldwide—whether understood as an entitlement derived from other substantive rights, as a substantive right autonomous unto itself, or as a cluster of procedural entitlements—its standing in the current state sovereignty system is essentially limited in official recognition and jurisdictional reach.

It is for good reason, therefore, that in recent years, two attractive, alternative approaches have emerged, the first focusing on the environmental rights of future generations, the second on the rights of nature. Both approaches go beyond the narrow anthropocentrism of existing law. And politically, each reflects a deep frustration with the environmental community's conventional terms of advocacy and the formal legal order's deep commitments to neoliberalism.

But neither of these approaches persuades sufficiently in our view. The first, although firm in legal theory, is handicapped by a culture of modernity that prioritizes the present and thus relies heavily on moral appeal for its acceptance. The second, granting nature legal standing, trains on altering mainly the procedural playing field. Moreover, each remains in the grip of the existing state-market regulatory system that is, fundamentally, responsible for most of the environmental damage that threatens our collective future.

We thus believe that it is important to reimagine and establish the human right to environment in a form and substance that is different from existing and proposed incarnations. We propose a human right to commonsand rights-based ecological governance that would constitute a foundational or “meta” right and, where necessary, take precedence over other rights, notwithstanding the problematic of “a hierarchy at odds with the assertion that all rights are equal and indivisible.” It would not privilege any right or cluster of rights (present or future), but instead would embody the inclusive spirit of Article 28 of the Universal Declaration of Human Rights, which says that, “Everyone is entitled to a social and international order in which [all] the rights and freedoms set forth in this Declaration can be fully realized.”

The human right that we envision embraces structural and procedural issues equally with normative ones, and thereby better integrates with people's everyday experiences and practices within society and as producers. And most importantly, unlike the limited right to environment that is now espoused and practiced, it is anchored in a well-defined, rich history of both substantive and procedural justice. As such, it makes way for a sensibly collaborative and democratic alternative to the current ecologically dysfunctional regulatory system at the heart of our worldwide environmental crisis.

The concept of green governance is based on active stakeholder engagement and innovation, and so fosters more responsive forms of ecological practice, law, and accountability. It is not only credible and necessary, but also politically attractive because it offers a feasible alternative to coercive, top-down approaches that may or may not command popular support.

True, barring some game-changing ecological disaster, investors, corporations, and their political allies will continue to resist innovative legal gambits for both historical and philosophical reasons. Furthermore, most people accept the existing system as a given and therefore do not seek to transition away from it. But absent an overhaul of the current regulatory framework or a radical shift from it, no alternative to commonsand rightsbased ecological governance is likely to prove sufficient over the long term. Let us be blunt: neither the state nor the market has been very successful at setting limits on market activity because neither wants to.

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