ABSTRACT
Human rights thinking has responded to sustainability concerns for quite some time. The most prominent development has been the increased recognition of a distinct human right to a clean and healthy environment. Other developments include the increased importance of the right to life and physical well-being in cases of local pollution or, more recently, widespread climate change litigation1 where individual rights and collective rights (e.g. of indigenous peoples) play a central role. The interdependence between human rights and environmental protection is increasingly recognized in international and domestic law. However, fundamentally each area remains to be guided by its own legal regime. Human rights law is concerned with the protection of individual well-being; environmental law is concerned with the protection of collective well-being. There is, at present, little penetration between both regimes, although this may change over time. From an ecological perspective, the separation of human rights law and environmental law is not in itself a problem. What does matter, however, is the rationality underpinning each. What form or paradigm of rationality applies when we think of human rights (or the environment, respectively)?2 Paradigms of rationality have associated values systems. Value systems refer to the relative importance assigned to competing values. If, for example, human welfare is
1 See, for example, Smith, J. and Shearman, D. (2006), Climate Change Litigation (Adelaide, Presidian Legal Publications); Taylor, P. (2007), ‘Climate Change Litigation: A Catalyst for Corporate Responses’, in SDI and UNEP, Climate Action 2007-8 (London, SDI and UNEP), 104-108; Peel, J. and Osofsky, H. (2015), Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge, Cambridge University Press). See also, for example, Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment) (2015) The Hague District Court, 24 June 2015, C/09/456689/HA ZA 13-1396. The recent Urgenda case resulted in the first ruling of its kind by ordering the Government reduce emissions of greenhouse gases. Human rights arguments were used as the legal basis for protecting citizens against the effects of climate change.
