Today, the 10th of December, we can celebrate the anniversary of the proclamation of the Universal Declaration of Human Rights: on that date in 1948 the document had been proclaimed by the United Nations General Assembly in Paris (General Assembly resolution 217 A). There are as many good reasons to celebrate this as success as there are many good reasons to be cautious – regarding the latter, we should not forget, for instance,
- that the declaration is not a legally binding instrument
- that the finance mechanism of the United Nations and the related institutions is open to extortion
- that the initiative had been strongly coined by Eleanor Roosevelt, USA and René Cassin, France – and while claiming to be universal, the declaration clearly reflects the spirit of these nations
- that reference is made to an abstract image of human beings instead of referring (centrally) to the conditions under which people live (see for example: Herrmann, Peter, 2011: Narrowing the gap between the world’s richest and poorest; Deutsche Welle/attac)
- that the general problem of jurisprudence becoming a self-reflexive body of instruments that is on the one hand too complex to be understood from a real-life perspective and on the other hand under-complex when it comes to deal with the real-life perspective
- that, not least, it is not clear in which way the responsibility is defined and ‘shared’ between states, corporations and individuals.
Leaving these issues aside, we find in recent years a development that will be of utmost importance when it comes to the future understanding of human rights – and the anniversary should be an opportunity to look forward rather than looking back: on various levels – employing administrative courts, criminal proceedings, constitutional courts and international proceedings, for example before the ECJ – environmental issues are challenging and changing the juridical agenda.
The most recent case is an Advisory Opinion from the ICJ on states’ obligations regarding climate change, as requested by the United Nations General Assembly adopting Resolution 77/276 on March 29, 2023, now employing the Court.
The resolution goes back to a law student-led initiative in Vanuatu, supported by other nations like Antigua and Barbuda, Fiji, and the Marshall Islands. Legally it is a complex issue that will not be dealt with in full at present. And as much as such an initiative, asking for states’ responsibility, must be welcomed in its own right, it is hugely relevant for the overall understanding of human rights and responsibility (at present, the question of the “rights of nature”, will not be focus of this contribution [for a theoretical reflection of the “right of nature” see for instance Nijhuis, Harry G. J./Herrmann, Peter: “Rightful Place for Nature”. The Loss of Relationality and Modern Humans’ Relationship with Nature; International Journal of Social Quality • Volume 13, Issue 2, Winter 2023: 66–89; ISSN: 1757-0344 (Print); ISSN: 1757-0352 (Online) © The Author(s); doi:10.3167/IJSQ.2023.130205; Herrmann, Peter, forthcoming: Human Rights Today – Rethinking the Meaning of the Legal Subject]). At stake is also the question of responsibility. The initiators refer amongst others to the ‘no harm principle’. According to this, it is the responsibility of states to take sufficient measures in order to avoid transboundary pollution. One interesting aspect must be seen in the origin of such pollution – or in more theoretical language and formulated as question: Is the direct polluter – to be determined by a technical definition – also the polluter in a legal sense? If we assume long chains of action that cause environmental damage (of which air pollution is only one form), then political, political-economic and international aspects of policymaking must be considered.
At the beginning of the human rights debate, the main aim was to protect citizens against state interference. The reference here was to the nation state and the protection within its borders. The situation has changed fundamentally over time: firstly, international corporations are so powerful that their scope of action reaches often beyond the power of nation states – so it is no longer (solely) about protecting citizens against the encroachments by the state, but also about the encroachments by such companies. Moreover, such companies operate internationally and globally – thus the challenge of the human rights debate is to define responsibility in terms of their ability to transcend national borders and moreover state sovereignty, here taken more or less in the understanding of Max Weber. This is not a question of state responsibility on the one hand and corporate responsibility on the other; rather, the relationship between the two must be considered in new terms. Another aspect is that such international companies often act in a way that makes it impossible to clearly define responsibility: the question here is that international conditions lead to new forms of exploitation that leave nation states little room for manoeuvre in determining their own resources and economic practices. This affects both small countries such as PNG, whose rainforests are ruined, and it also affects the so-called newly industrialising countries, whose industrial development is under considerable, almost blackmailing pressure – it can be said that in both cases the alternative is to accept the blackmail in order to at least combat material hardship for the citizens or to continue to accept considerable hardship, which is then often exacerbated by so-called developmental policies.
Again, looking at the case that employs currently the ICJ, one must ask if the direct polluter – to be determined by a technical definition – is also the polluter in a legal sense. In other words, it must be decided where accountability is to be located. If we assume long chains of action that cause environmental damage (of which air pollution is only one form), then political, political-economic and international aspects of policymaking must be considered.
In conclusio:
- Yes, the ‘no harm principle’ requires states to prevent significant environmental damage to other states, and this principle applies to greenhouse gas emissions the same way as it would to other forms of transboundary pollution.
- No, the application of the traditional ‘no harm principle’ to climate change cannot be rejected as some states argue, suggesting that complex global phenomena like pollution cannot be clearly traced back to individually responsible entities/institutions.
- Yes, this is an argument – but not in favour of avoiding decisions about responsibility. Rather, the challenge must be taken up to finally move the human rights debate beyond the mechanistic worldview of the enlightenment (Locke, Leibniz, Hobbes) and develop a relational understanding. This is undoubtedly a huge challenge. But as the saying goes: Everyone said it couldn’t be done, then someone came along who didn’t know and just did it. – The anniversary must then also be seen as opportunity to move forward by making unknown moves, and doing what is at first glance impossible.
Still, a word of caution.
having stated earlier that
such an initiative, asking for states’ responsibility, must be welcomed in its own right
a word of caution must be added. Environmental issues are complex and as such – nationally and internationally – a topic on the political agenda; as such they cannot be left to the juridical system. The latter aims at resolving conflicts that are clearly defined – part of such resolution is to overcome, not to say “deny” the question of power. Law is supposed to act as the great equaliser. The political agenda, however, is about defining and dealing with power, clearly marking the parties and their different interests. Only then, the the question qui bono can be asked and answered from a juridical perspective.