Rights & Nature

Abstract

Due to the significant and often careless human impact on the natural environment, there are serious problems facing the people of today and of future generations. To date, ethical, aesthetic, religious, and economic arguments for the conservation and protection of the natural environment have made relatively little headway. Another approach, one capable of garnering attention and motivating action, would be welcome. There is another approach, one that I will call a rights approach. Speaking generally, this approach is an attempt to address environmental issues via the language and theory of legal and moral rights. Ultimately, it is our duties to our fellow humans that explain why we have duties regarding the natural environment. There are three main contenders among theories that can be called rights approaches to environmental issues. The first identifies the (alleged) human right to a healthful environment as the source of our obligations to conserve and protect nature. The second approach has it that our duties to nature arise from the rights of the constituents of nature themselves, its flora and fauna. The third approach to addressing environmental problems via rights is, I argue, the best path to environmental conservation and protection. This approach—which grounds duties toward nature on the human right to health—has the benefits of being a straightforward, uncontroversial, and simple approach to issues and problems that desperately need to be resolved.

Introduction

The idea that our human rights entail duties regarding the natural environment is not particularly new. One of the earliest “official” expressions of the link between environmental issues and human rights came in 1961 with the European Social Charter.¹ Article 11 of the Charter outlines the measures to be taken by members of the Council of Europe in order to uphold the right to protection of health. Nor is this approach to environmental issues unfamiliar. One of the most widely publicized attempts at bringing environmental issues into the human rights realm began in 2005. Sheila Watt-Cloutier, then the Chair of the Inuit Circumpolar Conference (ICC), filed a petition with the Inter-American Commission on Human Rights (ICHR). The ICC’s claim was that the human activities that contribute to global warming constitute human rights violations against the Inuit people and their rights to life, physical integrity, and security.

And yet, while the last several decades have seen many examples of the link between human rights and the natural environment—both in principle and in practice—what is still needed is some disambiguation and comparison regarding the various kinds of rights approaches. This paper is my attempt at meeting this need. I will begin with some remarks about the merits of a rights approach to environmental issues. I will follow with a critique of what I take to be the three most significant examples of such an approach, these being based (respectively) on the right to nature, the rights of nature, and the right to health. And after a consideration of the limitations of two of these rights approaches, I will endorse the third. The result should be a clearer picture of the connections between human rights and environmental issues, as well as a practical recommendation for tackling environmental issues.

So why is a rights approach advisable? What advantages does a human rights approach to environmental ethics have to offer?² First, there is a nice symmetry of scopes. Environmental problems are ubiquitous—there are precious few places on Earth where some environmental problem or other isn’t an issue. And some of the “bigger” environmental concerns (like global climate change) have the potential to affect everybody. Human rights, because they are rights one bears simply by virtue of being human, apply universally. Thus, a human rights approach seems to be an effective way to address issues that affect all humans. Second, notice that both environmental problems and human rights transcend political boundaries. Attempts at dealing with environmental problems on a local, state, or even national level can be ineffective when such problems occur across borders. Dealing with these problems by way of human rights makes it less likely that differences between local laws will stall progress on the environmental front. Third, human rights (in principle, anyway) correspond to our most stringent legal and moral imperatives, as well as to our most cherished and valued norms. Environmental issues are among the most pressing we face today. It is therefore reasonable to believe that among the imperatives and norms reflected by human rights ought to be those involving our relations with and effects on the natural environment. Fourth, a human rights approach to environmental problems is a good way to get people concerned and involved. Human rights are more likely to be felt personally than are, for example, arguments and data from ecologists. Thus, people are more likely to be motivated to address environmental issues when these issues are put into human rights terms. Fifth, to address environmental problems via human rights is to treat these issues with the appropriate degree of significance. To take this approach is to recognize (as we should) the importance of our natural environment and the problems that threaten it. Indeed, as Michael Anderson has written,

…a human rights approach is a strong claim, a claim to an absolute entitlement theoretically immune to the lobbying and trade-offs which characterize bureaucratic decision-making. Its power lies in its ability to trump individual greed and short-term thinking (Anderson 1996: 21).

Sixth, and finally, approaching environmental issues via human rights allows one to build on the common ground—modest in acreage though it may be—occupied by environmentalists and human rights advocates. “There is,” says Anderson (ibid: 2–3), “an increasing tendency for environmentalists and human rights activists to work together toward common goals.” Thus, for example, both groups might campaign for the protection of an area of rainforest—one on the basis of its inherent value and the other on the basis of its role relative to the right to a healthful environment.³

The Right to Nature

The first view to consider is the one which tells us that our duties regarding nature stem from the human right to a healthful environment. This idea has been put in many different ways—as the right to a clean environment, to an adequate environment, to an environment suitable for the development of the person, and simply as an environmental right. Despite the various designations, the notion common to all is that humans have a right to nature of a certain sort, a sort that can be succinctly and fairly accurately put using the adjective “healthful.” The World Health Organization (WHO) supports this way of thinking, as is evident from the statement it made in December of 2001:

Human rights and sustainable development are intimately linked, especially as concerns the health aspects. The right to health and indeed to life cannot be achieved without basic rights to a safe and healthy environment, including water, air and land; and to the life-supporting systems that sustain life on earth for future generations. (Fabra 2002: §1, my italics)

The Center for International Environmental Law (CIEL) also recognizes a right to a healthful environment. The CIEL’s Human Rights and Environment Program aims to “strengthen human rights law as a whole by elaborating its environmental dimensions,” and this includes “[a]chieving recognition of new rights, such as the right to a safe and sustaining environment …” (CIEL 2012).

Other writers have acknowledged the right to a healthful environment. Barbara Rose Johnston, in her contribution to the “Human Rights and Environment” special issue of the journal Human Ecology (Johnston 1995), speaks at some length of human environmental rights abuses. And if she believes there can be human environmental rights abuses, she must believe there is a human environmental right. Anderson (1996) argues that nothing short of a human right to environmental protection is needed in order to adequately deal with the environmental crises we face today. Hayward (1994, 1998, 2005) has argued similarly, supporting the notion that we have a “…‘right to an environment adequate for (human) health and well-being’, a substantive environmental right which involves the promotion of a certain level of environmental quality…” (Hayward 2005: 29). It is Hayward’s belief that this right should “receive express provision in the constitution of any modern democratic state” (ibid: 1).

What, then, are some considerations in favor of this position? Why regard the right to a healthful environment as one of our human rights? One consideration centers on this claim:

• (A) The right to a healthful environment meets the criteria for a genuine human right.

Among the criteria indicated in (A), suggests Hayward (2005: 47–49), are importance and applicability. Human rights protect those human interests which are supremely important, and environmental concerns seem to fit the bill. Human rights also apply universally—that is, to every human. Once again, the right to a healthful environment meets this criterion, as the “…interests it is intended to protect are common to all humans…” (ibid: 48).

Other considerations in favor of this view come from Boyle (1996). The first is this:

• (B) The right to a healthful environment puts environmental quality on par with other economic and social goods. (49)

This means, suggests Boyle, that environmental quality could gain priority (in certain situations) over other goods, such as those indicated by the rights to housing and to social services. Boyle offers another, related point:

• (C) The right to a healthful environment “…would recognize the vital character of the environment as a basic condition of life, indispensable to the promotion of human dignity and welfare, and to the fulfillment of other human rights.” (49)

This is to echo the WHO’s and the CIEL’s statements (quoted above) of the significant part the natural environment plays in a good human life.

A final consideration comes from Anderson (1996: 8–9):

• (D) The right to a healthful environment is the only human right capable of generating the requisite kinds of environmental protections.

Other human rights, claims Anderson, lack the precision necessary for dealing with pressing environmental issues. They are “clumsy tools” for the task required (i.e., environmental protection) because, since they are meant to address other issues, they approach it “obliquely.” Thus, a right related directly to the environment is called for.

In response to (A), consider the proposal that humans have a right to sleep.⁴ Like a healthful environment, one might say, sleep is something essential to the well-being of humans—all humans, as a matter of fact. And because these are the criteria for a genuine human right, we should count the right to sleep as one of our basic human rights.

Granted, sleep is important. However, cautions J. G. Merrills, “[i]n deciding whether new rights should be acknowledged, it is important to take account of what is already in place” (Merrills 1996: 30). There are, he suggests, existing rights that cover the importance of sleep, including the rights against torture and to adequate working conditions. And while the importance of sleep is acknowledged in these existing rights, they do not entail a new right, the right to sleep. One point to make, by way of an analogy to the environment, is that there might be existing rights that are capable of affording environmental protection. But this is a point I’ll need to say more about below. For now, the lesson is this: importance (whether of the natural environment or of sleep) and universality by themselves seem insufficient for bestowing rights status.

Concerning (B), the following worry arises: when the right to a healthful environment is on the same level as other social and economic rights, new rights conflicts arise. What is to be done when, for example, a community’s housing needs threaten its natural environment? How do we decide between affordable housing and a wetland ecosystem—between short-term and long-term benefits? The problem here lies in weighing goods against one another in order to adjudicate in cases of conflicting rights, and it is not entirely clear how to achieve the correct evaluation. To my mind, a rights approach to environmental ethics that avoids these kinds of conflicts—or at least holds more promise for an uncomplicated resolution—would be preferable.⁵

My response to (C), about which I will say more below, is simply this: I have no doubt that (C) is true. However, I doubt that recognizing a right to a healthful environment is the only way to “recognize the vital character of the environment as a basic condition of life.” Another way, perhaps, would involve gaining a clearer picture of the ways in which humans rely on the natural environment for health and well-being and to incorporate that picture into our understanding of an existing right. As such, I am not sure that this is a helpful consideration for just the view in question. Again, I will say more about this in what follows. For now, we are led to the final consideration, (D).

When Anderson claims that adequate environmental protection is only possible in light of a right to a healthful environment, he seems to ignore the many changes and gains made by international organizations in the last few decades. The environment is no longer of legal or moral concern only in cases of property rights, as it once was. There are many examples of international conventions and the treaties they generate treating environmental damage as matters of common—i.e., global—interest.⁶ This is an indication of the changing scope of human rights law and theory. The addition of a right to a healthful environment, suggests Boyle (1996: 53), would be redundant. The only gain he predicts would relate to rhetorical force. In short, it seems to me that (D) is simply wrong.

Thus, because I think there are serious obstacles involved in thinking of a healthful natural environment as a good to which humans have a right, I do not think that this type of human rights approach to environmental ethics is the most promising. If that is correct, then what are the alternatives? There are two more views on the table, views that avoid the problems described above.

The Rights of Nature

The next view to consider is the one according to which our duties to nature arise from the rights of nature.⁷ On this view, humans are not the only beings capable of bearing rights. Certain non-humans have rights too, and these rights correspond to duties on our parts. Just which non-humans bear rights, and on what basis they do so, is a matter of considerable debate. In an effort to more easily approach the horde of topics related to this view, I will split my discussion into two parts. First I will discuss the topic of animal rights⁸; then I will turn to the topic of non-animal (and non-human) rights—i.e., the rights of plants, rivers, landscapes, and other “natural features.” My aim here is not so much to offer a full analysis of the view (or its opponents) as it is to indicate where the problems with the view may lie so that I might motivate the reader toward what I think is a less problematic view. But first things first—a sketch of the two parts of the rights of nature view.

Tom Regan is probably the most prominent of those who believe that certain animals have rights (“animal rightists,” as they’re sometimes called). His book The Case for Animal Rights (1983) was the first to lay out a sophisticated animal rights position. Regan’s view can be regarded as stemming from this assumption: “No serious moral thinker accepts the view that animals may be treated in just any way we please” (Regan 1983: 150). There are constraints, he goes on to say, that apply to our treatment of animals, and although not everybody agrees on the exact nature of these constraints, everybody agrees that such constraints exist.⁹

Of course, saying that there are constraints on our dealings with animals and saying that animals have rights are two different things. Regan’s case for animal rights begins with a rejection of several different views. First, he rejects any view that tells us that our duties to animals are indirect. Such views—including contractualism and Kantian deontology—aim to exclude animals from any account of direct moral obligation and yet seek to afford them some sort of moral consideration or standing. Regan then turns to theories that involve direct duties to animals, and utilitarianism is the principal target of his criticism. Utilitarianism, he says, fails to provide an acceptable account of our duties to animals because it regards individuals as “receptacles” of intrinsic value (satisfaction, happiness, pleasure, e.g.). Regan does not deny that experiences of pleasure and preference-satisfaction are valuable—he simply denies that this is all there is to say about an individual’s value. Individuals, quite apart from their intrinsic value (that is, the value derived from their pleasure or preference-satisfaction) are inherently valuable. It is on this value that our duties are based.

But that is to explain why Regan thinks that inherent value exists; what does he think inherent value is? He explains this value in terms of consciousness and welfare, desires and preferences, suffering and existence. A sufficient condition for having inherent value is, to use Regan’s term, to be a subject of a life. Inherent value is the value a being has when it experiences its welfare, preferences, beliefs, expectations, suffering, and satisfaction, and the rest of life’s dimensions. Such, says Regan, is true of many of us with inherent value, and it is these similarities that matter for our assessment of individual value. Thus, by rejecting indirect-duty views of our obligations to animals, and by adopting the view that all human individuals have inherent value (a product of his rejection of utilitarianism), Regan puts himself in a position to say something about the value of individual non-human animals. Some possess beliefs and desires; some have perception, memory, and a sense of the future (theirs included); some have emotions, interests, and the ability to act in pursuit of their goals; and some have a sense of their own identity, which endures over time. When an individual, whether human or animal, possesses these faculties and abilities, that individual is said to be a subject of a life. And “[t]hose who satisfy the subject-of-a-life criterion themselves have a distinctive kind of value—inherent value—and are not to be viewed or treated as mere receptacles” (Regan 1983: 243).

The possession of inherent value, argues Regan, is an all-or-nothing sort of thing. There are no degrees of inherent value. To think otherwise is to allow for injustice. That is, “… to ensure that we do not pave the way for such injustices as slavery or sexual discrimination, we must believe that all who have inherent value have it equally, regardless of their sex, race, religion, birthplace, and so on” (Regan 1985: 21). Moreover, few would claim that humans with severe mental disabilities or humans in comas are less inherently valuable than the rest of us. To present a lack of reason, autonomy, or intellect as the basis for unequal treatment, therefore, is insufficient. Certain non-human animals possess deficiencies similar to those possessed by certain humans, but we do not deny that all humans are equal with respect to inherent value.¹⁰ Neither should we regard non-human animals as possessing “less” inherent value than we do. Thus, all individuals are equal with regard to their inherent value. In addition, the possession of inherent value calls for respect. Why? Because failure to show respect for another’s inherent value is to act immorally. That is, given the inherent value postulate, it follows that we moral agents are called on to respect that value. Says Regan, “[i]f individuals have equal inherent value, then any principle that declares what treatment is due them… must take their equal value into account” (Regan 1983: 248). The Respect Principle is such a principle, instructing us as it does to treat with respect those beings possessing inherent value, subjects-of-a-life.

In this way, Regan moves from inherent value to an obligation to respect that value. So how do we arrive at a talk of rights? It is Regan’s analysis of rights that bridges the gap between respect and rights. Rights are, on his view, valid claims—claims against others and claims to things owed. Moreover, “[t]o make a claim is a performance; it is to assert that one is oneself entitled, or that someone else is entitled, to treatment of a certain kind and that the treatment is due or owed directly to the individual(s) in question” (Regan 1983: 271).¹¹ The sort of treatment being talked about here is respect for an individual’s inherent value. And because a subject-of-a-life has both a valid claim to respectful treatment and against others (that they respect that individual’s value), subjects-of-a-life can be said to have basic rights to respectful treatment. This includes, of course, all subjects-of-a-life, whether human or animal. By virtue of our inherent value, we have the fundamental right to be treated respectfully—and the same goes for animals.

Now, suppose that one wished to extend this talk of rights to other parts of the natural world—say, to trees, mountains, or lakes. How might one go about articulating such a view? Regan seems to have indicated this direction when he discussed the implications of his animal rights view. In a section entitled “Rights and Environmental Ethics: An Aside” (Regan 1983: 361), Regan expressed his doubts about the effectiveness of approaching environmental issues by way of a rights view. “The difficulties,” he says, “include reconciling the individualistic nature of moral rights with the more holistic view of nature emphasized by many of the leading environmental thinkers” (ibid: 361). In this context, Regan refers to Aldo Leopold and the holism evident in his view. Regan’s worry is that on such a view, an individual that becomes a threat to the integrity of an ecosystem must be eliminated for the good of the ecosystem. How, he wonders, could a rights view fit within this type of environmental ethical view, which Regan dubs “environmental fascism” (ibid: 362)? Regan is pointing out a basic conceptual difficulty arising from a consideration of individual value alongside the value of wholes (collections of individuals). Suppose that according to my preferred environmental theory, the ecosystem and its continued natural functioning are of ultimate value. It would seem likely, then, that in the event that a population of animals grew too large for natural functioning of the ecosystem to continue, the population would need to be “controlled.” If the local deer population, for example, were to grow to such a level that increased competition for scarce resources, habitat destruction, and starvation resulted, it would be perfectly within the bounds of my moral theory to implement a system of population control (such as an annual deer hunting season). But how would one reconcile the permissible—and, indeed, obligatory—program of population control with the individual rights of those deer facing death or injury at the hands of the hunters?

One answer, of course, has to do with the fact that not all environmental ethical views are holistic views. True, Leopold’s is among the most well-known and influential of all environmental ethical views, but it is just one example of one type of view. There are individualistic environmental ethical views—like Harley Cahen’s and Paul Taylor’s¹²—that don’t involve the difficulties Regan laments. Another answer involves showing how collections of things (like forests or ecosystems) can bear rights. That is, offer an account of rights that doesn’t maintain that only individuals can have rights—one which recognizes the rights of, for example, corporations or nations. A third alternative is to do both—that is, offer an account which, although individualistic from most perspectives, leaves room for the rights of wholes (like species, corporations, and forests).¹³ Such, I take it, is the view of Christopher D. Stone.

In 1972, in reaction to an earlier proposal by Walt Disney Enterprises to build a massive ski resort in the Mineral King Valley of the Southern Sierra Mountains, Stone wrote an essay that pushed the edges of both the legal and philosophical envelopes. It was entitled “Should Trees Have Standing?” and its central claim was that our moral and legal systems ought to include various aspects of the natural environment as bearers of certain rights. In a later publication of his 1972 essay, Stone wrote, “I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called “natural objects’ in the environment—indeed, to the natural environment as a whole” (Stone 1974: 9). Recognizing the fact that many would regard this idea as unthinkable, Stone was quick to point out some other instances (once unthinkable too) of rights-attainment¹⁴—those of women, children, Jews in the thirteenth century, and Chinese in the nineteenth century, e.g. (Stone 1974: 6–7).

Stone’s view stems from the idea that natural objects stand in need of protection because they can be injured. According to Roderick Nash,

What made Stone’s 1972 proposal remarkable in American environmental and intellectual history was that it defined “injury” not merely in human terms but with regard to nature…. Stone argued in all seriousness that trout and herons and cottonwood trees should be thought of as injured parties in a water-pollution case…. In effect this gave natural objects absolute rights comparable to those inalienable ones used to justify the American Revolution. (Nash 1989: 129)

Stone seems to be saying something relevant to interests. That is, he seems to be relying on the notion that in order to be injured, something has to have interests that can be either satisfied or frustrated. This is not an unfamiliar notion as far as animals are concerned, but it is rather uncommon in connection to non-conscious entities. To injure something—whether an animal or a plant—means to frustrate or somehow act contrary to its interests. And the fact that trout and herons and cottonwood trees cannot themselves take legal action did not bother Stone, for the notions of custody and guardianship are well-known in our legal system. Noted Stone, “[c]orporations cannot speak either; nor can states, estates, infants, incompetents, municipalities or universities” (Stone 1974: 17). In addition, claimed Stone, natural objects are capable of being beneficiaries. Stone imagines a lake being awarded damages. “The natural object’s portion could be put into a trust fund to be administered by the object’s guardian…,” he suggests (Stone 1974: 33). Thus, an analysis of the history and language our legal system, believed Stone, reveals no insurmountable obstacles to our viewing natural objects as rights-possessors.

Of course, Stone could be wrong—and plenty of people believe that he is. One such person is Mark Sagoff (1974). In response to Stone, Sagoff scoffed at the idea that one could know the wants of natural objects. His challenge was aimed at Stone’s alleged ability to know the preferences of natural objects like trees and mountains. Why assume that a valley doesn’t want to be developed, Sagoff wondered. “Environmentalists always assume that the interests of [natural] objects are opposed to development. Why wouldn’t Mineral King want to host a ski resort, after doing nothing for a billion years?” wondered Sagoff (1974: 222). Who, in other words, is the best judge of the wants of nature? Is it so obvious that it is not developers?

Another objection, though not aimed specifically at Stone’s view, comes from Francis Sparshott (1983). He considered the question of whether works of art have rights, and this question seems to have much in common with the question of nature’s rights. In describing what might tempt him to regard artworks as bearing rights (a temptation he ultimately resists), Sparshott appeals, like Stone, to the idea of injury. We might take the possibility of a work of art’s being injured as reason to recognize its right (presumably, its right not to be injured). However, talking about an artwork being injured (or, related, as having interests) strikes Sparshott as metaphorical—and treating metaphorical claims as truth-indicating is oftentimes a mistake. Along similar lines, it might be thought that personifying works of art would be sufficient (and at least necessary) for establishing them as rights-bearers. This, however, raises the ever-troubling task of identifying the criteria for personhood. It is not clear on what bases works of arts could be considered persons, especially as it seems inappropriate to speak of interests or autonomy in relation to artworks (and, perhaps, to certain natural objects). And although there is a clear sense in which a work of art can be injured (torn, burned, stained, etc.), this is not an obviously moral sense of the term. It is easy to imagine how a work of art might be damaged—it is not so clear that in those cases the art is harmed. Thus, it is not clear on what basis the personification would proceed.

Having some reason to doubt the feasibility of one part of the rights-of-nature view, let us turn to the other part, back to Regan and his suggestion that (certain) animals have rights. There are a few elements of Regan’s account at which one might profitably level an attack. One of these has to do with the claim Regan makes about the value of subjects of a life. Peter Carruthers (1992) has focused his attention here, and for the sake of brevity let me summarize his objection as follows. Regan, when he speaks of the value of subjects-of-a-life, is either giving us “a form of sophisticated intuitionism” (Carruthers 1992: 21) or an incomplete account of the moral principles we ought to follow. Either way, Carruthers is not satisfied.

Carruthers also objects to Regan’s rejection of contracualism, claiming that “…Regan seriously underestimates the resources available to contractualists, through which they can explain how all human beings should be accorded the same basic moral rights, whatever their mental capacities” (Carruthers 1992: 101). Of the resources he has in mind, the most promising seem to involve a kind of slippery slope argument and an argument from social stability.¹⁵ With these, Carruthers intends to show that contractualism need not discount the rights of marginal humans, as Regan believes it must. Of course, I cannot claim with certainty that Carruthers is correct. To assess and compare his and Regan’s views with a sufficient degree of accuracy would require a separate (and very interesting) paper. But I do think that enough doubt has been cast on Regan’s view—and on the rights of nature view in general—to warrant a search for a less problematic rights approach to environmental issues, one more likely to garner support and motivate action.

The Right to Health

We have now one view left to consider, the one according to which our obligations regarding nature arise from the human right to health. I am not now speaking of the right to a healthful environment, the details and difficulties of which were discussed above. I am speaking about one of our human rights—the right to pursue or maintain a state of health. I do not think of this right—though I recognize that some others do—as a right to some good or object. I regard this right as one that protects our pursuit and maintenance of health—in a word, a negative right.

Health is one of the necessary conditions for human purposive action. And while optimum health might not be necessary for leading a good human life, the farther away one is from being optimally healthy, the more difficult it becomes to achieve the goals we select for ourselves; the more difficult it becomes for purposive action to occur at all.¹⁶ Thus, in order to lead “fully human” lives (i.e., lives that accord with human nature), health is required. The concept of health that I have in mind encompasses quite a lot. Put concisely, health is a state of physical, mental, and social well-being, as well as a state of fitness sufficient for negotiating changes in one’s natural and social environments. It is the pursuit of such a state to which each of us has a right.

Or so I claim. What reasons are there for thinking that such a right exists? One reason is that such a right is already so widely acknowledged. Consider how the notion that each of us has the right not to have our health threatened by the actions of others is reflected in our laws. It is illegal for employers to allow (or force) employees to work in unsafe conditions. The Occupational Safety and Health Administration (better known as OSHA), created in 1971 by the US Department of Labor, conducts tens of thousands of inspections every year to protect the health and safety of workers in America.¹⁷ The idea also figures prominently, if not obviously, into such controversies as the genetic modification of foods and the mandatory vaccination of children. The debates over the genetic modification of foods temper the potential benefits (e.g., having to do with improved flavor and increased resistance to insects) with concerns about potential health risks. The concern is that genetically modified foods may prove to be allergens, or, worse, catalysts for chronic conditions such as cancer. And some of those in favor of preventing children who have not received immunizations from being enrolled in school believe—counter-intuitively, perhaps—that non-immunized children pose a health threat to immunized children. A belief that helps to motivate both debates is the belief that, all things being equal, people’s health ought not to be threatened by the actions of others.

Another forum in which the negative right to health finds support is the controversy over the right to smoke tobacco. While there are some who think that we have a right to smoke tobacco (the members of the UK’s Tobacco Advisory Council, for example), there are more who think that the right to breathe clean air trumps any purported right to smoke. One reason for thinking this is that breathing non-polluted air is a necessary condition for flourishing. Smoking is not. The United States Surgeon General has asserted that “[t]he right of smokers to smoke ends where their behavior affects the health and well-being of others.” (US DHHS 1986: xii) Norman Daniels has put it rather more frankly, saying that “[j]ust as I have a rights claim against those who would punch me in the nose, so too I have one against those who would batter my lungs.” (Daniels 1985: 151) I agree with Robert Goodin when he writes: “I take it that the rights-based argument can be settled, presumptively at least, in favor of the non-smoker.” (Goodin 1989: 599)

Let the preceding serve as a kind of argument in support of the claim that there is a negative right to health—or perhaps as a couple of kinds. In one light, the fact that working conditions, genetic modification, immunization, and smoking are topics of debate is best explained by human possession of a right to health (and a corresponding duty not to harm needlessly). We have, then, an argument from the best explanation for the conclusion that there is (and that humans possess) a negative right to health. In another light, the fact that these debates rage can be utilized to construct a reductio argument. If there were no such right, one might not expect to see these issues debated, nor would one expect to hear appeals to rights and duties within each debate. But since these issues are clearly the subjects of ongoing debate, there must be such a thing as a human right to health.

Supposing, then, that one of our human rights is a right to health, we must now ask, “What sorts of duties relating to the natural environment follow from the right to health—and can these serve as an adequate approach to environmental issues?” By my lights, if the right to health entails an adequate set of duties regarding nature, then it is the obvious front-runner among rights approaches to environmental issues. And while I cannot at present provide a full account of what an “adequate set” means in this context, I can sketch a picture of the duties toward nature that our right to health entails. The thing to do here is to think of all the ways that human health depends on the natural environment. Human dependence—particularly with respect to health—on the natural environment can be underlined in numerous ways. I will mention three. The first involves ecosystem goods that relate to our basic needs, including our need for food, water, and air (I ignore shelter here). These goods are of fairly obvious importance to human health. And if human activities—those leading to soil erosion, water and air pollution, for example—thwart the environment’s ability to provide us with these goods, those activities should be regarded as rights violations. (It is worthwhile to note that considerations of just this sort have already led to changes in the world of animal agriculture. As production in factory farms rises, the rates of infectious diseases rise in association with the increase in antibiotic-resistant microbes. In response, the World Health Organization, the American Medical Association, and the American Academy of Pediatrics—to name but a few groups—have called for restrictions and greater regulations of antibiotic use in livestock (Sayre 2009). This is the sort of change that can come about when human health is the concern—the kind of change that can indirectly address problems of erosion, pollution, and non-human animal cruelty).

The second dimension of our dependence on nature has to do with nature’s usefulness from a medicinal or pharmacological point of view. The fact is that human dependence on the natural environment for medicines, therapies, and remedies (including cues from non-humans) extends very far back in time, probably to the very emergence of the modern human. But habitat destruction (affecting both non-human species and indigenous humans), clear cutting (of, for example, rainforests), and poor wildlife management (resulting in extinctions) reduce biodiversity. And such a reduction hinders discovery and advancement in medicine. Again, those human actions which result in the destruction of potentially (medically) useful portions of nature should be viewed as rights violations.

And the third dimension involves the part nature plays in our social and mental development. Social and mental well-being ought, I think, to be regarded as ecosystem goods alongside potable water and medicines. This I base in part on the fact that a growing numbers of researchers believe that environmental damage, biodiversity loss, and habitat destruction have serious implications for both human health in general and child development more specifically. For example, it is clear that exposure to and familiarity with nature helps bolster children’s resilience against adversity. Spending time in one’s natural environment can be effective in helping one deal with stress, anxiety, and depression. The development of such things as creativity and imagination seems to depend on (or, at least, be positively affected by) exposure to nature. Even such things as sensory development, cultivation of empathy, and skills related to observation and classification seem to develop more readily and completely in children who spend time outdoors (Louv 2005: 72f). Clearly, then, the destruction of nature frustrates an important aspect of human health, and ought therefore to be viewed as an affront to our right to health.

Against what I am saying here, it might be claimed that an approach to environmental problems based on the human right to health—or human rights in general, or on any purely human interest—fails to generate the kinds of duties required by any adequate environmental ethic. To this sort of objection I would point out the many parallels between the kinds of environmental duties indicated by various ethical theories and those entailed by the right to health.¹⁸ Taking the human right to health seriously involves abstaining from actions that would thwart a person’s attempt at achieving or maintaining a state of health. Thwarting of this sort can be achieved in many ways, including the disruption of the ecosystem services and goods we rely on. It seems to me that the practical consequences of this duty involve many of the same obligations imposed by other ethical views, individualistic and holistic alike. In light of the Utilitarian duty to maximize good, we ought to refrain from supporting factory farms. (See Hare 1999.) In light of what the Virtue Ethicist tells us about the cultivation of virtues, we ought to avoid indifference toward nature. (See Sandler 2007.) And in light of what the likes of Leopold (1970) and Callicott (2008) regard as the loci of value in nature, we ought to preserve ecosystems, protect species, and eliminate farming practices that lead to erosion, depletion of soil fertility, and water pollution. Insofar as these obligations bear on nature’s healthfulness, the right to health requires that we observe them.

Thinking in terms of ecosystem goods is helpful, I think. Doing so means that we can identify some objective thresholds in order to better characterize, prevent, and respond to violations of the right to health. Recall our need for goods like air, water, and food. It does a human no good to take in toxins, of course—so how can we put a number to this need? In the case of air, the Environmental Protection Agency (EPA) has defined the standards for air quality monitoring (described in the Air Quality Index (AQI) with the help of color coding). These standards guide the assessment of air quality by state and local agencies all over the United States. In the case of water, the EPA has outlined standards for water to be consumed by humans based on health-related and aesthetic considerations. And the Total Maximum Daily Load (TDML)—measured, again, by hundreds of state and local agencies, as well as regional EPA offices—describes a value of the maximum amount of a biological, physical, or chemical pollutant that a body of water can receive while still meeting water quality standards. In the case of soil (which is essential in the production and support of much of the food we consume), quality is measured in terms of what we want or need soil to do. “Healthy” soil performs many important functions, including sustaining plant and animal life, filtering potential pollutants, and cycling nutrients (NRCS 2012). Understanding what functions we rely on, then, can serve as the basis for determining which actions threaten soil health.

In the interest of setting objective thresholds in view, then, let me propose that the numbers and measurements relating to air, water, and soil quality could serve not just as indicators of potential health threats; they might also serve as standards for monitoring and judging the actions of factories, businesses, individuals, and other possible polluters (read: rights violators). In the case of nature’s pharmacological usefulness, we ought to call for some strong protections of biologically rich areas. Given the unknown—and potentially vast—amount of valuable knowledge to be found in nature, the preservation of anywhere from 25 to 50% of each of the Earth’s different habitat areas (ocean, freshwater, desert, rainforest, etc.) seems appropriate.¹⁹ And knowing what we now know about the benefits to social, emotional, and mental development to be gained from exposure to nature, it strikes me as sensible to call for limits on how remote natural areas²⁰ may be from residential areas. Ensuring that one’s access to nature does not require great amounts of effort, time, or money may well involve setting guidelines in terms of miles—or better, yards.

Together these considerations drive home the idea that the effects of environmental degradation can be seen at the level of human health. As such, our dealings with the natural environment ought to be viewed as involving the potential for human rights violations. And with our dependence on nature clearly in mind, concrete limits can be placed on potential rights violators. One can, therefore, make a worthwhile approach to environmental issues from the perspective of the human right to health. It is an approach that involves a widely accepted, relatively unproblematic, and important right; one that is likely to garner interest and support toward, it can be hoped, a brighter future for both human health and the natural environment.