A Human Right to a Healthy Environment? Moral, Legal and Empirical Considerations

Abstract

This chapter aims to analytically and empirically unpack the question of whether there should be a human right to a healthy environment. The author draws on moral and legal theory in order to examine the premises of the question, reframe it, and offer an answer to it. Building on socio-legal studies of rights, the text explores the potential benefits and costs of using “rights talk” in environmental debates in general, and of adopting the right to a healthy environment in an international legal instrument in particular. The chapter is divided into three sections, each related to one of the main three arguments, followed by a conclusion. In the first section, the text discusses Amartya Sen’s objection to “legally parasitic” theories of rights in order to substantiate the author’s claim that, understood as a moral right, a RHE already exists. In the second section, the chapter reviews the legal evidence and arguments in favor of the existence of such a right in customary international law. In the third section, the text examines the trade-offs involved in the potential recognition of the RHE in an international legal instrument, whether a global treaty or an instrument of soft law.

Keywords: Environment, Healthy Environment, Human Right to a Healthy Environment