Environmental Rights Research Paper

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The term environmental rights can refer to substantive rights to live in a healthy environment, which entails access to unspoiled natural resources (e.g., air, land, water) necessary for survival; procedural rights allowing for access to environmental information, public participation in decision-making that affects (or has the potential to impact) the environment, and access to remedial procedures (i.e., redress before judicial authorities); or ecological rights – rights for the environment based on notions of nature’s intrinsic value, rather than its utility to humans. Substantive environmental rights and procedural environmental rights both reflect an anthropocentric (or human-centered) perspective – one that views nonhuman nature instrumentally, that is, “as something to be appropriated, processed, consumed, and disposed of in a manner which best suits the immediate interests of human beings” (Halsey and White 1998:349). The notion of environmental rights as ecological rights reflects a biocentric perspective – one that holds that “non-human species have intrinsic value, that is, they possess a moral worth and will continue to have moral worth no matter how insignificant human beings conceive their existence or ‘use value’ to be” (Halsey and White 1998:352 (emphasis in original)).

Whether environmental rights include one or all of the above definitions (or some other conception of environmental rights) depends on how the notion of rights is understood.

Rights are ethical, legal, moral, or social principles of freedom or entitlement. They are interests or expectations guaranteed by an ethical, moral, or philosophical theory; a legal system; or social convention. Any discussion of rights – and any discussion of environmental rights – must begin with a consideration of the source of those rights.

An overview on sources of rights is provided below (Part II). This is followed, in Part III, by a consideration of sources of environmental rights (which depend on the denotation of environmental rights as substantive rights, procedural rights, or ecological rights). Part IV examines relationships between different “sectors” of rights, including examples where environmental rights overlap with or are encompassed by human rights (and vice versa), as well as instances where environmental rights conflict with other sets of rights. Part V explores bidirectional linkages between environmental degradation outside of/independent from environmental rights discourse and analysis.

Different Perspectives On Sources Of Rights

Legal rights are rights guaranteed by law. In other words, they are rights that particular laws classify as rights. They can be considered rules pertaining to what a state’s people are allowed or entitled to do and impose a corresponding duty on someone (usually, an agent of government) to ensure that the activity, interest, or expectation granted by the right is not infringed upon or otherwise abridged. Civil rights and political rights are types of legal rights. Usually set forth in a state’s constitution or statutes, both civil rights and political rights protect individuals’ freedom from unwanted and unwarranted encroachment by governments and private entities (such as freedom of assembly, religion, and speech). They also ensure one’s ability to participate in the establishment or administration of the state without discrimination or repression (such as the right to vote and the right to hold public office). Civil rights and political rights that permit or oblige action are often referred to as positive rights (such as the right to counsel or rights to food, housing, and public education), whereas civil rights and political rights that permit or oblige inaction are frequently called negative rights (such as freedom of speech or freedom from slavery). Acquired rights – rights that a person procures (such as the right to own property, the right of first refusal, riparian rights, or a right of way) – constitute other forms of legal rights. Regardless of the category, sub-category, or type, legal rights are those that particular laws happen to classify as rights; therefore, the existence and facticity of all legal rights depend on the society in which they are enacted (Beirne 1999, 2007). As such, because legal rights depend on a specific societal context to have meaning and force, they are culturally and politically relative (although the extent of their relativity depends on whether the legal rights in question are the product of a state’s constitution, statutes, or courts or a multilateral treaty, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)).

Natural rights are rights that are conceived of as principles that derive from universal conceptions of human nature or divine justice, rather than from legislation or judicial action. As such, natural rights are thought to apply to all people and to exist independently of rights created by a government or society (although these rights define the moral function of society and the protection of these universal principles is considered to be the purpose and touchstone of every society or government). Accordingly, natural rights (often referred to as moral rights or inalienable rights) are rights that cannot be transferred or surrendered (such as the right to liberty and the right to life).

Theories of rights can also find their base in ethics or moral philosophy. For example, utilitarianism holds that the proper course of action is the one that maximizes “happiness” – which is understood as the predominance of pleasure over pain. Under utilitarian doctrine, political/governmental decisions should be based on promoting the greatest happiness of the greatest number of persons, rather than on abstract individual rights. (Thus, the utilitarian principle of maximizing the total net sum of happiness stands in contrast to natural rights theory.) Utilitarians (such as the nineteenth century Jeremy Bentham and the contemporary Peter Singer) argue that because nonhuman animals possess the capacity for suffering, their interests, like those of humans, must be considered; the theoretical framework of rights is not necessary for considering nonhuman animals’ interests. Despite the fact that Singer rejects the idea of rights – arguing that the capacity to feel pain is sufficient to consider nonhuman animals’ interests – his book, Animal Liberation (1975), is considered, by many, to be a (if not the) seminal text of the animal liberation movement.

Finally, it is important to recognize that these sources of rights are not mutually exclusive. For example, human rights – commonly understood as rights to which all human beings are inherently entitled – may exist as natural rights or as legal rights in international law (e.g., in the form of treaties, such as the ICCPR and ICESCR; as customary international law) or in national law (e.g., the United Kingdom’s Human Rights Act of 1998). The relationship of human rights and environmental rights is explored further below.

Different Perspectives On Sources Of Environmental Rights

As noted at the outset, the term environmental rights can be used to denote substantive rights (e.g., the right to a healthy, clean environment), procedural rights (e.g., freedom of information, the right to participate in the decision-making process, remedial measures), ecological rights (e.g., the right of species other than humans to survive), or some combination thereof.

The following three illustrations serve to demonstrate how the source of environmental rights will depend on the denotation of environmental rights:

  1. Substantive environmental rights may exist as natural rights or as legal rights.

The right to life can be conceived of as a natural right – one that is not contingent upon the beliefs, customs, or laws of any particular culture or government. If the right to life is conceived of as a natural right and if the right to life is interpreted to include the right to a clean environment (which, as noted above, is an example of a substantive environmental right), then substantive environmental rights or, at least, this substantive environmental right – the right to a clean environment – can be said to exist as a natural right.

The right to life can be conceived of as a legal right. Article 21 of the Constitution of India guarantees every individual the right to life and liberty. The Supreme Court of India ruled in the case of Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420, 424, that the right to life in the Constitution included the right to the enjoyment of pollution-free water and air. If the right to life is conceived of as a legal right and if the right to life is interpreted to include the right to the enjoyment of pollution-free water and air (a substantive environmental right), then substantive environmental rights or, at least, this substantive environmental right – the right to the enjoyment of pollution-free water and air – can be said to exist as a legal right.

  1. Procedural environmental rights are legal rights.

On an international level, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (usually known as the Aarhus Convention) grants rights to the public regarding access to information, public participation, and access to justice in governmental decision-making processes regarding matters pertaining to the local, national, and trans-boundary environment. Most US environmental law, to take a national example, grants administrative agencies significant discretion in setting standards and enforcing them, and provides interested parties with the opportunity to engage with these agencies to determine the implementation of the laws. This engagement may include critiquing environmental impact statements (that are required for actions or projects in which the federal government is involved), commenting on proposed regulations, participating in scientific advisory committees, providing data and information for agencies, and testifying at administrative hearings.

  1. Ecological rights are (simply) rights, but can be implicated in issues regarding legal rights.

Ecological rights are rights of the ecosystem of the Earth apart from and beyond human purpose. Because ecological rights reflect the biocentric perspective that every form of life has value regardless of its worth to human beings and because most national and international environmental law utilizes an anthropocentric, utilitarian approach to nature wherein nature is considered for its instrumental value to humans (Halsey and White 1998:351; Lane 1998:244) – ecological rights cannot be considered as deriving from any of the sources listed above (e.g., from natural rights, which are universal, but only to humans). Rather, ecological rights are simply rights – “above all the right to a continued existence unthreatened by human activities – attached to non-human species, to elements of the natural environment and to inanimate objects” (Miller 1995:375).

Although ecological rights do not derive from natural rights or legal rights, issues regarding the rights of animals other than humans and ecosystems arise when the natural environment (or some component thereof) is threatened by human activity, but the harm or potential harm to humans is minimal or nonexistent. Consider the following:

(a) In the United States, animals other than humans and trees do not have standing (a right to make a legal claim in court). Despite arguments that animals other than humans, forests, oceans, and the natural environment as a whole should be bestowed with rights (see, e.g., Stone 1972, 1985, 2010), humans cannot “speak for the trees.” Because nonhuman life cannot literally commence legal proceedings by itself, a human must act in its stead. But a person bringing a lawsuit on behalf of nature must, under US law, be able to demonstrate a tangible and particular harm to himself or herself (see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)).

(b) Numerous countries have supported the Universal Declaration on Animal Welfare (UDAW), a proposed inter-governmental agreement to recognize that animals other than humans are sentient (i.e., they can suffer and feel pain), that the welfare of animals other than humans must be respected, and that cruelty to animals other than humans must end for good. If adopted by the United Nations as a nonbinding set of principles (like the 1948 Universal Declaration of Human Rights (UDHR), discussed below), the UDAW would serve to encourage and enable national governments to introduce and improve legislation and initiatives protecting animals other than humans. The Universal Declaration of Animal Rights (which proclaims, among other things, that all animals are equal, that animals should be respected and humans cannot harm animals, and that animal rights must be equal to those of human rights) has been offered as an alternative to the less radical, less expansive UDAW.

(c) The People for the Ethical Treatment of Animals filed a lawsuit in October 2011 in the United States District Court for the Southern District of California against SeaWorld, arguing that its wild-captured orcas are “enslaved” because they are being held in concrete tanks against their will and forced to perform (Crary and Watson 2011; Watson 2012a, b). The case, which named five whales as plaintiffs, was dismissed in February 2012 on the grounds that the 13th Amendment to the US Constitution, which prohibits slavery and involuntary servitude, applies only to humans (Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entertainment, Inc., 2012 WL 399214 (S.D.Cal.)). More broadly, some have argued that comparing the liberation struggles of humans to those of animals other than humans demeans and trivializes the quest for the emancipation of specific groups of human (see Benton 1998:159 for a discussion).

(d) Nature has few intrinsic rights in national and international environmental law (although laws preserving endangered species are expressed in less utilitarian terms); if law were to shift from an anthropocentric ecophilosophy to a biocentric ecophilosophy, where nature is valued in its own right and possesses rights, this would “criminalize previously acceptable behaviour, but also liberate behaviour that is currently seen as criminal” (Lane 1998:245).

Key Issues/Controversies: Relationships Between Rights: Tropes And Tensions

Conceptions of rights predate the twentieth century, but the “internationalization” of human rights protection did not occur until after the atrocities of World War II (Hunter et al. 2002:1288) with the 1948 Universal Declaration of Human Rights (UDHR), noted above, part of the International Bill of Rights, along with the previously mentioned ICCPR and ICESCR. The internationalization of environmental protection began 22 years later with the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment. (The UN General Assembly convened the UN Conference on the Human Environment by G.A. Res. 2398 (XXIII) of December 3, 1968. The conference took place in Stockholm from June 5–16, 1972 (see United Nations Conference on the Human Environment, June 5–16, 1972, Report of the United Nations Conference on the Human Environment, U.N. Doc A/CONF.48/14/Rev.1 (1973)).) Although international law often develops as a response to specific challenges, resulting in “sectoral” approaches, concern for the environment can be found in the realm of international human rights law and, vice versa, concern for human rights can be found in international environmental law (Hunter et al. 2002). In the case of the former, the environment is not expressly referred to in the UN human rights system, but the system can be used to advance environmental rights (see Atapattu 2002; Dommen 1998; McInerney-Lankford et al. 2011). Similarly, while the environment is not referred to in the human rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), the European Court of Human Rights has derived the “right to a safe environment” from the “right to life” (see Walters 2007:193; see also Messer 1993:236). In the case of the latter, concern for human rights can be found in international environmental law, such as the 1972 Stockholm Declaration, which provides that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” Because different sectors of rights can overlap, environmental rights are intimately associated with other sets of rights or are part of another division of rights and can be conceptualized metonymically or synecdochally (see example #1 below). But because rights can be understood as inhering in individuals or in collective groups (see, e.g., Goodale 2006a, b; Messer 1993), as descriptive or aspirational – and in this way, more like “goals” (see Dworkin 1977:90-100; see also Hunter et al. 2002:91; Miller 1995:388; Young 1999:28) – and, at least in the international context, are often expressed in broad terms in order to ensure wider acceptance, support, passage, and enforcement, articles or principles of rights can conflict within and between rights regimes (see examples 2 and 3 below).

  1. Environmental Rights as Human Rights

Scholars frequently divide human rights into “generations.” “First-generation” human rights are negative rights – strongly individualistic civil and political rights that serve to protect the individual from private or governmental interference with the enjoyment of liberties. These rights, such as freedom of religion and freedom of speech, appear in places like the US Bill of Rights, in Articles 3–21 of the UDHR, and in the ICCPR (Michalowski 1998).

“Second-generation” human rights are positive rights – rights that require not restraint from the state (as “first-generation” human rights do), but “affirmative action on the part of the state” (Barak 1994:264) or the right to “the enjoyment of some substantive benefit such as employment, housing medical care, or education” (Michalowski 1998:524; see also Green and Ward 2000:103). These rights, which are cultural, economic, and social in nature, are embodied in Articles 22–27 of the UDHR, in the ICCPR, and in the European Social Charter, as well as in the constitutions of many nationstates.

“Third-generation” human rights, frequently promulgated by Third World nations, especially those in Africa, are “solidarity” or “development” rights. These largely aspirational (positive) rights are usually expressed in international “soft law” (i.e., non-binding instruments) – such as the 1972 Stockholm Declaration (see Dupuy 1991; Hunter et al. 2002:348–59).

Although environmental rights are considered by many to be “third-generation” human rights (see, e.g., Barak 1994:264; Campbell 1999:20; Messer 1993:223), some scholars argue that environmental rights do not fit neatly into any single “generation” of human rights. For example, Boyle (2007:471–72) explains that environmental rights

can be viewed from at least three perspectives, straddling all the various categories or generations of human rights. First, existing civil and political rights can be used to give individuals, groups, and nongovernmental organizations (NGOs) access to environmental information, judicial remedies, and political processes. On this view, their role is one of empowerment: facilitating participation in environmental decision-making and compelling governments to meet minimum standards of protection for life, private life, and property from environmental harm. A second possibility is to treat a decent, healthy, or sound environment as an economic or social right, comparable to those whose progressive attainment is promoted by the 1966 United Nations (UN) Covenant on Economic Social and Cultural Rights. The main argument for this approach is that it would privilege environmental quality as a value, giving it comparable status to other economic and social rights, such as development, and priority over non-rights-based objectives. Like other economic and social rights, it would be programmatic and in most cases enforceable only through relatively weak international supervisory mechanisms. The third option would treat environmental quality as a collective or solidarity right, giving communities (“peoples”) rather than individuals a right to determine how their environment and natural resources should be protected and managed.

Regardless of how environmental rights are conceptualized within the different “generations” of human rights, there has been significant attention to situating environmental rights in the human rights arena, with both support for an environmental human rights jurisprudence – “the indirect enforcement of environmental protection through human rights claims” – and a “self-standing” human right to an environment of a particular quality under international law (McInerney-Lankford et al. 2011:29), as discussed above in the context of substantive environmental rights. But there has also been concern about the tactical merit of litigating issues regarding environmental protection in human rights forums (see, e.g., Boyle 1996; McGoldrick 1996) and that efforts to achieve an autonomous human right to a decent environment could divert attention from more achievable (and potentially more effective) environmental and human rights objectives (Handl 1992). Finally, some have noted the difficulty of balancing (or reconciling, as the case may be) environmental rights with existing human rights and human rights objectives (see, e.g., du Bois 1996; McInerney-Lankford et al. 2011:24, 38). Thus, despite the connections between environmental rights and human rights, proponents of the former can – and often do – butt heads with those concerned about the latter, as the next two sections demonstrate.

  1. Conflicts Between Environmental Rights and Property Rights

According to Hunter and colleagues (2002:113), “[o]ver-consumption of natural resources by the wealthiest nations is the single greatest cause of global environmental degradation.” Attempting to curb environmental degradation by creating a substantive environmental right to a healthy environment or by interpreting a right to life as a right to the enjoyment of pollution-free water and air could present a tension with any national, regional, or international document that contains language similar to Article 17(1) of the UDHR: “[e]veryone has the right to own property alone as well as in association with others.”

A number of commentators have observed that environmental protection, regardless of whether it is couched in the language of rights, is frequently at odds with cherished property rights. For example, McCright and Dunlap (2000:504) explain that “pursuit of environmental protection often involves government action that is seen as threatening core elements of conservatism, such as the primacy of individual freedom, private property rights, laissez-faire government, and promotion of free enterprise” (citation omitted). Maloney (1972:148) describes the tendency of courts in the United States “to overprotect the right to own and use private property and fail[ure] to recognize the ecological consequences of pollution” – a position supported by de Prez (2000:72), who remarks that in Britain, “the right to engage in legitimate business activities enjoys supremacy over considerations of environmental protection.” Similarly, Miller (1995:386) observes that “a ‘right to breathe clean air’ cannot be achieved without prejudice to that most cherished modern expression of the right to liberty, namely, the right to drive wherever and whenever a car-owner wishes.” In a different context, Beirne (2007:77) predicts that “in self-avowed property-owning democracies and in societies where individualism is energetically encouraged, the right of animals to be free from cruelty and abuse will ultimately be thwarted, if not altogether undermined, by human rights to privacy and to the enjoyment of private property.” Indeed, Western society clings so inveterately to notions of private property rights that one commentator asserts that “people in a consumer society believed they now have an implicit right to consume” (Hayward 2004:161 (italics in original)). Despite increasing awareness of our global interconnectedness and interdependency, proponents of environmental rights may find that property ownership and consumption have become so intertwined with Western notions of identity and personhood that the distinctions between the right to property and the right to freedom of expression and the right to life have collapsed.

  1. Conflicts Between Environmental Rights and Cultural and Indigenous Rights

Concern for property rights is not just a feature of Western individualism and consumption. The global South also possesses an interest in property-rights protection, although here, the tension is one between environmental rights and rights to political self-determination, sovereignty and management of indigenous lands, and control over socioeconomic development (see, e.g., Shelton 2009) – which are often subsumed within the categories of cultural rights and/or indigenous rights.

The UDHR contains some guarantees of cultural rights – which include, for example, “a group’s ability to preserve its culture, to raise its children in the ways of its forebears, to continue its language, and not to be deprived of its economic base by the nation in which it is located” (Kottak 2008:198 (citing Greaves 1995)). Rights scholars disagree as to whether cultural rights, which are vested in groups, should be considered to be separate from, rather than a subset of, human rights, which are deemed inalienable, international, and vested in individuals (see, e.g., Glazer 2008:204-11; Michalowski 1985:27; Riles 2006; see also Cooper 2010). For example, Greaves (1995:3) explains that:

[d]epending on how you look at them, cultural rights are either a special category of human rights, or are a different sort of right altogether. Either way, one can still say that most human rights are vested in individuals. One has the right to speak freely, to hold religious beliefs without prosecution, to not be enslaved or imprisoned without charge, and so on. Human rights protect an individual from specified, state-perpetrated injustices. They are rights that a person has vis-a`-vis the state in which the person resides. Note that human rights are not ordinary laws; they are thought of as inalienable, metacultural, and to constitute the foundation for every just society. Cultural rights arguably are of the same eternal nature, but unlike human rights vested in individuals, cultural rights are vested in identifiable groups such as religious and ethnic minorities, and indigenous societies. Cultural rights accord specific protections to these groups, who live within a sovereign nation state dominated by others. The right of a group to perpetuate its culture, to raise its children in the way of its forebears, to continue its language, and not to be dispossessed of its economic base are cited as cultural rights.

If cultural rights are a subset of human rights, then when cultural rights and human rights conflict under, say, the UDHR, we are presented with tensions within a rights regime; if cultural rights are separate from human rights, then when a right codified under the ICCPR conflicts with one codified in the ICESCR, then we are presented with tensions between rights regimes.

To illustrate, environmental groups often share a common goal with indigenous peoples in protecting land from being exploited by developers and nonsustainable agrobusinesses. While Benton (2007:27) notes that “ecological ‘enclosures’ have been established in the name of biodiversity preservation in recent times, with associated exclusion of indigenous peoples,” Reed (2009:239) points out that environmental groups are increasingly integrating indigenous peoples into the day-to-day management of conservation areas. But whereas the short-term objectives of the two groups may be similar (see Messer 1993:236), the long-term goals may be different: environmental groups frequently wish to protect forests and other resources in perpetuity, whereas indigenous groups are “fundamentally concerned with their own survival and see the forests as their primary resource in that struggle” (Reed 2009:239). As a result, environmental groups may discover that as they move to protect certain resources, they are in conflict not only with developers, but also with “the claims of primordial rights by indigenous residents” (Reed 2009:238).

At the same time, indigenous groups sometimes find that they need to defend their ancestral lands from a new “developer” – the environmental protection group (Reed 2009:238; see also Messer 1993:236, 239). As Messer (1993:236) explains, “indigenous peoples increasingly come up against not only the development demands of states, transnational corporations, transnational religions, and NGOs, but sometimes also the anti-development demands of the environmental movement with which indigenous peoples might otherwise ally” (internal citations omitted).

To offer a more elaborate illustration, few would disagree that the “right to life” (Article 3 of the UDHR) includes (or should include) a “right to food” (see, e.g., Schwendinger and Schwendinger 1975:133–34). The right to food, in turn, has been increasingly used as “justification to protect the livelihoods of small-scale fishers [sic] around the globe” – “artisanal,” “subsistence,” or “traditional” fisheries that often exploit fishery resources and degrade the ecosystems on which they depend (Hauck 2007:272). According to Walters (2007:187), “eco-crime,” which involves acts of environmental harm and ecological degradation, is “an act of violence and should be viewed as a human rights violation as citizens are deprived of freedoms and liberties.” With this conception of eco-crime in mind and given that the European Court of Human Rights has identified the “right to a safe environment” (see above), it stands to reason that small-scale fisheries could be engaging in a human rights violation (ecological degradation) in the process of exercising their human rights (right to food) – or right to work (under Article 23 of the UDHR). While efforts could be undertaken in some situations to help subsistence fisheries maintain compliance with laws intended to ensure the sustainability of fisheries (such as closed seasons and restrictions on types of fishing gear), it is not readily apparent what solutions could be offered where the fisheries are already in serious decline or have collapsed.

A third illustration involves the Makah Indians – a tribe of fishermen and whalers (numbering about 1,500) that lives near the mouth of the Strait of Juan de Fuca on the Olympic Peninsula (in northwest Washington state). The Makah were guaranteed the right to hunt whales in an 1855 treaty with the United States (the Treaty of Neah Bay) – the only tribe with such an explicit treaty provision (see Kershaw 2005). The Makah decided to stop their whaling practices in the 1920s because the commercial whaling industry had depleted the gray whale species. Later, whale hunting would be regulated nationally (under the Marine Mammal Protection Act of 1972 (MMPA)) and internationally (under the International Convention for the Regulation of Whaling (ICRW)), and the USA would list the gray whale as endangered. And while several tribes of Alaska Natives are exempt from the MMPA, allowing them to engage in subsistence hunting of bowhead whale, the Makah were not granted an exemption (despite their treaty rights) (see Kershaw 2005), nor could they obtain any form of exemption under the ICRW. As Jenkins and Romanzo (1998:102) explain, “[i]t is a basic principle of international law that a party to an international treaty, such as the ICRW, may not invoke the provisions of its internal law as justification for its failure to perform under a treaty. Although the United States may consider the Treaty of Neah Bay to confer domestic legal rights upon the Makah Nation, the Makah Nation is not an international legal entity separate from the United States. Thus, as a matter of international law, the Treaty of Neah Bay is simply a domestic legal matter to be worked out between the US government and the Makah tribe: when the United States became a signatory to the ICRW, this act constructively abrogated any conflicting US obligations to the Makah Indians on the international plane.”

When the gray whale population began to recover – it was removed from the Endangered Species List in 1994 (Endangered and Threatened Wildlife and Plants, 59 Fed. Reg. 31,094 (1994) (codified at 50 C.F.R. } 222.23)) – the Makah sought and received permission to hunt again. On May 17, 1999, the Makah conducted their first successful whale hunt in more than 70 years. A series of legal challenges, however, have prevented the Makah from further whale hunting. Nevertheless, on Saturday, September 8, 2007, five members of the Makah tribe harpooned and shot a 40-ft-long gray whale during a rogue hunt – one without a federal permit or the tribe’s permission (Associated Press 2007a; Kennedy 2007). After suffering for hours, the whale eventually died and sank to the bottom of the waters in the Strait of Juan de Fuca. Tribal leaders denounced the killing (Associated Press 2007b). Two of the Makah tribal members were found guilty in federal court of misdemeanor violations of the MMPA and were sentenced to prison; the three others reached a plea deal with federal prosecutors that included community service and probation (Mapes 2008).

Under the ICRW, the International Whaling Commission (IWC) can grant an Aboriginal Subsistence Whaling (ASW) quota. The hurdle for receiving an ASW exemption is high – requiring both nutritional-subsistence and cultural needs. According to Jenkins and Romanzo (1998:75), “[t]he Makah cannot prove more than a weak (or nonexistent) cultural, or nutritional-subsistence need to whale for two reasons: (1) the Makah do not meet the stringent cultural need component of the IWC test for an ASW quota, because they lack a continuing traditional dependence on whaling, having voluntarily discontinued whaling over 80 years ago while successfully adapting their culture in the absence of such whaling; and (2) the Makah do not fulfill the nutritional-subsistence need component of an ASW quota, because they do not intend to engage in the traditional form of opportunistic hunts required for the exemption, and because they have no dietary reliance whatsoever on whale meat.”

Although animal rights advocates oppose whaling on ethical and moral grounds, the Humane Society, which sued to stop the Makah from hunting, has distinguished between the Makah’s and Alaskan tribes’ desires to hunt – referring to the latter as “a true subsistence hunt” and the former as ceremonial or “cultural whaling” (Kershaw 2005) that is not essential to their diet and for which there are “nutritional-subsistence alternatives” (Jenkins and Romanzo 1998). All the while, the Makah continue to press their claims that they should be able to hunt gray whales under the provisions of the Treaty of Neah Bay and because of whaling’s cultural significance (Hunter et al. 2002:992; see also <http://www. nwr.noaa.gov/marine-mammals/whales-dolphinsporpoise/gray-whales/makah-whale-hunt.cfm>).

Conclusion And Future Directions: Environmental Degradation, Protection And Human Rights

In summary, this research paper has considered sources of environmental rights, the notion of environmental rights as human rights, and relationships between environmental rights and property rights and between environmental rights and cultural and indigenous rights. Environmental rights can be conceptualized as distinct rights or as part of or an extension of the broader realm of human rights. How environmental rights should be understood and/or realized with respect to human rights may be subject to further debate, but the fundamental point is that environmental degradation and environmental protection are intertwined with both human rights and environmental rights. This is likely to receive more prominent recognition in the future as, for example, human rights obligations (both substantive and procedural) are likely to be relevant to the design and implementation of effective responses to climate change and other global environmental harms.


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