Tag Archives: international law

Anthropocene, climate, Human Rights, Politics in Canada, Sustainable Development

Should Lakes Have Rights? The intrinsic value of the nonhuman world

In the community I come from, life centres around Okanagan Lake. The Okanagan Valley is a spectacular vista of rounded hills, distant mountains, sparkling waters, and a unique ecosystem for human and non-human life to adapt and thrive.

Despite its apparent permanence, the Valley and the Lake are fragile and vulnerable ecosystems experiencing accelerating pressures from unsustainable patterns of settlement, travel, and economic development. The Valley is vulnerable to insect damage, invasive species, extinctions, drought, fire, flooding, and water contamination. Virtually all of these threats arise from human activities in one way or another.

Looking at it from a birds’ eye view, the Valley is a whole ecosystem, yet the laws that govern it, and those that determine its future, are piecemeal. As I have written before, movements to protect the Valley and the planet can build on holistic thinking using the political and social revolution in human rights. ‘Rights language’ can be used to transform the current framework of laws, policies, and decision making procedures that govern development.

The Valley is a whole ecosystem, yet the laws that govern it, and those that determine its future, are piecemeal.

The progress of human rights is one of the most vital political stories of human history. The broad recognition of rights has a natural logic of expansion and consolidation. Progress comes in waves and is often beaten back by counter-movements, nevertheless, rights language often reemerges in new clothes when violations are at their worst. Violence and abuse trigger a reaction toward conscience and care, and new rights become recognized and affirmed following the worst atrocities.

What does ‘rights language’ bring to environmental causes that other arguments may overlook? Arguments from science, expertise, economic interest and values are sometimes disembodied, ephemeral, remote. An appeal to ‘rights’ triggers foundational debates: the questions become fundamental to identity and society because many rights are enumerated and protected by constitutional law, and because Canadian society has made a point of ensuring that people know and understand what rights are.

As Canadians we also understand that rights have intrinsic value. Most agree that we would prefer to live in a society that recognizes and respects rights, rather than one that does not. While we may not all comprehend the statistical probabilities of climate models or the technicalities of a carbon tax as a policy instrument, we understand ‘rights’. They are a thing. Rights are personal.

Rights are powerful because they are inherently subversive and simultaneously affirming. Raising an issue of water as a right raises questions about the status quo. What are all of the ways that water is freshened, used, transferred, polluted, and acted upon? It prompts rethinking the economic premises of water management. Rights language also prompts us to recognize the intrinsic value of existence. In other words,the recognition of a right elevates the ethical value of a rights holder in the view of the government and society. For example, the right to exist is one of the most fundamental rights possible. A right to exist implies the logical necessity of respecting that existence by not threatening or undermining the integrity and dignity of the rightsholder.

While we may not all comprehend the statistical probabilities of climate models or the technicalities of a carbon tax as a policy instrument, we understand ‘rights’. They are a thing. Rights are personal.

Rights language is also ethical and cultural. The current imbalance between human development and natural protection, evidenced by the global scale of pollution, is at least in part a product of the tendency to view nature in purely instrumental terms. In Western cultural constructions, nature is inert, a dumping ground for human wastes, or a storehouse of potential resources ready for extraction. Nature has not even been seen as a player in the cycle, much less as a rights holder.

The degradation of nature is simultaneously and unavoidably the degradation of humans. Since nature is a closed system, wastes and depletion will circle back to impact human welfare. The Anthropocene is signalling not the supremacy of humans over nature, but rather the exact opposite: the re-embedding of humans back into nature. We are now as much a product of our own activities as we are of natural processes. The world is now fully ‘human’ in at least one sense: the fates of human and nonhuman alike are interlaced in a way not seen before in history. Human and nonhuman fates are planetary in scale.

Restoring balance means revisiting the roots of the gap between humans and nature, the original split that divided the world and made degradation possible, and even celebrated it. That split is symbolized in three ways: 1. the assumption of anthropocentric dominance, 2. the neglect of nature’s intrinsic value, and 3. the separation and distancing of humans from the ecosystems that sustain them (both physical and psychological) .

Flickr user Jeffery Simpson

Laws and politics have tended to wipe nature out of the ethical universe by limiting legal standing to parties with property interests. In other words, the legal conversation about value, loss and damage takes place only among those who are deemed to have an interest, namely, property owners. Even the representation of the public interest is narrowly circumscribed by the necessity of showing direct property-like profits or losses, rather than a public interest in a long-term trust relationship with nature.

While present and recognized in law, the notion of a public trust has not proven to be an effective shield against destruction in the long term, primarily because it can always be trumped or replaced by a new property claim. In addition, property claims are themselves partial since they divide nature up into parcels of utility based on their value to particular property interests. Sky, land, water, and underground are all seen in terms of different types of access, use, and ownership rights.

Solutions to this problem already exist in law, but they are currently found only in isolated and disjointed legal opinions and cases, both locally and around the world. Recently the question of nature rights has risen in prominence in political discussions, partly due to the rising awareness of the planetary nature of environmental damage being experienced in the Anthropocene, and partly due to the increasing recognition of indigenous rights and the distinctly contrasting worldview of nature that such rights represent.

The Whanganui River decision in New Zealand, the rise of Buen Vivir in Ecuador, the Ganges decision and others are pushing back against the notion that nature is nothing more than property, sink, or resource. At the heart of this counter-narrative is the recognition that humans and nature are together, with common fates and interests, and that the inclusion of nature as member of the human family, worthy of respect, care and affection, is essential to human survival. This is represented by indigenous worldviews in varying ways around the world and set down in the UN Declaration of the Rights of Indigenous Peoples as well as many other international legal declarations and treaties. Both humans and nature have a right to exist, what is needed (even if it is a first step) is the recognition and affirmation of these new rights in politics, law, and development planning.

This is no small thing, so what are the problems? One may object to the recognition of nature as a rights-holder on various grounds. One objection is that extending rights to nature means the diminution of existing human rights. However, this is not a new argument. This argument is familiar to historians, who documented them in response to the expansion and extension of rights to slaves, women, unpropertied males, and ethnic and religious groups. In every case the historical extension of rights did not result in the reduction of existing rights protections, but instead allowed for the more fulsome exercise of existing rights. This is because the pattern and framework of rights growth reinforces and legitimizes that a universe of moral beings and rights holders exists and is deserving of respect.

Another objection is that nature rights are expensive. Indeed, it is hardly arguable that valuable social and political goals are costly. The question of how to pay for rights has rarely been a strong argument against the recognition of rights, however. Few would argue today that the cost of freeing slaves, or protecting children from abuse are not worth the price of rights enforcement. As well, the social, political and even economic benefits of rights recognition spill over into remarkable new avenues of growth and development. Protecting the right of the lake to flow, to provide recreation and fish and a rich environment has immense economic benefits that should also be taken into account when considering the balance sheet of rights recognition.

Finally, a last objection is that recognizing the rights of a lake necessarily undermines the value of other beings who may be more ‘appropriate’ or ‘deserving’ of rights due to their similarity with or affinity for humans. Why should lakes have rights that are not extended to whales, elephants, monkeys or dogs, all of whom demonstrate more ‘human-like’ characteristics such as family relationships, intelligence, and emotions and feeling? What about microbes or farm animals? What about Mars or the moon or other distant territories? Why lakes and not mountains, or deserts, or garbage piles?

These are all valid and complex issues which should be deliberated and which will likely be decided and come before the courts in the next few years. Awareness is growing about how humans and nonhumans should be governed in a truly planetary ecosystem. It’s important to keep in mind that rights recognition is about governing human action, limiting and allowing different kinds of human interaction with the nonhuman world.

Such rules governing human interactions with the nonhuman world already exist, whether they are laws against animal abuse, or rules about mountain climbing or fishing or logging or nature reserves. The issue is that these rules are currently one-dimensional, shaped disproportionately by property and the need to prove an interest in that property. The rules are insufficiently permanent and not based on inter-generational ethics, and they rely on an out of date worldview of nature, one that is amply demonstrating its failures to protect humans and nature every day.

Rights recognition is about governing human action, limiting and allowing different kinds of human interaction with the nonhuman world.

Rights for lakes will help the larger conversation about how to move beyond the exclusiveness of property, to recognize the limits of the planet and the power of nature to act on human societies. Rights for lakes will reiterate the intrinsic value of the nonhuman world. They won’t solve every problem, but not much can be started without them.

Further Reading:

Human Rights, Inequality, political theory, US Politics

The Need for Compassionate Law

As 2018 comes to an end and the world looks to an increasingly uncertain future, it is worthwhile to reflect on the importance of compassion in public life.  On the one hand, it seems it should not be necessary to remind ourselves of the need for compassion, while on the other hand, there has never been a time when it is more vital to think about it.

When I speak of compassion I consider it to be similar to the emotion of empathy, which means the ability to identify closely with the feelings of another.  However, empathy is an emotion, while compassion is emotion plus action.  Empathy is personal, individual, and private.  When one experiences empathy, it is not necessarily expressed.  Many of us feel empathy for the plight of refugees, but few of us take any action based on those feelings.  Compassion is both an expression and an action, something that is a unique responsibility of the powerful.  It is the world’s 1% who, due to their elite position, have the most ability to exercise compassion.  Consequently, the world’s 1% (and if you live in a relatively wealthy developed country, you are part of this elite) uniquely bear the moral responsibility to exercise compassion.  The exercise and practice of compassion as an action is much rarer than the feeling of empathy, partly because wealth and inequality suppress the expression of compassion.  As the world becomes wealthier and more unequal, generosity declines.

Even more unusual is the embedding of compassion into the practices of a society, in other words, through its laws and institutions.  Are institutions capable of compassion?  Indeed they must be, because if social structures can be violent and oppressive, then it stands to reason that the opposite must also be possible:  institutions and laws can be written in compassionate ways, with compassionate ends.  It is the public exercise of compassion with which I am most concerned with, because it raises the potential for people to write compassionate institutions and laws.  Compassionate laws are necessary because, as suggested, individual empathy can fail – it is temporary, personal, individual and private.

Compassionate laws make it possible for persons to express and act on their feelings of empathy, because they can see that those feelings are socially elevated.  The Dali Lama talks about something similar in the Education of the Heart. Compassionate law can help to educate and give permission for people to act on their empathy.  To say that law can be compassionate goes beyond a ‘minimalist’ vision of law – that law is only there to level the playing field and justice means equal treatment under the law.   Even if law were able to do this leveling, an element of compassion is also essential to the achievement of equal treatment, since law must be attentive to justice.  In this sense, human rights law is essentially compassionate in its purpose. Based on observation of the current state of law in the US, it is clearly not able to even achieve the minimal goal of equal treatment or fairness.  The gap between law and justice can be reduced with adequate attention to the need for compassionate law.

The kind of compassion I’m thinking about should also be distinguished from altruism, although compassion relies on altruism, they are not identical.  Altruism, which is a kind of selflessness, or non-self interested attitude of generosity and giving, is a vital component of compassion, because altruistic motives reduce the temptation to use demonstrations of compassion for self-promotion.  Compassionate law is one very effective way to express altruism.  Indeed, compassionate law resists self-interested motives by moving altruism from the private to the public sphere and thereby removing the personal motives that might affect compassionate and just outcomes.

The enactment of compassionate law recognizes the innate inequality of human relationships, and works to proactively overcome those inequalities.

Recently, some thinking on giving and charity has been diverted from these concepts of compassion by a concern with effectiveness.  Rather than asking how can giving be more compassionate, the question becomes: how can giving be most effective?   As one proponent argues: “Instead of doing charity in a way that makes people feel good, effective altruists rely on rigorous, evidence-based analysis to decide how to donate money, where to donate, and which careers are most ethical.” I would argue that this is a diversion.  Effective altruists argue using a utilitarian measure:  what is good for the most number of people must be the best and most effective form of giving.  Using this algorithm, how might one decide between funding one individual’s education and funding a food program for thousands?  Probably many more people can be helped with the food program, but over the course of a lifetime what effect might a highly educated individual have, especially if they were able to achieve a position in which they could institute more compassionate laws?  The effort to reduce giving to an algorithm sacrifices the element of compassion and arguably undermines the goal of achieving more effective giving.  It’s not that effective altruism is wrong, it just kind of misses the point.  What is really changed, even if a larger number of people are helped by a given action?  There is a risk in reinforcing the status quo and ensuring that giving will continue to be necessary far into the future, violating the goal of achieving truly altruistic giving.

Compassionate laws are necessary because individual empathy can fail – it is temporary, personal, individual and private.

The enactment of compassionate law can, over time and with much learning, come closer to achieving lasting and effective results because it builds-in the principle of altruism by removing self-promotion from the equation.  In addition, compassionate law recognizes the innate inequality of human relationships, and works to proactively overcome those inequalities.  The human tendency to self-aggrandizement and acquisitiveness is worsened by inequality.  Inequality erodes people’s ability to be altruistic and even their ability to empathize.  Compassion is needed in a highly unequal world because it is effective, and it is effective because it is authoritative and self-reflexive.  The exercise of compassion invites reflection upon one’s own position and relatively good fortune.  The proponents of effective altruism are right that relying on natural generosity and emotion is insufficient to make for effective giving, but they are wrong to abandon the idea of compassion, which is needed now more than at any other time of history.  This season of giving, consider ways that you might contribute to the establishment of compassionate law, or if this is too ambitious, think about how you can help others express and act on their feelings of empathy, working together with others.  For starters, you might consider sharing this post!

 

For Students, Human Rights, World Politics

How to Follow the News: 10 Rules of Thumb

After following the news for many years and thinking about world events, I’ve been able to observe some things about news gathering. I’m an advocate of reasoned and dispassionate analysis based on information, but it can be hard to be impartial when so much of the news today is biased one way or another.  However, I don’t believe that reasoned thinking about international events is incompatible with advocacy.   The strongest and most defensible points of view are those that are supported with evidence and with thoughtful and informed reasoning.  Sometimes, though, it’s hard to be informed when the media obscures the truth.  The rise of the internet has not made it any easier.  In fact, speculation and accusations are given even a wider audience when things go viral.  So, here is some advice, feel free to take it or leave it, and try to keep an open mind.

  1. There are angels and devils on both sides, but this doesn’t mean the claims and arguments of both sides are morally equivalent.

In the aftermath of rage over the killing of 3 Israeli teens, many Israelis protected Arabs attacked by crowds on public transit.  Many Palestinians have worked inside and outside Israel for peace and understanding between the two sides.   Ordinary people on both sides want the same things everyone wants:  a chance to live peacefully, make a living, and enjoy some freedom.  Nevertheless, the costs of the long conflict have not been borne by both sides equally, and this reflects the large power imbalance between the two sides. This imbalance should be a factor when deciding one’s view.   Here is an analysis that puts this conflict in context, and considers the ethical arguments.  Here is another.

2. Real life events are [almost] always more complicated than they seem.

Folly, lack of foresight, incompetence and brutality can produce unexpected outcomes for all sides.   Indeed, the last few months have seen an unprecedented array of crises emerging in a variety of global locales.  In a highly competitive market, so-called ‘hard reporting’ has been replaced with shallowness at best, and inflammatory styles of reporting at worst  One consequence is that there are few able to offer a strategic analysis of a event.   One must often wait, or dig deeper, to get a better understanding of the big picture.  Try to find out about what happened in the immediate weeks prior to the event, or read about the country and regions involved to get a sense of the context.

3. People and systems are distinct things.

Individuals, whether in a leadership position or not, develop cognitive frames over the course of their lives to understand the world and their position in it.  Both people and systems will actively protect those frames, but systems take much longer to change course, partly because they are supported by longer generational memories. Systems are more permanent, and every system demands allegiance, but be careful not to identify individuals as symbols for systems, they are not the same thing.  People behave differently in a group than they do as individuals.

4. Sometimes good people do bad things, and vice versa.

Beware of the ad hominem argument.  An examination of the actor is often insufficient to explain any given behaviour or action.  A given actor usually cannot be reduced to a single bad (or good) decision.

5. Opportunism is far more common than planned conspiracies.

It is almost never good strategy to organize and plan an attack on one’s own people in order to gain sympathy.   The risks of discovery are high, and the results can backfire.   For example,  some explanations of the Odessa event of May 2nd 2014, in which dozens were killed in street clashes between pro-federalist and nationalist forces in Ukraine, strain credulity by claiming ‘agent provocateurs’ were responsible.  Similarly, Prime Minister of Israel Benjamin Netanyahu tried to paint a negative view of the opposition by stating that: “Hamas wants civilian casualties”.   Be skeptical of such oversimplified characterizations and convoluted theories. Recognize that different sides will opportunistically use images to elicit anger and sympathy for their cause.   Have anger, and have empathy.

6. People don’t like inconsistencies, but these are frequent and often deep in human events.

Cognitive dissonance is a psychological state that happensPhilosoraptor when information is contradictory. Individuals often go to great lengths to overcome  the discomfort, including ignoring contradictory information, oversimplifying the facts, and narrowing the frame of reference.  Try to recognize these strategies in yourself and others. Try to become comfortable with contradiction, blurriness, messiness, and complexity.

7. Every report becomes part of a track record, don’t forget the past.

Don’t base your decision on a single report, study, or bit of information.  Compare today’s headlines with those of the past. Don’t forget when today’s reports conflict with those of yesterday. Follow stories that are given less attention, so you will know more about them.

8. All sides will try to appeal to emotions.  Beware of manipulation.

The internet and television news are eminently malleable, with out-of-context quotes, selective information, and even photo manipulation. Watch for terms like “appears to be” and for leading questions that raise doubt or provoke.   Think about what the media is choosing to focus on when preparing a story. Consider the effect of the format and phases of revealing a story.

9. Look deeply, look widely, and compare reports from a variety of sources.  Look for hard evidence, not eye witness accounts.

Personal interviews are a mainstay of video reporting.  They are ALL edited, and eye witnesses, even when sincere, are unreliable.

10. Beware of appeals to authority.

Even those with inside knowledge, high levels of education, and recognized credentials can sometimes lie.   People can also be mistaken in their facts and biased by their education.   Human Rights Watch, Amnesty International, and other UN agencies have long established track records and can generally be trusted when other sources are more questionable.  However, they are also not infallible.

 

Human Rights, World Politics

The End of Impunity: Two Pathways to Justice

No Mubarak Egypt Uprising Photo Feb 2011 by Takver (Flikr)In Egypt this past summer, former president Hosni Mubarak and former interior minister Habib El-Adly were sentenced to life in prison for complicity in the murder and attempted murder of protesters in the 2011 uprising that removed Mubarak from power. In Liberia, Charles Taylor was convicted of war crimes and sentenced to 50 years for aiding Sierra Leonean rebels who raped, maimed, and murdered tens of thousands of civilians (Harper’s Weekly Review June 4th, 2012). In March 2012, the International Criminal Court delivered a guilty verdict against Thomas Lubanga Dyilo, who was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the Democratic Republic of the Congo between September 2002 and August 2003. At present, the ICC has publicly indicted 30 people, and has proceedings ongoing against 24, including against the top five members of the Lord’s Resistance Army in Uganda, including Joseph Kony, for similar crimes.World1

With human rights increasingly in the news, and the activities of multilateral agencies like the ICC at the forefront, it seems that two distinct pathways to criminal justice for egregious violators of human rights are now becoming evident. In the first pathway, former heads of state are held to account using the bodies of law of the country they once led. Under this pathway, the process can yield successes (as in the case of Mubarak) but it also has flaws. Judges appointed by the former leader may be reluctant to apply the rule of law, or, alternatively, too severe outcomes can actually undermine the rule of law by placing the whole process under suspicion. This is especially true if the society has a history of sectarian violence. In the latter case, for example, I’m thinking of the sham trial of Saddam Hussein following the US invasion of Iraq, which probably set back the rule of law in that country by decades and opened the door to a vicious sectarian war. It should be noted that until recently, with the establishment of the ICC as a legal body, national prosecution of such cases was, essentially, the only available route to justice.

The ICC was established to fill a gap in international human rights law that addressed some of these flaws. The gap lay between the politics of sovereignty and the universal laws of human rights. But the ICC was to be derivative of sovereign law, a supplement, and decidedly not a force for subversion or displacement of national bodies of law. Far from it. International law steps in where national law and politics fail, but fail first they must. It is through this pattern of repeated failure that the full justification and realization of the importance of the ICC to the system of sovereign law will emerge. For this reason, it is entirely wrong to criticize the ICC as toothless or helpless in the face of national power. It also entirely wrong to criticize the ICC for overstepping sovereignty The body of law upon which the ICC draws is the logical and reasonable outgrowth of sovereign law itself. For this reason, every case brought to justice by the ICC strengthens, not weakens, the force of sovereign law to protect human rights and bring violators to justice. Even though there are two pathways to justice, they are heading in the same direction, towards a world where violators will have nowhere to hide with impunity.