The Johns Hopkins University Press Human Rights Quarterly

The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational
Justice
Author(s): Richard P. Hiskes
Source: Human Rights Quarterly, Vol. 27, No. 4 (Nov., 2005), pp. 1346-1364
Published by: The Johns Hopkins University Press
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HUMAN RIGHTS QUARTERLY
The Right to a Green Future:

Human Rights, Environmentalism,
and Intergenerational Justice
Richard P. Hiskes*
ABSTRACT
This article develops an argument for intergenerational justice within the
language of human rights, specifically the human right to a safe environ
ment. After acknowledging the difficulties associated with such an argu
ment, the author presents a new approach rooted in pragmatist philosophy
that establishes environmental rights as "emergent human rights." Accept
ing the validity of such emergent rights carries several beneficial conse
quences both for the philosophy of human rights and for its practice. First,
emergent environmental rights supply a strong argument for justice across
generations, because environmental rights logically presume concern for
the future. Second, the argument for emergent environmental rights helps
to resolve the so-called consensus versus pluralism debate within human
rights theory and practice. It does so by positing that all societies can
accept environmental human rights, at least for the successor generations
of their own societies. Third, environmental human rights presume the
continued significance of national sovereignty and citizenship within
human rights practice, thereby enhancing the possibility of their accept
ance within a culturally diverse world.
* Richard P. Hiskes is Professor of Political Science and Director of the Human Rights Minor
Program at the University of Connecticut. His primary areas of scholarship are in democratic
theory, environmental ethics, and human rights theory. He is the author of numerous books
and articles that cover a wide range of concerns within modern political thought and
environmental policy. Among his books are Science, Technology, and Policy Decisions
(Westview, 1986), co-authored with Anne L. Hiskes; and Democracy, Risk and Community:
Technological Hazards and the Evolution of Liberalism (Oxford, 1998). This article represents
a new research direction that anticipates a book currently under preparation on the topic of
environmental human rights and intergenerational justice.
Human Rights Quarterly 27 (2005) 1346-1364 ? 2005 by The Johns Hopkins University Press
2005 The Right to a Green Future 1347
I. INTRODUCTION
Arguments for justice across generations have been difficult to maintain ever
since David Hume ridiculed the idea of the social contract for presuming
that the reciprocal "conditions of justice" could be met in a relationship
between one living generation and another that did not yet exist. Neverthe
less, late twentieth century concerns surrounding environmental sustainability
have revived the need for a convincing argument to protect future
generations. This article seeks to formulate that argument within the
language of human rights, specifically the human rights that together
constitute "environmental human rights."
Recent work by Nickel, Sax, and Weiss1 has argued for a role for human
rights within intergenerational justice. Nickel presents a case for what he
calls cross-generational "rights to a safe environment." Sax recognizes how
different such rights are from traditional human rights, and Weiss introduces
"planetary rights" as environmental human rights that work to protect the
future's interests. These arguments and others attempt to bring together the
concepts of human rights and justice. It is recognized that these arguments
must be alternately stretched and compressed to make room for each other,
given their different emphases on individuals or groups, negative liberty or
equality, and the living versus the not yet born.2
This convergence of human rights and justice theory in an argument to
preserve the environmental welfare of future generations is difficult to
sustain for a variety of reasons involving the nature both of rights and of
justice. First are arguments against the idea of universal moral rights in
general, including traditional utilitarian arguments, as well as recent
stipulations3 that because rights (and the duties they imply) always conflict
and are therefore not "compossible," any notion of rights must be more
local and contingent than is generally considered acceptable by advocates
of rights as foundational principles. Dowding and van Hees conclude, for
instance, that "[t]he noncompossibility of rights is an embarrassment
1. James W. Nickel, The Human Right to a Safe Environment: Philosophical Perspectives on

Its Scope and Justification, 18 Yale J. Int'l L. 281-85 (1993); Joseph L. Sax, The Search for
Environmental Rights, 6 J. Land Use & Env. L. 90-99 (1990); Edith Brown Weiss, In Fairness
to Future Generations: International Law, Common Patrimony, and Intergenerational Equity
(1989).
2. See Shari Collins-Chobanian, Beyond Sax and Welfare Interests: A Case for Environmen
tal Rights, 22 Env. Ethics 133-48 (2000).
3. See Keith Dowding & Martin van Hees, The Construction of Rights, 97 Am. Pol. Science
Rev. 281 (2003); Hillel Steiner, An Essay on Rights (1994); Jeremy Waldron, Legislation and
Liberal Neutrality, in Liberal Neutrality (Robert Goodin & Andrew Reeves eds., 1989);
Carl Wellman, Real Rights (1995).
1348 HUMAN RIGHTS QUARTERLY Vol. 27
especially to those who want to argue that rights form the foundation or
basis of justice."4 Because the author is specifically exploring the role of
human rights in justice across generations, rights' noncompossibility seems
a powerful obstacle.
A second area of difficulty in presenting an argument for intergenerational
justice based on environmental human rights lies in the still "second class"
status of environmental rights compared to more "fundamental" human
rights. Shari Collins-Chobanian argues persuasively that even the most
fundamental "right to life" presumes prior and therefore, more basic "rights
to clean air, water, and soil."5 Still, the impression persists that Maurice
Cranston's division of human rights into "real and supposed" categories
downgrades environmental rights to the level of the other social and
economic rights that make up the latter thirteen articles of the Universal
Declaration of Human Rights (UDHR).6 Additionally, as this article argues,
following Weiss, environmental human rights of future generations must be
construed as group rights, and they are therefore subject to all the arguments
against viewing such rights as "real" human rights. Following these
arguments, this article's task becomes even more daunting.
Finally, the concept of justice across generations presents its own
panoply of problems. Hume's critique of social contract theory is worth
recalling here, but more recently the variety (and sheer multiplicity) of
criticisms of Rawls' "just savings" principle are also relevant.7 Environmen
talism has its army of advocates to be sure, and its current rallying cry of
"sustainability" may indeed be, as Richard Norgaard claims, "primarily an
issue of intergenerational equity."8 Nevertheless, if Terence Ball is correct in
stating that the whole idea of intergenerational justice is intrinsically
incoherent, this article's fundamental argument, which is based on what
many consider to be the tenuous foundation of environmental (group)
human rights, would not seem to make it any more coherent or persuasive.9
Ball's assertion follows that of other scholars by claiming that because
justice intrinsically requires some type of reciprocity between individuals,
the whole idea of having reciprocal relations with persons who do not yet
exist is clearly spurious. As Peter Laslett and James S. Fishkin summarize,
"individuals are in reciprocal relationship with their contemporaries, but
4. Dowding & van Hees, supra note 3, at 292.

5. Collins-Chobanian, supra note 2.
6. Maurice Cranston, Human Rights, Real and Supposed, in Political Theory and the Rights of
Man (D.D. Raphael ed., 1967).
7. John Rawls, A Theory of Justice (1971).
8. Quoted in Wilfred Beckerman, Debate: Intergenerational Equity and the Environment, 5
J. Pol. Phil. 392, 397 (1997).
9. Terence Ball, The Incoherence of Intergenerational Justice, 28 Inquiry 321 (1985).
with their contemporaries only."10 This article will argue that basing
intergenerational justice on the environmental rights of future generations
brings a unique kind of reciprocity between present and future citizens that,
while unusual, is correctly viewed as real reciprocity nevertheless.
There are plenty of preliminary reasons to suspect the conceptual
cohesiveness and power of the argument that follows, and this article will
respond to each of them to varying degrees and as space permits. If the
argument succeeds however, there is potentially a large payoff of benefit
especially to advocates of human rights. If environmental rights of future
generations can be maintained and intergenerational justice can be based
upon them, this article contends that we will have hit upon a set of human
rights that can be adhered to by all societies regardless of their relative
cultural differences. Although those differences from each other persist
within a globalizing world, all cultures presume the existence of successor
generations of their own national or "blood community."11 Therefore, there
is built in reason for respecting the environmental rights of clean air, water,
and soil for at least the future citizens of one's own country, no matter what
rights other societies protect for their future citizens. Whether this might be
a welcome solution to the consensus/diversity debate within human rights
theory?or just another opportunity for jingoistic national self-concern?is a
matter the conclusion addresses.
II. HUMAN RIGHTS: MORAL, LEGAL, ENVIRONMENTAL, EMERGENT
Within the history of the idea of rights, the modern notion of human rights
occupies a rather ambiguous position between the fully moral status of the
seventeenth century "natural rights" formulations and the positivistic "legal
rights" whose origin is in positive law. J?rgen Habermas identifies this
uniqueness well by noting that human rights are "Janus-faced, looking
simultaneously toward morality and the law. Their moral content notwith
standing, they have the form of legal rights."12 Because they are codified in
documents like the UDHR, they clearly resemble rights held by citizens as
a matter of constitutional law that protect them only as far as their nation
state allows. However, "[/]/7ce moral norms, they refer to every creature 'that
bears a human countenance.'"13 As such, they appear to meet the criteria set
10. Justice Between Age Groups and Generations 7 (Peter Laslett & James S. Fishkin eds., 1992).
11. See discussion of this and related concepts in Tom J. Farer, The Ethics of Intervention in
Self-Determination Struggles, 25 Hum. Rts. Q. 382 (2003).
12. J?rgen Habermas, Remarks on Legitimation Through Human Rights, 24 Phil. & Soc.
Criticism 157, 161 (1998).
13. Id. at 161 (emphasis in original).
for full moral rights by philosophers such as Hart, Cranston, and Feinberg.14
This dual nature makes human rights both like and unlike positive legal
rights on the one hand and universal, moral or natural rights on the other.
Elsewhere, Habermas15 offers the compromise designation of human rights
as "extra-positive"?more than merely legal, although not quite fully
universal moral rights.
The current dispute between the Rawlsian and Habermasian views of
the nature of human rights has been much commented upon,16 and thus, it
is the article's intention to enter the debate here. But the ambiguity within
the core concept of human rights that the debate calls attention to is
particularly salient in the context of environmental rights. If they indeed
exist as human rights, environmental rights would seem to qualify even less
than other human rights as fully moral prohibitions on others. Environmen
tal rights by their nature invoke (or at least include) future generations who
do not yet bear their "human countenances." Furthermore, those counte
nances seem ineluctably lost as faces in a very abstract crowd?as members
of a group that we can imagine but to which we have a hard time extending
group human rights. Also, environmental rights have a relationship with
animals and their alleged rights that is complex and not easily negotiated,
especially if one is comparing the rights of living animals with those of
anticipated generations of humans.17
14. H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Rev. 184 (1955); Joel Feinberg, The
Nature and Value of Rights, in Rights, Justice, and the Bounds of Liberty (Joel Feinberg ed.,
1980) requires that to be a moral right a right "entails having a moral justification for
limiting the freedom of another person and for determining how he should act."
Cranston, supra note 6, insists that moral rights exert a legitimate moral claim on others,
in all times and in all situations. Feinberg insists that moral rights are claims that must be
granted. Jack Donnelly, Universal Human Rights in Theory and Practice (1989) summarizes
them as rights that individuals possess because and in protection of their moral natures.
That is, they arise from the human need for dignity.
15. J?rgen Habermas, Between Facts and Norms (William Rehg trans., 1996). See the discussion
of Habermas' distinction of his position from Rawls' more fully moral understanding of
human rights in Alessandro Ferrara, Two Notions of Humanity and the Judgment
Argument for Human Rights, 31 Pol. Theory 392 (2003).
16. See Ferrara, supra note 15; see also David Ingram, Between Political Liberalism and
Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights, 31 Pol.
Theory 359 (2003).
17. The relationship between environmental human rights and the possibility of the same
rights for animals is an issue the article cannot discuss here. However, it is worth noting
that the argument for environmental rights presents a possibility for arguing for animal
rights that is somewhat different than the usual basis for such arguments. If humans have
a right to clean air, soil, and water, because all are essential for life, it is a bit hard to see
how other creatures similarly dependent would not also have this right, or why the right
to such essentials would be related in any meaningful way to the different cognitive
abilities of such dependent creatures. The author plans to explore this connection in
future work.
Therefore, if human rights do extend to cover rights to a safe environ

ment in some sense, such environmental rights remain ambiguous as
human rights for several reasons. First, they are particularly abstract rights
because they extend to persons not yet born; that is, they include an
element of time not usually associated with the practice of rights.18 Second,
they would need to be viewed as group rights because they refer to future
generations as a whole. Third, they contain an unspecified relationship to
non-human aspects of the external environment, especially animals, who
might conceivably be protected by rights of a non-human kind. Clearly, if
environmental rights were only claimed on the part of living, human,
individuals, they would still be a tough sell though their content would be
considerably lighter. Adding these futuristic, group-related, and non-human
elements heightens environmental rights' inchoate appearance although,
this article argues, doing so makes the concept potentially richer and more
useful in moral and political theory.
The author wishes to engage the ambiguity that surrounds environmen
tal rights?if not completely erase it?by referring to them as a special
category of rights distinctive for its bearers' connectedness to groups, future
generations, even fellow living organisms sharing the same environment.
The author calls this new category "emergent human rights." In his previous
work,19 the author has explored the meaning of "emergent" phenomena in
the context of technological risk; here he extends the idea of emergentism to
describe how environmental rights both differ from other human rights,
while at the same time, offering an important argument for environmental
justice across generations.
A. Emergent Environmental Rights and the Future
Due to its historic affiliation with individualism, especially in epistemology

and politics, liberalism typically has a difficult time accounting for or even
recognizing emergent phenomena. Such phenomena can be defined vari
ous ways, some more controversial to liberal individualists than others, but
in the author's past work, he has adopted a characterization of "soft"
emergentism that identifies phenomena emerging "from the interstices
between individuals within the common life of modern society."20 As in the
18. Weiss, supra note 1, embraces this new aspect of environmental rights as part of their
appeal. See also Richard Flathman, The Practice of Rights (1976), for a more traditional
view of rights which presumes that they exist only in the present tense.
19. Richard P. Hiskes, Democracy, Risk and Community: Technological Hazards and the Evolution of
Liberalism (1998).
20. Id. at 12-13.
case of emergent risk, all the author wishes to claim, regarding the emergent
status of environmental rights, is that it makes sense for the twin purposes of
identification and policy making to recognize a class of rights that are
markedly different from rights usually attached to individuals either because
of their individual natures (as in classical natural rights theory), or because
of their individual status as citizens accorded certain positive rights by their
respective constitutions. In other words, we need to recognize emergent
environmental rights first to make sense of certain relationships between
individuals in modern society that pose somewhat unique threats in the face
of which individuals ought to have rights. Second, we ought to recognize
such rights in order to make policy for those relationships.
Environmental rights, either interpreted broadly as Nickel's rights to a
safe environment or specifically as in Collins-Chobanian's rights to clean
air, water, and soil, are emergent rights (and therefore, quite different from
traditional human rights) for two reasons. First, they arise in response to
threats that are themselves emergent phenomena. These emergent phenom
ena constitute some of the "standard threats" to human dignity that stand
behind all lists of "basic" human rights, according to Henry Shue's
formulation.21 Second, they are rights that we hold only because of our
relationships with others that cause collective effects on our shared
environment. That is, they are rights due us?not because of something in
our individual nature?but because of the effects of our relationships with
others. If those relationships did not exist, neither would the rights.
Furthermore, those relationships involve not only other living humans but
future generations as well.
As to the first aspect of environmental rights, the "environment" referred
to in such rights is a collective product of individual human activity that is
itself so interrelated and commingled with the activity of others that it only
rarely makes sense to try to separate out each individual's contribution to
the environment or its degradation. The air, water, and soil that make up our
environment, in other words, are affected not only by each of our individual
interactions with them, but with each other as well.
The air one breathes is certainly affected by individualistically defined
actions such as another's smoking, but also by the shared beliefs between
persons concerning whether the culturally defined notion of individual
liberty includes the right to smoke. Similarly, although it may be true that
one can trace the source of polluted water to the power plant down the
street, its very existence is the product of collective choices by those who
live a lifestyle that requires enormous amounts of electrical energy. And
21. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 29-30 (2d ed. 1980).
even the choice itself may never have been a conscious one; it may have
just "emerged" from my emulation of all around me.
The point here is not to deny that it might be possible to trace the source
of emergent effects to the isolated individual acts, persons, or decisions that
gave rise to them. Unlike, for example, Marx in his belief that true
consciousness is only definable in terms of its emergent (read "class")
character, this article argues that in terms of environmental policymaking, it
would be pointless to insist that the threats be identified and pursued to their
original individual source. For instance, would it make sense to blame
President Eisenhower or Einstein for the risks of nuclear power? Eisenhower's
"Atoms for Peace" program surely was efficacious in causing some of the
threats under which we now live emanating from radioactive waste,
especially so for its (and most subsequent nuclear policy's) lack of attention
to the issue of waste disposal. But so many decisions have by now been
made concerning the use of nuclear power?including those by millions of
citizens to use electricity?that it seems almost quaint to expect a solution
based on the identification of who has caused what harm.22
As softly "emergent" as this approach is, it nevertheless makes an
important difference in how we view both environmental hazards and
whatever rights we have to avoid them. As Collins-Chobanian reiterates,
"[environmental pollution is of a fundamentally different nature than
isolatable single agent threats to our well-being" that most rights discussions
turn upon. This is true because while "single invasions of our welfare
interests?exposure to one toxic substance, some low-level radiation, etc.?
might not bring us below the tolerable minimum level, they all compromise
our well-being and might interact to produce cumulative effects."23 It is
these cumulative?or emergent?effects that constitute most environmental
risks, and in response to which emergent environmental rights are necessary.
As individuals we need rights not only to protect ourselves from our
neighbor's smoking or from the corporation down the street whose action is
fouling the water. Those rights could already be embodied in existing law.
We also need rights against the effects of all the unseen, unnamed, perhaps
no longer living fellow citizens who collectively made choices, took
actions, perhaps even made policies that seemed harmless or even wise
then, but that threaten us now. Those rights emerge now in the face of the
emergent threat. Further, they attach themselves to us not as isolated
individuals, but as citizens interrelated in a complex web of responsibility
and liberty that includes our ancestors, as well as future persons, whose
22. See Hiskes, supra note 19, at 83, for a discussion of the relevant approaches to assigning
moral or legal responsibility for such emergent effects.
23. Collins-Chobanian, supra note 2, at 136.
actions or welfare will be hugely affected by our decisions while we are

alive.
To recognize emergent rights as real moral rights calls attention to the
impact of emergent environmental hazards on us not merely as persons, but
specifically as moral persons. They challenge our dignity or autonomy in
ways that, if left unprotected by the claims of rights, would diminish us as
moral agents. This is the measure of all rights that can properly be called
moral rights?they protect the dignity or autonomy of individuals as moral
persons.24 Environmental rights as responses to the hazards of polluted air,
water, and soil protect the autonomous decisions of moral agents both now
and in the future.
This relationship with the past and future invokes the second emergent
feature of environmental rights. Environmental rights, as this article con
strues them, only "emerge" as rights when human relationships have
evolved to the point that cause environmental effects potentially harmful to
individuals and to the natural environment. At that point, individuals have
the right to be protected from those effects, which, as argued above, are
most usefully recognized as themselves emergent phenomena. So emergent
environmental rights are not rights before society exists; in fact, for practical
purposes we should recognize their appearance as relatively recent?
certainly not before the age of industrialization changed the face of human
production and interaction with the natural environment.
The presumption here that emergent environmental rights assume the
existence of society is not unique within human rights theory, although it is
clearly a departure from eighteenth century natural rights arguments.
Anthony Pagden points out that most rights theorists today agree that human
rights refer to the rights of individuals within societies, and therefore
environmental rights, as described by this article, are not a radical departure
from this consensus. As he states:
None of the human rights languages in use today?indeed no talk of agency

and of human personality?would make any sense in some modernised vision
of the state of nature, even if we could make such a thing at all persuasive. It is
society which observes basic human rights, and it is thus by implication only
society which?as the French recognised in 1789?has the power to confer
them.25
Pagden is correct that what we call "human" rights today differ somewhat
from what the eighteenth century theorists called "natural" rights in our
presumption of a social context for at least the practice of rights, if not for
24. Donnelly, supra note 14.

25. Anthony Pagden, Human Rights, Natural Rights, and Europe's Imperial Legacy, 31 Pol.
Theory 171, 192 (2003).
their genesis as well. This is certainly true for any pragmatic understanding
of the operation of human rights in the realm of international politics. But
this article makes a further claim about emergent environmental rights.
These rights exist because of the development of industrial societies and
their collective effects on individuals that are best viewed as emergent
effects, not the recognizable (and therefore legally actionable) effects of
individual behavior or choices. Furthermore, emergent environmental rights
anticipate future generations as well in a unique way when compared to
other human rights, even if, following Pagden, those other rights are also
seen as presuming a social context. Also, defending the emergent environ
mental rights of future generations also strengthens those same rights for
existing citizens, thereby establishing a special kind of reciprocity between
generations.
In brief, the unique relationship with the future invoked by emergent
environmental rights makes it necessary to ascribe rights to future genera
tions as well. As Donnelly notes, all claims of rights are future-oriented to
some extent, since "their principal aim is to challenge or change existing
institutions, practices, or norms, especially legal institutions."26 Similarly, all
declarations of rights presume that individuals in the future are guaranteed
them as well. But environmental rights go further in seeking to guarantee
through their operation that the environment will be preserved for the
future; therefore they make it possible in practice for future generations also
to possess the same rights?in fact, the guarantee is a presumption of such
rights' existence. Therefore, although it would be too much to say that
emergent environmental rights guarantee or logically presume that future
generations also have such rights, in a pragmatic sense it is clear that the
point of environmental rights is precisely such a guarantee. Furthermore,
arguing for the rights of future generations to a safe environment necessarily
also strengthens the same rights for the living, because the health of the
environment inherited by our successors depends upon actions taken by the
living respecting the same rights that they hold. That is, defending the rights
of the future makes the case for present rights even stronger by necessitating
that action be taken now to enhance those rights; such action will also
obviously enhance the environmental rights of present generations as well.
Interestingly then, emergent environmental rights offer at least a
pragmatic solution to the dilemma of noncompossibility problem of the
rights of future generations. That is, environmental rights might offer a new
approach to the entire issue of intergenerational justice by reconfiguring the
nature of reciprocity between generations. Arguing for the rights of future
generations to a safe environment in return makes the argument for one's
26. Donnelly, supra note 14, at 14.
right to the same thing even stronger. Therefore, even if the environmental
rights of future generations infringe on some of one's actions now and the
rights that attend them?for instance one's right to make money in ways that
cause environmental degradation?they nevertheless strengthen one's own
rights to a safe environment by offering additional arguments for promoting
environmentally friendly policies. Such reciprocity is largely rhetorical as
well as theoretical, because those whose rights we are enhancing and are
therefore, reciprocally helping make the argument stronger, do not yet exist
as persons. Nevertheless, the interests of both future and present generations
are interacting in a reciprocal manner that promotes them both and in the
process, provides added strength to the environmental interests of the living.
Environmental rights are the only human rights that are intrinsically tied
to the welfare and interests of future generations as moral persons and that
provide reciprocal benefits for present generations in arguing for beneficial
environmental policies. Environmental protection, by its very nature,
invokes the future as justification for conservation; therefore, concluding
that such protection is a human right also lays the foundation for a powerful
presumption that future generations are entitled to a similar right. For both
living and future persons, it is an emergent right because it depends on
certain relationships existing in society between individuals, between
individuals and their natural environment (including animals), and between
individuals and groups. This human environmental right is also emergent in
that it is the product of collective decisions and policies that both include
past actions and anticipate future ones.
B. Emergent Environmental Rights as Concrete Group Rights
Seeing environmental human rights as emergent rights specifically ties those

rights both to group rights arguments while at the same time, limiting the
abstractness of such groups (and their rights) by focusing the rights on the
succeeding generations of one's own society. This is an important feature of
emergent rights to a safe environment, and one that needs some explicating,
because within it lies much of the practical appeal of environmental rights
as a basis for intergenerational justice. That appeal is strong because it
incorporates both cultural and political identities of a society as an
emergent entity with a defining past and an anticipated future. Because all
in a society share a similar view of their collective past and future, their
concern for that future makes the group of future citizens less alien or
abstract than other groups?even living ones from other cultures?might
seem. Although they exist only in the abstract and can only be perceived as
a group, future citizens will be "like us," they will share our historical
collective identity, will embrace our concepts and culture. Therefore, it is
not difficult for citizens to show concern for their own succeeding
generation's welfare and environmental rights, even if those rights can only
be viewed as group rights. In fact, it may arguably be wrong to call
environmental rights truly group rights, because the "groupness" of genera
tions of future citizens consists only in the indeterminacy of their number. If
we view them more concretely as future citizens, especially of an individu
alistic society such as the United States, it is tempting to see the environ
mental rights they hold as the same as the rights to free speech and free
press, for instance, that we construe as the rights of individuals.
Similarly, by grounding emergent environmental rights in an individual
society context, two other emergent aspects make the environmental rights
of future generations seem more concrete for the future citizens of one's
own society than for those of other societies. The first of these has to do with
the shared policy history of a society in the broad area of environmental
decision making; the second is the more general political culture that
present generations presuppose they will pass on to future ones. These two
social facts of any society carry a presumption in support of environmental
rights of future generations, and especially in societies with liberal political
cultures. The first of these will be addressed here; the second includes a
larger issue of the culture-boundedness of all human rights and is explored
in the next section.
Environmental policies, like those in any area, do not leap fully formed
ab nihilo from legislatures, courts, or government agencies. Rather, they are
built up over time in response to previous policy decisions, changing
conditions, or political pressures, and the growth of knowledge. All
environmental policies, as implied above, anticipate the future in a special
way because they deal, by their nature, with presumptively changing
environmental conditions. But they also look backward toward earlier
policies. This sensibility to the emergent nature of all policies is important in
building awareness of the rights of future generations, but is especially
effective within one's own society because earlier decisions can be
recognized in some sense as "ours." Because policies always try to
anticipate future events, policymakers and citizens alike understand that
those who live with those events are in some way "our people," our fellows
in a blood community who are entitled to our best efforts. It is not a far step
from such entitlement to an appreciation of the rights of our successors that
limit our policy choices today.
III. HUMAN RIGHTS, POLITICAL CULTURES, AND PRAGMATISM
However, even if we could conclude that the emergent nature of environ

mental policies and of the human rights to which they give rise make it
plausible to grant environmental rights to future generations of our own

societies, can we presume that all societies with vastly different political
cultures would also recognize such rights of future generations? If we could,
then environmental rights as universal human rights recognized by each
society (if only) for its own future citizens would be a strong foundation for
justice across generations. But two problems remain. First, can we presume
that the idea of human rights enjoys a consensus sufficient to apply in every
society? Second, even if we deny the first, could we still maintain that every
society regardless of its political culture should and does recognize a single
human right: the right of its own future citizens to a safe environment? If we
can accept the latter, this article contends that this would itself constitute a
considerable degree of consensus both on the idea of a universal human
right and on the requirements of justice across generations.
No question concerning human rights mires one so immediately in the
debate between universalist consensus versus pluralism than questions
about the rights of future generations. Because no one culture can claim
dominance over the future of all cultures, what future generations will
believe about rights and justice is fundamentally unpredictable. Therefore,
even if there were an East/West consensus about the meaning and
applicability of human rights today, their status in the future would still be
uncertain and likely pluralistic. What Ball argues concerning the future
meaning of justice we can extend to future understandings of the idea of
human rights as well:
We cannot know what men and women in distant generations will mean by
"justice," nor what they will regard as (un)just. . . . The more distant the
generations, the greater the likelihood that their moral concepts and ours will
be at least partially or even perhaps wholly incommensurable.27
Pluralism of belief about the meaning of concepts like rights may remain
debatable (at best) within the present context of a globalizing yet not quite
fully global world; it would be hubristic in the extreme to assume that future
generations would share our meanings.
While it is true that documents like the UDHR make universal and
foundationalist claims about human rights, the fact that they are called
human rights is itself a step away from the universalist pretensions of the
Enlightenment reliance on natural as the preferred adjective for rights.
Pagden's point about the consensus among rights theorists concerning the
assumption of the social grounding of rights makes this clear; therefore the
modern usage recognizes that rights belong to people in society, and
specifically relate to the rights the individual holds as a citizen. Gone is the
27. Ball, supra note 9, at 322.
universalism of nature, but nevertheless, it is commonly replaced by a

singular conception of what sort of society?a liberal one?can protect the
human rights of citizens. Liberal citizenship is the new universalist founda
tion of human rights.
Nowhere is the new universalism clearer than in the debate between
Rawls and Habermas concerning the status and applicability of rights.
Although Rawls views human rights as attaching to peoples viewed
pluralistically to embrace divergent cultures, while Habermas28 retains the
idea that rights attach solely to individuals, Rawls' conceptualization of
what makes a culture "decent" and therefore acceptable in human rights
terms seems suspiciously like the old Enlightenment values of liberal
toleration and participation. Ultimately, both Habermas and Rawls come to
an understanding of human rights that is intrinsically liberal.
For Habermas, recognizing the inescapably liberal nature of human
rights has the somewhat curious effect of, for him, resolving the alleged
disagreement between Eastern and Western views of human rights. Habermas
argues that even the Lockean view of individual rights accepts that acting on
rights is only possible within a set of ''pre-existing, indeed intersubjectively
recognized norms of a legal community."29 It might be said then, (as Locke
does) that individuals have rights before such a community, but that "the
status of legal persons as rights-bearers develops only in the context of a
legal community which is premised on the mutual recognition of its freely
associated members."30 Therefore, for Habermas, this recognition of what is
required for individuals actually to acton their rights means that practically
speaking, the metaphysical idea of an individual possessing rights and
existing before society should be jettisoned. Somewhat paradoxically
perhaps, given its persistently individualistic assumptions, accepting
Habermas' argument makes a universally acceptable notion of rights
possible. He concludes:
However, dropping this "Western" thesis also makes its "Eastern" antithesis
unnecessary?that the claims of the legal community have priority over
individual legal claims. The choice between "individualist" and "collectivist"
approaches disappears once we approach fundamental legal concepts with an
eye toward the dialectical unity o? individuaron and socializations processes.31
Habermas' attempt at bridging the East/West divide over the meaning of

rights is enlightening for this article's conception of emergent environmental
28. See John Rawls, The Law of Peoples (1999); Habermas, supra note 12. See also David A.
Reidy, Rawls on International Justice: A Defense, 32 Pol. Theory 291 (2004) for
elaboration upon and defense of Rawls' position.
29. Habermas, supra note 12, at 167 (emphasis in original).
30. Id.
31. Id.
rights, and especially for the clearly pragmatic nature of its argument.
Emergent environmental rights, as this article has construed them, clearly
presume the existence of a cultural community within which individuals are
embedded and from which they garner their senses of selfhood, identity,
and of their rights as well. These senses, in all likelihood, differ from those
of individuals in other cultures, but nevertheless define them as individuals
and therefore, as distinct from their counterparts in other cultures. Indi
vidual identity, in other words, presumes such a communitarian context
and, as Habermas concludes, "Without this kind of 'communitarianism,' a
properly understood individualism remains incomplete."32
Because emergent environmental rights also presume the continued
existence of one's cultural community into the future?that is, they antici
pate future generations?the communal context of environmental rights is
part of every society, be it Eastern or Western. On this much, at least, all
societies can agree that they should preserve the environmental rights of
those members of their community who come after them. But this futuristic
element of human rights is too often?and by design?left out of the so
called community based, "Asian view" of rights that is said to conflict with
the excessively individualistic understanding of human rights predominant
in the West. As Xiaorong Li argues, it is not the communalistic rendering of
human rights in Eastern cultures that inhibits consensus with the West, but
rather the denial for ideological or political purposes of the role future
generations play in the understanding of community within the Asian view.
In Li's opinion, it is Asian politics, not Asian communitarianism, that impede
an East/West consensus on the meaning of human rights:
However, the "Asian view" creates confusions by collapsing "community" into
the state and the state into the (current) regime. When equations are drawn
between community, the state and the regime, any criticisms of the regime
become crimes against the nation-state, the community, and the people. The
"Asian view" relies on such a conceptual maneuver to dismiss individual rights
that conflict with the regime's interest, allowing the condemnation of individual
rights as anti-communal, destructive of social harmony, and seditionist against
the sovereign state.33
Even if we are reluctant to tar all Eastern views of human rights with the
ideological brush Xiarong Li exposes, it nevertheless is clear how the
futuristic, inclusive aspect of emergent environmental rights can diminish
the distance between such views and those of Western theorists.
However, there is another reason for convergence of East and West as
32. Id.
33. Xiaorong Li, "Asian Values" and the Universality of Human Rights, 16 Report from the
Institute for Philosophy and Public Policy 18, 21 (1996).
well, one that has more to do with history of human rights than of their
future. It is important to recognize that the real foundation of human rights
lies in humanity's historic need for them rather than in any alleged
philosophical certainty of their existence. This need has arisen in every
society regardless of its cultural beliefs about individuals and their place in
the community. As Michael Ignatieff argues, regardless of whether cultures
can agree on the foundations of human rights?of where or how people get
them?there is little doubt that history has shown conclusively that we need
them. Why we need human rights is then the important question, not the
questions of why we have them in the first place or where they came from.
Why we need them is a question of historical fact; where they come from is
philosophical speculation that mainly serves to dissipate the consensus on
rights' necessity. He concludes that,
All that can be said about human rights is that they are necessary to protect
individuals from violence and abuse, and if it is asked why, the only possible
answer is historical. Human rights is the language through which individuals
have created a defense of their autonomy against the oppression of religion,
state, family, and group. Conceivably, other languages for the defense of human
beings could be invented, but this one is what is historically available to human
beings here and now.34
Ignatieff's argument against the "idolatry" of treating the foundations of

rights as more important than the rights themselves illuminates the prag
matic philosophy underlying his defense of human rights. As echoed by
Habermas and other human rights theorists, the pragmatic approach to
rights is especially suited to the current implementation of human rights as
a force in world politics. Many human rights theorists express a frustration
with much of the philosophical argumentation that has historically accom
panied the concept of rights.35 That argument focused for too long either on
alleged attributes of individual human beings that uniquely qualified the
species for rights, on mythical "states of nature" where the origins of rights
could be inferred, or on the extent to which a right constituted an absolute
power or "trump" over others' actions. As Ignatieff points out, it is of
historical, as well as philosophical significance, that the impetus to
institutionalize human rights within international politics came after a
period where the human capacity for evil made all those discussions seem
beside the point. After the Nazi horror became well known, Ignatieff argues,
34. Michael Ignatieff, Human Rights as Politics and Idolatry 83-84 (2001).
35. See, e.g., Donnelly, supra note 14; Realizing Human Rights: Moving from Inspiration to Impact
(Samantha Power & Graham Allison eds., 2000); Richard Rorty, Human Rights,
Rationality, and Sentimentality, in On Human Rights: Oxford Amnesty Lectures (Stephen
Shute & Susan Hurley eds., 1993); Ignatieff, supra note 34; Cranston, supra note 6, for
examples of the pull toward pragmatism within current human rights theory.
the UDHR specifically "set out to reestablish the idea of human rights at the
precise historical moment in which they had been shown to have had no
foundation whatever in natural human attributes."36 In doing so, the UDHR
effectively established the pragmatic foundations for human rights.
Like pragmatism generally, the pragmatic approach to human rights
stresses the role of rights in practical politics, law, and interpersonal
relations rather than the metaphysical foundations for a belief in rights.
Thus, theorists like Ignatieff and Donnelly emphasize that the fundamental
moral commitment required by human rights is neither to abstract ideas of
goodness or alleged human attributes such as reason, nor even to the goal
of mutual respect. Rather, human rights enshrine the practice of human
deliberation as the measure of moral behavior. In politics, pragmatists such
as political theorist Benjamin Barber37 agree with Habermas (and both recall
John Dewey) that the essential political requirement of human rights is
participatory democratic deliberation.
This pragmatic cast of much current human rights theorizing is
especially suited to recognizing the emergent reality of environmental
human rights. As a philosophical position, pragmatism is committed to an
epistemology grounded in experience and leaving room for the changing
relations between things that constitute both their ontological and ethical
status. Pragmatists view philosophical ethics, according to Kelly Parker "as
an ongoing attempt to determine what is good, and what actions are
right."38 As a dynamic process then, pragmatic ethics moves into new issues
and denotes new concepts as a way of recognizing that something has
changed "at a very deep level of our collective life."39 Environmental rights
constitute precisely such a new development, and their emergent nature is
due to their origin in modern collective life.
Pragmatists construe not only ethics but also reality as a whole as
dynamic in nature. Change is perhaps the most essential feature of life;
therefore, the very idea of clearly stating what the rights of individuals are,
would for pragmatists be a futile and fallacious gesture. As relations
between persons individually and between people and their environment
change, rights must evolve accordingly. Pragmatists see these developments
in distinctly emergent fashion, since it is the relations themselves that matter
in the philosophical recognition and description of social reality. Parker
summarizes the pragmatist position:
36. Ignatieff, supra note 34, at 80.

37. 5ee Benjamin R. Barber, Strong Democracy: Participatory Politics for a New age (1984);
Benjamin R. Barber, A Passion for Democracy (1998).
38. Kelly A. Parker, Pragmatism and Environmental Thought, in Environmental Pragmatism 30
(Andrew Light & Eric Katz eds., 1996) (emphasis in original).
39. Id.
Pragmatism, then, sees reality as process and development, and sees beings as
relationally defined centers of meaning rather than as singular entities that
simply stand alongside one another in the world. It emphasizes not substantial
beings, but interrelations, connectedness, transactions and entanglements as
constitutive of reality.40
Parker's purpose is to demonstrate pragmatism's kinship to environmental

ethics, and especially to verify that pragmatism is itself a "philosophy of
environments." Within pragmatism, it should be clear, is an obvious home
for the idea of emergent environmental rights, rights grounded in the
"interrelations, connectedness, transactions, and entanglements" of citizens
in their collective life.
IV. CONCLUSION: A PRAGMATIC CONSENSUS

ON ENVIRONMENTAL RIGHTS
So strong is the connection between pragmatism and environmentalist

arguments that ultimately the strength of the case for emergent environmen
tal human rights probably depends on the strength of pragmatism itself as a
basis for moral action. This article has tried to make that case by relying not
only on pragmatist claims, but also by elucidating the beneficial conse
quences of recognizing such rights as legitimate human rights. In the
author's view, there are three such consequences.
First, embracing emergent environmental rights offers a new basis for
claims regarding intergenerational justice. Because environmental rights
logically presume concern for the future, it is not a far jump to actual
recognition of equal rights of future generations to (at least) the same
environmental conditions as exist now. Such recognition has the reciprocal
effect of strengthening the argument for environmental rights of present
generations. The rights of future generations manifest the status of group
rights; however, because the generations under consideration are those of
one's own society?future fellow citizens?they appear less abstract than
other groups.
Second, the argument for emergent human rights can bridge the cultural
divide that many claim exists between Eastern and Western approaches to
human rights. Although Li may be correct in arguing that the divide is more
ideological than epistemological, emergent environmental rights appear
ecumenical enough to bring the two views of rights together. They
accomplish this by relying on the presumption that all societies maintain
concerning successor generations: every society anticipates its own future
40. Id. at 25.
citizens and is concerned with their welfare. Such a shared anticipation is a

considerable foundation for consensus among all cultures on the reality of
environmental rights.
Third, and partly due to the second consequence, it is clear that
emergent environmental human rights anticipate the continued pull of the
concept of national sovereignty in international affairs. Regardless of one's
sentiments about that continuity, it is at least clear that any new human right
that did not respect sovereignty would today have a tough road to
acceptability. Besides, as Ignatieff argues, it remains true that national
constitutions are the most effective guarantors of human rights. Therefore,
the argument for emergent environmental human rights is better served by
its appeal to the current regime within international politics. Not to be
grounded in current understandings of national citizenship and sovereignty,
in other words, would render the concept of environmental rights exces
sively idealistic and difficult to implement.41
Still, the suspicion remains perhaps that this article has given up too
much in order to make environmental human rights acceptable and
politically viable. Relying on the nationalistic concerns of each sovereign
state for its own future citizens' welfare (and no one else's) might seem to
render the whole appeal of emergent environmental rights too narrowly
jingoistic to qualify as universal human rights. The author is sensitive to this
criticism, but it seems that if human rights are to be both universally
accepted and still open to the fact of cultural diversity, there is no alternative
to such a foundation.
History makes clear that all humans, not just those who believe in them,
need the protections that human rights provide. But that need cannot mean
that all cultural differences should disappear. Indeed the UDHR affirms that
every individual has the right to a nationality (Article 15), and later
declarations such as the African Charter on Human and People's Rights
insist on rights not only to cultural self-determination, but also on a people's
right to development. The case for these cultural rights is not universally
accepted of course, but few doubt the sincerity behind their presentation. If
human rights are to remain an important standard regulating how states treat
other states and individuals, then individual differences between states in
their regulation of environmental effects need to be allowed. Since 1945 at
least, the idea of human rights has relied on its pragmatic acceptance of
difference as part of its legitimacy as a universal standard regulating
behavior. Emergent environmental human rights clearly continue this
reliance, and in so doing, recommend themselves as part of that universal
standard.
41. Ignatieff, supra note 34, at 35.

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The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational

The Right to a Green Future:

1. James W. Nickel, The Human Right to a Safe Environment: Philosophical Perspectives on

4. Dowding & van Hees, supra note 3, at 292.

II. HUMAN RIGHTS: MORAL, LEGAL, ENVIRONMENTAL, EMERGENT

Therefore, if human rights do extend to cover rights to a safe environ

A. Emergent Environmental Rights and the Future

Due to its historic affiliation with individualism, especially in epistemology

actions or welfare will be hugely affected by our decisions while we are

None of the human rights languages in use today?indeed no talk of agency

24. Donnelly, supra note 14.

26. Donnelly, supra note 14, at 14.

B. Emergent Environmental Rights as Concrete Group Rights

Seeing environmental human rights as emergent rights specifically ties those

III. HUMAN RIGHTS, POLITICAL CULTURES, AND PRAGMATISM

However, even if we could conclude that the emergent nature of environ

plausible to grant environmental rights to future generations of our own

27. Ball, supra note 9, at 322.

universalism of nature, but nevertheless, it is commonly replaced by a

Habermas' attempt at bridging the East/West divide over the meaning of

Ignatieff's argument against the "idolatry" of treating the foundations of

36. Ignatieff, supra note 34, at 80.

Parker's purpose is to demonstrate pragmatism's kinship to environmental

IV. CONCLUSION: A PRAGMATIC CONSENSUS

So strong is the connection between pragmatism and environmentalist

40. Id. at 25.

citizens and is concerned with their welfare. Such a shared anticipation is a

41. Ignatieff, supra note 34, at 35.

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