3. Critiques of Human Rights Law in Response to Climate Change

Human rights are not without their critiques, several of which are particularly relevant to the intersection of climate change and rights. Here it is important to note that many critical theorists have acknowledged that human rights still have significant instrumental value, and that their critique is offered to support a strategic deployment of rights alongside greater awareness of their risks and limitations.^[1]

3.1 Preventing Structural Change

The first critique is that human rights detract energy and momentum from movements seeking to secure transformative or structural change, and may also work to legitimise existing power arrangements.^[2] Essentially, it is argued here that the institutional recognition of rights has a history of deradicalising social movements by incorporating their claims into the liberal, capitalist status quo.^[3] There is growing recognition that climate change is a direct result of our current neoliberal political economic order, and that genuine climate action will require fundamentally changing this status quo.^[4] In this context, the claimed deradicalising tendencies of human rights merit critical attention.

A related critique here is that human rights have historically been individualist and centred the state (as the key source of oppression and protection). This individualist and state-centric focus has a poor record of addressing the role of third parties, such as corporations, in breaching human rights, which may be problematic given the central role of corporations in driving climate change. The state’s dual role as protector and oppressor also creates an inherent tension for enforcement.

3.2 Eurocentrism

Another critique of human rights is that it presents Western, or ‘Eurocentric’, cultural practices as being universal. Indeed, the foundational texts of international human rights law, and particularly the UDHR, were drafted almost exclusively by white (mostly male) elites. It is further argued that when the UDHR was adopted by 48 of the 58 existing members of the UN, ‘[a]lmost two-thirds of world countries were still colonies and as a result without a voice’.^[5] By asserting Eurocentric cultural practices as universal, human rights have been used to erase other ways of knowing and to assert dominance and justify imperialism.

The Eurocentric history of human rights is particularly relevant to climate change due to the increasing recognition that colonisation and imperialism are core to its root causes.^[6] Heather Davis and Zoe Todd, for example, argue that by ‘making the relations between the Anthropocene and colonialism explicit, we are then in a position to understand our current ecological crisis and to take the steps needed to move away from this ecocidal path’.^[7] In response to these critiques, scholars are increasingly calling for human rights to shed its Eurocentric foundations through a process of decolonisation to enable it to positively contribute to this project of moving towards a more sustainable future.^[8]

3.3 Anthropocentrism

The final critique that we will consider is the argument that human rights are ‘anthropocentric’ — that is, they elevate the rights of humans above those of the rest of the environment. This limits the usefulness of human rights for addressing the significant effects of climate change on more than humans — and also risks entrenching the dualist mode of thinking (the separation of humans from the rest of the environment) that has contributed to driving climate change itself. One response to this charge of anthropocentrism has been the growth of a global movement for the recognition of rights for the rest of nature. The rights of nature movement has recently been associated with a raft of legal changes in jurisdictions around the world, which have recognised rights for individual natural entities (often rivers) or all of nature, sometimes through or alongside the mechanism of legal personhood.^[9]

However, rights of nature have also been criticised for many of the same reasons considered above (deradicalisation and Eurocentrism). As with earlier critiques of rights, many of these critiques acknowledge that there is nothing inherent within rights that leads to these downsides. Instead, they emphasise the need to be aware of the potential risks and of unconsciously adopting (and entrenching) Western ideological traditions (or ontologies).^[10] One strategy that can assist with this mindful approach is to acknowledge the leadership of Indigenous peoples in many rights of nature developments and to recognise that humanity is both part of and deeply interdependent on the rest of the biosphere. Alongside the recognition of rights for nature, many of these legal developments have embedded transformative mechanisms for empowering Indigenous authority within environmental governance, and these mechanisms also offer a radical potential for moving beyond Eurocentrism.^[11]