Huneeus: The Three Faces of Non-Human Rights

Alexandra Valeria Huneeus (Univ. of Wisconsin - Law) has posted The Three Faces of Non-Human Rights (in The Oxford Handbook on Comparative Human Rights, Neha Jain & Mila Verstaag eds., forthcoming). Here's the abstract:

What does the emergence of rights of nature mean for human rights? For over a decade, scholars have been pointing to a long list of geopolitical factors that increasingly threaten the legitimacy and power of the international human rights order, with some auguring the end times of human rights (Hopgood 2013). But non-human rights pose a distinct kind of challenge, threatening to unravel human rights law from within its major premise. If non-humans also have fundamental rights, then human rights do not so clearly trump other values, and they must be balanced against, and perhaps even yield to, the rights of other beings. From this perspective, non-human rights are the Trojan horse –a gift wrapped in the seductively simple language of fundamental rights-- that could critically weaken human rights law.

But from another perspective, the novel claim is less disruptive than at first seems. Human rights have already proliferated to such an extent that no single right provides a trump card or clear guide to state behavior anyway: Decision-makers have long been in the business of balancing rights against other rights, interests, and values. Nature rights are simply a way of expressing values, and a mechanism by which to gain expedited standing before judges in environmental matters. By this telling, nature rights can exist alongside human rights law without upending it. They may make the rights edifice a bit more unwieldy than it already is, but they may also make it more responsive to environmental harm.

This chapter analyzes the evolving relation of non-human rights and human rights law in Latin America, the region where they first emerged and have undergone the most development, and where human rights law plays a salient role at the domestic and regional level. A review of judgments, laws, and social movements reveals that justifications for extending legal rights beyond humans fall into three categories. First are claims based on the species-level attributes of an animal or other creature: there is a quality of the being in question that demands a certain type of ethical treatment. This type of justification echoes the structure of most arguments for human rights, including deontological, utilitarian, and capabilities approaches. But it extends the protection of rights to animals that share with humans an essential quality, such as the ability to suffer. Second are claims based on legal pluralism: Law in a multicultural state should give voice to the views of indigenous and tribal peoples as well as Western legal traditions. If indigenous or other peoples so request, states should grant legal personhood and rights to natural features or “earth beings” that non-Western peoples hold as persons, or kin, and with whom they live in relation. Third are claims based on a new ontology: Some argue that it is time to rethink the most fundamental commitments of Western thought and, specifically, to give a different moral meaning to the distinction and relation between humans and non-humans, as well as the distinction and relation between the living and non-living.

Each of the three types of claims plays out in different ways in its relationship to human rights. These differences in the argumentative structure of rights of nature have implications for many of the questions that we are asking of this emerging body of law, including questions of effectiveness, implementation, and impact on other areas of law.