When 25 Colombian children filed a lawsuit to protect the Amazonian rain forest earlier this year, the Supreme Court of Colombia ruled that future generations have fundamental rights, as does the Amazon forest itself. But what does it mean for nature and for unborn humans to enjoy rights?
On this day 70 years ago, the United Nations General Assembly voted to approve the Universal Declaration of Human Rights (UDHR), a remarkable instrument that spells out in a mere 30 articles the rights and duties we owe each other by virtue of our humanity. Today the UDHR—created in response to the atrocities of World War II—serves as the core of the world’s human rights treaties and institutions, and as a reference point for the rights granted by dozens of national constitutions written after 1948.
Two things the UDHR conveniently failed to address, however, are the definition of the “human,” and an explanation of why being human matters to having rights and duties. We have been debating these questions ever since. While the great rights debates of the 20th century focused on the relations between humans – and in particular between the individual and society --a new line of debate is unsettling human rights law. It asks about our moral relations to other beings, natural and man-made. Ultimately, it challenges the central role that the human/non-human boundary currently plays in rights law.
Our relation to man-made others is already an everyday matter as we struggle to weed out the bots in our Twitter feed, or curse Siri for “her” poor listening skills. In January, the European Union Parliament asked its Commission to consider “creating a specific legal status for robots” as “electronic persons.” The concern is that as robots become more autonomous, making decisions based on complex and opaque algorithms, it is hard to know who to hold liable for their actions. Would endowing them with legal duties help address this danger? There are also those who argue that the way we treat robots, and not only how they treat us, has moral meaning (a thought you already may have had on hearing your child cursing Siri, in turn).
And then there is the question of our relation to others in the natural world. Recently, courts in Argentina, Colombia, and India have recognized that apes and bears have certain rights, such as the right of habeas corpus. A trend that is perhaps even more innovative, at least from the perspective of Western legal traditions, goes beyond animals: courts or constitutions in New Zealand, India, Ecuador and Colombia have extended the status of rights-bearing person to rivers, forests and mountains, and to nature herself, a trend approvingly noted by international human rights bodies.
You could see these various claims as evidence of clever lawyering rather than of a moral shift. Such claims can be raised by the capitalist who wants to shield herself from liability for the misdeeds of a killer bot she deployed (by giving the bot itself liability), just as they can arise from the trenches of protest against capitalism (endowing an Amazon forest with rights raises one more hurdle in the path of oil drilling). For either side, the language of rights opens doors to the legal system.
But if you step back, it appears that the various claims also rest on shared principles. One principle falls squarely within the UDHR’s human-centered outlook: ethical behavior towards non-humans serves to protect humans. Science has shown that the way we treat animals shapes (and also mirrors) how we treat each other. This is likely also true of how we treat human-like machines, and even whether and how we create them in the first place. Some scholars worry, for example, that—in real life as in fiction—service bots will be given traits both female and Asian, amplifying race and gender bias.
Yet also underlying these new rights claims is a principle of concern for non-humans, for their own sake. This is particularly true of the dwindling variety of natural creatures with whom we share the planet. In a groundbreaking case, Colombia’s Constitutional Court, a regional leader on rights matters, held that government must protect an Amazon river ecosystem not only because it is of use to humans but because nature is itself “a living entity composed of other multiple forms of life and cultural representations.” It is an end in itself, and “the subject of individualizable rights.”
Given our political moment, it might seem frivolous or even dangerous to dilute the human in human rights. The United States has withdrawn from the U.N. Human Rights Council. Nationalist governments in Europe and Latin America are flouting and otherwise talking down the importance of international human rights treaties. The problems of xenophobia, democratic decay, growing inequality and climate change are causing harm to millions of humans, even as human rights discourse has lost its importance in diplomatic relations. As ethicists and engineers wrote in response to the European Parliament, the proposal to give robots personality could be “in contradiction with the Charter of Fundamental Rights of the European Union,” and is anyway based on a “perception distorted by Science fiction.”
But this isn’t about ignoring our pressing political problems. Rather, it is to say that if this is a time for regrouping and rethinking, it is a time to do both of those things in a very big way. Perhaps we now need to make room in the shared moral language of the UDHR for the challenges of planet-altering carbon emissions, intelligent machines and even the prospect of creatures created by new gene-editing technologies such as CRISPR-Cas9.
And perhaps the most radical rereading of the UDHR would be to emphasize the duties that we hold towards each other (as opposed to rights we have against each other) and even to include duties to non-human others. Otherwise, we may find that over the next 70 years, the UDHR, written at the start of the Cold War and with that era’s defining problems in mind, becomes less a point of reference than a Sapiens-centric curiosity from a distant century.
Please note: The author has edited a symposium on this topic for the American Journal of International Law, which goes more deeply into these issues from many different perspectives. It appears here.