Human Rights: The Commons and the Collective By, Laura Westra, Ph.D.

1. Human Rights: The Commons and the Collective By, Laura Westra, Ph.D. Professor Emerita (Philosophy) University of WindsorSessional Instructor, Faculty of LawSessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University E-mail:lwestra@interlog.com Website: www.ecointegrity.net

2. The “Tragedy of the Commons” Many centuries ago, capitalism arose in agrarian England as the economic motive and competitiveness replaced traditional values in the ‘enclosure movements’. The ‘enclosures’ provided ‘the most famous redefinition of property rights’: they eliminated the commons, with no regard for human rights. (EM Wood, The Origins of Capitalism (New York, The Monthly Review Press, 1999) pp 67-94.) Philosopher John Locke defended the right to property above all, although he predicated his defense upon ensuring that enough would be left to be held in common. But he also espoused the defense of ‘improvements’ as needed to impose value upon nature, an argument that supported the policies of his master, the Earl of Shaftsbury. What we encounter today, in the primacy of the economic motive over and above human rights including the right to a safe and healthy habitat, is the final ‘enclosure movement’: it is once again mostly the poor and dispossessed of the world who are shut out of the natural global commons.

3. The Notion of ‘Improvement’ ...we might like to think about the implications of a culture in which the world for “making better” is rooted in the word for making monetary profit. (Wood) What was at stake then, as it is now, was first and foremost the existence of the most basic human rights – that of respect for human life, for human ‘security and subsistence’ (H Shue, Basic Rights; Subsistence, Affluence and American Foreign Policy, Princeton, Princeton University Press, 1996) – long before questions of religious or sexual rights were at issue. Dispossessed farmer/tenants in 17th-century agrarian England had no way of supporting themselves of their families. Today many of us, especially in developed Western democracies can in fact support ourselves, but our life and health are under attack nevertheless.

4. Attacks as Ecoviolence The language of ‘attacks’ to describe the results of unsafe, unhealthy habitats upon us, is particularly apt as it emphasizes two main points connected to the law, one historical, the other moral. I have described the relation between what I term ‘ecoviolence’, that is violence perpetrated in and through the environment elsewhere. (Westra, Laura, Ecoviolence and the Law, Ardsley NY, Transnational Publishers, 2004) …should we continue to think about human rights and the environment within the existing framework of human rights law in which the protection of human rights is the central focus – essentially a greening of the right to life, private life, and property – or has the time come to talk directly about environmental rights – in other words a right to have the environment itself protected? Should we transcend the anthropocentric in favor of the eco-centric? (Boyle, Alan, 2007, “Human Rights of Environmental Rights? A Reassessment”, Fordham Environmental Law Review, Symposium, Vol. XVIII, No. 3, 471 – 473)

5. Child Protection and Future Generations’ Rights – The Road to Ecojustice We need to understand the full import of the harms perpetrated against children, now seen as the new “canaries”, by the present flawed and incomplete laws and regulations, both those that spell out their rights, and in general, the duty to protect children, and those which deal with environmental protection. These two forms of protection are inseparable, and their interface, we shall argue, forms the basis for “ecojustice”, that is justice that is both intragenerational and intergenerational at the same time. The first of the future generations is at grave risk, right here and now. This must be the starting point, the basis of an understanding of the present situation, and of all present and future-oriented legal instruments. Environmental protection is insufficient if it does not include the consideration of all life, present and future: scientific uncertainty and the increasing use of the precautionary principle, make such an approach mandatory.

6. Child Protection & Developmental Rights Child protection, although it includes many important issues beyond the protection of life, health and normal function, must start with these “basic rights”, paraphrase Henry Shue, as we shall see below. Protection of the child’s right to religious freedom, to education, to a responsible and responsive family or substitute to nurture her growth and development, mean little if the child is born with serious mental, physical or emotional challenges, often irreversible, based on pre-birth or other early environmental exposure. Finally, future generations cannot be protected when the high-sounding rhetoric of the instruments designed for their protection does not generate immediate action, but is postponed indefinitely, while the first of those generations is negligently and carelessly harmed, often in ways that persist into the future. To develop a just developmental ethic, we must seek to implement a form of global governance that includes the preconditions of human rights.(Taylor, Prudence, 1998, “From Environmental to Ecological Human Rights: A New Dynamic in International Law?” The Georgetown Int’l Envtl. Law Review, Vol. 10, 309) From that stand point, the ecological basis for the developmental rights of infants and children, are also equally protected. As we will show, the foundations of children’s rights to health must be built and respected long before the child sees light, or not at all. Thus “developmental rights” acquire a meaning analogous to the generally accepted meaning of the rights of peoples to development, when the referents are children.

7. Indigenous peoples and Ecojustice There is a case for arguing that the local communities as a whole should be given the benefit of the rights granted with a view to compensating local residents or the disruptions, inconvenience or other adverse effects resulting from the exploitation of natural resources in their locality. (Date-Bah, S.K., 1998, “Rights of Indigenous Peoples in Relation to Natural Resources Development: an African Perspective”, 16 Journal of Energy Natural Resources Law, 389) The unifying concept for all these disparate groups, is their land/culture connection. All these peoples, (1) view themselves as a distinct people; (2) have inhabited the same territory from time immemorial; (3) possess a common language, culture and religion; (4) view themselves as “custodians” of their environment; (5) define themselves, at least in part, through the habitat that provides for them; (6) have tribal and communal forms of social relations and resource management, often based on directions from their elders; (7) their identity is based upon their lands; (8) they view the ecosystems they inhabit and have inhabited traditionally, as religiously significant. (Asiema and Situma, 1994: 150)

8. The International Legal Instruments Intended to Protect Defined Indigenous Groups are Neither Strong nor Enforceable The major problems that threaten indigenous and land-based minorities, are essentially two sides of the same coin: their poverty and powerlessness renders them highly vulnerable to the “development” that brings them a high dose of the hazardous exposures that their very poverty and isolation had helped them to avoid. Hence they are the most vulnerable to climate change (Lovelock, James E., 2006 The Revenge of Gaia: Why then Earth is Fighting Back – and How we Can Still Save Humanity, Perseus Press, NY; Revkin, Andrew C., 2005, The North Pole was Here; Brown, Donald A., 2002 American Heat, Rowman Littlefield, Lanham, MD), and—in addition—when their isolation has been breached, the full thrust of unchecked exposures renders their conditions close to untenable. (Lyon, Beth, 2002, “Postcolonial Law Theory and Law Reform Conference; Discourse in Development: A Post-Colonial “Agenda” for the United Nations Committee on Economic, Social and Cultural Rights”, 10 American University Journal of Gender and Social Policy and Law, 535) The direct effects of Northwest ecofootprint, therefore do not only result in direct physical harms, but also, by their presence, produce indirect harms, beyond the easily observed material harms and damages to local environment and public health. Indirect harms may be far more subtle: they include supporting racism; engaging in illegal business practices; supporting industrial activities through the silencing of protests and other human rights violations, including cultural genocide.

9. The Question of Ecological Refugees Of thirty ways to escape danger, running away is best (Old Chinese Proverb) With these words, Essam El-Hinnawi starts his 1985 Monograph on the topic of Environmental Refugees. His starting point is the 1972 Stockholm Conference(Stockholm Declaration of the United Nations Conference for the Human Environment, June 16, 1972, ILM 11 141 (El-Hinnawi, Essam, 1985, Environmental Refugees, United Nations Environmental Program (UNEP), Nairobi, Kenya); he adds, in his discussion, the concept of “Ecodevelopment” coined in this document. Like this concept, which has in recent times morphed into the watered down notion of “sustainable development,” the definition of refugee is not totally “fixed,” according to El-Hinnawi. He says: …environmental refugees are defined as those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural or triggered by people) that jeopardizes their existence and/or seriously affected the quality of their life. (El-Hinnawi, 1985: 4) By adding, “In a broad sense, all displaced people can be described as environmental refugees,” El- Hinnawi places environmental refugees in a category that he views as primary or foundational, rather than simply viewing them as “displaced peoples” instead. These are not accepted as legitimate refuge seekers, according to the 1951 Convention on Refugees (CSR), but rather as IDPs, internally displaced persons, not qualified to claim refugee status.

10. El-Hinnawi on ‘Environmental Disruption’ …any physical, chemical and/or biological changes in the ecosystem (or the source base) that render it, temporarily or permanently unsuitable to support human life. (El-Hinnawi, 1985, ibid.) This is the aspect of the issues confronting environmental refugees that is at the heart of this work: when the resource base, the integrity of the lands where a community resides, is destroyed, indeed it can no longer support human life. If ecological integrity is central to human health and survival, as well as to the normal functioning of ecosystems, then its absence represents an attack on both health and survival, as well as ecosystem function. The magnitude of the problem cannot be overstated. A Christian Aid Report predicts that, “given current trends 1 billion people will be forced from their homes between now and 2050” (Christian Aid Report, “Human Tide: The Real Migration Crisis”, May 2007)

11. El-Hinnawi on ‘Environmental Disruption’ cont. The End of the Line When environmental refugees migrate to urban areas, they expect a “rosy” quality of life. But soon they find themselves in slums and squatter settlements. In such areas they are usually deprived of access to the basic facilities of drinking water and waste disposal. They are frequently forced to use open water for washing, cleaning and the disposal of waste in unhygienic ways; to break open municipal water mains; to use public places such as open ground to relieve themselves; and to live in makeshift shelters surrounded by accumulating domestic waste. Equally unacceptable are the so-called “environmental disasters” such as Bhopal, Seveso, 3-Mile Island or Chernobyl. (Westra, 2006: Chapter 8; El -Hinnawi, 1985:35-36) The industrial operations we take for granted everywhere in developed countries and the developing world result in increasingly visible public health hazards that are not limited to the occasional spill, malfunction, or other “accident”. In contrast, they render the conditions of life around their location hazardous for all, but impossible for those who live a traditional lifestyle on the land, as is the case particularly for isolated communities and Indigenous peoples everywhere.

12. Dwight Newman’s Definitive Argument Embodies and Supports my own Conclusion by a Different Path Newman says: My argument is that certain individual interests that ground duties are meaningful interests and can be fulfilled only on the precondition that certain collective interests are also rights. We can put this statement in simplified terms: if we accept certain individual rights, we presuppose certain collective rights. (Newman, 2004:158) But what I am seeking to establish at this time, is a connection between universal collective rights, and universal individual human rights, so that the limits (if any) of the latter, may be defined through a fuller understanding of the former. The starting point for this discussion, including the argument leading to the answer to the first question is raised, is the understanding of human rights that will form the basis for the connection between these, and collective rights understood as universal.

13. Onora O’Neill on Respect for Life We need the adoption of universal principles that impose the obligation to ensure respect for life’s infinite value, in the Kantian sense. Respect for life, O’Neill contends, means rejecting not only the infliction of direct harms, but also that of ‘indirect injury’ to the ‘natural world’. She argues that such injury may be ‘gratuitous’, that is simply undertaken because it is ‘convenient for the powerful’, or it can be ‘systematic’, taken for granted as a normal way of conducting business or governing society. In either case, there is a deep injustice in the destruction of natural environments: In the first place, their destruction is unjust because it is a further way by which others can be injured, systematic or gratuitous destruction of the means of life creates vulnerabilities, which facilitate direct injuries to individuals. Destroying (parts of) natural and man-made environments injures those whose lives depend on them. Secondly, the principle of destroying their reproductive and regenerative powers is not universalizabile.

14. Grounding Human Rights When health is absent Wisdom cannot reveal itself, Art cannot become manifest Strength cannot fight, Wealth becomes useless And intelligence cannot be applied. Herophilus (325 B.C.) The connection between environmental degradation and human life, health and normal function rests upon the inviolability of human rights. Although a detailed analysis of all existing arguments in their support is beyond the scope of this presentation, we will revisit briefly some of those arguments in support of our own thesis that human rights extend beyond the right of the human person, to the generic right to life, including our habitat.

15. Alan Gewirth and the Preconditions of Human Rights The foundational arguments proposed by Alan Gewirth help to shed light on that basic connection between humans and their habitats. Gewirth argues that human rights are not based primarily on human dignity (A. Gewrith, Human Rights Essays on Justification and Applications (Chicago, University of Chicago Press, 1982), and that this Kantian principle is only partially right. He prefers to base ‘human rights on the necessary conditions of human action’, as morality is intended to give rise to moral action. (Gewirth ibid. p 5) Gewirth adds that ‘human rights are the equivalent to ‘natural’ rights, in that they pertain to all human by virtue of their nature as actual or prospective agents’. (Gewirth ibid. p 7) In essence, this has been our argument: ‘basic rights’ (Shue n 4) represent the minimum all humans are entitled to, and they are prior to all other rights, both conceptually and temporally. For Gewirth as well, life and the capacities named above can be ‘threatened or interfered with’. (Beyleveld and Bownsword, n 29, p 70; Gewirth, n 23, p 54) The introduction of ‘preconditions’ means the introduction of conditions that are not only conceptually but temporally prior to agency, hence the protection of these pre-conditions entails the acceptance of potential consequences in the protection of agency.

16. Basic Rights & Collective Harms Unless one can procure what she needs to subsist (minimally), and unless one is free from attacks to one’s physical/biological existence, hence free to will, choose and act, the essential humanity based on agency cannot be exercised. It might be there potentially, in the sense that someone who is starving and unable to think an issue through, let alone stand and – say – to vote, may still have the capacity potentially, once fed and generally recovered. But the practices (thinking, choosing, willing, doing) that are foundational to our humanity and basic to our dignity as humans can only be actualized through the presence of the basic rights Shue lists. Once basic rights are understood in this sense, it is easier to view their reach as collective. Poisoning one person (especially when the motive for that crime is understood), or preventing one person from developing in a normal way (perhaps through depriving a child of normal nourishment on the part of a parent or guardian) is also a crime that is identifiable in domestic instruments and punishable by law. In contrast, collective harmful exposures and deprivations in international jurisprudence, seldom rise to the level of “international law” (see ATCA jurisprudence, for instance, in Westra, 2009, chapter 6), hence such collective harms tend to go unpunished, unless perhaps it is a specific community that is harmed, and a case can be made for the loss of cultural integrity, or perhaps even a case for racial discrimination of an indigenous group.

17. Collective Rights and Cosmopolitanism If, as I have argued, human rights that are universally defensible must be (a) basic, in the sense defended by Shue, and as supporting human biological integrity; therefore (b) minimally, dependent on ecological integrity; in order to ensure that (c) normal development such that the human capacities to think, understand and choose are actualized according to the potential of each human being; then the characteristic approach of traditional Indigenous communities is – itself – basic to collective cosmopolitan rights. The law is right reason in agreement with nature; it is of universal application, unchanging and everlasting, it summons to duty by its commands, and averts from wrongdoing by its prohibition……We can not be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it.

18. The Ongoing Development of Human Rights Case Law (State of Connecticut, et al. v. American Electric Power company, Inc. et al., U.S. Court of Appeals, 2nd Ct., decided Sept.21, 2009, p70) As quasi-sovereigns and as property owners, they allege that Defendants’ emissions by contributing to global warming “Constitute a substantial and unreasonable interference with public rights in the plaintiffs’ jurisdiction, including inter alia the right to public comfort and safety, the right to protection of vital natural resources and public property and the right to use, enjoy and preserve the aesthetic and ecological values of the natural world.” In this case, the states have used in both their ParensPatriae and proprietary capacities. This is the latest and, arguably the strongest successful case to date, against pollution in general and climate change in particular, that clearly defends collective rights—although the connection between ecological degradation and harms to human life and health could be more clearly articulated (“the right to comfort and safety” comes close, though).

19. The Ongoing Development of Human Rights Case Law (2) In Georgia v. Tenn.Copper Co.(Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) ibid. @237; cited at page 39 ) the Supreme Court affirm that “the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether...its inhabitants shall breathe pure air”.(Snapp v. Puerto Rico ex rel.Baus, 458 U.S. 592 (1982)) The second seminal case for parenspatriae standing in the U.S. is Snapp(ibid., p.4 n.10) , which noted that there had been a “line of cases...in which States successfully sought to represent the interests of their citizens in enjoining public nuisance”, where a “test for parenspatriae standing is identified: A state: (1) “must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party”; (2) “must express a quasi-sovereign interest”; and (3) must have “alleged injury to a sufficiently substantial segment of its population.”

20. Some Cases with Direct Reference to Basic Collective Human Rights The American Convention provides that every person has a right to have his life respected (Article 4(1)). The Inter American Court interpreted the right to life to have an additional dimension in the YakyeAxa case. In that case the court stated that essentially, the fundamental right to life is broader than freedom from arbitrary deprivation of life. The Court specified that the right to life includes the right to live a vidadigna, or a dignified existence. (Pasqualucci, Jo M.., 2006, “The Evolution of International Indigenous Rights: The Interamerican Human Rights System”, Human Rights Law Review 6:2, 281-322 310; see also YakyeAxa Indigenous Community v. Paraguay, Judgment of June 17, 2005, Series C, No.125 IACrtHR) The decision cited above on a case brought to the court by the YakyeAxa Indigenous Community, imposes certain obligations to ensure that at least the basic requirements of a “dignified life” be made available to Indigenous Peoples and, as such, it promotes an agenda that is congruent with the promotion of basic human rights in general. As well, a similar protection seems to be advocated by another case, Moiwana Village v. Suriname (Moiwana Village v. Suriname, Judgment of 15 June 2005, Series C, No. 124), which supported the connection between a group’s identity and the effects of “an attack on their physical integrity”, caused by their forced displacement. (Pentassuglia, 2009:152; see also the Chagos case, Ch.5, Sections 3, 3a and 3b)

21. Global Environmental Governance: The Proposal of Judge Amedeo Postiglione and ICEF 2. The need for strengthening environmental governance is urged by the inadequacy for the actions presently carried out in the context of the U.N. system, including its organs, agencies and programme, to deal win a coordinated and most effective fashion with the most relevant outstanding issues of environmental protection and the achievement of sustainable development in a global perspective. (Francioni, F., Lanzerini, F., Montini, M., Morgera, E., 2010, “Options and Modalities for the Improvement of International Environmental Governance Through the Establishment of a U.N. Environmental Organization”, in Global Environmental Governance (The Need for an International Environmental Agency and an International Court of the Environment)) Judge Postiglione with a number of other legal scholars, EU government officials and judges in various Courts in Europe and elsewhere, met on May 20 and 21, 2010, for yet another conference of the International Court of the Environment Foundation (ICEF) (Postiglione, Amedeo, 2010, Global Environmental Governance, Bruyklant, Bruxelles, describes in detail the many meetings and conference that preceded this one, in his volume), in Roma, Italy, at the Offices of the Ministry of Foreign Affairs. That work lists several reasons why he perceives the necessity for such organizations, in order to connect human rights and the environment, in order to affirm both individual and collective rights, based on the “responsibility to protect” (ibid., p.85); as both a “procedural”(ibid., p.87 ) and a “substantive right”. (ibid., p.89) These rights are based on the “absolute priority of sustainability of life on earth” (ibid., p.5); because viewing the environment as a necessity leads in turn to the “necessity for erga omnes mandatory norms”.(ibid., p.11)