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Law & Policy
Review Essays of Academic, Professional & Technical Books in the Humanities & Sciences
Environmental Law
Environmental Justice and the Rights of Unborn and Future
Generations: Law, Environmental Harm and the Right to Health by
Laura Westra (Earthscan) The
traditional concept of social justice is increasingly being
challenged by the notion of a humankind that spans current and
future generations. This book, with a foreword by Roger Brownsword,
is the first systematic examination of how the rights of the unborn
and future generations are handled in common law and under
international legal instruments. It provides comprehensive coverage
of the arguments over international legal instruments, key legal
cases and examples including the Convention on the Rights of the
Child, industrial disasters, clean water provision, diet, HIV/AIDS,
environmental racism and climate change. Also covered are
international agreements and objectives as diverse as the Kyoto
Protocol, the Millennium Development Goals and international trade.
The result is the most controversial and thorough examination to
date of the subject and the enormous ramifications and challenges it
poses to every aspect of international and domestic environmental,
human rights, trade and public health law and policy.
From Foreword: The globalization of human rights implies,
too, the globalization of human responsibilities. For individual
human rights holders, there is the responsibility to act in ways
that show appropriate respect for the rights of fellow humans
wherever they are located in the global community of rights. More
significantly, for political and legal institutions –whether
international, regional, national or sub-national – the
responsibilities include promoting a culture of respect for human
rights and exercising stewardship over those conditions that are
essential for a flourishing community of rights.
In her latest book, Laura Westra proposes two important
sets of responsibilities, one in relation to the next (and future)
generations, the other in relation to the integrity of the
environment. Yet, if the current generation of bearers of human
rights have responsibilities only to one another, how can it be
argued that their responsibilities extend to the unborn as well as
to the environment? And, how can it be argued, as Westra suggests,
that these are linked responsibilities?
First, if as fellow humans we must respect one another's
rights, this means that we must not act in ways that threaten one
another's freedom and well-being – or, at any rate, we must not so
act without the authorization of the right-holder in question. If we
take human rights seriously, so much is entirely straightforward.
Second, if (as surely is the case) the health of
populations depends necessarily (if not sufficiently) on an adequate
environmental infrastructure (clean air and water, and so on), then
we threaten the well-being of human rights-holders if we damage that
infrastructure. It follows that, even if the environment does not
have rights, as fellow humans we owe it to one another to respect
those environmental conditions that are essential for our
well-being. In this sense, as members of a community of rights, we
do have responsibilities in relation to the environment.
Third, even if (as the European Court of Human Rights has
recently held in both Vo v. France and Evans v. UK) the unborn do
not yet have human rights, it is arguable that once, as agents, we
adopt reproductive purposes our responsibilities to embryonic rights
holders are engaged. Even if we do no wrong by electing not to
reproduce, it is arguable that the position changes once we elect to
reproduce. Where we so elect, we must avoid damaging a future member
of the community of rights.
Fourth, and quite simply, if we have responsibilities to
future members of the community of rights and if we also have
responsibilities to sustain the environment, then we must also owe
those latter responsibilities to the former. In other words, our
responsibilities in relation to the environment are ones that we
owe to both existing and future members of a community of rights.
In a context of rapid technological innovation and change,
it is crucial that communities of rights actively debate the nature
and extent of their commitments – and, to this extent, it needs to
be appreciated that the globalization of human rights is as much
about process as about a finished product. Whether or not readers
agree with the products of Laura Westra's arguments, it is a
pleasure to introduce her book as a major contribution to the
ongoing process of debate and discussion. --Roger Brownsword
Excerpt: The traditional concept of social justice is
challenged by a new philosophical vision of reality, characterized
by interrelatedness and interdependence. It is only such a
'generality of outlook, to use A. N. Whitehead's own words to
describe the vision of an interrelated and interdependent reality,
that leads us to a 'morality of outlook' with its implied notion of
social justice broadened to encompass the community of humankind as
a whole, extending beyond present space and time.'
The most relevant point here is the question of 'broadened'
social justice, that is, a notion to include 'the community of
humankind'. It is undeniable that, thus far, future generations'
rights have been linked to environmental regulations, at best, and
cited primarily in aspirational and soft law documents, as well as
making appearances in the preambular portions of general human
rights conventions and environmental treaties, and we will look at
those details in Chapters 5-7.
Most often, to speak of future generations, indicates, at
best, a diffuse concern for the natural systems that are
increasingly failing, because they are impoverished and depleted
around the world. But, unless an immediate and forceful connection
can be made with visible harms to nature or to human health, most
view language about future generations to be the expression of a
laudable but remote concern, not something that requires our
immediate involvement, our efforts and energies.
Their remoteness belies the interface between escalating
ecological harms and humanity itself. Thus the erosion of global
ecological integrity appears, at first glance, distant and even
unrelated to social justice, in both its intragenerational and
inter-generational aspects and, at times, it even appears to
conflict with it. But both aspects of social justice, best captured
in the concept of ecojustice, as I will argue below (Chapter 6), are
neither distant nor remote, as they meet in the consideration of the
rights of the first generation.
That generation is coming to be NOW, or it will come to be
within our lifetime, without, however, losing its claim to be an
integral part of the future of humanity as well. Perhaps then, from
the point of 'ecological rights', the presence of grave harms to
this first generation, demonstrate precisely the connection between
environment and humankind. That is where we can see exactly the
havoc our current industrial practices are wreaking on the most
vulnerable of humanity. The example of those harms force upon us a
consideration of justice that is far more than the neo-liberal
conception of freedom to embrace preferences. Such justice in fact,
brings home the result of elevating the 'freedom' of natural and
corporate persons to the status of ultimate goal in society.
This problem will become clear in the first four chapters,
where the conflict between individual freedoms and rights, and the
'rights' of the first generation will be shown to come into conflict
in most foundational legal instruments, both domestic and
international, and – most violently perhaps – in the courts. These
violent clashes and the circumstances that create them, will serve
to diminish the importance of arguments stating that future
generations don't exist now and that, even if they will come to be,
we cannot be expected to modify law and morality on their behalf, as
we don't know exactly who they are, and what their choices will be.
But the child born with flippers rather than hands or feet,
because of pre-birth thalidomide exposure, or the baby with one eye
because of dioxin exposure (as in the Seveso disaster, see Chapter
7), both clearly demonstrate without the need for complicated
philosophical arguments, that (a) we do know what the first
generation needs to be protected from, what they need for their
security and what will harm them; and (b) we know that they will
exist, and bear witness to our heedless pursuit of choice, to our
tolerance of corporate, often criminal negligence and to what might
be termed complicity on our part.'
No longer 'remote', or unreal, therefore morally
unconsiderable and unfit to claim human rights like the rest of
humanity, the first generation demonstrates the commonality of
humankind, where neither time, nor age, nor geographical location
should suffice to remove anyone from full consideration. At the same
time as the plight of future generations comes 'alive' in the
present and clear harms affecting the first generation, so too
their own 'unreality', their lack of presence hence of
considerability are no longer obvious. Their cause is linked with
that of future generations who, paradoxically, appear to have more
rights – at least in theory – than the first generation possesses.
Both future and first generations are far from being front
and centre when human rights are at issue, even in the most
prominent United Nations documents at present. I believe that
viewing these two issues as one continuous aspect of justice for
humanity, might help to shed light on both groups, so that neither
will continue to remain invisible to either human conscience or
international law. When both issues are studied side by side, we are
struck by several points of similarity that are not considered as
each issue is researched on its own.
The first point is that both are considered in law aside
from their own intrinsic merits: as we shall see, for instance,
future generations are considered in the context of environmental or
trade issues, often against the background of conflicts arising
between these two fields. When we turn to the child's rights to
health, despite the presence of several international legal
instruments devoted exclusively to child law, case law, for the most
part views child law as derivative from family law. In the case of
the preborn, this problem becomes acute, as the courts limit their
consideration almost exclusively to the rights and the preferences
of the pregnant woman: the situation is one where women's rights,
based on proliferating instruments for their defence and protection,
invariably trump whatever rights an unborn human might possess.
Thus we can observe that both issues are intrinsically hard
to view objectively because they are significantly 'embedded', more
or less literally, in other issues and concerns. Their underlying
unity is thus disguised, although they are both issues of grave
concern to humanity. But when considered in the way here proposed,
that is as a unitary concern, they shed the limited perspective
under which they were viewed and their common problems can best be
appreciated and perhaps resolved.
Emmanuel Agius offers two other arguments in support of
future generations' rights that, I believe, may apply equally to the
first generations first, the argument from 'social justice and the
weaker members of the human species',' and second, the argument for
the development of human rights, after 'first' and 'second'
generations' rights: the 'emergence of "solidarity rights" or "the
third generation" of human rights in international environmental
law'.
These arguments will be defended below, in Chapter 8. For
now, it may be sufficient to note that the description of both sets
of circumstances, in support of evolving future generations' rights,
fit as well the consideration of the first generation. The
obligations generated by the acceptance of the former are equally
significant for that of the latter:
In other words, social justice demands a sense of
solidarity with the whole family of humankind. We have an obligation
to regulate our current consumption: in order to share our resources
with the poor and with unborn generations.'
Thus, when we come to consider the best approaches in law
to achieve this ideal of justice and solidarity, it is likely that
whatever strategies we design for one issue, will ameliorate the
situation for the other.
For now, we must start by showing clearly what is not there
yet in the law: respect for either first or future generations is
not embodied in the legal instruments that might be protective,
either in domestic or international law. This fact needs to be
demonstrated and in Part One we shall deal with the first generation
in some detail, through the examination of both instruments and case
law, before turning in Part Two, to future generations proper. We
will then be in a better position to canvas existing regimes and
jurisprudence, for the best available remedies presently existing,
although perhaps not as well applied as they might be; but we will
also consider all other possible options to bring about the
necessary changes.
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