The Rights of the Future: Linking First Generations Rights to the Future

By,

Laura Westra, Ph.D., Ph.D.(Law)

Professor Emerita (Philosophy) 

University of Windsor

Sessional Instructor, Faculty of LawSessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies,

Royal Roads UniversityE-mail: lwestra@interlog.com

Website: www.ecointegrity.net

Future Generations Rights

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 (Westra, 2000a, "Conclusion", in

Implementing Ecological Integrity, NATO Science Series, P.Crabbe, A. Holland, L Ryszkowski and L. Westra eds., Kluwer

Academic Publishers, Dordrecht, The Netherlands, 465-475).

Future Generations Rights

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

intergenerational 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, are

neither distant nor remote, as they meet in the consideration of the rights of the first

generation.

The Rights of the First Generation and of the Future:

The Interface

•Children are the world's citizens. But, for a long time, children cannot speak on their

own behalf or represent themselves, and one cannot always guess exactly what their

future choices and preferences might be. These are also the characteristics of future

generations, in fact, the very characteristics that render future generations' rights hard

to defend both in morality and in the law. (Hirsch, Ballin Ernest, M.H., 1999, "Children as World Citizens", in

Globalization of Child Law, Martinus Nijhoff Publishers Dordrecht, The Netherlands, p.7).

•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" (Taylor, 1992), 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.

Public Health and Children: Some Basic Issues

...human health and well-being are the ultimate goals of development; to focus

on children’s health is thus to contribute directly to socio-economic development,

since the health of the child is the key to the health of the adult. (A. Petros-Barzavian, 1980,

"Foreword" in Prevention in Childhood of Health Problems in Adult Life, Frank Falkner, ed. WHO 1960, vii)

Medicine and Public Health: A Continuum from Child to Adult

•Public health has as its goal, in general, the protection of the public from disease and, I

would add, also abnormal function, by imposing restraints on certain activities, by regulating

processes and products that may have adverse impacts on health, as well as by legislating

restraints on individuals for the public good. (Gostin, 2000: 16-21)

•But early childhood and even perinatal disease and injuries cause a great number of health

problems that can be prevented only or optimally at that stage. Fuchs and Galba-Araujo

state:

Nothing has a greater impact in the essential quality of life as au adult than the diseases and

injuries in the perinatal period. This period of life is characterized by more perils to human

survival and health than any other. (Fuchs, F. and Galba-Araujo, J., 1980, "Perinatal Diseases and injuries" in Prevention

in Childhood of Health, Problems in Adult Life. F. Falkner, ed., WHO, Geneva, 9)

The First Generation and The Future

•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), 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

(Westra, Laura, 2004, Ecoviolence and the Law, Transnational Publishers, Inc. NY, Chapter 3).

•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.

The Parens Patriae Doctrine

The parens patriae doctrine as the best approach to governmental/institutional

responsibility for the rights of the first generation. The doctrine progressed from being

used, initially, purely for economic/inheritance problems, to juridical use in cases that are

exclusively medical and protective. Now we note that the same doctrine is used for the

protection of life and health of children and future generations, by means of the

preservation of naturally "supportive" ecology. This case therefore explicitly links the two

major areas of concern of this work: children’s life and health and the environment (see

Minors Oposa v. Philippines Case).

Obligations to Future Generations in the Law:

The Proposal of Edith Brown-Weiss

•What is new is that now we have the power to change our global

environment irreversibly, with profoundly damaging effects on the robustness

and integrity of the planet and the heritage that we pass on to future

generations. (Brown-Weiss, Edith, 1993, "intergenerational Equity: Toward an International Legal Framework", in Global

Accord, Nazli Chourcri ed., 333)

•Her proposal comprises both rights and duties, and that these include both

"intragenerational" and "intergenerational" aspects.

Intergenerational duties include the obligation:

1) to pass on the Earth to the next generation in as good a condition as it was

when that generation first received it; 2) a duty to repair any damage caused by

any failure of previous generations to do the same;

Thus every generation has the right "to inherit the Earth in a condition comparable

to that enjoyed by previous generations" (Barresi, Paul A., 1997: 2).

Intergenerational duties include the obligation:

Each generation has four duties:

1) conserve the diversity of the Earth's natural and cultural resource base;

2) conserve environmental quality so that the Earth may be passed on to the next

generation in as good a condition as it was when it was received by the present generation;

3) provide all members with equitable access to the resource base inherited from past

generations, and

4) conserve this equitable access for future generations.

Erga Omnes Obligations

These duties impose non-derogable obligations especially on affluent Western developed

countries, who are clearly in a position of power, as most of the degradation, disintegrity,

elimination of biotic capital and other serious ecological ills proceed directly from the

practices of the powerful West, to the vulnerable South. I have argued that these

obligations should be viewed as erga omnes, and they should also be considered as

founded on jus cogens norms.

Ecoviolence

The proliferation of harmful chemicals, the exploitation of natural areas, the many

activities exacerbating global climate change represent a form of institutionalized

ecological violence, or ecoviolence on vulnerable populations. As gross breaches of

human rights, they should be thus considered to be ecocrimes and treated

accordingly. (Westra, Laura, 2004, Chapter 7)

Ecojustice: a Challenge to Social Justice

•Brown-Weiss's work is outstanding in that it considers both intergenerational and

intragenerational equity, whereas most existing legal instruments do not. I have

suggested that the integration of the two concepts represents true ecojustice, that is,

justice that recognizes humans as embedded in their habitat, so that "justice" that does

not recognize this aspect of their humanity is--to say the least--incomplete.

•This is a broadened form of Social Justice: a notion to include “the Community of

Humankind” (Agius, Emmanuel, 1998,"Obligations of Justice Towards Future

Generations: a Revolution in Social and Legal Thought", in Future Generations and

International Law, E. Agius and Salvino Busuttil eds., Earthscan, London, UK, pp-3-

12, 4).

Bosselman on Ecological Justice and on Biocentric and

Anthropocentric Ethics

The concentric position is inclusive, as it merely extends intrinsic values of humans to

non-humans rather than replacing one by the other (Bosselmann, 1999: 34).

•I have argued in this way in defense of the Principle of Integrity", as the debate

between anthropocentrism and eco/biocentric holism. (Westra, Laura, 1994)

•The two positions are seldom, if ever, combined or even discussed together in the

literature, although, they converge in the interface between health, normal function and

ecological integrity, supported by the WHO (Soskolne and Bertollini, 1999, Ecological

Integrity and Sustainable Development: Cornerstone of Public Health, (available at

http:/www.euro.who.int/document/ghc/globaleco/ecorep5/pdf)).

The Precautionary Principle

•The precautionary principle proposes that we should err on the side of caution,

because we are not sure. But many of the harms resulting from ecological /biological

disintegrity are well-if not precisely- known and expected (see for instance the research

of the WHO in 2002, and in Soskolne and Bertollini, 1999).

•The problem is not lack of knowledge, but a combination of inevitable partiality for

short-term gain, and for visible immediate advantages, particularly economic ones,

over both precaution and long-term safety; and the consumerist/capitalist thrust of

corporate activities, protected as they are by the possession of unreasonable "rights"

and "freedoms" against the undefended rights of vulnerable peoples and populations to

survive unharmed.

The Post- Cautionary Principle

First we should do more to highlight the consequences of climate change for human health.

Second, we should recognize that the precautionary moment for action on climate change--

the period in which we might have acted based on something less than scientific consensus

on the causes and consequences of climate change--has passed. We are in a post-

cautionary world now (Heinzerling,Lisa,2008, "Climate Change, Human Health, and the Post-Cautionary Principle",

Georgetown L. Rev., January 2008, 445).

In fact, by the time the precautionary principle was thought to be almost an established

(though not binding) principle of international law, not only climate change, but also the

deleterious effects of hundreds of chemicals had been proven beyond doubt (WHO,2002; WHO

2005 Grandjean and Landrigan,2006).

From the First Nation People to Chaos Theory

Chiefs must consider the impact of their decisions on the seventh generation

(paraphrase of precept of the Great Law of the Haundenosaunee (Six Nations Iroquois

Confederacy); Seventh Generation Fund, P.O. Box 4569, Arcata, CA 95518).

There are both scientific and moral reasons to support the need for ecojustice, or equity

that respects the present as well as the future. From the scientific point of view, the

unpredictability of future events, based on recent chaos theory research, ensures that any

prediction that makes claims to certainty and accuracy, is most likely incoherent and false.

(Goerner, Sally, J., 1994, Chaos and Evolving Ecological Universe, Gordon and Breach Science Publishers, Amsterdam, The

Netherlands).

From the First Nation People to Chaos Theory

•Scientific uncertainty is an accepted paradigm today, but even the use of the

precautionary principle is, in some sense, insufficient, as it promotes the idea that we

are not sure whether ecological or biological harm will follow certain practices or

activities.

•But what might be uncertain or imprecise, might be the specific form the expected

harm will have, not its occurrence. In this sense, it might be like saying that the recent

outcry for devices capable of predicting the occurrence of a tsunami (such as the one

that devastated Indonesia, Sri-Lanka and Thailand on Dec. 26,2004), should not be put

in place, because such devices cannot predict exactly the number of victims for each

affected country, or the precise amount of economic damage we can expect.

Ecoviolence and Ecocrimes

I have argued that ecocrimes represent gross breaches of human rights and

should be judged accordingly, and no less seriously than (a) attacks against the human

person; (b) genocide; (c) breaches of global justice; and (d) crimes against humanity in

general (Westra, Laura, 2004). Thus appealing to international criminal law might even

eventually allow a Planetary Rights Commission to be part of the International Criminal

Court.

Ecological Footprint and Ecocrime: the Interface

It is the overconsumption of the North that poses the greatest threat to the global

environment, while the environmental costs go to the South. Environmental law has

traditionally emphasized pollution control and protection of national resources while ignoring

the ultimate cause of pollution and resource degradation: the problem of over-consumption

and a remarkable dearth of legal scholarship on the issue (Gonzales, Carmen, 2001, "Beyond Eco-

imperialism: An Environmental Justice Critique of Free Trade", 78 Denver U.L. Rev. 979, 1010.).

Ecojustice and Industrial Operations: An Irreconcilable Conflict?

•Bhopal, Seveso, Sandoz, Chernobyl, Ogoniland are some of the so-called "accidents"

in both the developed and the developing world.

•Even in technologically advanced countries, a certain amount of technical

failures/human error must be expected.

•Bluntly, the operations of chemical industries and related corporate activities, even in

the most advanced countries and under the optimal circumstances found in affluent

Western countries, are not safe for all stakeholders, even when all possible precautions,

legislated by the regulatory regimes of NorthWest nations are implemented.

Unsafe Operations and the Externalities of War

•Most industrial operations are unsafe for the ecosystems that are affected by their

products, even under "ideal" conditions.

•Any pesticide leaves residues not only in the fields, but also in all foods that re not

organically grown. The increasing rates of diseases such as cancers in the developing

world, attest to the accuracy of medical research (Epstein, 1989.)

•The effects of routinely used chemicals on the most vulnerable of human beings, the

children, are amply documented (WHO 2002, 2005).

•Chemical companies' immense profits are the result of their worldwide marketing

drives-But the "side-effects" of these operations affect the life and health of too many to

be simply dismissed as "externalities" or the cost of doing business.

The First Generation and the Future

Both future and first generation 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.