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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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