Environmental Justice and the Rights of Unborn and Future Generations

Law, Environmental Harm and the Right to Health

Laura Westra

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136566790
• Edition: 1
• Topic: Médecine
• Subtopic: Santé publique, administration et soins

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.

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PART ONE

The Rights of the First Generation

CHAPTER 1

The Child's Rights to Health and the
Environment, and the Role of the
World Health Organization

INTRODUCTION: CHILD PROTECTION AND FUTURE
GENERATIONS’ RIGHTS – THE ROAD TO ECOJUSTICE

This chapter starts with and is based on the foundational role played by the environment on these rights. The evidence amassed by the World Health Organization (WHO) is the starting point but, as we shall see, that evidence complements the findings of much of epidemiological, ecological and social literature on those issues. Hence all the evidence supports the expansion of human rights for which this work will argue. However, arguments based on science and moral principles are not enough to ensure that public policy will be consonant with our findings. 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 (see Chapter 6).

The first of the future generations is at grave risk, as we shall see, 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. An example of a document that truly embraces all necessary requirements in its reach, is the Earth Charter.¹ The main point is that none of these issues can be fully appreciated when it is considered apart from others.

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. Child protection, although it includes many important issues beyond the protection of life, health and normal function, must start with these ‘basic rights’, to 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.² From that standpoint, 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.

No people or nation can truly achieve a successful development, now understood as including better social and economic conditions and the availability of education and personal freedom, unless each group member's rights are fully respected from the start, with the ‘pre-conditions’ of these rights,³ as I will argue below. The rights of children to health and the environment⁴ clearly demonstrate how early these ‘preconditions’ must be considered in this case, and these requirements must be factored into public policy and introduced in binding legal instruments, for the protection of all children.

The argument proposed below, however, is not that we ought to have as many children as possible, of course: ‘responsible reproduction’ means ensuring that reproductive choices include serious consideration of the rights of future generations and of those living now in the least developed countries, who have a strong right to their own resources and livelihood. It does mean instead, that the presence of a pregnancy imposes an immediate duty of respect for the health and the life of the embryo and the foetus. This responsibility accrues not only to the parents and their lifestyle choices: both national governments’ and institutions’, and multinational corporations’ activities must reflect a similar duty in all their operations, from production, to the emphasis placed on consumption, to the so-called ‘free trade’ practices, to, ultimately, the problem of waste disposal.

This chapter will start with a consideration of the Convention of the Right of the Child, then continue to examine the foundation of child's rights, and the duty of institutional protection on the part of governments and individuals. The presence of an all-pervasive ‘ecoviolence’ against human life will be considered, before discussing the research of the WHO regarding harms to children. In conclusion, we will propose a stronger role for the WHO, and even the possibility of mandated interventions based on the ‘international duty to protect’.

This chapter is intended as a survey of present circumstance, based on the WHO's research, and an initial discussion of obstacles and possible remedies for the child's health, before turning, in the next chapters, to a detailed examination of the status of the child in civil and in common law, through both instruments and cases, beyond the international approach here presented.

THE CONVENTION ON THE RIGHTS
OF THE CHILD AND ITS BACKGROUND

In Geneva the Fifth Assembly of the League of Nations (Records of the Fifth Assembly Supplement No. 23, League of Nations Official Journal, 1924), adopted the Declaration of the Rights of the Child. This declaration proposes five major principles to establish the duty of mankind regarding children:

a. The child must be given the means requisite for its normal development, both materially and spiritually.

b. The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succoured.

c. The child must be the first to receive relief in times of distress.

d. The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation.

e. The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men.

Nevertheless, unlike most modern human rights instruments, this document only ‘invites States … to be guided’ by these principles, yet does not even attempt to place binding obligations upon States.⁵

It is noteworthy that two of the major rights to be recognized at later dates are not specifically mentioned in this document: the right to life, and the right to nationality, hence, to protection. Both of these rights will be discussed below, as they represent core values and principles that support not only these principles (1924), and the recommendations of later documents, but also the findings of the WHO.⁶

Although the principles of the Geneva Declaration were non-binding, the instrument formed the basis of the Social Commission of the Economic and Social Council of the United Nations’ instruments intended to form a United Nations Charter of the Rights of the Child. The Charter was eventually adopted by the General Assembly on 20 November 1959.⁷ The Charter includes a ‘Preamble’ and ten Articles. Notably, according to Principle 3, a child is entitled to a name and nationality; and Principle 4 adds the right to ‘adequate nutrition, housing, recreation and medical services’. Protection is explicitly mentioned in Principle 9 (the protection against neglect). This Charter will not be the main focus of attention here because it has been superseded by the Convention on the Rights of the Child⁸ (1989), which is the instrument presently in force. But it is important to note with Geraldine Van Bueren, that:

By 1959, however, children are beginning to emerge no longer as passive recipients but as subjects of international law recognized as being able to enjoy the benefits of specific rights and freedoms.⁹

This emergent reality has a further effect:

the proposition that individuals can be subjects of international rights necessarily involves the corollary that they can be subjects of international duties; the cogency of the claim to the former gains by an admission of the latter.¹⁰

Thus we must not lose sight of the fact that entrenching the right to life and that of protection (through ‘nationality’, see below), in international law, does far more that exhort states to ensure general human rights, and perhaps other special duties to children: it obligates both states and individuals (natural and legal) to fulfil these obligations.

As human rights instruments evolved and proliferated, it became increasingly clear that children require rights in addition to those enjoyed by adults, because of their ‘social vulnerability and immaturity’.¹¹ Thus, even the same rights that are present in instruments intended for adult individuals, require different forms of interpretation when the focus intended is the child. For instance, there is far less controversy internationally on what defines an adult, within a certain age range being prevalent in domestic laws, than on the inception of childhood.¹²

This question is one of the major focuses of this work, given the ample evidence provided by the WHO and others on the violence that is environmentally caused pre-birth,¹³ and we will return to this topic. For now, it is sufficient to note that, for instance, although the general consensus is that states are allowed to establish the point where life begins, thus where the state is required to guarantee protection, the American Convention on Human Rights states:

Every person has the right to have his life respected. This right shall be protected by law and in general from the moment of conception.¹⁴

The Declaration of the Rights of the Child of 1959, also provides:

Whereas the child by reason of his physical and me...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication
• Contents
• Foreword
• Acknowledgements
• Prologue
• Part One The Rights of the First Generation
• Part Two Ecojustice and Future Generations' Rights
• Appendex 1 Convention on the Rights of the Child
• Appendex 2 Implementation of the Convention on the Rights of the Child in Selected Countries
• List of Abbreviations and Acronyms
• List of Cases
• List of Documents
• Bibliography
• Index