Transcript Slide 1

Life, Health and the Environment:
The Denied Connection
By,
Laura Westra, Ph.D.
Professor Emerita (Philosophy)
University of Windsor
Sessional Instructor, Faculty of Law
Sessional Instructor, Faculty of Law, University of Milano (Bicocca)
Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University
E-mail: [email protected]
Website: www.ecointegrity.net
Aldo Leopold (1949) – Forests, Integrity and the
Health of the Biotic Community
“A thing is right when it tends to preserve the
integrity, stability and beauty of the biotic
community. It is wrong when it tends otherwise.
Aldo Leopold (1949) – Forests, Integrity and the
Health of the Biotic Community
My own position is that, for the most part, the interface between human rights and environmental
hazards is not well represented in legal regimes; in fact, it is most often deliberately misunderstood with
a view to protecting commercial interests and of continuing the present status quo. (Mattei, Ugo and Nader,
Laura, 2009, Plunder, Blackwell Publishing, Oxford, UK ) In order to present a concise but inclusive summary of some
of the problems we face in that regard, I will briefly discuss the issue, including four separate, but
interconnected headings:
(1) the explicit denial of that interface in the jurisprudence, from US cases under the alien Torts
Claims Act (ATCA), to the European Court of Human Rights and the International Court of Justice;
(2) the lack of explicit prohibitions on the part of the WHO, regarding industrial chemical and
agricultural processes, despite the abundant evidence amassed by that organization and available
in medical journals regarding the human health consequences of those industrial activities, which
today can be compared to the evidence gathered by the WHO before drafting their Framework
Convention on Tobacco Control (Framework Convention on Tobacco Control, World Health Organization adopted by the
World Health Assembly 21 May 2003, into force 27 February 2005);
(3) the ongoing denial of the gross human rights violations that follow upon climate change,
including glacial melts in the Arctic, drought and famine in sub-Saharan Africa, while the same
Western practices continue, including the over-use of water and grains in industrial meat
production, with its resulting methane releases;
(4) the insistence on the “right” to “sustainable development”, without the right of Indigenous and
other land-based communities to say “no” when the development in question is unwanted, as it
continues to impact gravely these peoples’ very subsistence, as well as their health and survival,
both as individuals and as peoples.
Health and the Environment:
A Denied Connection in Law
In confronting the insalubrious ramifications of globalization, human rights scholars
and activists have argued for greater national and international responsibility
pursuant to the human rights to health [….] However, in pressing for the highest
attainable standard for each individual, the right to health has been ineffective to
address burgeoning inequalities in underlying determinants of health focusing on
individual medical treatments at the expense of public health. (Meier, Benjamin Mason, 2006,
“Employing human rights for global justice: the promise of public health in response to insalubrious ramifications of
globalization”, Cornell International Law Journal, Vol.39, pp.711-752 711-712)
The problem is not a lack of instruments, declarations, and resolutions extolling the
value of health and even the universal right to it. But, aside form the fact that such a
right is universally non-enforceable and that the instruments that prescribe it are nonbinding, the main problem is that the abundant scientific information available to
connect health and environment is not even considered. In addition, public health refers
to collective (universal) or at least to community rights, while for medicine, it is
individual rights that are central, and most significant.
Environmental Rights and the Right to Health in
Jurisprudence
All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligation arising out of economic international
cooperation, based upon the principle of mutual benefit and international law. In no
case may people be deprived of its means of subsistence. (International Covenant on Civil and
political Rights, Article 1(2); emphasis added)
All corporate claims to be involved in “development” projects, and all government
approval of such plans, whether they occur in so-called “developing countries” or in
areas inhabited by Indigenous communities, would be evaluated according to their
article. Space will not permit a thorough survey of the abundant caselaw available,
hence a few examples will suffice.
Environmental Rights and the Right to Health in
Jurisprudence Cont.
The first will be the Canadian case of Grassy Narrows and White Dog, where the Judge
himself found the justice system so insufficient that he counselled arbitration and a
settlement instead, in order to provide some timely relief to the people of the affected
First Nations.
...the settlement and the events leading up to it provide a striking example of the
fragility of Canadians’ environmental rights in the face of environmental wrongs.
Access to justice has been difficult to achieve for victims of environmental
catastrophes. The substantive, procedural and evidentiary rules in private
environmental actions appear biased in favour of the polluter. (West, Leigh, 1987, “Mediated
Settlement of Environmental Disputes: Grassy Narrows and White Dog Revisited” Vol. 18, Environmental Law, 131-150 132)
Polluted Rain Forest and Indigenous Health
The Indigenous peoples in South America are not better protected by either their own
courts (despite the excellent Constitutions many such countries have recently enacted),
or by the U.S. court system, under the alien Torts Claims Acts, available to non-citizens
who have been harmed in other countries by multinational corporations with offices in
the U.S. Extractive industries have a long history of imposing environmental and health
harms with impunity.
Citizens of Peru and Ecuador brought class action suits alleging that defendant oil
company polluted rain forests and rivers in their countries, causing environmental
damage and personal injury.
(Maria Aguinda and others including the Federation of the Yagua People of the
Lower Amazon and Lower Napo v. Texaco, Inc., 303 F 3d 470; 2002 U.S. App. LEXIScl6540; 157 Oil and Gas Rep. 333,
Aug.16, 2002, Decided)
This case is typical of this kind of jurisprudence and it has a long previous history that
led to this unsuccessful appeal.
(Aguinda v. Texaco, Inc., 1945 F. Supp.625 (5 D.N.Y. 1996); Aquinda v. Texaco,
Inc., 142 F. Supp.2d 534 (S.D.N.Y. 2001); Jota v. Texaco, Inc., 157 F 3d 153 (2d Cir.1998) )
Polluted Rain Forest and Indigenous Health
Cont.
The plaintiffs brought a suit against Texaco in 1993, as the latter’s activities had “polluted
the rain forests and rivers” in both Ecuador and Peru, and those polluting and harmful
activities were “designed, controlled, conceived and directed….through its operation in the
United States”. (ibid.:473)
The indigenous peoples sought to recover damages, citing
…negligence, public and private nuisance, strict liability, medical monitoring,
trespass, civil conspiracy and violations of the Alien Tort Claims Act, 28 USC § 1350
(“ATCA”). (ibid.)
Deforestation, Climate Change & Public Health
Finally, we can consider a major source of environmental harms to public health:
climate change. A recent case, successfully argued in the U.S. in 2009,
The case is The State of Connecticut, et al., v. America Electric Power Company, Inc.
et al. First, several “Trusts”, that is the Open Air Institute, Inc., Open Space
Conservancy, Inc., and the Audubon society of New Hampshire in this case, join with
the State of Connecticut, New York, California, Iowa, New Jersey, Rhode Island,
Vermont and Wisconsin, as well as the City of New York, against several electrical
power companies. Second, these States and Trusts, jointly claim “the ongoing
contributions to the public nuisance of global warming” are causing “and will continue to
cause serious harms affecting human health and natural resources”. (State of Connecticut, et al.
v. American Electric Power Company, Inc. et. al., 2009)
Deforestation, Climate Change & Public Health
Cont.
Third, although Defendants claimed the whole issue was a “non-justiciable political
question”, for that they “lack[ed] standing”, or that they attempted to displace “federal
common law”—the Court of Appeals rejected all these arguments. Fourth, the States
itemize singly and collectively the harms of climate change, which will produce
“substantial adverse effects on their environments resident, and property...”, and all of
which will cost each State billions of dollars to respond. As an example, “the reduction
of California’s mountain snowpack, the single largest freshwater source critical to
sustaining water to the State’s 34 million residents during the half of each year, when
there is nominal precipitation”. (State of Connecticut, et al. v. American Electric Power Company, Inc. et. al., 2009:
8)
In addition, in the fifth place, the States list several significant cases of “increased
illnesses and deaths caused by prolonged heatwave”, the harms from smog, and poor
air quality, as they couple explicitly the impacts on “property, ecology and public
health”.
(State of Connecticut, et al. v. American Electric Power Company, Inc. et. al., 2009: 9)
Public Health: The Denied Connection
But, despite this excellent judgment, which recognized the necessary connection between
environmental harms and public health, using traditional principles and doctrines in a novel way, the
Supreme Court of the United States reversed this earlier decision, on June 20, 2011. (American Electric
Power Co. Inc et al. v. Connecticut et al., 564 US 2011 ) As expected, the court did not engage with the substantive
issues involved, or with the connection between environmental causation and damages to public
health. Instead, the judgment held that
2. The Clean Air act and EPA action the Act authorizes displace any federal common-law right to
seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.
The judgment further argued that “the Clean Air act is no less an exercise of the Legislature’s
considered judgement concerning air pollution regulations because it permits emissions until EPA
acts” (ibid., 2(c)), and, essentially stated that it should be left to the EPA to do such “complex balancing”,
as
the expert agency is surely better equipped to do the job than federal judges who lack the
scientific, economic and technological resources an agency can utilize in coping with issues of
this order. (ibid.)
Note especially the omission of “public health” considerations, the main focus of the argument of the
earlier case, and the addition of “economic and technological” as significant areas of expertise on the
part of the EPA, clearly intended to provide the solution to their understanding of the problem.
The “Denied Connection” and the Possible Role of
the WHO
84. An overarching objective of reform is to capitalize more effectively on WHO’s
leadership position in global health, specifically to strengthen the role that WHO
can play in line with its primary Constitutional function as “directing and
coordinating authority on international health work.”
26. In this new environment, a model characterized solely by donors and recipients
of aid is no longer viable. In this place is a need to think about collective
responsibility, shared vulnerabilities, and values, sustained solidarity, and health as
a global public good. (World Health Organization, sixty-fourth World Health assembly A64/4, 5 May 2011,
Provisional Agenda, Item 11, Executive Summary)
The WHO, with the cooperation of the WHA appears to be the only international
institution capable—at least in principle—of mandating and supporting the needed
remedies fro the situation we have briefly outlined in these pages. That situation
includes (a) lacunae in the clarity and specifically of the language of legal regimes; (b)
grave lacks in the education of lawyers and judges; and, perhaps the best area where
the HWO may prevail, (c) a clear indictment of products, practices and processes that
are already proven to be hazardous to health; the latter should result in (d) a new
Convention against such products and substances, particularly those that involve the
chemicals that have already indicted by the WHO’s own publications. (Tamburlini, Giogio, 2002,
“Children’s Special Vulnerability to Environmental Health Hazards”, in Tamburlini, G, Von Ehrenstein, O. and Bertollini, R., eds.
Children’s Health and the Environment: A Review of the Evidence, EEA Report NO.29; Licari, L., Nevmer, L. and Tamburlini, G.,
eds., 2005, Children’s Health and the Environment, World Health Organization Regional Office for Europe, Copenhagen, Denmark),
and by other scholars (See for instance Grandjean, P. and Landrigan, P., 2006, “Developmental Neurotoxicity of Industrial
Chemicals”, The Lancet, Nov.8)
The Role of the WHA – A Framework Convention for
Global Health
It was not easy for the WHO to prevail against Big Tobacco, as they finally produced their
2005 Draft Convention. (Tobacco Convention, available at www.who.int/tobacoo/fctc/text/en/fctc)en.pdf) It would be
harder, no doubt, for them to alienate most important industrial conglomerate and the
government officials that support them and are supported by them in turn: consider for
instance Big Oil, and its many corporate supporters who are involved, as we saw in an
ongoing battle to discredit climate change science, and to ignore the plight of those exposed
to there toxic operations.
What is truly needed, and which richer countries instinctively (although not always
adequately) do for their own citizens, is to meet what I call “basic survival
needs”....Basic survival needs include sanitation and sewage, pest control, clean air
and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and
functioning health systems for the prevention, detection and mitigation of disease and
premature death. (Gostin, Lawrence O., 2008, “Meeting Basic Survival Needs of the world’s least Healthy People: Toward
a Framework Convention of Global Health”, 96 Geo.L.J. Jan.8 3)
The most important components of an instrument designed for the protection of human
rights and both appear to be present in Gostin’s proposal: (1) the recognition of the
environmental aspects of human health; and (2) the understanding of the right to health as
more than the right to medical care when ill, important though that is.
In addition, rather than leaving these aspects of the right to health to the goodwill of
individual states, Gostin also proposes that “the World Health Organization (WHO) or a
newly created institution could set ongoing standards, monitor progress, and mediate
disputes”. (ibid.)