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

1. The Rights of the Future: Linking First Generations Rights to the FutureBy, 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

2. 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).

3. 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.

4. 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).

5. 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.

6. 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)

7. 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)

8. 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.

9. 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).

10. 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.

11. 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).

12. 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.

13. 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.

14. 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)

15. 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).

16. 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)).

17. 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.

18. 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).

19. 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).

20. 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.

21. 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.

22. 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.).

23. 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.

24. 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.

25. 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.