Environmental Justice and the Rights of Indigenous Peoples: International and Domestic Legal Perspectives [Hardcover]

Laura Westra (Author)

Book Description

Publication Date: November 21, 2007

More than 300 million people in over 70 countries make up the world�s indigenous populations. Yet despite ever-growing pressures on their lands, environment and way of life through outside factors such as climate change and globalization, their rights in these and other respects are still not fully recognized in international law. In this incisive book, Laura Westra deftly reveals the lethal effects that damage to ecological integrity can have on communities. Using examples in national and international case law, she demonstrates how their lack of sufficient legal rights leaves indigenous peoples defenceless, time and again, in the face of governments and businesses who have little effective incentive to consult with them (let alone gain their consent) in going ahead with relocations, mining plans and more. The historical background and current legal instruments are discussed and, through examples from the Americas, Africa, Oceania and the special case of the Arctic, a picture emerges of how things must change if indigenous communities are to survive. It is a warning to us all from the example of those who live most closely in tune with nature and are the first to feel the impact when environmental damage goes unchecked.

Editorial Reviews

Review

An intellectually stimulating contribution to exploring the complex interface between eco-biological integrity and indigenous identity in the era of globalization.' Gaetano Pentassuglia, Liverpool Law School, University of Liverpool, UK 'The timing of Laura Westra's important work couldn't be better in furthering the understanding between environmental degradation and the human rights of indigenous peoples ... Laura's work will no doubt help to connect these crucial dots of the disproportionate negative extended ecological footprint of a globalized economy on the Arctic and its people.' Sheila Watt-Cloutier, OC, Citizen Advocate on Arctic Climate Change, Former Chair of the Inuit Circumpolar Council and Nobel Peace Prize nominee 2007 'Raphael Lemkin, the man who invented the word 'genocide' (1944), stressed the criminality of 'cultural genocide' of national groups. Laura Westra's book comes as a thought-provoking and well documented step to follow Lemkin's path, as far as the groups today most vulnerable to cultural genocide are concerned.' Tullio Scovazzi, Professor of International Law, University of Milano-Bicocca, Milan, Italy 'Highly readable, informative, passionate. This volume provides an intellectually stimulating contribution to exploring the complex interface between eco-biological integrity and indigenous identity in the era of globalization, while offering critical insights into international and comparative human rights jurisprudence.' Gaetano Pentassuglia, Liverpool Law School, University of Liverpool, UK 'This book will be of interest to policy makers, academics and students, as well as indigenous peoples all over the world. Its value lies in its providing a significant addition to the legal scholarship that is geared towards better recognising the rights of indigenous peoples.' Journal of Environmental Law

About the Author

Laura Westra is Professor Emerita (Philosophy), University of Windsor, PhD in Law, Osgoode Hall Law School and Adjunct Professor of Social Science, York University, Canada. She is the author of 18 books including Environmental Justice and the Rights of Unborn and Future Generations, published by Earthscan in 2006.

Product Details

• Hardcover: 400 pages
• Publisher: Routledge (November 21, 2007)
• Language: English
• ISBN-10: 1844074854
• ISBN-13: 978-1844074853
• Product Dimensions: 9.4 x 6.9 x 1.3 inches
• Shipping Weight: 1.7 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #1,876,813 in Books (See Top 100 in Books)

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1 of 1 people found the following review helpful:

5.0 out of 5 stars Human Rights and Environmental Justice, March 15, 2007

By 

P. Nagy "revreader" (Chapel Hill, NC USA) - See all my reviews
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This review is from: Environmental Justice and the Rights of Unborn and Future Generations: Law, Environmental Harm and the Right to Health (Hardcover)

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 comŽmunity 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 responsiŽbilities 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 comŽmunities 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 'generŽality 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 beŽtween 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 compli-cated 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 commoŽnality 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 genŽeration, 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, paraŽdoxically, 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... Read more ›