Environmental Disasters and Land Grabs As Crimes Against Humanity 9781536141450, 1536141453

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ENVIRONMENTAL SCIENCE, ENGINEERING AND TECHNOLOGY

ENVIRONMENTAL DISASTERS AND LAND GRABS AS CRIMES AGAINST HUMANITY

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ENVIRONMENTAL SCIENCE, ENGINEERING AND TECHNOLOGY

ENVIRONMENTAL DISASTERS AND LAND GRABS AS CRIMES AGAINST HUMANITY

LAURA WESTRA

Copyright © 2018 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. We have partnered with Copyright Clearance Center to make it easy for you to obtain permissions to reuse content from this publication. Simply navigate to this publication’s page on Nova’s website and locate the “Get Permission” button below the title description. This button is linked directly to the title’s permission page on copyright.com. Alternatively, you can visit copyright.com and search by title, ISBN, or ISSN. For further questions about using the service on copyright.com, please contact: Copyright Clearance Center Phone: +1-(978) 750-8400 Fax: +1-(978) 750-4470 E-mail: [email protected]. NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. Additional color graphics may be available in the e-book version of this book. Library of Congress Cataloging-in-Publication Data ISBN: H%RRN

Published by Nova Science Publishers, Inc. † New York

To the First Nations of Canada and All the Indigenous Peoples of the World

CONTENTS Preface

ix

Introduction

xi

Chapter 1

The History and Development of Crimes against Humanity

1

Part 1:

Ecoviolence and Environmental Disasters

59

Chapter 2

Crimes against Humanity and Ecological Disasters

61

Chapter 3

Crimes against Humanity and the Right to Health

123

Part 2:

Ecoviolence and Land Grabbing

169

Chapter 4

Ecoviolence, Land Grabbing and the Right to Food

171

Chapter 5

Ecoviolence, Land Grabbing and the Right to Be Free from Racial Discrimination

211

Crimes against Humanity: Legal Pathways and Approaches to Justice

259

Chapter 6

About the Author

305

Index

307

PREFACE Increasingly people in every continent of the world are becoming aware of the grave consequences of the current environmental problems, from climate change to unsustainable agricultural growth durations. These consequences include dangerous, environmentally caused results that affect our health and the health of our children, as well as our social well-being and our very basic rights. This book raises a radical question: Can environmental disasters and land grab crimes, in fact, be seen as crimes against humanity? That approach is defended through a number of present legal documents and through existing and novel arguments. With this in mind, who is responsible for the present situation, and who should be held accountable for both damages and harm towards those parties affected? The main problems concern holding governments (who minimally permit, but often promote many of the practices of legal and natural persons) responsible for initiating and supporting the activities that ensure their economic benefit, which is leading to the present impasse. The author discusses how such individuals can be held accountable singly and collectively for the harms they impose on all life.

INTRODUCTION In September 2016 the International Criminal Court (ICC) officially expanded its remit, including environmental disasters and “land grabbing.” Since I had started working on my second PhD thesis, this time in law (eventually published as Ecoviolence and the Law), it seemed clear that once the full effects of ecological pollution or disintegrity1 were properly understood, it became entirely insufficient to view them as regulatory breaches, or even as negligent torts, when the effects they tended to produce were clearly the same results as those produced by crimes. In fact, when the second thesis was written, as my understanding of international law increased, I eventually understood that the better description of what was happening was indeed crimes against humanity, despite the presence of what Ken Saro-Wiwa poetically and evocatively termed “ecocide” (although in law the requisite dolus specialis would be almost impossible to prove). I proposed crimes against humanity explicitly in my thesis; hence I was more than elated when, at last, that idea was eventually adopted. No doubt, like too many other clear proscriptions strongly voiced in international law or explicitly forbidden and judged illegal by UN resolutions,2 not only one of the worst offending states is not party to the 1 2

Laura Westra, 1994, The Principle of Integrity, Rowman & Littlefield, Lanham, MD. Laura Westra, 2012, Faces of State Terrorism, Brill, Leyden, The Netherlands.

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ICC, the US, which is behind much of the ongoing disastrous situations that confront us, but in general, most of the wealthy Western states will not be likely to rush to follow the mandates of the ICC. Given the results of my research after the thesis in law, I thought it was worthwhile to consider once again the main point I attempted to make in that thesis, that is, my belief that the harms perpetrated in and through the environment are a form of ecoviolence, and in fact that ecoviolence was embedded in the structure of present law and policy regarding the environment. The new reconsideration of ecoviolence had to start with a better understanding of the development of crimes against humanity: 39. The nature of the crimes refers to the specific factual elements of each offence such as killings, rapes, other sexual and gender-based crimes, crimes committed against or affecting children, persecution, or the imposition of conditions of life on a group calculated to bring about its destruction. 40. The manner of commission or the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, the existence of elements of particular cruelty, ax including the vulnerability of the victims, any motives involving discrimination held by the direct perpetrators of the crimes, the use of rape or other sexual or gender-based violence or crimes committed by means of, or resulting in the destruction of the environment or of protected objects. 41. The impact of the crimes may be assessed inter alia, in light of the increased vulnerability of the victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment; the illegal exploitation if natural resources or the illegal dispossession of land. 3

3

The Office of the Prosecutor, “Policy Paper on Case Selection and Prioritisation,” International Criminal Court, 15 September 2016.

Introduction

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Ecoviolence means violence, that is the imposition of harms on human beings through the environment, that is through the ecological conditions to which they are exposed. In domestic criminal law, the imposition of any form of violence perpetrated so that human beings are harmed constitutes a crime, no matter what are the means of imposing the harm.4 R. v. McLeod was an unusual case, where a discussion between two women degenerated to the point where one used her dog to attack the other and bite her. In this case, the “weapon” was the dog. Hence, whatever the means through which the harm was perpetrated, the person who directed the “weapon” committed a crime. It is worth noting that, had the act not been a deliberate attack, still a crime would have been committed, albeit one resulting in less grave consequences for the criminal. It is here that an important difference arises: while the lack of deliberate intent significantly diminishes the responsibility of the perpetrator, in the case of ecoviolence, we will argue, the ensuing harms are so grave and diffuse, that lack of intent, negligence, and other such categories need not necessarily apply. In fact crimes against humanity, unlike genocide, do not require a specific intent (dolus specialis) in order to be committed. As in Rylands v. Fletcher,5 those who own and control the means through which the harm is perpetrated should be held responsible (hence accountable) for what happens when it “escapes” and the harm occurs. Perhaps my position is somewhat over optimistic: there have been no cases to serve as guidance, let alone as precedent of some sort, in order to allow us to return to an international version of Rylands. In fact, one could argue that it is too soon as well as too late, both at the same time. Too soon to see any applicable case at the International Criminal Court of the International Court of Justice; but also almost too late, in the sense that both environmental disasters and land grabs have been ongoing for a long time, and they have been accepted as business as usual (BAU) perhaps, or as an unquestioned side effect of globalisation and development. It is to speak against this acceptance, and the relative lack of questioning, that this book was written. The expansion of the remit of the ICC can and 4 5

R. v. McLeod (84) C.C.C. 3d.336, 1993, C.C.C., Lexis 3056. Rylands v. Fletcher (1868) LR 3HR 330.

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should be viewed – minimally – as a clear call to the re-examination of that acceptance, and to initiate a stringent questioning of all that has been simply accepted as the requirements/side-effects of development, the normal results of globalisation and international trade, and the rights of state within their own jurisdiction in that regard. Examples of both environmental disasters and land grabs are too numerous to mention at this time and they will emerge in the discussions in the following chapters. Both so-called “development” and globalized international trade are fostered primarily or significantly by the United States and the powerful corporations within that country. Thus an additional grave problem arises because the US, like its friend, Israel, are not party to the ICC. However, this work is written an attempt to reach a more just and moral form of global governance, not as a review of international environmental law, or as an analysis of US law. At any rate, even from the standpoint of international law, not everyone may agree to the forward-looking interpretation of the ICC expansion that I propose. Some may argue that land grabbing, for instance, will not be viewed as a crime against humanity as such, but that forcible evictions of whole groups will be judged more stringently instead (we will focus on the case of the Rohingya of Myanmar below). This interpretation may be partially correct, but it does not exclude the possibility of providing directly to judge such situations as crimes against humanity without an intermediate step, and not only when an identifiable large group is at stake. It certainly does not exclude viewing the ongoing support of climate change through corporate activities as a crime against humanity, in line with the general acceptance of such a position by almost everyone today. Thus, at this early stage, no one can decide with any certainty what is the precise intent of the drafters of the additions to the ICC Statute. The mere fact of the explicit additions appears to indicate a desire to implicate in the resulting disasters and land grabs, actors that were not previously considered to be responsible and – most of all – to introduce the clear element of criminality into activities that were not so viewed thus far, in line with many of the UN reports and documents emerging from the WHO, the FAO (discussed below) all of which take a strongly social position, rather than

Introduction

xv

considering only individual human rights. Whether it is a question of the social determinants of health, the disastrous results of the present capitalist food production and distribution systems,6 it is clear that social and environmental considerations emerge strongly in the work of the UN, so that the ICC expansions can be viewed as aligned with the general developments of UN materials. Hence the purpose of this work is to attempt to render explicit what the ICC has implicitly proposed, that is the presence of crimes, hence of criminals, in situations that have not been considered in that light thus far. The main question we face is what precisely may render an environmental disaster or a land grab, a crime. I propose several different possibilities, as the main effects of both are forms of violence or ecoviolence against humanity, perpetrated either willingly, negligently or with callous disregard for the ensuing consequences. The first point to note, is that for both crimes, the natural environment, the land, plays a pivotal role. This represents a significant difference in the way these crimes have been viewed previously. At most, if either a large group or an identifiable individual were proven to have been harmed, the results were considered to be a tort, and the tortfeasors at most could pay to compensate the victims. These results were and are particularly prevalent in cases of development activities in the global south which has led many scholars to critique the situation. Particularly poignant was the work of Craig Scott who termed that approach to development-related crimes in the court as "torture as tort.”7 Hence we must isolate the activities that result in consequences which, in other non-environmental, social situations would be considered to be crimes. The most obvious one would be the presence of public health impacts, produced by toxic substances introduced by human hands into the food, air and water, which are the necessities of human life. The second situation involves the deprivation of air land and water because of the 6

See Oliver De Schutter, Final Report: The Transformative Potential of the Right to Food, UN Doc. GE.14-10537, Human Rights Council 25th session, 2014. 7 Craig Scott, 2001, “Translating Torture into International Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms,” in Torture as Tort, C. Scott ed., Hart Publishing, Oxford, pp. 55–63.

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impositions of altered climatic conditions resulting in disastrous situation in whole areas and affecting whole populations. The third is the willful deprivation of the traditional land of Indigenous peoples or other land-based communities, where either the land is forcibly removed from the control of the traditional community or that community is forced to flee from conditions that amount to persecution. For all these cases, the ICC appears to acknowledge that the environment, as land; Water and air is basic to human life, and that the deprivation of any of these as safe air, water, environment, constitutes an act of violence against humanity and must, therefore, be treated as such. Hence, while Chapter 1 introduces the meaning and history of the crimes against humanity in a brief survey, and Chapter 2 discusses the meaning of environmental disasters, starting with the ongoing situation of climate change, the most significant chapter is Chapter 3, which describes the public health effects of both disasters and illegal land dispossessions, relating both directly to human harms. That is a particularly grave form of crimes, as those who suffer the worse affects are children.8 I will briefly review the topics of each chapter. In Chapter 1 I re-examine the reasons why the present understanding of environmental disasters needs to be revised in the light of the new international legal regime. The integrity of natural systems is the foundation and the basis of all life, including human life, thus any continuing attack on natural systems is ipso facto also an attack on human life and health. This is an environmental disaster that has not been acknowledged as such, and one that is probably among the hardest to accept since the environment has – for the most part – been viewed as separate and apart from human life. However, there is one area that is considered by most people in the world today to be a clear case of environmental disaster, and that is the multiple grave problems engendered by climate change. Still, no matter how obvious that disastrous situation appears to be, the existing case law has not offered much hope either to help identify and punish the perpetrators, or at least, to try to limit and control the ongoing damage.

8

See ICC Prosecutor, September 2016, para. 39.

Introduction

xvii

It is for that reason that is, when an almost general consensus already exists regarding an environmental disaster) that the ICC’s new position represents such a wonderful improvement it entails that environmental disasters are not purely natural events, let alone acts of God: they are crimes which means there are criminals who perpetrate them, that is, who engender the conditions that produce the disastrous results. Beyond climate change, I argue, there are numerous other ecological conditions that produce grave harms, starting from the exposures that affect our life and health from our childhood on, as I show in Chapter 3. The situation is worsened by the fact that epidemiology, the science that researches and discovers clusters of cancers or other diseases in specific areas, is not a precise science. Thus the processes through which its research eventually affirms or denies the presence of a problem in a region or area is open to questions at each step, especially by those whose interests might be harmed by such medical discoveries. The chemical industry has the right to test its own products for safety, and then fight with all their might to ensure that those products are promoted and that the harm they produce is suppressed and remains unpunished. The chapter concludes by proposing a “framework convention” on global health, involving the WHO, as the only possible legal regime capable of restraining the unbridled economic corporate interests that foster this environmental disaster, as they did successfully in the case of the profits derived from another public health disaster: the daily harms produced by smoking. The other disaster that affects almost everyone in wealthy countries as well, as those in the impoverished ones, is the present way that food is grown and distributed, as I have argued in my work on the global problem of hunger.9 Thus Chapter 4 touches on that issue from another point of view, as it turns to the second crime against humanity that is part of the ICC’s expanded remit: land grabs. My earlier work on the right to food dealt primarily with the chemicals and other noxious additives that are found in food, some of which were discussed in the previous chapter.

9

Laura Westra, 2017, On Hunger, International Press, Irvine, CA.

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The focus in Chapter 3 was primarily individual human harms. In this chapter instead we consider the basis for the production of food, that is, the land where it grows. Several aspects of land grabs involve the right to food of the local populations who depend on their land and its products for their survival: when the land is grabbed for the benefit of outsiders, that deprivation is a crime if it takes place with no free, prior, informed consent, and has no appropriate compensation for those deprived. In addition, the very chemical and other toxic substances that are used by agribusiness industries, when imposed upon farmers for the cultivation of food, may also represent a form of dispossession and deprivation, hence an additional land grab. In these cases, the owners may still nominally (and legally) own the land, but if they have been forced to use harmful substances and organisms with improperly understood and unaccepted results, the land has in fact been removed from their control, as if it had been “grabbed” away from them. This situation holds true even more strongly in cases that do not involve the cultivation of the land, but its exploitation for various mining and other extractive operations, as most render the land in the area surrounding the extractive operation unusable as a resource for the local inhabitants. Perhaps if these cases no specific action is taken by a corporation to buy out or otherwise take over the surrounding land, as they are intent on their own operation. But when various effluents inquinate that land so that it becomes useless as a source of nourishment, we see once again, a “qualitative” land grab, even if no obvious “quantitative” legal/formal grab has taken place. In both cases, that is, the deprivation of the means to survive because a direct land grab, or that which produces the same deprivation indirectly, that is, through rendering the land unfit to support the life of those who depend upon it, tend to affect mostly Indigenous people in all continents. Chapter 5 discusses the racist aspects of land grabs, since the great majority of such grabs occur in the third world, or in otherwise weaker areas, and affect local and Indigenous populations. Many such cases of “development” by large multinational corporations originate in the US and other Western countries, and are financed by the World Bank but the regulatory regimes of that institution regarding “consent” is draught with

Introduction

xix

difficulties and not all financial organizations even follow the Bank’s guidance. The rest of the chapter discusses the legal regimes regarding Indigenous peoples in various continents, and questions the very right to “development” given its negative effects on those who are to be “developed” in most cases. Chapter 6 turns to what is available in law today to attempt to bring justice to the victims of these newly recognized crimes. This work was primarily intended to discuss how and why environmental disasters of various sorts and land grabs, however motivated, are crimes. As such, there must be those who commit these crimes or facilitate their commission. Environmental disasters, at least climate change, has been tried in the courts in the US, no other crimes of that sort or land grabs, have been acknowledged. Land grabs are difficult to assess as such, and particularly so in the case of green grabs. For the latter we consider the different reasons that motivate them, and propose how even those attempted for the most defensible reasons should be treated, in order to ensure and enforce justice for any displaced populations. Although no grand solution to the many issues that arise is proposed, the most important thing to do at this early stage, I believe, is to show why environmental disasters and land grabs must be considered to be crimes, and argue just why they should be treated as such. Hence this work is the first step toward showing why the ICC appears to have pronounced itself in that manner.

REFERENCES Scott, C., “Translating Torture into International Tort: Conceptual Divides in the Debate on corporate Accountability for Human Rights Harms,” in C. Scott (ed.), Torture as Tort, Hart Publishing, Oxford, 2001, pp. 55– 63. Westra, Laura, 1994, The Principle of Integrity, Rowman Littlefield, Lanham, MD, 1004.

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Westra, Laura, Ecoviolence and the Law, Brill, Leyden, The Netherlands, 2004. Westra, Laura, Faces of State Terrorism, Brill, Leyden, The Netherlands, 2012. Westra, Laura, On Hunger, International Press, Irvine, CA, 2017.

Chapter 1

THE HISTORY AND DEVELOPMENT OF CRIMES AGAINST HUMANITY 1. INTRODUCTION Human rights proponents would like to expand Crimes Against Humanity (CAH) to encompass more perpetrators as a way of preventing the harm caused by their conduct. The time has come at this stage of globalization to apply a Roman Stoic philosophical approach to international criminalization, based on social interests that Cicero referred to as human dignity, and to extend it universally to what Marcus Aurelius referred to as universal society.1

It started with the International Military Tribunal at Nuremberg,2 and developed until the Rome Statute of the International Criminal Court (ICC),3 which removed the need for any connection between armed conflict and

1

Cherif Bassiouni, Crimes Against Humanity, Cambridge University Press, Cambridge, 2011, p. xxxv. 2 The International Military Tribunal at Nuremberg established by the Agreement for the Prosecution and Punishment of Major War Criminals of the European axis, 8 August 1945; Charter of the International Tribunal, 59 Stat. 1544, 1546, 82 UNTS 279, 284 EAS No. 472; see also International Military Tribunal for the Far East, 16 January 1946, TIAS No. 1589. 3 ICC, Article 7, cp. ICTR, Article 3.

Laura Westra

2

CAH.4 The principles of individual criminal responsibility are well established in all countries, and are based on the specific law systems that prevail there. But it is not easy to identify the general principles of law upon which international criminal responsibility is based, sometimes even making use of domestic civil law regimes, in which legal systems have already moved doctrines of wrongful and harmful conduct into the criminal law.”5

However: For all practical purposes, the method of judicial decision-making from IMT (International Military Tribunal) to the ICC is ad hoc, devoid of methodology and, consequently desperate. Paradoxically, the absence of a doctrinal approach which is the practice of all international tribunals, tends towards a narrowed common law approach, but one that is implicitly justified by an ad hoc judicial practice that has ripened into a doctrine of precedential validity – the rough equivalent of common law’s stare decisis.6

The main point of relevance for any extension or expansion of the meaning of CAH is the question of responsibility: is it only the responsibility of natural individuals that is at issue, or that of legal entities? As the IMT Tribunal held, crimes against humanity “are committed by men, not by abstract entities,”7 But direct criminal responsibility of individual when perpetrated on a grand scale demands the participation and support if not of States, then certainly of complex and powerful institutions and organizations, thus it is not a matter of either individuals or legal entities, or complex systems, as there are concepts of “planning, instigating, and assisting the person that actually committed the crime,”8 which must be taken in consideration when assessing responsibility.

4

Bassiouni, Crimes Against Humanity, p. 23. Ibid., p. 473. 6 Ibid. 7 Nazi Conspiracy and Aggression, Opinion and Judgment of the IMT 66 (1947). 8 Bassiouni, Crimes Against Humanity, p. 475. 5

The History and Development of Crimes against Humanity

3

Bassiouni discusses the current situation, and especially the “general part of ICC, usefully codified by the Rome Statute, in Appendix, Article 25 (Individual Criminal Responsibility),9 although the role of organizations is not specified, as follows, in the six points listed: (1) The principle of individual criminal responsibility is a “general principle” of national criminal law and of ICL, but it does not exclude other forms of criminal responsibility; (2) ICL can develop proscriptive norms which can be enforced by national criminal justice systems (“indirect enforcement”), as well as through internationally established bodies (“direct enforcement”); (3) The primacy of “direct enforcement” over “indirect enforcement” is not settled except insofar as the primacy of Security Council established bodies based on Chapter VII of the United Nations Charter; (4) Treaty-created bodies designed to enforce ICL are regulated by provisions contained in that treaty as to relations with national criminal justice systems and that includes primacy issues; (5) ICL norms that rise to the level of jus cogens, or are part of general customary law, have primacy over substantive and procedural notions of law, as do treaty-created norms, unless notions of law hold to the contrary and that is reflected as a reservation of understanding contained in the instrument of ratification; (6) Jurisdictional primacy issues between national justice criminal systems and internationally created enforcement bodies, whether ad hoc or permanent are independent of substantive issues pertaining to the primacy of ICL norms over contradictory or inconsistent national norms, even though both sets of issues derive from the concept of national sovereignty, because the first are more of a procedural nature and the second are purely substantive in nature.10

9

Ibid., pp. 578–580. Ibid., pp. 476–477.

10

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Numbers 1 and 5 are particularly relevant from our point of view, the former because it allows for “other forms of criminal responsibility”; the latter, because it suggests that related norms “rise to the level” of jus cogens, a topic to which we shall return below. However the question of group or organized responsibility is still an open one: Traditionally, under the Romanist-civilist law systems, les personalitées morales (legal entities) could not be held responsible; only individuals could. But recently some changes that extend criminal sanctions to legal entities have occurred in that legal tradition, as evidence in contemporary national criminal legislation dealing with organized crime and “white collar crime.”11

Similar developments have also occurred with the common law tradition where legal entities can be sued, their assets seized, and the decision-makers may be held to be criminally responsible: “Such a form of criminal responsibility can be based either on an expanded concept of conspiracy or on the grounds of belonging to a criminal organization.”12 International law itself acknowledges such categories as “organized crime,”13 corruption14 and “drug trafficking.”15 Nevertheless, the concept of criminal responsibility is based on the intent of a natural entity, capable of thinking, willing and acting; legal entities and legal abstractions do not possess these capabilities, hence the urgent need to create an international legal instrument, so that criminal responsibility may be ascribed to groups, organizations and States. However, the existing Draft Code of State Responsibility (at best a code that proposes without enforcing) appears to be incapable of forcing States to

11

Ibid., p. 478. Ibid. See also Racketeer Influenced and Corrupt Organization Act, 18 USCA 1961–1968 (1984). 13 United Nations Convention Against Transnational Organized Crime, UNGA Res. 55/25, Annex UN Doc. A/Res/55/25/annex (10 November 2000). 14 UNGA, 28 January 1997, adopted the International Code of Conduct for Public Officials, Resolution on Action Against Corruption, UNGA Res. 51/59 UN Doc. A/RES/51/49 [1974]. 15 Report of the Secretary General on Progress Made in the Implementation of General Assembly Resolution 49/15B, UN GAOR, 50th Sess. Provisional Agenda Item l08, UN Doc. A/50/432 (1995). 12

The History and Development of Crimes against Humanity

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act within legal and moral limits.16 And the main difficulty is that while legal entities, public or private, cannot will or reach decisions, as the abstractions they are, they can do so through those who act on their behalf, represent them, and manage, direct or carry out their decisions. As well, those who act for States and organizations can affect huge numbers of individuals, given the power and the means they command. Hence to treat them as regular criminals is patently insufficient. Even the worst serial killers cannot murder whole populations at the same time, although some forms of terrorism meet that test. The perpetrators are not necessarily the directing minds of international criminality, but they are the executors of State or organizational decisions. Bassiouni considers the relation between direct and derivative criminal responsibility, as he adds: in addition, as a matter of legal policy, a distinction should be established between criminal responsibility of the decision-makers and senior executives who plan and initiate the proscribed conduct, those who carry it out or allow it to occur by purposeful omission when they could have prevented it, and those who are at the lower echelons of the process. 17

The person or persons involved engage in the criminal conduct and they have knowledge, intent or recklessness, and we should distinguish between: (1) conduct that gives rise to direct individual criminal responsibility; (2) conduct that gives rise to criminal or quasi-criminal responsibility of legal entities; (3) conduct that gives rise to derivative individual criminal responsibility, as the consequence of the responsibility of legal entities; (4) the consequences of criminal sanctions against persons whose individual criminal responsibility has not been established. 18

16

Draft Code Of Principles of State Responsibility, UNGAOR, Int. Law Comm. 46th Sess. Supp. No. 10 at 3327, UN Doc. A/49/10 (1994). 17 Bassiouni, Crimes Against Humanity, p. 481. 18 Ibid.

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We will keep in mind these categories as we consider the new activities that cause environmental disasters in the rest of this work, although many of the transgressions we will review also run afoul of the non-derogable rules of international law, such as nullum crimen sine lege and nulla peena sine lege, as the Rome Statute “specifically did not include the notion of state criminal responsibility and other forms of group responsibility”:19 The peculiarity of the role of the perpetrator of an international crime consists in this that he acts not only himself but also with the help of a complex executive machinery. In the hands of international criminals, masses of people become an instrument of the most heinous crimes, just as a knife becomes an instrument of crime on the hands of a murdered. 20

We also need to raise questions about the function of the rule of law in the international community. In turn, questions related to its function require an understanding of its nature. Scholarly opinion appears to be divided between those who subscribe to a strongly positivist position on the nature of international law21 or even a “policy-oriented position,” as Brownlie terms the approach of Myres McDougal, W. Michael Reisman and others of the “Yale school,”22 and those who tend to emphasize the historical and theoretical background of international law, as most explanatory of its nature, dating from the concept jus gentium in Cicero.23 I would place H. Lauterpacht among the latter24 because his focus, like mine, is on the full understanding of international human rights, starting from the historical background of the concept. Malanczuk emphasizes the importance of this approach: “International law has a number of special characteristics making it completely different from highly developed national legal systems which are connected with the existence of a modern 19

Ibid., p. 482. A. N. Trainin, Hitlerite Responsibilities Under International Law, trans. Andrew Rothstein, Hutchinson & Co., London, 1945. 21 Ian Brownlie, The Rule of Law in International Affairs, Martinus Nijhoff, The Hague, 1998. 22 Ibid., pp. 8–10. 23 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edition, Routledge, London, p. 1. 24 Hersch Lauterpacht, International Law and Human Rights, Archon Books, New York, 1968, p. 73. 20

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state and its apparatus.”25 Hence, without denying the presence and the importance of observable, positive national laws, the existence of wrongful acts that represent an injury to the whole international community appears to be basic and foundational in their importance for international law. When we add to the abstraction “whole international community,” the specific reality of grave injuries to the human beings that constitute this “community,” then it is clear why the presence of human rights violations must be used to show the role “naturalists” and their principles play against the reductionist role of “positivists.” Hence, when one considers Article 38(1) of the Statute of the International Court of Justice (adopted in 1945), the importance of the ultimate moral principles, embedded in “natural law” (in its full historical sense), must be kept in mind: (1)

(2)

25 26

The Court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for determination of the rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.26

Malanczuk, Akehurst’s Modern Introduction to International Law, p. 3. Article 38(1) of the Statute of the International Court of Justice.

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Hence, the basic components of international law are treaties, customary law based on state practice and opinio juris, and the “general principles” of law.27 This work recognizes the presence of all the sources enumerated in Article 38(1), but it would place (c) squarely in the place of the present (a), although this is not necessarily the accepted position. Melanczuk, for instance, sees the “hierarchy of rules” much as it is written. In fact he suggests that the rule of jus cogens can be derived from custom, and possibly even from treaties, but “probably not from other sources.”28 This position ignores the very raison d’être of jus cogens norms, that is, the need to have some principles to appeal to in case treaties agree to legalize some practice that flies in the face of universal morality and justice. To reduce norms of jus cogens to the same level as other sources of international law, rather than giving such norms the status of “final arbiter” may effectively eliminate the presence of morality and justice, except in the case where consensus might be present. Of course the need for international laws, and the presence of an International Court of Justice and of an international Criminal Court owe their very existence to the reality of conflict and disagreement, not consensus, in the international arena. In addition, conflict is complicated by the lack of a realistic “balance of power” among states, such that might lend some semblance of justice to the “consensus model” that appears to prevail in today’s international community. As long as nations in the world arc divided between the ‘“haves” and the “have nots,” there does not exist a level playing field in which all interests are the same and cooperation is sufficient to ensure a just result. It is necessary to establish the responsibility of states. In this work I will use “responsibility” in two senses, each of which will be clarified by the context wherein it is used: (1) The public international law term to indicate the legal state of affairs following a breach of state obligation 27 28

Malanczuk, Akehurst’s Modern Introduction to International Law, pp. 36–56. Ibid., p. 58.

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(2) As a moral term, to indicate the general duty or obligation owed to those who are or might have been harmed by an activity, on the part of those who initiated that activity or sanctioned it.

Peter French ties the concept of responsibility to that of legal personhood. French also traces the history of “legal personhood” from Roman times. He defines it as follows: “A legal person may be described as any entity recognized in law as supporting such capacities as instituting or defending judicial proceedings.”29 Roman law identified “legal personhood with legal status,” and always conceived it “as a privilege and not a matter of right.”30 The implications for corporate and – I might add – for institutional responsibility are obvious. A privilege tends to impose more responsibility than a “natural” right: it should be earned. In addition, both corporations and institutions are ideally suited to assume and bear responsibility for the future: given their life is not limited, hence institutions can best bear the responsibility for long-term harms, as they will also coexist with future persons, unlike humans, whose life span is limited. There are many difficulties confronting the notion of state responsibility: to say that the state is accountable “for a violation of international law,” appears to be the most general and abstract way of viewing state responsibility, although additional questions could be raised: (1) Are states only liable for acts or also omissions? (2) Is “intention or malice” necessary for a violation to occur? (3) Are states alone responsible, or are specific individuals acting on the state’s behalf responsible as well? (4) Can some violation be defined as “criminal”? 31

On the first question, the Corfu Channel case (Merits),32 appears to be first of all, a case of “omission”: Albania omitted to inform the British 29

Peter A. French, Responsibility Matters, University Press of Kansas, Lawrence, KS, 1992, p. 134. 30 Ibid., p. 135. 31 Rosalynn Higgins, Problems and Process: International Law and How We Use It, Clarendon Press, Oxford, 1994, pp. 148–150. 32 UK v. Albania, 1949 ICJ, 4, 17–23.

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Warships of the possible presence of mines in the Channel. The same case also applies to the second point. It does not appear that there was any malicious intent on the part of Albania. Although there was a failure on the part of Albania to take the appropriate steps to protect vessels in their Channel. Kindred et al. make the general point, that there might be “no need to establish the intention of the State in order to trigger responsibility leading to a regime of ‘objective responsibility,’ also called ‘strict’ or ‘risk liability.’”33 Strict liability, in Canadian criminal law is the common standard for environmental regulations. As such, after Sault Ste. Marie,34 a defence of “due diligence” may be advanced, in contrast with “absolute liability,” that does not admit of this defence; states too have an obligation, “a duty of care to prevent injury.”35 In the environmental field, in addition, the responsibility of the state extends not only to the activities of the state and its organs and agents, but also to the “activities of private persons and firms,”36 what in international human rights discourse is now called the “duty to protect.” So far we have considered state responsibility for illegal acts. But the classic Trail Smelter Arbitration is a clear example of a far more typical environmental hazard: one arising from legal commercial activities. Higgins analyses state responsibility from the standpoint of the International Law Commission (ILC): She says, “the only requirement is causality,” which entails that “responsibility is based on result, not fault,”37 although not presently the case on international environmental law. There is one particularly salient aspect of CAH that must be studied and clarified. Bassiouni says: Without the state policy element that would transform CAH from what is its characterization under Article 6(c) of the London Charter to a different category one that generally criminalizes large-scale victimization or human rights abuses committed exclusively on a “widespread or systematic” as is. In the absence of state or organizational policy, what is 33

H. M. Kindred, K. Michelson, R. Provost, T. L. McDonald, A. DeMistral and S. A. Williams, International Law, 6th edition, Edmond Montgomery Publications, Ottawa, 2000, p. 608. 34 R. v. Sault Ste. Marie (1978) 85 DLR 3d 161, 40 CCC 2d 353, (1978) SCR 1299. 35 Higgins, Problems and Process, p. 157; see Chapter 5. 36 Ibid. 37 Ibid., p. 161.

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“widespread or systematic” will depend on the context of the situation and will necessarily vary in its application. 38

It seems that the increased remit of the ICC39 to include “environmental destruction” or “environmental disasters” represents precisely the foundation of such widespread or systematic grave harms to humanity to which Bassiouni refers. This will be the basic position for which this work will argue, that is, the fact that recent developments due primarily, though not exclusively to globalization, have engendered conditions conducive to CAH, as we will how in the following chapters. For the most part conditions conducive to CAH in several areas, are not part of a deliberate plan on the part of a state or government, although they include, minimally, the collaboration or the cooperation of various state bureaucracies. In fact the relation between western governments and their bureaucracies on one hand and the corporations from which, as we shall see, originate most of the harms we will characterize as CAH, represents the key point to be explored. Bassiouni actually notes, speaking of terrorists or “entities” that may have “de facto control of a particular territory,”40 that it is not necessary to demonstrate that the results are “widespread or systematic,” or were part of a specific “policy or plan,” although the latter may provide relevant evidence, without being “a legal element of the crime.”41 In contrast, Article 7(2) (a) of the Rome Statute, cites “a state or organizational policy,” as a “contextual requirement for crimes against humanity.”42 It makes good sense to expect a very powerful entity to be able to decide on policies or practices that could affect great numbers of people. Yet, Bassiouni believes that “several pre-trial Chambers decisions have

38

Bassiouni, Crimes Against Humanity. International Criminal Court, Office of the Prosecutor, Policy Paper on case Selection and Prioritisation, 15 September 2016 (ICC 2016), art. 40 and 41. 40 Bassiouni, Crimes Against Humanity, p. 24. 41 Ibid., p. 25. 42 Ibid., p. xxxii–xxxiii, para. 1 states “(1) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” (emphasis added). 39

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addressed the element of state or organizational policy” citing the decision he views as mistaken, from the Appeals Chamber in Kunarac.43 Perhaps the recent decision of the ICC to include environmental destruction or disasters signifies a move to a position where non-state actors may be condoned or otherwise permitted by a state to pursue policies harmful to people on a grand scale, without being directly “the product of state policy” or “non-state actors acting for or on behalf of a state.”44 It is hard to envision a state bureaucracy deliberately planning to commit CAH even through environmental means. It is much easier to envision a Western state permitting large corporate powers to pursue their interests with no regard for the physical, material affects that will ensue, no matter what harms will be produced. These cases will not be instances of “state planning” but of state complicity with the CAH committed by others, equally powerful legal entities. When we take “planning” or the description “widespread and systematic” as criteria for CAH, we need to consider also “the requirement of organizational responsibility,” and those who should be held accountable.45 The questions/issues that need urgent answers are primarily two: first, the fact that the 2016 ICC formulations reprise the 1996 Draft Code of Crimes Against the Peace and Security of Mankind,46 which indicates that some of the language of its mandates had a history worth following. This Draft is particularly useful as it speaks of “acts committed in a systematic manner or on a large scale but instigated or directed by a government or by an organization or group,” and at the end of the expected list of crimes, it concludes with “(k) other inhumane acts which severely

43

Ibid., p. 281. See Prosecutor v. Katanga, Case No. ICC-01/o4-01/07, Decision on the Confirmation of charge §398, 30 September 2008. 44 Bassiouni, Crimes Against Humanity, p. 28. 45 Ibid., p. 11; Steven R. Ratner, Jason S. Abrams and James L. Bischoff, Accountability for Human Rights Atrocities in International Law, 3rd edition, Oxford University Press, Oxford, 2009, p. 6. 46 Draft Code of Crimes Against the Peace and Security of Mankind: Title and Articles on the Draft Code of Crimes against the security of Mankind, Adopted by the International Law Commission on its Forty-Eight Session, UNGAOR, 51st sess., UN Doc. A/CN.4L532 (1996) rev. by UN Doc. A/CN.4L.532/Corr.1 and UN Doc. A/CN.4L.532/Corr.3.

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damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.”47 Hence there is some precedent for the sort of crime for which we will argue in the rest of this work, as well as for the ICC 2016 expansion to include environmental disasters and land grabs. The second grave issue is whether the ultimate source of power hence the related responsibility, truly resides exclusively in the state, as all documents related to Crimes against Humanity presently assert; on this issue, many questions have already been raised about the role, played by major trade organizations and treaties such as the WTO, but also NAFTA and others attempting to link most countries in the world through trade, which has absolute primacy in all these documents.48 The states are expected (a) to have the capacity to establish a certain policy; (b) to be able to declare and establish laws to implement that decision and the related policies; and (c) to be able to command the execution of the laws they have proclaimed for their country. This expected sequence reproduces to some extent what happens according to criminal law: Criminal law doctrine, irrespective of the diversity of the world’s criminal justice systems, recognizes three connected circles of criminal responsibility: (1) individual responsibility for the perpetrators of the crimes; (2) the aiders and abettors; and (3) those who order, command, induce or solicit the commission of the crime, but who do not participate in the commission of its material element, in any conduct deemed to fall within the meaning of aiding and abetting.49

The “moral author” of these acts mast have “the requisite mental element” to set in motion the commission of these crimes.50 Of course there is no morality involved, as the “systematic practice of atrocities” may be

47

Bassiouni, Crimes Against Humanity, p. 13. Note the serious questions raised By Paul Magnette on behalf of the region of Wallonia, before allowing Belgium to sign the Canadian European Trade Agreement (CETA) in October 2016. 49 Bassiouni, Crimes Against Humanity, p. 18. 50 Ibid. 48

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“tolerated or condoned by a government or a de facto authority” as Antonio Cassese states.51 Cassese adds that the determination of the mental element of CAH is both “difficult and controversial,” as beyond the usual criminal elements present in mens rea for various crimes, there must also be “awareness of the broader context into which the crime fits, that is, knowledge that the offences are part of a systematic policy or of widespread and large-scale abuses.”52 However, even the added element does not constitute the dolus specialis or special criminal intent that is the distinguishing characteristic of genocide instead.53 At any rate the “moral author” causes others to perpetrate the crime resulting in the grave harms they are fully aware will ensue, but in such large scale criminality, there is “an intermediate category of criminally responsible persons”: these are the facilitators.54 Given the presence of separate elements and various levels of participation, hence of responsibility, it is imperative that we establish the respective degree of power and of control that various entities may have over the commission of the crimes and their results. We will return to that question in the next chapter, as it is perhaps the most important one regarding all the issues we will address in this work. But there are other issues that should be examined first. Before returning to a discussion of the power of the state today (as opposed to that of 1945), we need to discuss briefly now the power of nonstate actors which – we will argue – today hold most of the power globally, singly and through their associations, in almost all sectors of human life.

2. STATE AND NON-STATE ACTORS, INTERNATIONAL LAW AND JUS COGENS In any event, states know that double standards and exceptionalism still prevail, and that is essentially how well a state plays its political cards

51

Antonio Cassese, International Law, 2nd edition, Oxford University Press, Oxford, 2005, p. 442. Ibid., p. 442. 53 Ibid. 54 Bassiouni, Crimes Against Humanity, p. 18. 52

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at a given moment, which avoids being placed in the category of perpetrators of “crimes of states,” no matter how episodic and elusive accountability may be.55

A major source of exceptionalism is due to the absence of the US and its “friends” from the ICC, the result of which has been that the few prosecutions that have taken place thus far, have involved leaders of African or Balkan states primarily. The case of Pinochet was almost prosecuted, but he “managed to avoid extradition to Spain, compliments of the UK,”56 he then returned to Chile where he died before prosecution.57 We will return briefly to other glaring cases of crimes against humanity, shielded precisely because of us protection below. In addition, the exceptionalism of the US with the numerous wealthy and powerful corporations it houses, is particularly grave, as the many ICL “normative and enforcement gaps” that exist should be judged to be their responsibility. Bassiouni states that “the etiology of crimes of state and similar crimes committed by non-state actors needs to be addressed from a perspective other than direct physical human harm,”58 yet it is the “limited scope” of criminal law that must be addressed, particularly when the human harm is not immediately observable but evolves over time, as we shall see in the next chapter. For Bassiouni, attacks on human rights through the environment, merit at most a footnote, rather than the clear prosecution they merit as CAH. Hence it is fundamentally important to establish the respective roles of state and non-state actors in relation to crimes against humanity an effort that demands first of all an assessment of the actual power of the state and its actual role in these crimes, aside from its formal status and the legalities that ensue. The importance of international law principles in relation to the state and its activities also needs to be considered. Under customary international law, general principles of law, the condemnation of acts first contained in Article 6(c) of the London Charter

55

Ibid., p. 75. Ibid., p. 76. 57 Andrea Biandi, “Immunity Versus Human Rights: The Pinochet Case,” European Journal of International Law 10 (1999), pp. 237–277, here p. 249. 58 Bassiouni, Crimes Against Humanity, p. 53. 56

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The first example of obligations erga omnes to be found is the classic case Barcelona Traction, is the proscription of acts of aggression, the second, that of genocide. Both are grounded on jus cogens, the peremptory norm of international law. Article 53 of the Vienna Convention reads as follows: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of international general law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only as a subsequent norm of general international law having the same character.60

Maurizio Ragazzi says that many members of the International court have referred to jus cogens in the context of areas of the law as varied as the rights of passage through a territory, the protection of fundamental human rights, humanitarian law, the law of the sea, self-determination and the prohibition of the unlawful use of force.61

Clearly the subject matter of jus cogens is germane to our topic, and has been acknowledged as such by many rapporteurs and commentators. Ragazzi cites G. Fitzmaurice summarizing the Third Report, who stated that peremptory rules involve “not only legal roles but considerations of morals and international good order.”62 The content of the concept of jus cogens has 59

Ibid., p. 263. Vienna Convention on the Law of Treaties, 21 March 1986, Doc. i/conf.129/15, 25 ILM (1986), Article 53. 61 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, Clarendon Press, Oxford, 1997, p. 46. 62 Sir Gerald G. Fitzmaurice, “Third Report,” para. 76, cited in Ragazzi, The Concept of International Obligations Erga Omnes, p. 41. 60

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been viewed by some as open to interpretation, although the examples where we find it cited are not as varied or as close to our own concern in this work as one would wish perhaps. Ragazzi, speaking of the examples often cited in relation to the concept, acknowledges that they “largely coincide with those of obligations erga omnes given in the Barcelona Traction case.”63 At the time of the Vienna Conference the representative of the Holy See “suggested that a principle of interpretation such as the primacy of human rights would give the principle of jus cogens a more concrete value.”64 In fact, reading the Barcelona Traction judgment helps to tie our topic to jus cogens, and many authorities appear to accept that connection. The few cases that could be adduced as examples show the different facets of the concept, but they do not help to render it a commonly used approach in international law. Increasingly customary laws rely on commonly accepted state practice, whereas principles are often ignored.65 Of course principles enter into international jurisprudence as “principles of civilized people” or even as unclaimed and unrecognized natural law precepts.66 Some legal scholars admit the existence of these norms/principles, and see their importance. Christian Tomuschat, for instance affirms that “the international community accepts today that there exists a class of legal precepts which is hierarchically superior to ‘ordinary’ rules of international law, precepts that cannot be brushed aside, or derogated from by the sovereign will of two or more states, as long as the international community upholds the values encapsulated in them.”67 Although legal scholars have argued for and against the effectiveness of both this concept and that of obligations erga omnes, their limited visibility in international law cannot be disputed, as neither the International court of 63

Ragazzi, The Concept of International Obligations Erga Omnes, p. 50. Ibid. 65 Michael Akehurst, “Custom as a Source of International Law,” British Yearbook of International Law 47(1) (1976), pp. 1–53. 66 John Finnie, Natural Law and Natural Rights, Clarendon Press, Oxford, 1980. 67 Christian Tomuschat, “Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes: Concluding Observations,” in C. Tomuschat and Juan Mark Thouvenien (eds.), Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leyden, 2006, pp. 425–436. 64

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Justice not the International Criminal Court have made practical use of them, although both courts have referred to jus cogens rules. The reasons for this lacuna are two, and both arise because of modern geopolitical realities: first, the exceptionalism of which Bassiouni spoke, that is, the special status of some states, and for others, their special ties with those states; the second reason is the presence of globalization and with it, the proliferation of trade associations and trade agreements. As we shall see when we move from theoretical considerations to the practical consequences that ensue from the neglect of basic principles, these two problems result in the many grave harms that affect most of humanity today.68 In fact, because of the effects of globalization, that is, of the primacy of specific economic interests over the principles of the public good, and of good order, Stefan Talmon suggests a reconsideration of the difficulties of the interface between the two, as he discusses jus cogens breaches and the relative state obligations, as he cites the International Law Commission (ILC) on the Responsibility of States for Internationally wrongful Acts, Article 41(2): “no State shall recognize a situation created by a serious breach of an obligation arising under a peremptory norm of general international law.”69 The rule of “non-recognition” goes beyond the “formal admission” that a situation is illegal, as it also forbids any action that might imply that the legality of the situation is accepted.70 Talmon’s is a particularly apt example, because it illustrates how a cluster of illegal actions, clearly proscribed by international law can escape punishment, even recognition of their illegality, when the perpetrator is a state which enjoys the exceptionalism of its “friend” and supporter, the On jus cogens and positive law, see Tunkin, Gregory, I., “Jus Cogens in Contemporary International Law,” University of Toledo Law Review 3 (1971), 107–118; Alexidze, Levan A., “Problem of Jus Cogens in Contemporary International Law,” Soviet Yearbook of International Law 127 (1969), p. 149; Michael Akehurst, “The Hierarchy of the sources of International Law,” British Yearbook of International Law 47(1) (1976), pp. 273–285. 69 General Assembly Resolution 56/83, 12 December 2001, Annex; see discussion in Stefan Talmon, “The Duty Not to Recognize as Lawful a Situation Created by The Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Substance?,” in C. Tomuschat and Juan Mark Thouvenien (eds.), Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leyden, 2006, pp. 99–125, here p. 100. 70 Talmon, “The Duty Not to Recognize …,” p. 112. 68

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United States. The list of crimes against humanity, as well as that defining breaches of jus cogens, pretty much correspond to all the crimes committed by the state of Israel since its occupation of Palestine, with a direct impact on the latter and all its citizens, civilians included. Indirect breaches of international law by Israel, may also include bribery and corruption,71 that is, it funds organizations, associations and individuals for the sole purpose of spreading its propaganda, and ensuring that all the direct crimes it commits will be disregarded by the US and other states, including the Security council where the US has veto power, a further glaring example of exceptionalism. Talmon explains: The concept of non-recognition was first introduced in the work of the ILC by Willem Riphagen, the Third Special Rapporteur on the Topic of State Responsibility. Art.6(l)(a) of the 11982 draft articles provided that ‘an international wrongful act of State which constitutes an international crime entails an obligation for every other state, not to recognize as legal the situation created by such an act.72

He adds that there exist few situations grave enough to apply, as he cites “the illegal use of force, acts of aggression … [which] may result in the creation of an illegal state or the illegal acquisition or occupation of territory.”73 Talmon’s careful exposition of both the rule and the few existing precedents, concludes that the “rule itself” may not need to exist, as obligations do exist for “the illegal use of force, the denial of selfdetermination of peoples, and the prohibition of racial discrimination,” although the latter are not yet fully developed in international law.74 His careful and well-supported analysis demonstrates clearly how vital it is to support fully these seldom used jus cogens prohibitions, particularly when the current geopolitical configurations work actively to ensure that

71

Laura Westra, On Hunger, Brown Walker, Irvine, CA, 2017, ch. 5. Talmon, “The Duty Not to Recognize …,” 115. 73 Ibid., p. 116, citing “the recognition of territories acquired through Serbian aggression,” UN Doc. E/CN.4/1992/S-2/SR.3, 4 December 1992, p. 16, para. 71. 74 Talmon, “The Duty Not to Recognize …,” p. 125. 72

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customary international law may instead be used or manipulated to ignore some of the gravest international crimes.

2.1. Precedents Based on General Principles of Law and Crimes against Humanity Although during the Middle Ages towns in Northern Italy prosecuted certain types of criminal called banditi, vagabondi and assassini, who were within their jurisdiction, regardless of where they committed their criminal acts, the history of universal jurisdiction stems from the customary international· practices regarding pirates and brigands in the 1600s. Even before International Law in the modern sense of the term was in existence, a pirate was already considered an outlaw, a hostis humani generis.75

This point was made forcefully in several cases regarding the slave trade – these cases arose in regard to slaves being transported to the United States from Africa. For the most part the very possession of slaves was considered an abomination and illegal under international law, although that issue was considered “a thorny question”: Some early decision like that of the Amedie case76 held that there is no right to the restitution of slaves unless the claimant can prove title under municipal law. In other words, possession would raise no presumption of property in slaves, and the “natural right of all men to freedom would determine an inversion of the burden of proof.”77

The Circuit court of the United States in Massachusetts declared that “the slave trade was prohibited by universal law” (26 Fed. Case 832) (ibid.). In general, there was a consensus regarding the law “of civilized nations” and the peremptory norms (jus cogens) to which such law is related. Thus

75

Bassiouni, Crimes Against Humanity, p. 280. 1 Acton’s Rep 240 per Sir William Grant. 77 Ragazzi, The Concept of International Obligations Erga Omnes, p. 114. 76

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the prohibition of slavery was viewed, and is viewed today as an obligation erga omnes.78 Nevertheless, in 1817, in the case of Le Louis (2 Dodson’s Rep.238), Sir William Scott had pronounced in equally explicit terms that the Slave trade, though morally detestable, was neither piratical, nor contrary to the laws of nations.79

The main point is that there is a history of clearly voiced defences of a principled position, non-derogable norms and obligations beyond the regulatory regimes of the time, at least regarding one of the major aspects of crimes against humanity, that is, slavery. Hence the recent expansion of the remit of CAH perhaps is beginning to acknowledge the traditional, historical presence of norms existing beyond the explicit lex lata treatment of some of the gravest attacks on the dignity and the integrity of human beings. The presence of these attacks calls for the evolution and the expansion of present laws, which must match the evolution and the expansion of the crimes being committed: The notion that a crime against humanity must be committed against a population” has generally been interpreted as qualifying the nature of the atrocity in one or two ways: either in terms of their scale – namely, that they must be against a large number of civilians; or – alternatively, in terms of their method – namely that they be committed in a planned, systematic manner insofar as they are directed against a specific “population” and not merely random individuals.80

This disjunct is basic to the argument of this work as the question of specific intent leads back to genocide itself, as well, it has been a major issue in environmental racism, an ongoing phenomena routine1y dismissed as showing no intent to harm, thus just explained as a purely economic decision.81 78

Ibid., p. 113. Ibid., p. 115. 80 Ratner et al., Accountability for Human Rights Atrocities in International Law. 81 Robert Bullard, “Decision Making,” in Laura Westra and Bill Lawson (eds.), Faces Of Environmental Racism, 2nd edition, Rowman & Littlefield, Lanham, MD, 2001, pp. 3–28; 79

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From the point of view of our argument, the disjunct here proposed is a major step forward, given that the intent to harm, or even the animus against a specific population or group can never be proven as – in fact – it may not even exist. The “feelings” of those who inflict harm through ecoviolence can be defined better as negligence, even indifference, as these can be demonstrated by the irresponsible behaviour of those who generate the harm. What can be proven, at best, is the total disregard for the result of the actions which advance the interests, the projects of states and non-state actors. We will return to this topic in the next chapter. For now it might be best to continue to examine the concept of crimes against humanity after Nuremberg, and the scholarly interpretations that have been proposed. At the time of the Rome Conference, the state Parties held “strong diverging positions on the issue of a conjunctive or disjunctive” understanding of the definition.82 However the inclusion of a “civilian population” was included in the ICC Elements of Crimes, art.7(1), and the 1996 Draft Code included an additional term, “when committed in a systematic manner or on a large scale.”83 The number of victims of those crimes has never been specified, as even a small number appears to be sufficient to indicate a crime against humanity. On another topic, however, Ratner speaks of “discriminatory intent,”84 which is indeed an element of mens rea, but, he adds, the presence or lack of this element remains “irrelevant to guilt.”85 Particularly significant in this regard is the Barbie case which included crimes that were perpetrated against people “by reason of their membership of a racial or religious community”; as well, “against the opponents of [the

Robert Bullard, Dumping in Dixie, Westview Press, Boulder, CO, 1990; Laura Westra, Environmental Justice and the Rights of Indigenous Peoples, Earthscan, London, 2007, especially ch. 2; Peter H. Einstaedt, If You Poison Us: Uranium and Native Americans, Red Crane Books, Santa Fe, NM, 1994; Joseph Stiglitz, The Price of Inequality, W. W. Norton, New York, 2012; see also ICERD, Committee on the Elimination of Racial Discrimination, UN GAOR 1992, 47th Sess., Supp. no. IB, UN Doc. A/47/18; Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Re. 1994/45 Annex. 82 Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 61. 83 1996 ILC Report at 93 (art. 18). 84 Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 63. 85 Ibid.

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government’s] policy of ideological supremacy, whatever the form of their oppositions”86: In Finta, the Canadian Supreme Court endorsed the discriminatory grounds requirement for all crimes against humanity, but the same Court overturned that interpretation in the 2005 Mugesera immigration case in the light of the ICTY and ICTR jurisprudence. 87

According to the ICTY Statute, the grounds for persecution are relevant, but they are not so for all the other aspects of crimes against humanity. This argument led the Security Council to take for granted that “discriminatory grounds” are irrelevant for all crimes aside from persecution.88 This position should be considered a step in the development of CAH, a move toward the enlargement of their remit, as the ICC Statute also increases the list of discriminatory grounds to include culture and gender. At any rate, the 1996 Draft Code eliminates the “requirement of discriminatory grounds,” except in the case of persecution and “institutionalized discrimination.”89 These legal positions whether complimentary or contrasting the different emphases present but, as Ratner notes: Yet it is unclear whether they were concerned with the ground of the crimes – which ultimately turn on the status of the victim – or the state of mind of the offender. Some emphasize that motivation is the central distinguishing feature between a common crimes and a crime against humanity. More recently, in line with the developments in the ICTY, ICTR, and ICC, commentators have opined that discriminatory grounds are necessary only for the persecution-type offences.90

86

Ibid., p. 64; Barbie, 78 ILR at 137. Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 65; Finta [1994] ISCR at 814; Mugesera [2005] 2 SCR at 154–155. 88 Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 66. 89 1996 ILC Report at 93–94 (art. 18). 90 Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 67. 87

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Of course the works upon which Ratner based his conclusions predate his own work cited. But crimes against humanity must be clearly differentiated from genocide with its requirement for dolus specialis, or the special intent to destroy a group as a whole or in part, No such intent is necessary for crimes against humanity, nor is the involvement of the state itself absolutely required, in fact the ICC Statute, in article 7, refers to “a state or organizational policy,”91 which is far less limiting than the sole reference to a state would be. In fact, as early as 1954, the ILC Draft Code requires that the acts in question “be committed” by the authorities of a state or by private individuals “acting at the instigation or with the tolerance of such authorities.”92 After the Second World War, “fifty-five States have legislation criminalizing CAH, most of which were developed after 2002.”93 However, as at 2011, too many countries have not moved to constitutionalize crimes against humanity in the domestic regimes of their state. Bassiouni adds: “Our historical legacy must include more than our unequivocal condemnation of such grave human depredations. It must include effective enforcement.”94 The enforcement ought to emerge from the ICC, an institution “that can express the higher values of our legal civilization.”95 We must keep in mind that international law is not like domestic criminal law, the crimes it confronts cannot simply be placed in the hands of clever lawyers that can argue and explain the law, so that it is used most effectively to guarantee that the perpetrators are identified and brought to justice. In contrast, the growth and development of international law must keep pace with the new crimes that are perpetrated, the new harms to the commons and the collective, in fact to all humanity by different means, through attacks unthinkable in earlier times. Most of these terrible harms are mediated through the environment, as we shall see in the chapters that follow. For that reason, the expansion of the 91

Ibid., p. 69. 1954 ILC Report at 140, 150 (art. 2(11)). 93 Bassiouni, Crimes Against Humanity, pp. 660–663. 94 Ibid., p. 741. 95 Ibid. 92

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remit of the crimes against humanity in Paras 40 and 41 of the September 2016 Report is one of the most important steps towards the protection of human rights to emerge in recent times. Most of the emerging and ongoing harms affect us through our environment in all its aspects, air, water, food climate in general hence the importance of understanding the full meaning of crimes against humanity: that requires returning to basic principles of law. Ratner speaks of the difficulties of arriving at a comprehensive definition of CAH within domestic constitutions: “One method for this exercise entails recourse to general principles of law recognized by the community of nations.”96 Another issue that raises questions is the problem of mens rea. Ratner explains: The United States Penal Code identifies four levels – purposely, knowingly, recklessly and negligently – and defines certain crimes with respect to given levels of mens rea. Each system of law may define the requisite mens rea differently. However, mens rea becomes more complex with respect to large scale orchestrated crimes against humanity. 97

The crimes that have been part of the CAH definition since Nuremberg are murder, extermination, enslavement and forced labour, deportation, and the forced removal of a population from their home, imprisonment and other inhumane acts, torture and rape were also added. As we shall see, many of these crimes are ongoing today, with complete immunity from punishment, simply because they are committed or supported by the United States, and we will return to this major point. As we go through the numerous inhumane acts that follow upon environmental destruction, we will show the undeniable connection between it and the results that follow, which can only be termed crimes against humanity. Yet, even more powerful than states, are non-state actors.

96 97

Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 71. Ibid.

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3. NON-STATE ACTORS: MULTINATIONAL CORPORATIONS, THEIR NATURE AND THEIR ROLE Corporations are legal entities governments create to enhance the wellbeing of their citizens by producing certain conditions that are conducive to investing and conducting business. Governments grant certain rights (limited liability), but we have argued that these are not “natural rights” or “human rights,” but only instrumental rights, shaped to further societal goals.98

Others argue that the corporation should simply be viewed as an aggregate of individuals, but we found that understand to be flawed. In contrast, Philip Blumberg does not agree that the corporation should simply be viewed as an aggregate of individuals; according to Stephens, he defines it as an organic being, with independent legal rights that go beyond both those of the shareholders and those granted by the government.99 The argument regarding the nature of the corporation, however, cannot obscure the main issue that remains, no matter how we understand its nature, and that is the fact that the corporation has obligations toward the society that gives its rights.100 It is not acceptable to expect corporations, entities who owe their “life” and the ability (and the right) to operate to society, and which relies on its laws for the support of those rights, to avoid the responsibilities that are concomitant with those rights. Those who speak against such a responsibility on the part of corporations,101 refuse to recognize the results of the ongoing empowerment Joseph Stiglitz, “Regulating Multinational Corporations: Towards Principles of Cross-Border Legal Frameworks in a Globalized World Balancing Rights with Responsibilities,” 2007 Grotius Lecture, American University International Law Review 23 (2008), pp. 451–558, here p. 455. 99 Philip I. Blumberg, “The Corporate Entity in an Era of Multinational Corporations,” Delaware Journal of Corporate Law 15 (1990), pp. 283–299, here p. 295; see discussion in Beth Stephens, “The Amorality of Profit: Transnational Corporations and Human Rights,” Berkeley Journal of International Law 20 (2002), pp. 45–90, here p. 61. 100 John Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal 35 (1926), pp. 655–656. 101 Milton Friedman, “The Social Responsibility of Business is to Increase its Profits,” New York Times Magazine (13 September 1970); William Safire, 1996, “The New Socialism,” New York Times (26 February 1996), p. A13. 98

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of amoral entities and the increasingly severe burden borne by the victims of unrestrained and uncaring power. As well, the view that business is solely a profit-seeking activity, is far less well-accepted in the literature.102 Most states have enacted legal regimes that support in some way the fact that corporations can sue, but they can also be sued, hence corporate bodies are subject to legal jurisdiction, and can be guilty of tortuous behaviour, although the presence of criminal liability for corporations is not as well accepted.103 At any rate, multinational corporations (MNCs) present problems that go beyond those posed by domestic corporate activities, as they are inextricably related to globalization. Joseph Stiglitz addresses the question of the relations between investments and other variables in developing countries: even if … investment could be shown to lead to higher growth, as measured by increased domestic product (GDP), it does not mean that societal welfare will increase, especially once resource depletion and environmental degradation are taken into account.104

Stiglitz outlines the main problems he views as presenting “a worse problem” than anything a domestic corporation may do. He sums these problems under six headings: (1) The huge economic power of MNCs.105 (2) MNC’s ability to use the power of their own government to ensure the best possible terms for their investments in foreign countries.106 (3) MNCs take advantage of the lack of “administrative capacities and technical expertise in developing countries.107 Diane F. Orentlicher, and Timothy A. Gelatt, “Public Law, Private Actors: The Impact of Human Rights on Business Investors in China,” Northwestern Journal of International Law and Business 14 (1993), http://scholarlycommons.law.northwestern.edu/njilb/vol14/iss1/8; Douglas Cassel, “Corporate Guidelines: A Second Human Rights Revolution?,” Fordham International Law Journal 19 (1996), p. 1963. 103 Stephens, “The Amorality of Profit,” p. 64. 104 Stiglitz, “Regulating Multinational Corporations,” p. 455. 105 Ibid., p. 478. 106 Ibid. 107 Ibid. 102

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This list includes several items that may be borderline activities poised between legality and illegality (see numbers (2), (3) and (4)). The first item is simply a statement of fact, but it underlies all the other five described “problems.” Stiglitz states that in 2006 General Motors’ annual revenues were greater than those of “148 countries.”111 Thus, all the harms that MNCs may be responsible for must be viewed against the background of the immense power that such revenues generate. In fact, most of the problems Stiglitz enumerates are administrative or, if legal, procedural. For instance, (5) states that MNCs are able to avoid prosecution because it is difficult to prosecute them beyond the jurisdiction where the harm/crime occurred, as he cites the refusal to extradite Union Carbide officials to be tried for multiple murders after the disaster in Bhopal, India. A similar administrative/procedural “problem” is the MNCs’ ongoing “different behaviour” (6), in contrast with the more circumspect behaviour in their home country. For both cases, however, Stiglitz only considers the issues involved aside from their substantive aspects. For (5), the main issue was the presence of multiple murders, thus making Bhopal a crime against humanity. This sort of crime may occur when a MNC proceeds with (a) misleading representation of the true impact of their operation (not quite producing “good medicine for plants,” as claimed); (b) acquiescing to inferior technical and operational conditions at a level far below that expected in the home country, for a similarly hazardous to the public health

108

Ibid., p. 479. Ibid., p. 480. 110 Ibid. 111 Ibid., p. 476; see also World Bank, “World Development Indicators Database: Total GDP” (2006), http://siteresources.worldbank.org/DATASTATISTICS/Resrouces/GDP.pdf. 109

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from “cradle to grave,” that is, from manufacture, to use, to eventual disposal and to the residues left to be consumed in the food. Thus even the somewhat critical approach found in Stiglitz’s works tends to overstate the benefits provided by the MNCs, while limiting the critique of the harms that result in their operations. As we will see below, his is an effort to moderate and ameliorate somewhat a system seen as basically useful and sound, although needing modifications. In contrast, we view the victims of MNCs, but also of domestic corporations, primarily through the lens of human rights/public health breaches. Thus the question, it would seem is for the most part, should corporation X do Y, when Y is unsafe for humans as well as for other natural entities? In addition, if Y is seen to be absolutely necessary (not just useful or previously uncritically accepted), how can its manufacture, production and use be modified to ensure public health protection, rather than success based on market imperatives or preferences? And these strict questions should be asked and answers provided before manufacture/production is permitted and the appropriate licenses are issued to corporation X. As well, an impartial government body, rather than an internal assessment, should govern both permission and licensing. Only after a thorough external examination should any permit be issued, whether for domestic or international productions and distribution, although the latter can be even more hazardous than its domestic variant, given the problems rightly listed by Stiglitz. But the starting point for this approach may be found in Stiglitz’s own definition of a corporation, at the beginning of this section. The first sentence refers to the “well-being of citizens,” hence it would seem clear that “investing and conducting business” should not be conducted in ways that negate that well-being, and the “citizens” involved, in the case of MNCs should not be restricted to those of the home country, as they are not the only stakeholders. The last sentence separates clearly corporate rights from both natural and human rights: as instrumental rights only, the common good of society should be paramount. Thus both the first and last sentences put the responsibility where it should be: on the granting authorities and organizations that are charged with

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authorizing these “instrumental rights,” without however excusing the corporate bodies who are, after all, entities capable of knowing and willing. If Stiglitz is correct, then any operation that is not demonstrably such that it enhances “the well-being of society” (wherever the operation occurs) ought to be eliminated from consideration. Nor is this “well-being” to be defined only in economic terms: Stiglitz himself addresses the issue of collateral damage as he says that “they are lucky to have jobs”112 to be a poor excuse for operating under unsafe conditions for both employees and the environment, especially in developing countries. This definition does not exclude the owners/shareholders from the stakeholder that should be considered, when the well-being of society is sought: they are, one and all, part of society. But neither this definition, nor any common sense understanding of the role and function of corporations expects owners and shareholders to be the sole beneficiaries of corporate operations at the cost of the rest of the stakeholders. Nor is profit-making an absolute right (if it is a right at all) trumping all other rights. An instrumental right, especially one that is neither “natural” nor “human,” cannot take precedence over the natural rights of human persons, rights that are explicitly entrenched in both domestic and international law regimes. And, in order to ensure that this does not occur, it is the substantive, material aspect of the operation that needs to be scrutinized and carefully weighed against the question of well-being, in all its aspects, that is, beyond the provision of jobs for a segment of a population. This scrutiny ought to occur before any corporation is allowed to operate. Too often these issues are at best only brought to light after multiple harms have occurred, and crimes are committed that are severe enough for a case to be brought to the courts. Given the immense economic power of MNCs and in general of most corporations, surely their R and D departments’ wealth of information should be shared with the appropriate government body, thus preserving their privacy, but permitting an impartial body, rather than an in-house

112

Stiglitz, “Regulating Multinational Corporations,” p. 480.

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committee as it often happens, to judge of the safety of their product and its manufacture or extraction. It seems clear that, if their roles and their rights are instrumental and dependent on a further variable, the latter ought to be fully investigated first, in order to reach a just decision about whether the claimed instrumentality for the good is or is not present in the proposed activity. As well, an impartial body should continue to monitor their operations, as new scientific discoveries may well point to hitherto unforeseen hazards. As Grandjean and Landrigan demonstrated, today more than 200 untested chemicals continue to be produced and used, despite the fact that they contribute significantly to a plethora of diseases, from early childhood to old age.113

3.1. The Principles of Nuremberg: The Perpetrators Legal accountability includes a range of possible procedures and sanctions including criminal, civil and administrative. In most legal systems corporate accountability include criminal liability. Corporate criminal liability was common in continental Europe in the seventeenth and eighteenth centuries, imposed in great detail, for instance in the French Criminal code of 1670.114

The rule of law starts with the equality of all persons before: that is the starting point for most jus cogens norms codified in international law. Consider the Convention Against Racial Discrimination, the Convention Against Genocide or the Convention for the Elimination of Discrimination Against Women: all forbid treating equals unequally, and consider doing so to be a most grievous crime. The pivotal point is the concept of equality: it is not a crime, however, to treat an infant in a way that is entirely different from the ways we would treat an adult, of any racial or ethnic background, and we will return to this topic below.

Philippe Grandjean and Philip Landrigan, “Developmental Neurotoxicity of Industrial Chemicals,” The Lancet 368 (16 December 2006), pp. 2167–2178. 114 Stephens, “The Amorality of Profit,” p. 64. 113

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We are expected, in fact obligated, to make decisions for the good of the infant or the young child, rather than expect her to decide for herself. But this common sense position is not applied to the rights and obligations of a corporation (let alone a MNC), either of which are as different from the single human person as can be. Sometimes such differences are viewed as the basis for not viewing harmful corporate actions as criminally culpable, as those of a single criminal. But the conceptual difference between a corporation or MNC and the man in the street, is both obvious and important. It is not in relation to the ability to know that the vast difference between corporations and human persons is present. In contrast their abilities are quite disparate as their economic power makes any comparison between corporations and individual humans, or even several individuals united in a legal cause, hard to sustain. Perhaps the closest similarity in this comparison may be found in the sporting world, as two boxing, karate or fighting opponents cannot compete unless they are in the same class, that is, unless their size and weight are comparable. It is true that even among single individuals intellectual or economic capacities may be widely different and that does not change the fact that rich and poor are equal before the law. Nevertheless the difference, is often too great to be ignored. Anyway, to argue that corporate legal persons may be very similar to single human persons, is a double-edged sword: the closer they are, the more similar their respective obligations must be. Under no condition could an individual argue that his making profit, or advancing his own economic position, warrants any form of exploitation, or even legitimates committing breaches of human rights, to achieve those goals. For instance, several of the Conventions cited above, prohibit both the acts themselves, and the complicity in the activities that will result in the prohibited result, such as genocide115 or torture.116 Another question that can be raised, is whether it is the corporation or MNC that bears full responsibility, when it is normally empowered to

115

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78, UNTS 277 at art. 3. 116 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 113 (entered into force 26 June 1987), art. 4(1).

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operate by a state (or states). This question can be answered, by considering the principles that followed from the cases brought to Nuremberg Tribunals. Nuremberg found that those who conspire to commit international crimes, or crimes against humanity were complicit in the commission of those crimes. A case in point is The Zyklon B Case.117 That case convicted two German industrialists “of supplying poison gas to Nazi concentration camps, based on proof that they knew the purpose for which the gas was to be used.”118 In general, international law does not require the actual commission of the crime, but the knowledge that the complicit party’s action would “assist the perpetrator in the commission of the crime”;119 in fact, moral support alone may have a significant legitimatizing or encouraging effect on the principals.120 Another important instance of the role of complicity, beyond the presence of the actus reus itself, or even the requisite mens rea, can be found in a case of the Rwanda Tribunal: [A]n indifference to the result of the crime does not of itself negate abetting. If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent about whether the third man lives or dies and interested only in the cash profit to be made out of the sale but he can still be an aider and abettor.121

In fact, this sort of argument, for instance “we have nothing against those who suffer from the decision to operate in X, and racial discrimination did not factor in our decision,” or words to that effect, are commonplace corporate responses to the routine siting of hazardous facilities in areas

The Zyklon B Case – Trials of Bruno Tesch and Two Others, 1 Law Reports of Trials of War Criminals 93 (Brit. Mil. Ct. 1946). 118 Stephens, “The Amorality of Profit,” p. 74. 119 Prosecutor v. Furundzika, IT-95-17/1-PT (10 December 1998), at 249. 120 Ibid., at para. 246; see discussion in Stephens, “The Amorality of Profit,” p. 74, footnotes 164, 165. 121 Prosecutor v. Ayakesu, Case No. ICTR-96-4-T (Int’l Crim. Trib for Rwanda, Trial Chamber I, 2 September 1998, paras, 531, 539 at www.ictr.org/ENGLISH/cases/Ayakesu/judgment/aka001.htm, quoting National Coal Board v. Gamble, Q.B. 11(1959)). 117

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inhabited by African Americans, Native communities, or other people of colour.122

4. WHAT IS AN ENVIRONMENTAL DISASTER? We have discussed crimes against humanity and the principles of responsibility, as well as the actors who may perpetrate these crimes. But, although there is an abundant quantity of legal documents regarding criminality in general, the situation is quite different regarding environmental disasters and their possible links to criminal behaviour. Environmental disasters are not defined in law and consulting the internet simply offers a long list of examples, but no effort to propose a formal definition other than the descriptive “a list of specific events caused by human activities that results in a negative effect on the environment.” What is missing is any attempt to explain or even to acknowledge the interface, indeed the causal connection, between environmental disasters and harms to human beings. “Human health” is one of the listed categories, but their connection to the listed biodiversity losses is not made clear. Similarly, the numerous listed “Industrial” environmental disasters do not clearly show the spreading illnesses, altered human development and even death that are, linked to the occurrence of these disasters. In contrast, such disasters as the Ontario Minimata disease, or the methyl-mercury exposures in Northern Ontario at the White Dog First Nation, originating from the local pulp and paper industry and imposing shocking rates of disease and other harms to the local population, whose main diet consists of inquinated fish, should be considered crimes against humanity.123 Of course the direct harm was to the fish population of the local rivers and lakes first, but aside from the local biodiversity, the normal Bullard, “Decision Making”; see also Laura Westra, “The Faces of Environmental Racism: Titusville, Alabama versus BFI,” in Laura Westra and Bill Lawson (eds.), Faces Of Environmental Racism, 2nd edition, Rowman & Littlefield, Lanham, MD, 2001, pp. 113– 140. 123 Philippe Grandjean, Only One Chance (to Develop a Brain), Oxford University Press, Oxford, 2013. 122

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development of the First Nations’ children was stunted, their neurological development severely affected, their eventual ability to function as normal adults lost forever. This issue is still alive in 2017, as the Grassy Narrows and White Dog First Nations people are still protecting today the lack of action on the part of the Ontario Government. Another “industrial” example is the disaster at “Love Canal toxic waste site,” where indeed the whole area was polluted by radioactive material. Had it been left as a wasteland, the disaster would have been purely environmental in its effects, but with the decision of the local authorities to build houses and schools in that area, this environmental disaster into public health nightmare.124 Similarly, the reference to the Seveso disaster (1976) in Northern Italy: it was a “chemical plant explosion, caused the highest known exposure to 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) in residential populations”: hence the main reason for terming this event a “disaster “ was the presence of grave health effects in the local population. We will return to the surprising situation regarding the interface between public health and environmental disasters, the latter primarily engendered by industrial disasters below. The list we have referred to speaks of “plagues” occurring through the ages, that is, events where it would be futile to seek a perpetrator, or even a culpable causal connection. Other “industrial” environmental disasters, such as the Bhopal disaster and in Canada, the “health issues persisting on the Aamjiwnaang First Nation, due to the effluents of the chemical factories near Sarnia, Ontario, are perhaps the only ones where the human effects of industrial environmental disasters are clearly connected to environmental disasters, and we will return to this topic in Chapter 4 where we will discuss the crimes against humanity where crimes again humanity share an additional discriminatory component. Perhaps the clearest example of widespread misdirection in both information and public policy is the major “catastrophe” of our times:

124

Mark Sagoff, The Economy of the Earth: Philosophy, Law and the Environment, Cambridge University Press, Cambridge, 1988.

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climate change.125 The general list we have been discussing has a category of environmental disasters titled “Air,” which lists smog episodes in various specific areas, from Pennsylvania to London, from Melbourne to Malaysia, such as “health problems due to an incinerator in Japan and Kuwait oil fires.” Notably, the global “catastrophe is not even mentioned, either in the “humans health” or in the “Air” groupings. One wonders how that is possible when this is the major “environmental disaster” of which almost everyone is aware in today’s world. As well, this is one environmental disaster where the science has indicated clearly the origins, the aetiology, and the development of the catastrophe and the steps necessary to ameliorate it or possibly even stop or reverse its inexorable advance.

4.1. The ICC and the Policy Paper on Case Selection and Prioritisation 40. The manner of the crimes may be assessed on light of, inter alia, the means employed to execute the crimes, the extent to which the crimes were systematic or resulted from a plan or organised policy, or otherwise resulted from the abuse of power or official capacity, the existence of elements of particularly cruelty, including the vulnerability of the victim, and motives involving discrimination held by the direct perpetrators of the crime, the use of rape and other sexual or genderbased violence or crimes committed by means of or resulting in the destruction of the environment or of protected objects (see article 8(2)(b)(ix) and B(2)(e)(iv) of the Statute. 41. The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of the victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of or that

125

Elizabeth Kolbert, Field Notes from a Catastrophe, Bloomsbury Publishing, London, 2006; Ved P. Nanda, Climate Change and Environmental Ethics, Transaction Publishing, New Brunswick, NJ, 2011; Naomi Klein, This Changes Everything, Penguin, New York, 2014.

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resulting in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land. 126

The actual language of this document suggest caution in the words of the Prosecutor as christening brand new crimes within their purview. However, para. 7 of the ICC recalls that the goal of the Statute “to combat impunity and prevent the recurrence of violence” is not to act alone, but to encourage cooperation, by establishing prosecutions at the national level, as stated in the Preamble of the Statute. The combination of the mention of “violence” with the novel specificity of “environmental destruction,” however, seems to support our emphasis on “ecoviolence.” Returning to the Preamble of the Rome Statute helps to understand the basic parameters of the crimes under consideration. For instance: Reaffirming the Purposes and Principles of the Charter of the United Nations, and, in particular, that all states shall refrain from the threat or use of force, against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.

Perhaps an even better way of understanding the scope of the Prosecutor’s 2016 proposals is to view them as a natural outfolding of his responsibility, following upon the ICC Strategic Plan 2016–2018. A translation from the French of some of the points from that document will support that contention: 

126

No. 75: “Objectives for 2016: Increase of the Group of intermediate operations after the three categories of partners: States, International or regional organizations …”

ICC, Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016.

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

No. 79: “The Ability to recognize emerging threats … it will be necessary to seek the help of partners to help discern emerging vulnerabilities, in order seek better protection …” No. 91: “Objectives: to enact a program of fundamental values to be adopted.”127

It seems obvious that the many international non-governmental organizations that have proliferated recently researching and outlining environmental and health threats are indeed reporting “emerging threats” and “vulnerabilities” in ways that states and related organizations have not done. If the final Objectives include the quest for “fundamental values,” then the presence of both environmental disasters and the deprivation of land surely represent grave crimes as such and – minimally – should aggravate exponentially the way the more traditional accepted crimes are considered by the ICC and are selected and evaluated. In that case, the 2016 document from the Office of the Prosecutor appears to fit well within the general guidelines of the Strategic Plan, as well as fitting within the increasingly wide social reach of the most recent UNsponsored documents, such as those referring to the right to food, and the reports of the WHO regarding poverty and social issues.128 As additional background, and to facilitate our understanding of the expansion listed in the 2016 document from the Prosecutor’s Office, Article 5 lists the crimes within the jurisdiction of the court, including as (d) the crimes of aggression. Indeed, “aggression” would appear to be the most likely candidate that might represent the original starting point for the

127 128

ICC, Plan Strategique du Bureau du Procurer 2016–2018. See Oliver De Schutter, Final Report: The Transformative Potential of the Right to Food, UN Doc. GE.14-10537, Human Rights Council 25th session, 2014; FAO, The State of Food Insecurity in the World 2013: The Multiple Dimensions of Food Security, FAO, Rome, 2013; WHO, Closing the Gap in a Generation: Final Report of the Commission on Social Determinants of Health, World Health Organization, Geneva, 2008; WHO, Pharmaceuticals in the Drnking Water, WHO/HSE/WSH/11.05, World Health Organization, Geneva, 2011; World Conference on Social Determinants of Health, Rio de Janeiro, Brazil, 21 October 2011, retrieved on 19 January 2016 from www.who.int/sdhconference/declaratin/en/.

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eventual developments we are discussing, although that concept is cited but not exhaustively or conclusively defined.

4.2. The Crime of Aggression The crime of aggression is defined in Article 8 is of the Rome Statute, a provision that was adopted at the 2010 Review Conference. It must be read together with Articles 15 bis and 15 ter, which govern the exercise of jurisdiction over the crimes of aggression until the final minutes of the Review Conference, the fate of the proposed amendments remained uncertain.129

The crime of aggression is one of the crimes established by the Nuremberg and Tokyo tribunals, as a development of the “crimes against peace.” Schabas adds that “the British House of Lords in R. v. Jones, later confirmed the recognition of the crime of aggression under customary internationa1 law.”130 Schabas traces the development of the concept, as following the General Assembly Resolution 3314 (XXIX), Article 8 bis: (1) limits the perpetration of the crimes of aggression to ‘a person in a position to effectively exercise control and or to direct the political or military action of a State.131

We must note the language here in the disjunct “political or military” as the political aspect of power indicates that crimes against humanity may be committed beyond the ambit of a war or conflict. Further, political decisions underlie many of the problems we will discuss, further to the new crimes, or the new interpretation of already accepted crimes as some may argue. It appears that Schabas’s traditional and conservative interpretation is also supported by Hans-Peter Kaul’s work on the future of the International 129

William A. Schabas, An Introduction to the International Criminal Court, 5th edition, Cambridge University Press, Cambridge, 2017, p. 131. 130 Ibid., p.133, citing R. v. Jones et al. [2006] UKHL 1G. 131 Schabas, An Introduction to the International Criminal Court, p. 134.

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Criminal court.132 Kaul’s vision of that “future” includes the addition of other countries to the ICC roster and a number of procedural, rather than substantive changes, keeping the traditional interpretation as being not only foundational, but seemingly beyond re-interpretation or revision. Only one sentence of that paper may support the forward-looking interpretation I propose: I am confident that the assembly of state Parties will improve these increases to the staff of the Office of the Prosecutor. They will understand the compelling necessity reflected in a picture often used at the Court, namely that “the Office of the Prosecutor is the engine, and professional and effective investigations are the fuel of the Court.”133

And it is indeed the Prosecutor who initiated the new language I acknowledge in this work: if his is the engine” to ensure the presence of “professional and effective investigations” that will be less political and more inclusive, then the Office of the Prosecutor will be foundational to future prosecutions based on both human rights and social justice. However, although neither Schabas’s nor Kaul’s work confront the possibility of future substantive developments, Leila Sadat acknowledges the political intrusion in the legal realm of ICC prosecutions, and in general the damage wrought by the United States to the work and the reputation of the Court as perhaps the most significant “challenge” during its first 12 years of operation: [The Court] weathered a brutal campaign waged by the United states during the first term of President George w. Bush that explicitly advocated for its ‘wither and collapse’ and involved the adoption of anti-International Criminal Court legislat1on in Congress…and perhaps most famously, the

Hans-Peter Kaul, “The International Criminal Court of the Future,” in William A. Schabas (ed.), The Cambridge Companion to International Criminal Law, Cambridge University Press, Cambridge, 2016, pp. 335–352. 133 Ibid., p. 343. 132

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sending of a letter attempting to ‘un-sign’ or nullify the signature by the United States of the Statute.134

She adds that, in addition, the US’s “current policy is to engage with State Parties to the Rome Statute on issues of concern and support the prosecution of cases that advance United States interests and values.”135 Sadat cites the eight situations in the Court’s docket at the time of her writing: all are in Africa, and two were referred to the court by the Security Council.136 Indeed even the determination of what constitutes an act of aggression should be a matter to be decided by the Security Council: the underlying issue is the fact that Article 39 of the Charter of the United Nations declares that determining situations of aggression falls to the Security council: “The Security Council shall determine the existence of any threat to peace, breach of the peace, or act of aggression.”137

But that organ is, unfortunately, primarily a political, rather than a juridical organ, and, further, it is influenced for the most part by the policies and the interests of the US.138 It might be useful to briefly discuss the role of the Security Council in general, as it also has a significant role regarding the crime of aggression.139 At least 30 State Parties must ratify the Kampala Amendments of 2010.140 A brief discussion may help situate the difficulties facing the ICC as the political preferences of a powerful country interfere with the appropriately legal decision-making of the ICC, starting with the

Leila Sadat, “The International Criminal Court,” in William A. Schabas (ed.), The Cambridge Companion to International Criminal Law, Cambridge University Press, Cambridge, 2016, pp. 137–154, here p. 152. 135 Ibid., p. 152. 136 Ibid., p. 151. 137 Schabas, An Introduction to the International Criminal Court, p. 136. 138 Andreas Zimmermann, “The Exercise of Universal Jurisdiction in Criminal Matters,” in C. Tomuschat and Juan Mark Thouvenien (eds.), Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leyden, 2006, pp. 335–353, here p. 348. 139 David Scheffer, “The United Nations Security Council and International Criminal Justice,” in William A. Schabas (ed.), The Cambridge Companion to International Criminal Law, Cambridge University Press, Cambridge, 2016, pp. 178–197, here p. 192. 140 Ibid., p. 191, citing Resolution RC/Res. 6; see also David Scheffer, “State Parties Approve New Crimes for International Criminal Court,” ASIL Insights 14(16) (22 June 2010). 134

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case selection. Jan Klabbers recently discusses the proliferation and interaction of international organizations, particularly in relation to the UN. The lack of clarity in these relations is one of the problems that dominate the lack of effectiveness we can witness: Thus in respect to both climate change and financial crises it has been suggested that it is essential to devise strongest and more efficiently organized international institutions, with functionaries who are appointed fairly by agreement among national governments and empowered to impose sanctions.141

Although the author does not focus specifically on the Security Council, he does note that Security Council reforms were welcomed by that institution because They have helpfully smothered possible discussions about the council’s activities, including the creation of regime of individual sanctions which, it turned out, cannot pass human rights muster.142

5. THE UNITED NATIONS SYSTEM AND UNIVERSAL JURISDICTION Since the Nuremberg trials, Western notions of legality have characterized international law. In the building of Western legal dominance, international law has slowly and incrementally developed a decentralized system of sovereign nations into a more centralized system where the Security Council of the United Nations claimed some steering role.143

Jan Klabbers, “Transforming Institutions: Autonomous International Organisations in Institutional Theory,” Cambridge International Law Journal 6(2) (2017), pp. 105–121, here p. 105. 142 Ibid., p. 108. 143 Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal, Blackwell Publishing, Oxford, 2008, p. 150. 141

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The present system has helped to convince global society that “violence over innocent people can be ‘legal,’” that a war of destruction can be “fair,” or even that “there is such a thing as a ‘peacekeeping operation.’”144 Thus perhaps the most significant difficulty needing radical change, may well be the present “world law,” that is, the rapid and ubiquitous spread of the global legal power of the West, particularly that of the US. The kind of “world law” we are seeking instead, presents the greatest possible contrast to the existing institutions; in fact, the contrast is so great that it seems as though any possible “tidying up,” or adjustment of today’s international organizations is not worthy of consideration. What is needed is a total replacement and a radical re-ordering of regimes and institutions. This re-order should be based on universal principles, rather than political goals. The next question that arises is this: what aspects of this “re-ordering” appear to be most urgent? Hence in this section I will briefly list some of the major issues we have discussed as most important and intractable aspects of the present situation. Of course those would come after the gravest difficulty, that is the very structure of the UN, culminating in the power of the SC, whose failure is demonstrated by the inaction of the UN in Palestine, for instance. At any rate, the fundamental issue is the loss of respect for human rights, that appears to follow upon an international, in fact, a transnational legal system that prioritizes power alliances and economic interests over human life: what is absent from current global governance is “The Universal Principles to Respect and Observe Human Rights,” although Salomon, for instance, does not see the situation quite as hopeless as Mattei and Nader do.145 In fact, she emphasizes the need to move from international rights, to transnational ones.146

144

Ibid. Margot Salomon, Global Responsibility for Human Rights, Oxford University Press, Oxford, 2007, p. 165. 146 Ibid.; Atle Grahl-Madsen, and Jiri Toman (eds.), The Spirit of Uppsala, Walter de Gruyter, Berlin, 1984, pp. 233–243; Jost Delbrück, “Prospects for a “World (International) Law”? Legal Developments in a Changing International System,” International Journal of Global Legal Studies 91 (2002), pp. 415–417. 145

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The emphasis on the “world community” indicates that the basic rights must be collective rights within this context as, despite the proliferation of human rights instruments addressing individual choice, the harms arising from the present system are not individual but collective harms: 147 Climate change is perhaps the most obvious example of a collective harm demanding collective redress. Another such example discussed in these pages, is the present and ongoing push to “development.” The “legitimacy,” even the desirability of development, as Mattei recognizes148 is a major source of harms and even disasters, as it is ecologically unsustainable, and most often, supporting racist practices,149 hence is a source of violent upheavals especially for poor and vulnerable communities in the so-called developing nations. What is most important is that the rights of collectivities are not respected in either case, by conventional legal agreements, hence the quest for world law grounded on principles appears the only possible way to secure their protection. Individual states, especially in Europe, had been improving their human rights records for decades,150 but, as the states in the rest of the world have been losing their own sovereign power, the current “privatized model of global litigation,” as well as the general forms of global governance lack “a monopolistic sovereign state to take care of justice, equal opportunities, and imbalances of power.”151 Neither peace nor the primacy of human rights can prevail over the political composition of the present UN and its Security Council. But, in order to move forward and to return – in some sense – to the historical basis that gave rise and meaning to the United Nations, we need to set aside the interests of the present, political alliances, clearly a far from easy radical change in policy and organizations. 147

Laura Westra, Human Rights: The Commons and the Collective, University of British Columbia Press, Vancouver, 2011. 148 Mattei and Nader, Plunder, pp. 42–63. 149 Karin Mickelson, and William Rees, “Environmental Law: Social Myths or Ecological Reality?,” in E. Hughes, A. R. Lucas and W. A. Tilleman (eds.), Environmental Law and Policy, 3rd edition, Edmond Montgomery Publications, Toronto, 2003, pp. 1–40; Westra and Lawson, Faces Of Environmental Racism. 150 Mattei and Nader, Plunder, p. 148. 151 Ibid., p. 146.

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Yet “universal jurisdiction” exists, at least in principle:152 “Universal jurisdiction” is the term which describes the competence of the state, both to define and [to] prescribe punishment for certain offences, even in the absence of any of the traditional links, such as territory, nationality, or local effects.153

The Third Restatement of United States Foreign Relations Law actually proposes definitions of the basic rights that, according to the ICJ require “the interest of all states,” although that document is quite dated. At any rate it tends to echo the Barcelona Traction dictum, affirming that violations of human rights are the responsibility of all states, as follows: The Restatement refers specifically to (a) genocide; (b) slavery or slave trade; (c) the murder or causing the disappearance of individuals; (d) torture or other cruel, inhuman or degrading treatment; (e) prolonged arbitrary detention; (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.154

Even a cursory reading of the present chapter indicates that (d) to (g) are certainly clearly present in the Palestinian territory, as well as some other violations discussed in the “Commentary” to the Third Restatement, such as the “denial of the right to return to one’s own country”; or “mass uprooting of a country’s population”; or “individious racial or religious discrimination.”155 Thus, despite the enormous difficulties involved in attempting a radical change of present institutions, the lack of consistency, of equality of peoples and situations in front of the law, are too grave to ignore. They indicate the total disregard not only on the part of the US, but also on the part of the whole international community, of their own Guy S. Goodwin-Gill, “Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute,” in Guy S. Goodwin-Gill and Stefan Talmon (eds.), The Reality in International Law: Essays in Honour of Ian Brownlie, Oxford University Press, Oxford, 1999, pp. 199– 223. 153 American Law Institute, Restatement of the Law Third, vol. 1, American Law Institute, St. Paul, MN, p. 198, §402. 154 Salomon, Global Responsibility for Human Rights, p. 173. 155 Ibid. 152

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principles, their own mandates and proclaimed priorities are such that no other possible solution comes to mind. Nor are these minor violations: they fall under the heading of “international crimes” or “serious crimes of international concern.”156 Further, Article 7 of the 1998 ICC Statute specifically flags “murder persecution” when committed as part of the widespread or systematic attack directed against any civilian population, “pursuant to or in furtherance of a State or organizational policy.”157 The final sentence, it would seem, adds a direction, or deliberate intent to the commission of crimes against humanity, as described in the present chapter, and its brings the activities enumerated in that case very close to being driven by a “special intent,” close to the description of the attempt to commit genocide.158 At any rate, “An international crime is indeed distinguished by its foundation in a rule of jus cogens, and in the importance and universality of its basic moral content.”159 Hence, the prevailing neglect to accept erga omnes obligations to respond singly and collectively to such international crimes indicates, unavoidably the very necessity for radical change for which this work has argued.

6. THE SYSTEMIC ROOT OF ENVIRONMENTAL DISASTERS One aspect of environmental disasters that has not been listed anywhere to my knowledge or apparently considered as part of the full range of rights related to life and health, is precisely the systemic root of such harms. Surely Goodwin-Gill, “Crime in International Law,” p. 205. Goodwin-Gill, however, argues that “This distinction is not down in the 1998 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 … where the Preamble and article 1 and 5 ‘use serious crimes of international concern.’” 157 Goodwin-Gill, “Crime in International Law,” p. 207; Art. 7(1)(2), 1998 ICC Statute; ICTY, Prosecutor v. Tadic, Opinion 1997. 158 See for instance the “Report of the Independent Fact Finding Committee on Gaza to the League of Arab States,” by Rapporteur Duggard on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, covering events from December 2008 to July 2009, by Rapporteur Richard Falk. 159 Goodwin-Gill, “Crime in International Law,” p. 213; Ragazzi, The Concept of International Obligations Erga Omnes, pp. 132–135, 182. 156

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anything that poses a significant threat to either life or health, and that does on a regular ongoing systemic basis, needs serious scrutiny. In fact, all the aspects of environmental disasters that are not an occasional accident, can be demonstrated to be systemic, and should be classified as crimes against humanity, given the effects they produce. Hence the principal aim of this work is to demonstrate the systemic status of these recurring problems. It is not a series of “operational accidents”160 at all: it is the unfolding of systemic practices that are generally, unquestioned and even legal, although they routinely result in multiple harms to human beings and death. I believe they are the epitome of crimes against humanity. We followed the development of crimes against humanity in this chapter, and we will note the all-pervasive presence of ecological disasters in Chapter 2. We must reconnect these disasters to the humanity that is the focus of the specific crimes the ICC proscribes. Our discussion thus far has disclosed several characteristics of environmental disasters that identify these with previously accepted crimes against humanity. Environmental “disaster” brings to mind a sudden happening, the result, most often, of natural causes, an occurrence that normally does not evoke previous criminal activity. But the ICC decision indicates the existence of culpable acts as the aetiology of most such disasters, at least human hands as involved in the aggravation or such disasters, and that is the central point that needs to be made explicit in order to demonstrate clearly why “environmental disasters” like the more explicitly descriptive “land grabbing,” are the result of human activities that must be described as criminal. That is the pivotal point, because these disasters have been viewed as similar to the “plagues” that were used as prime examples of environmental disasters: that is, events that are terrible but unconnected to (let alone caused by) human activities that are deliberate or at least culpably negligent. The grave consequences of climate change are readily acknowledged by both science and policymakers, with the exception of a few North American 160

Ellen Hey, Introduction to International Environmental Law, Edward Elgar, Cheltenham, 2015, pp. 123–145.

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politically motivated “deniers.” However the “environmental disasters” that have been widely noted, have not led to a corresponding quest for those whose actions produced and continue to produce those disasters, let alone to their condemnation the courts, both domestic and international. The few cases that have reached a court of law, have failed to provide justice for those affected. Hence there is a clear disconnect between the acknowledgment of grave, widespread harms originating from environmental and ecological conditions (“environmental disasters”) and the present legal situation, which does not possess, seemingly, the tools required to proceed from the harms to the perpetrators. That is the connection that the new additions of crimes against humanity should help to uncover. For the most part, the results, that is the harms that emerge, are not in question, but no one has attempted seriously to seek those who cause the harms, especially since such causes are seldom immediately visible, but may need to be sought in back years or even past decades. Environmental disasters are based upon exposures of land, air, seas and of all organisms within them, to various manmade substances that have the power to be noxious either singly or in combination. The effects may be delayed for a long time, as we shall see when we discuss the relation between ecological conditions and public health in Chapter 3. In some cases, pre-birth exposures may produce illnesses and dysfunctions as late as the adulthood and old age of those originally exposed. The examples discussed in the previous section, on climate change, are an ongoing disaster that has taken a long time to develop, since the time when the scientific connection between human activities and global warming were first discovered. Numerous perpetrators have collaborated, some more gravely than others, but thus far, they have all gone unpunished both in criminal and civil courts. Yet in criminal law, all those who participate in the commission of a crime are taken to be guilty albeit in various degrees: they range from those who plan, those who benefit in various ways, those who facilitate or contribute in any way to the commission of the crime. When several causes (including several perpetrators) contribute to a crime, we need to look to

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these circumstances as “concurrent causes,” and “contributory negligence,” rather than hope to find the cause, in order to discover a perpetrator more easily. Hart and Honoré provide a suggestion; “When joint or several tortfeasors have contributed to the same harm, the obvious rule is that each should be liable for the whole harm.”161 This appears to be a better principle for both torts and crimes, because we can immediately start tracing back decisions, and the application of regulations for months, maybe even years, and still find additional causes in a long series of contributory causes. In this case, as in most environmental cases, it would be almost impossible to isolate the conditio sine qua non, the closest or most proximate cause: What we do mean by the word “proximate” is that because of convenience of public, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical policy.162

The question we must keep in mind is not about logic or practical considerations, however, it is about justice, beyond the rough approximation cited above. A better way of approaching causation in the case of “emergent risks” can be found in the case of Snell v. Farrell.163 The question addressed in this case of medical malpractice was the cause of Mrs Snell’s eventual eye nerve atrophy (and loss of sight) following an apparently botched eye operation. The loss of sight resulted “from a loss of the optic nerve’s blood supply.” Neither the plaintiff’s expert nor that of the defendant “was able to express with certainty an opinion as to what caused the atrophy in this case, or when it occurred.” Sopinka J. continues citing Turnbull J. (Court of Queen’s Bench), who remarked that, “the trial judge was satisfied that the facts of the case at bar” brought it “within an emergent branch of the law of

161

H. L. A. Hart, and T. Honoré, Causation in the Law, 2nd edition, Clarendon Press, Oxford, 1985, p. 235. 162 Pasgraf v. Long Island R.R. Co., 24 8NY339, 162 NE99 (1928), per Andrews J. in Hart and Honoré, Causation in the Law, p. 90. 163 Snell v. Farrell ((1990) 72 DLR 4th 289).

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causation, whereby the onus to disprove causation shifts to the defendant in certain circumstances.”164 From our point of view, the most relevant statement by Sopinka J. appears in his discussion of “Causation Principles”: The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexity of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approaches manifested itself in cases dealing with nontraumatic injuries such as manmade diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely marketed and manufactured by a large number of corporations. 165

If we consider all the events that contributed in various ways to the final (and ongoing) event or disaster, we must add each single element that played a part, no matter how negligible. Those who approved those regulations certainly bear a strong responsibility for the consequences of their reckless and negligent work. Imagine a city planner who failed to have stop signs or traffic lights installed at a very busy intersection. No doubt, the drivers of any car involved in a collision would bear a responsibility for the accidents that ensued. But it is the responsibility of city planners, the municipality, and other bureaucrats to ensure that lights would be placed where needed, and they would be working also it is their responsibility to ensure that those not abiding by those signals would be punished. In comparison, a legislative framework that is so imprecise that, even if some people were intent on following the letter of the law, that “letter” 164 165

Citing House of Lords in McGhee v. National Coal Board (1973) 1 WLR 1. At 294.

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would be very hard to detect, is to fail totally to provide a regulatory system that can establish clear guidelines, and therefore protect public health adequately.166 Hence, like those who would neglect to put up signals to control and direct traffic in a way that protects the public, the absence of clear stop signs to prevent continued hazardous activities appears to be a contributory cause to the eventual E. coli epidemic in this case. Nor can we term this contribution too small to be significant. Remote though it might have been, the imprecise and incomplete formulation of rules and terms is not de minimis.167 In general, there is no question about governments and ministries having a “duty” of care to the public with whom they are entrusted: the good of the citizens, hence, the protection of their life and health, minimally, is the condition that legitimizes their authority over citizens.168 On the question of causation, Hart and Honoré argue that the three questions one needs to ask, in order to recognize what caused the harm, hence, who is responsible, in relation to the duty of care, are the following: whether the defendant was under the duty of care, whether he was in a legal sense guilty of negligence to the plaintiff, and whether his action was the proximate cause of the plaintiff’s injury, are really one and the same.169

The “one question” the authors suggest, citing Denning, LJ, who says that “simple is better,” is: “is the consequence within the risk?”170 Being fully aware of the threat of risks, further questions can be asked about the role of “interpersonal transactions”:

P. Muldoon, “Feds Fail to Protect Public’s Health: CEPA Passes,” The Intervenor 24(2) (April– June 1999). 167 Hart and Honoré, Causation in the Law, p. 226. 168 A. John Simmons, Moral Principles and Political Obligations, Princeton University Press, Princeton, NJ, 1979; Hobbes, Thomas, Leviathan, Bobbs-Merrill, New York, 1958; W. N. Hohfeld, Fundamental Legal Conceptions, Yale University Press, New Haven, CT, 1923; Paul Gilbert, Terrorism, Security and Nationality: An Introduction Study in Applied Political Philosophy, Routledge, London, 1994. 169 Hart and Honoré, Causation in the Law, p. 4. 170 Denning, LJ, in Roe v. Minister of Health (1954) 2 QB 66, 86. 166

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Laura Westra They are relevant whenever causing, inducing, helping, encouraging or permitting others to act, is a sufficient ground for criminal responsibility, even though the statutory of common law rule under which the liability arises is not expressly formulated in these terms.171

The role of a ministry, whether provincial or federal, is one of “causing,” “encouraging,” and “permitting” in regard to the corporate bodies whose operations provide the sources of the risks. What must be stressed is the complicity of most legal bodies, whether domestic or international, with corporate risk imposers, hence with the aetiology of environmental disasters. Various aspects of this situation will emerge as we discuss various harmful situations that fit the understanding of environmental disasters here proposed, hence their classification as crimes against humanity.

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171

Hart and Honoré, Causation in the Law, p. 363.

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Brownlie, Ian, The Rule of Law in International Affairs, Martinus Nijhoff, The Hague, 1998. Bullard, Robert, Dumping in Dixie, Westview Press, Boulder, CO, 1990. Bullard, Robert, “Decision Making,” in Laura Westra and Bill Lawson (eds.), Faces Of Environmental Racism, 2nd edition, Rowman & Littlefield, Lanham, MD, 2001, pp. 3–28. Cassel, Douglas, “Corporate Guidelines: A Second Human Rights Revolution?,” Fordham International Law Journal 19 (1996), p. 1963. Cassese, Antonio, International Law, 2nd edition, Oxford University Press, Oxford, 2005. Delbrück, Jost, “Prospects for a “World (International) Law”? Legal Developments in a Changing International System,” International Journal of Global Legal Studies 91 (2002), pp. 415–417. Dewey, John, “The Historic Background of Corporate Legal Personality,” Yale Law Journal 35 (1926), pp. 655–656. Einstaedt, Peter H., If You Poison Us: Uranium and Native Americans, Red Crane Books, Santa Fe, NM, 1994. Finnie, John, Natural Law and Natural Rights, Clarendon Press, Oxford, 1980. French, Peter A., Responsibility Matters, University Press of Kansas, Lawrence, KS, 1992. Friedman, Milton, “The Social Responsibility of Business is to Increase its Profits,” New York Times Magazine (13 September 1970). Gilbert, Paul, Terrorism, Security and Nationality: An Introduction Study in Applied Political Philosophy, Routledge, London, 1994. Goodwin-Gill, Guy S., “Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute,” in Guy S. Goodwin-Gill and Stefan Talmon (eds.), The Reality in International Law: Essays in Honour of Ian Brownlie, Oxford University Press, Oxford, 1999, pp. 199–223. Grahl-Madsen, Atle, and Toman, Jiri, (eds.), The Spirit of Uppsala, Walter de Gruyter, Berlin, 1984. Grandjean, Philippe, Only One Chance (to Develop a Brain), Oxford University Press, Oxford, 2013.

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Muldoon, P., “Feds Fail to Protect Public’s Health: CEPA Passes,” The Intervenor 24(2) (April–June 1999). Nanda, Ved P., Climate Change and Environmental Ethics, Transaction Publishing, New Brunswick, NJ, 2011. Orentlicher, Diane F., and Gelatt, Timothy A., “Public Law, Private Actors: The Impact of Human Rights on Business Investors in China,” Northwestern Journal of International Law and Business 14 (1993), http://scholarlycommons.law.northwestern.edu/njilb/vol14/iss1/8. Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes, Clarendon Press, Oxford, 1997. Ratner, Steven R., Abrams, Jason S., and Bischoff, James L., Accountability for Human Rights Atrocities in International Law, 3rd edition, Oxford University Press, Oxford, 2009. Sadat, Leila, “The International Criminal Court,” in William A. Schabas (ed.), The Cambridge Companion to International Criminal Law, Cambridge University Press, Cambridge, 2016, pp. 137–154. Safire, William, 1996, “The New Socialism,” New York Times (26 February 1996), p. A13. Sagoff, Mark, The Economy of the Earth: Philosophy, Law and the Environment, Cambridge University Press, Cambridge, 1988. Salomon, Margot, Global Responsibility for Human Rights, Oxford University Press, Oxford, 2007. Schabas, William A., An Introduction to the International Criminal Court, 5th edition, Cambridge University Press, Cambridge, 2017. Scheffer, David, “State Parties Approve New Crimes for International Criminal Court,” ASIL Insights 14(16) (22 June 2010). Scheffer, David, “The United Nations Security Council and International Criminal Justice,” in William A. Schabas (ed.), The Cambridge Companion to International Criminal Law, Cambridge University Press, Cambridge, 2016, pp. 178–197. Simmons, A. John, Moral Principles and Political Obligations, Princeton University Press, Princeton, NJ, 1979.

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Stephens, Beth, “The Amorality of Profit: Transnational Corporations and Human Rights,” Berkeley Journal of International Law 20 (2002), pp. 45–90. Stiglitz, Joseph, “Regulating Multinational Corporations: Towards Principles of Cross-Border Legal Frameworks in a Globalized World Balancing Rights with Responsibilities,” 2007 Grotius Lecture, American University International Law Review 23 (2008), pp. 451–558. Stiglitz, Joseph, The Price of Inequality, W. W. Norton, New York, 2012. Talmon, Stefan, “The Duty Not to Recognize as Lawful a Situation Created by The Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Substance?,” in C. Tomuschat and Juan Mark Thouvenien (eds.), Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leyden, 2006, pp. 99–125. Tomuschat, Christian, “Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes: Concluding Observations,” in C. Tomuschat and Juan Mark Thouvenien (eds.), Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leyden, 2006, pp. 425– 436. Trainin, A. N., Hitlerite Responsibilities Under International Law, trans. Andrew Rothstein, Hutchinson & Co., London, 1945. Tunkin, Gregory, I., “Jus Cogens in Contemporary International Law,” University of Toledo Law Review 3 (1971), 107–118. Westra, Laura, “The Faces of Environmental Racism: Titusville, Alabama versus BFI,” in Laura Westra and Bill Lawson (eds.), Faces Of Environmental Racism, 2nd edition, Rowman & Littlefield, Lanham, MD, 2001, pp. 113–140. Westra, Laura, Environmental Justice and the Rights of Indigenous Peoples, Earthscan, London, 2007. Westra, Laura, Human Rights: The Commons and the Collective, University of British Columbia Press, Vancouver, 2011. Westra, Laura, On Hunger, Brown Walker, Irvine, CA, 2017.

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Zimmermann, Andreas, “The Exercise of Universal Jurisdiction in Criminal Matters,” in C. Tomuschat and Juan Mark Thouvenien (eds.), Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leyden, 2006, pp. 335–353.

PART 1: ECOVIOLENCE AND ENVIRONMENTAL DISASTERS

Chapter 2

CRIMES AGAINST HUMANITY AND ECOLOGICAL DISASTERS 1. INTRODUCTION The possible expansion of the remit of the International Criminal Court comes just as a number of environmentally related issues become increasingly more evident the world over, in all countries and continents. Clearly climate change is the most visible of these disasters as the destruction it creates affects huge numbers of people: it appears that little can be done at this stage to prevent its relentless march. The other overwhelming issues that affects huge numbers, is that of poverty-based hunger. Climate change plays a pivotal role in that problem as well, as both floods and desertification are components of the many situations affecting hunger, and we will return to that issue in Chapter 3. At any rate, these are some of the most obvious aspects of ecoviolence, and most are aware of their existence. Then there are the less obvious aspects of hunger-related problems, which we will examine in Chapter 3, but also and especially in Chapter 2. Those disastrous problems connected with ecology and biology, are far less well-known, and not properly legislated, although the most affected are also the most vulnerable, the children. These are issues I have been studying for

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over fifteen years, and they have been the subject of the book that resulted from my second doctoral thesis, where I proposed that “the ICC appears to represent the best hope to deal with ecocrimes in the future, although the present statute does not include environmental crimes.”181 I was convinced that it was then, as it is now, right to advance the claim that ecocrime ought to be elevated to the highest level of international criminal law, and I proposed six separate, though interconnected reasons why that conclusions should be accepted, under the diction “ecocrimes,” as well as “environmental disasters and “environmental destruction,” which seem to indicate sudden, extreme events, rather than an ongoing criminal enterprise: 1) 2) 3) 4) 5) 6)

ecocrimes as a form of unprovoked aggression; ecocrimes as attacks on the human person; ecocrimes as a form of genocide; ecocrimes as a breach of global security; ecocrimes as attacks on the human environment; and ecocrimes as breaches of global justice.182

We will discuss these points below, in order to argue that the general term “ecoviolence” ought to be changed to specify that all forms of violence perpetrated through the environment, ought to be proscribed legally as crimes rather than as regulatory breaches, or as aspects of nuisance laws or torts, all of which are illegalities that can be redressed, at most, with monetary compensation. At the time of my thesis I argued primarily from analogy with the harms inflicted by sexual violence, which was increasingly acknowledged to be a major crime, on a par with racial discrimination, thus meriting a convention specific to those crimes. Like violence inflicted through the environment, the harms that ensued affected all of society and the physical and mental health of human beings everywhere.

181 182

Laura Westra, Ecoviolence and the Law, Brill, Leyden, 2004, p. 308. Ibid., pp. 308–309.

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For environmental harms, it is imperative to transcend the narrow confines of present day environmental decision-making. Hence the effort to show that some of the forms of violence resulting from environmental degradation affect human beings in ways to the violence that is described and addressed International Humanitarian Law. We will also argue that environmental harms affect victims in ways analogous to the victims of assaultive crimes. This argument supports legislators and judges who might be willing to reach to the spirit and the implications of legal norms, beyond the simple letter of the rules. Bassiouni argued that, at the time of the Nuremberg Trials, although neither the crimes for the harms were totally new in 1945, the scale and the magnitude of these crimes were indeed novel, hence the many changes that were made in the laws and the way of considering certain issues. The same could be said of environmental harms. The example Bassiouni offered is of the first fratricide: Cain and Abel.183 Like that crime, environmental harms resulting from ecocrimes, represent a violence that is radically new in reach, scope and gravity today, although environmental disaster and pollution are part of the history of mankind. Judge C. G. Weeramantry in his Separate Opinion of 1997184 attests to the long history of environmental concerns from the time of the Assyrians, the Sumarians, in all times and in all areas of the world. In this chapter we will follow Weeramantry in stating that environmental rights are human rights, thus that the breaches of such rights that occur in and throughout the environment are not to be treated as torts or regulatory infractions, but as the crimes that they are. We start with the most notable and acknowledged environmental disaster, climate change, and one of the few (largely unsuccessful) cases that have been tried in US courts. The Kivalina case involves most of the aspects that characterize environmental disasters. As far as effects are concerned, we note the illegal displacement of people, the disrespect of Indigenous land rights, the disregard of the rights to health and to life of whole populations. As for the origin of the disasters, 183 184

Cherif Bassiouni, Crimes Against Humanity, Cambridge University Press, Cambridge, 2011. Gabcikovo/Nagymaros Case.

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we see the corrupt system that most often accompanies globalization: “globalization has contributed to the growth of powerful multinational corporations (MNC) – as powerful, in some ways, as nation-states – some of which have in turn contributed to environmental destruction.”185 Much of that destruction is fostered by the spread of so-called “sustainable development,” a lie, or “post-truth” that unites the quest for economic interests with the often racist convictions as we will argue on Chapter 5. Globalization and the related multi-national interests, regularly ignore ecological concerns, as well as human rights, and the chapter concludes with a discussion of that topic.

2. CRIMES AGAINST HUMANITY AND CLIMATE CHANGE Our economic system and our planetary system are now at war. Or, more accurately, our economy is at war with many forms of life on earth, including human life. What the climate needs to avoid collapse is a contraction in humanity’s use of resources; what our economic model demands to avoid collapse is unfettered expansion. Only one of these sets of rules can be changed, and it not the laws of nature.186

Ved Nanda also clearly links climate change and human rights: “On March 28, 2008, the UN Human Rights Council adopted a resolution entitled Human Rights and Climate Change.”187 However neither UN resolutions nor the numerous declarations of the various UNFCCC COPs that followed seem to have made any difference in the steady advance of the many hazardous effects of climate change. In fact, the UN Human Rights Council of 2009188 stated that “while climate change has obvious implications for the enjoyment of human rights, 185

Joseph E. Stiglitz, Globalization and its Discontents Revisited, W. W. Norton and Company, New York, 2018, p. 4. 186 Naomi Klein, This Changes Everything, Allen Lane, London, 2014, p. 21. 187 Nanda, Ved, Climate Change and Environmental Ethics, Transactional Publishers, New Brunswick, NJ, 2011, p. 160. 188 UN Human Rights Council, 2009, Report of the OHCHR on the relationship between climate change and human rights, UN Doc. A/HRC/10/61, 15 January 2009.

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it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.”189 Despite this pronouncement, many scholars have no doubts regarding the legality of the human rights connection. Several cases attest to these beliefs, although in all the few legal cases that ensued, the results have not been positive. A prime example of a legal case regarding the most obvious results of climate change in the Arctic, is the Kivalina case, but the way climate change and the resulting human rights breaches that follow are treated in domestic courts is one of the reasons why a strong international approach to the criminality of such environmental disasters in necessary.

2.1. A “Lawless World” and Global Warming: Environmental Disasters and Domestic Law Now, however, almost every decent person recognizes that it would be most equitable and efficient for those countries which have benefited the most from lax environmental controls over the past 200 years to bear the burden of immediate actions to address global warming.190

Climate change is perhaps the most well-known global problem today, where the desire of major powers like the US to avoid even the possibility of domestic economic harms, led to misinformation campaigns and to inaction and eventually to the collective harms with which we are familiar today. Despite the fact that the origins of global warming lie in the presence of various hazardous gasses, the results we see today from glacial melts to desertification, from tsunamis, to tidal waves, render water the main actor in most climate change disasters. Philippe Sands lists the torturous process leading to the signing and ratification of the Kyoto Protocol and the earlier Framework Convention191, as he acknowledge that (a) the process leading to the Protocol was not driven 189

Ibid., p. 70. See also discussion in Nanda, Climate Change and Environmental Ethics, p. 161. Philippe Sands, Lawless World, Allen Lane, London, 2006, p. 87. 191 Ibid., pp. 86–94. 190

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by sound science, but by the quest for consensus; and (b) that the US’s resistance to principled cooperation was perhaps the major obstacle to a better and faster agreement; he also notes that (c) those who denigrated the words of the IPCCC and Kyoto Protocol, only saw its problems rather than the fact that it was and is only the first step of the international community towards the protection of the collective rights of humankind and the situation has not improved with the present Paris Agreement.192 Breaches of such rights are occurring almost everywhere at this time, but they are particularly visible in Arctic regions. Yet even in those cases, at best, the lawyers employed by Aboriginal communities treat those human rights breaches as torts. Although the following will be discussed in more detail in the next section, there is one particular case (unfortunately not resolved in favour of Kivalina), that merits to be mentioned as one dealing with water issues in relation to an Indigenous community, the Native Village of Kivalina v. Exxon Mobil et al. 193 Kivalina is an Inupiat village of approximately 400 peoples: Kivalina is located on the tip of a six-mile barrier reef located between the Chuckchi Sea and the Kivalina and Wulik Rivers on the Northwest Coast of Alaska, some seventy miles north of the Arctic circle.194

This case, demonstrates the dangerous aspects of water, when it is at its most harmful, that is when it becomes a destroyer of peoples’ territorial integrity, in contrast with the health-giving and even sacred aspects of water. Because of global warming actively fostered by Exxon Mobil and many other US and multinational corporations, through CO2 emissions, the Arctic sea ice is melting, hence the village is no longer protected from winter storms. The village is being destroyed as increasingly severe storms batter the village, and “its ground crumbles from underneath it … Critical infrastructure is imminently threatened with permanent destruction. If the entire village is not relocated soon, the village will be destroyed.”195 Nor is 192

Ibid. Native Village of Kivalina v. Exxon Mobil et al., 2008. 194 Kivalina v. Exxon Mobil et al. 195 Ibid., para. 4. 193

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this simply a claim advanced by a few members of a Native community, as the US Army Corps of Engineers and the US Accountability Office agree that the Kivalina village must be relocated, and they have estimated the costs to be from US$85 million to US$400 million.196 The substance of the case hinges on the culpable actions (and omissions) on the part of multiple corporate defendants, and that is an extremely significant aspect of this case, as we shall see. However, an even more significant part of the consequences of this series of events was not even considered as part of the case; the cultural and territorial rights to the Kivalina Natives. Even if the US Government spends US$400 million To “relocate” the inhabitants of the Native village, their land, their religious and cultural rights will be lost, as most Aboriginal peoples’ lives are inextricably tied to the area they have always occupied. Removed from their traditional areas, even if the individual lives of citizens are saved, their survival as a people, in fact as those specific peoples of Kivalina, is no longer possible. One could argue then, that water’s natural beneficial services are thus affected by these ultimate polluters that even pervert water’s true nature, as that is changed by human agency from being a “giver of life,” to the source of a deadly threat. Of course, the arguments offered by the lawyers in the case are conservative, as they refer to the “Federal Common Law Public Nuisance,”197 despite the fact that the villagers’ health, home and family life are clearly affected,198 and that more protection might well have been available to them, had they been mainstream Americans, say from Boston or New York, so that racial discrimination appears to have been also involved to some degree.199 In the next section we will consider the interface between some of these rights and water, in relation to the general population.

196

Ibid. 28 USC 1331, 2201. 198 European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 8.1. 199 Convention on All Forms of Racial Discrimination; into force 4 June 1969, 660 UNTS 195. 197

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2.2. Water as Danger and the Negative Consequences of Climate Change Globalization, with the inequalities it promotes, challenges if not threatens the integrity of human rights law, precisely because it uses human rights as a means of furthering itself. 200

No doubt storms and floods existed from time immemorial, and the story of Noah’s Ark bears witness to one of the earliest examples of that history. But in modern times, this aspect of water includes all the hazards that originate from climate change: severe glacial melts, warming of the oceans with consequent increased hurricanes, tidal waves and tsunamis, excessive warming of many areas leading to desertification, hence to starvation and resource wars, especially acute in sub-Saharan Africa. Once again, those who live closest to the land, the Indigenous communities, but also those who live in island states and coastal towns, bear the brunt of these negative impacts, including Arctic populations, as noted in the previous section. It will be useful to trace the causal interface between globalized human industrial/economic activities and climate change, as it shows clearly its impact on the world’s waters. We will return to the Kivalina case, as the lawyers for the plaintiffs lay out the historic background of Kivalina’s impending destruction. The case merits careful analysis, because – whatever our location – we are all affected in various measures, by climate change, so that we need to understand not only what climate change is, and what it does or how it operates in purely scientific terms. We need to understand what are the institutional and policy implications on which the present climate change crisis is based. The Kivalina case was being tried before the US District Court of California (San Francisco Division), and it cites Defendants not only ExxonMobil, but another 23 corporations.201 The case before the court 200

Thomas Anghie, Imperialism, Sovereignty, and International Law, Cambridge University Press, Cambridge, 2006, p. 256. 201 ExxonMobil Corporation; BP plc; BP Products North America, Inc.; Chevron Corporation; Chevron USA Inc.; Conocophillips Company; Royal Dutch Shell plc; Shell Oil Company; Peabody Energy Corporation; The AES Corporation; American Electric Power Company

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started with a detailed analysis of the causes of global warming, describing the main corporate activities and issues under three headings: (1) oil companies; (2) power companies; and (3) coal companies. These companies have all deliberately contributed to the global warming that caused “Kivalina’s special injuries.”202 In addition: Kivalina further asserts claims for civil conspiracy and concert of action for certain defendants participation in conspiratorial and other actions intended to further the defendants’ abilities to contribute to global warming.203

Global warming is also briefly defined in another recent case, People of State of California v. General Motors Corporation,204 as follows: Global warming [is a] change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.205

Essentially, Plaintiffs claimed that defendants “knew or should have known” the results of their continued “substantial contributions to global warming,” specifically in relation to such Arctic coastal communities as Kivalina; additionally, some of the defendants conspired “to create a false scientific debate about global warming in order to deceive the public.”206 The Attorneys for the Plaintiffs stated that Kivalina asserted a claim for public nuisance under federal common law,207 as well as under state law,208

Inc.; American Electric Power Services Corporation; DTE Energy Company; Duke Energy Corporation; DYNEGY Holdings, Inc.; Edison International; Midamerican Energy Holding Company; Mirant Corporation; NRG Energy; Pinnacle West Capital Corporation; Reliant Energy, Inc.; The Southern Company; and XCEL Energy Inc. 202 Kivalina v. Exxon Mobil et al: para. 3. 203 Ibid., para. 2. 204 N.D. Cal, People of State of California v. General Motors Corporation, 2007. 205 Second Am. Compl. (“SAC”). 206 Ibid., para. 5. 207 28 USC §1331. 208 USC §1367(a).

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and were right to do so because defendants either reside in California or have “substantial or continuous and systematic contacts with the state of California.”209 These connections also ensured that the venue chosen was legally appropriate. After relating the amounts of CO2 emissions on the part of each of the defendants, who each acknowledged that they were indeed emitting hazardous gases.210 Similar research projects can also be found for most of the other defendants. However, ExxonMobil stands out for two main reasons; first, for the large quantities of its emissions: ExxonMobil has interest in more than 80 Cogeneration facilities in more than 30 locations worldwide, with a capacity to provide about 3,300 megawatts of power. These facilities now supply more than 90% of ExxonMobil power generating capacity in its refineries and chemical plants worldwide. These emit hundreds of millions of tons of CO2.211

In addition, ExxonMobil also “owns and operates coal mines.” But the second reason for singling out ExxonMobil, is the fact that it took the lead “in the industry efforts to disseminate false information about global warming.”212

2.3. The Kivalina Complaint and “Civil Conspiracy Allegations” In January 2001, a report from the Union of Concerned Scientists produced a comprehensive report regarding the “disinformation tactics” used by ExxonMobil in order “to delay action on the issue,”213 as it has

209

Ibid., paras 7–9. See for instance BP’s “Carbon Disclosure Project” (CDP5) Greenhouse Gas Emissions Questionnaire – BP UK at www.cdproject.net/search.asp (converted from metric tons to short tons), and Chevron’s “Caron Disclosure Project” (CDP5) Greenhouse Gas Emissions Questionnaire 0- Chevron USA at http://cdproject.net/search.asp. 211 USC §1367(a), para. 39. 212 Ibid., para. 41. 213 Ibid., para. 247. 210

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Manufactured uncertainty by raising doubts about even the most indisputable scientific evidence. Adopted a strategy of information laundering by using seemingly independent front organizations to publicly further its desired message and thereby confuse the public. Promoted scientific spokespeople who misrepresent peer-reviewed scientific findings or cherry-pick facts in their attempts to persuade the media and the public that there is still serious debate among scientists that burning fossil fuels has contributed to global warming and that humancaused warming will have serious consequences. Attempted to shift the focus away from meaningful action on global warming with misleading charges about the need for “sound science.”

In order to substantiate the “Civil Conspiracy Allegations,” Defendants Exxon Mobil, AEP, BP America, In., Chevron Corporation, Conoco Phillips Company, Duke Energy, Peabody and Southern, who were participants in the campaign to deceive the public, started by denying the existence of global warming, later their efforts turned to the attempts to demonstrate “that global warming is good for the planet and its inhabitants or that even if there may be ill effects, there is not enough scientific certainty to warrant action.”214 The dissemination of this misinformation made use of industryformed front groups, “fake citizen organizations,” and “bogus scientific bodies, such as the Global Climate Change Coalition (“GCC”), the Greening Earth Society, the George C. Marshall Institute, and the CoolerHeads Coalition.”215 Under the leadership of the most active among the defendants, that is, ExxonMobil, these companies funded “global warming sceptics,” and “professional scientific experts,” many of whom had no qualifications to place their pieces in various journals (but not often mainstream per-reviewed scientific journals), all funded and supported by trade associations such as Edison Electric Institute (“EEI”), for the electric power industry, the National Mining Association (coal industry), and others. The most important front group has been the Advancement of Sound science Coalition (“TASSC”), formed in 1993. Originally a public relation 214 215

Ibid., para. 189. Ibid., para. 190.

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company working for Philip Morris Tobacco company, it was instrumental in the origin of the term “junk science,” contrasted with “sound science,” which at the time referred to industry-sponsored science. For Philip Morris and other tobacco companies, the manufactured “science” was created to deny the links between smoking and cancer, and – in general – the effects of secondhand smoke. Their targets were “older, less educated males from large households who are not typically active information seekers,” and “younger, lower income women.”216 The IPCC Working Groups have been documenting the unfolding of global warming and the increasing presence of emissions, both CO2 and methane, through regular meetings at international fora:217 Carbon dioxide levels in the atmosphere have increased by 35 percent since the dawn of the industrial revolution in the 18th century, and more than one-third of the increase has occurred since 1980. The current level of carbon dioxide in the atmosphere is higher than any time in the last 20 million years. The current level of methane in the atmosphere is approximately 250% higher than pre-industrial levels.218

Hence, despite the efforts of industry’s representatives, and of the defendants’ various “citizens’ groups,” the effects of global warming put all the inhabitants of Kivalina at grave risk, as their property and their very location is on the brink of being destroyed. The parallel with the history of Big Tobacco, prior to the Framework Convention Against the Use of Tobacco setting up strict parameters for its use, and forbidding any practice that might inflict second-hand smoke upon others, is undeniable.219 A clear difference between the two issues, however, is the fact that, at least initially, the use of tobacco is an individual choice, even though eventually the habit that ensues represents a form of addiction, and can no 216

Ibid., paras 192 and 194. ACIA; Impacts of a Warming Arctic: Arctic Climate Impact Assessment, Cambridge University Press, Cambridge, 2004, retrieved from www.amap.no/documents/doc/impacts-of-awarming-arctic-2004/786; Laura Westra, Environmental Rights and the Rights of Indigenous Peoples, Earthscan, London, 2007, ch. 8. 218 Ibid., para. 125. 219 Tobacco Convention, www.who.int/tobacco/fctc/text/en/fctc_en.pdf. 217

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longer be described as a free choice. The addiction itself is the result of the deliberately planned chemical composition of cigarettes, which makes the resulting use a forced activity. In contrast, the extreme effects of global warming on Arctic peoples and other Indigenous communities, are not the consequence of “choices” by these peoples, even at the start, as their traditional lifestyles exclude the overconsumption and overuse of energy endemic to most affluent Western societies. The latter’s choices, not their own, and the Western affluent ecological footprint result in then gross breaches of human rights (hardly just a “nuisance”) they are forced to endure. Hence there is a dissonance between the choices that foster global warming and the passive recipients of the effects of those choices, that is, effects they, for the most part, had no part in creating. Thus the painstakingly drafted case presented to the San Francisco court seems to be understated, at least insofar as it presents its “first Claim for Relief”: “Federal Common Law: Public Nuisance.”220 Although the language used “public nuisance,” cannot begin to truly characterize the “substantial and unreasonable interference”221 with their public and human rights, the attorneys acknowledge the role of the defendants in the ongoing crisis as they add, “Intentionally or negligently defendants have created, contributed to and/or maintained the public nuisance.”222 In addition, the complaint itself recognizes the sui generis aspects of plight of Kivalina’s residents: 258. Plaintiffs do not have the economic ability to avoid or prevent the harm. 259. Plaintiffs due in part to their way of life, contribute very little to global warming.

Given the effects of the defendants’ actions, and the results that ensued, it may seem appropriate (though not formally acceptable in a US court of

220

Ibid., para. 250. Ibid. 222 Ibid., para. 252. 221

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law), to view this case as involving criminal activities. The Canadian criminal law category of “wilful blindness,” may also be used to bridge the gap between knowingly committing actions that would eventually deprive populations of their human rights, and the refusal to accept the inescapable effects of actions embraced and fully understood on the part of the defendants.223 The same critique applies to the “Second Claim for Relief,” “State Law: Private and Public Nuisance,” claiming relief under “state statutory and/or common law of private and public nuisance.”224 More interesting is the “third Claim for Relief” for Civil Conspiracy.225 The deliberate actions on the part of the Defendants aimed at (1) misleading the public regarding the existence and the effects of global warming”; (2) the efforts to discredit sound science regarding global warming; and (3) the further efforts to delay their own inevitable costs, while ignoring or discounting the “externalities” that resulted in human right breaches and eventually in the destruction of towns and communities, in fact, for the Kivalina case, (4) the elimination of an Indigenous Community as such. These activities were pursued in concert by the “Conspiracy Defendants,” as described in the “Fourth Claim for Relief”: 279. Defendants have engaged in and/or are engaging in tortious acts in concert with each other or pursuant to a common design. 226

At this time, neither the requested trial by jury, nor the relief for the damages suffered by Kivalina, have been awarded. The trial and its eventual outcome is extremely important: just like the earlier Inuit Petition submitted to the European Court of Human Rights, aside from its value in providing relief for the affected persons, it ties climate change to water, not only as storming oceans, warmed by the effects of climate change, but also as melting ice.

223

Pappajohn v. the Queen 1980. Ibid., paras 264–267. 225 Ibid., paras 2368 ff. 226 Ibid. 224

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Finally and most significantly, it uses the few vague and incomplete legal categories presently available in domestic law, to pinpoint the role of MNCs and the complicit governments that allow their activities to inflict incompensable harms that could only be accurately described as crimes against humanity.227 This is only one example of cases that should be won with ease, the melting of glaciers is a routine occurrence today. By the same token, other Arctic and small island states ought to sue those who originated the conditions of climate change on one hand, while they also belittled its existence and impact, on the other. Although the specific perpetrators are hard to identify in such a diffuse harm the respective home states of these corporations may also be viewed as complicit in the industrial activities that perpetrate the harm, and should be held responsible. It seems necessary to revisit the interface between domestic legal instruments and human rights to environmental protection and public health, on order to reinforce the need for an answer to the questions raised in this work. It is equally necessary to understand the connection between “development” and globalization. Wolfgang Sachs says: “Development, in short, became denationalized; indeed globalization can be aptly understood as development without nation states.”228 In conclusion, even the greatest efforts of well-meaning persona to acknowledge and condemn those responsible for environmental disasters and for the grave consequences that ensue for those affected, are totally impotent in the face of the joint corporate/government interest in the western powers to ensure the ongoing maintenance of the status quo.

227

Laura Westra, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, 2009; David Luban, “A Theory of Crimes against Humanity,” Yale Journal of International Law 29 (2004), pp. 85–168, here p. 85; S. C. Aminazadej, “A Moral Imperative: The Human Rights Implications of Climate Change,” Hastings Comparative Law Review 30 (2007), pp. 231–265, here p. 231. 228 Wolfgang Sachs, “Preface to the New Edition,” in Wolfgang Sachs (ed.), Development Dictionary, Zed Books, London, 2009, pp. iii–xv, here p. viii.

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3. ENVIRONMENTAL DISASTERS AND CRIMINAL RESPONSIBILITY Fundamentally concepts such as “malice” in early criminal law operated in significantly different ways from modern notions of mens rea, and invited not the finding of a state of mind’ or even attitude, but rather a holistic evaluation of conduct.229

The final aspect of criminality and its possible ascription to various entities, including organizations and other legal persons, suggests we should examine its evolution over time, which may be in conflict with the mens rea requirements we have considered in connection with the use of analogy, particularly in relation to sexual crimes with their emphasis precisely on intent and mens rea. The earlier approach to criminality, as Nicola Lacey argues, at least in the United Kingdom in the eighteenth century, “appears to have operated quite effectively without the doctrines of responsibility attribution, which now form the backbone of criminal law.”230 Unless conditions of incapacity could be proven, such as insanity, the main focus was on the “external facts of conduct” of the man facing trial, rather than·any examination of internal questions regarding his state of mind. In fact, for the most part, general knowledge regarding the presumed criminal reputation in his community and his character weighed most heavily on the court’s decision processes. Essentially, it was a question of seeking a “character-based responsibility attribution” that dominated the proceedings, leading to a judgment of “manifest criminality.”231 Lacey explains that this approach rested “on the assumption that crime is readily recognizable by members of the community,”232 whose joint judgment as seen as clearly worthy of complete trust. This approach to general criminality brings to mind a much later debate based on a similar

229

Nicola Lacey, Criminal Responsibility, Oxford University Press, Oxford, 2016, p. 137. Ibid. 231 George Fletcher, Rethinking Criminal Law, Little Brown, Boston, MA, 1978: see also discussion in Lacey, Criminal Responsibility, p. 138. 232 Ibid. 230

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attitude and beliefs: the Hart/Devlin debate regarding homosexuality. The time of that debate was the late 1950s, in England – but Sir Patrick Devlin viewed the “moral community” in his famous lecture: I return to the statement that I have already made that society means a community of ideas; without shared ideas on politics, morals, and ethics, no society can exist. … For society is not something that is held together physically; it is held by the invisible bonds of common thoughts.233

H. L. A. Hart responded to Lord Devlin’s talk at the time (1959). Hart argued, with J. S. Mill, that harms to others alone provided the litmus test for what can logically and legitimately be considered punishable by law.234 That said, Hart’s position becomes harder to accept today than it was at the time he countered Sir Patrick’s argument. A sentence in the “conclusion” of Hart’s paper on “Immorality and Treason” demonstrates this point: As Mill saw and de Tocqueville showed in detail long ago in his critical by sympathetic study of democracy, it is fatally easy to confuse the democratic principle that power should be in the hands of the majority, with the utterly different claim that the majority, with power in their hands, need respect no limits.235

It also seems that it is equally necessary to critically assess the “seamless web of morality” that Devlin advocates236 as it stands, as it is not to take as given the tenets of liberal democracy, as Hart himself recognizes. The most powerful present day instantiations of liberal democracies appear to subscribe precisely to the “no limit” policies that Hart decried. The belief that immoral conduct is such “that we know it when we see it,” as Lord Devlin believed, is based on the existence of a community united

Sir Patrick Devlin, “The Enforcement of Morals,” in Robert M. Baird and Stuart E. Rosenbaum (eds.), Morality and the Law, Prometheus Books, Buffalo, NY, 1998 [1959], pp. 13–36, here p. 21. 234 H. L. A. Hart, “Immorality and Treason,” in Robert M. Baird and Stuart E. Rosenbaum (eds.), Morality and the Law, Prometheus Books, Buffalo, NY, 1998 [1959], pp. 47–53. 235 Ibid. 236 Devlin, “The Enforcement of Morals.” 233

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in their convictions and choices, a situation that might have been more plausible in the eighteenth or nineteenth centuries than it might be today, when globalization prevails. Generally speaking, as the reliance of common beliefs, “community feelings” and such as been waning, the “subjective pattern,” that is now seen as the hallmark of criminality, has been added to a “harm or risk-based pattern,”237 which took the place of the earlier “manifest criminality.” As well, what is totally missing today, is any “moralization of criminalization”: “The question of wrongdoing was accordingly increasingly separated from attribution of responsibility which was premised on the finding of ‘intention’, ‘knowledge’ or ‘foresight’.”238 However, the presence of ‘intention’, ‘knowledge’ or ‘foresight’ was “increasingly elaborated in factual psychological terms,” so that the emphasis changed from “character” to specific “conduct.”239 The presumptive criminal’s bad character, and the reliance upon “the accused’s (and witnesses’) standing and reputation” were decisively rejected by the late nineteenth and twentieth centuries.240 Nevertheless, in more recent times, both character and reputation have come back into play and represent some of the major aspects of the diffuse criminality that is, for instance, part of the counter-terrorist activities which are, sadly, terrorist in their own right. Lacey says: Why should we regard anti-terrorism criminalization a form of character responsibility? The offences require, after all, proof of dangerous or harmful conduct, or at least planning and preparation for such conduct.241

Today’s governments are expected “to do something about terrorism,” but in so doing, it seems that they return to a form of “character responsibility,” which is based upon, 237

Lacey, Criminal Responsibility, p. 138. Ibid., p. 139. 239 Ibid., pp. 139–140. 240 Ibid., p. 140. 241 Ibid., p. 152. 238

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the idea that on top of committing or planning acts of violence, there is something additionally and intrinsically wrong about being a certain kind of person, engaged in a certain kind of activity – an aggravation of blameworthiness which justifies a special criminalization regime.242

I have discussed terrorism and antiterrorist activities elsewhere.243 At this time, we are speaking of possible environmental criminalization instead. Thus, much of what appears morally and even legally wrong in the current instances of counter-terrorist activities may, I suggest, appear equally undesirable when we consider the powerful multinational corporations that originate, or support, finance or otherwise control or direct much of the environmental destruction that is the topic of this work as I will argue in §4.

3.1. The Use of Analogy for Environmental Crimes In 2004, as a student learning about the grave lacunae present in environmental law both domestic and international, I was struck by the difference between the way the law followed developing new gender issues, while remaining silent regarding emerging environmental ones. Soon the basic reason for the divergence became clear: sexually related legal changes do not directly threaten either corporate or national power structures the way environmental regulations and controls do. Thus, as the former increasingly gained traction in law, the latter lagged behind to a level perhaps suited to the status of related knowledge existing several decades before the present. The issue was not insufficient scientific knowledge, or that such information was not appropriately disseminated, even in the face of deliberate corporate-funded campaigns to misinform the public.244 It was simply a matter of economics, in the sense that the interests of those who benefitted from unregulated business operations were and remained

242

Ibid., p. 153. Laura Westra, Faces of State Terrorism, Brill, Leyden, 2012. 244 Donald Brown, Navigating the Perfect Moral Storm, Routledge, Abingdon, 2012. 243

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primary. In contrast, the awareness of gender-related issues were and are an easy way (read, “not promoting business­related losses”) to advance the regulations of governments and other organizations as supporters of human rights. I remember a particularly ludicrous example of the stark difference between the way environmental harms were treated in comparison with sexually related harms. A simple example made the local headlines in Toronto during my student days: a young man had entered a hospital’s maternity ward, donned a white coat, found a stethoscope to borrow, and went from one new mother to the next, undisturbed, feeling and touching their breasts. He claimed to be a “lactation specialist.” When he was caught, the police took him straight to jail, his case to be tried at a later date. In contrast, any contemporary environmental harm in Ontario, Canada, is subject to numerous legal restrictions, from the necessity for one person to have standing before the court, even when a whole community is affected; to the strict requirement for the victim to prove in a court of law the harm she suffered in detail, that is, to fully bear the burden of proof, finally the necessity to fit the harm suffered under one or another of the few available regulatory categories, such as nuisance or tort. When you compare this series of grave obstacles to justice for those suffering from environmental harm, to the cavalier approach to those harms, highly simplified when it is a case of gender-related harms (beyond rape of course), it is obvious that a clear bias is present. For example, and to remain within the ambit of common law within the Province of Ontario, Canada, environmental harms are normally considered under such headings as “negligence,” “public authority liability,” “standard of care,” “private nuisance,” “public nuisance,” and only rarely, the strongest category, “strict liability.”245 We might consider as an example a 1994 case, in order to clarify our claim: Smith Brothers Excavating Windsor Ltd v. Camian Equipment and

245

W. Charles and D. VanderZwaag, “Common Law and Environmental Protection: Legal Realities and Judicial Challenges,” in Elaine Hughes, Alastair R. Lucas and William A. Tilleman (eds.), Environmental Law and Policy, 2nd edition, Edmond Montgomery Publications, Toronto, 1998, pp. 80–98.

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Leasing Inc. (Trustee of).246The case was a simple one: two storage tanks on the Camion property were vandalized, the valves intentionally opened to allow the fluids contained to escape. These damaged the surface area, but also affected the underground water systems as the methanol that had escaped filtered below ground. The case hinged on whether the three German shepherd dogs that provided the sole protection at night were sufficient, or indicated negligence in the absence of other security provisions. But the major aspects of the harms arising from the incident were not immediately visible, as they would take place in the future as methanol, like most industrial chemicals, inflicts grave harms to human health, and tend to remain uncompensated.247 Then there is the question of liability of the Public Authority248 regarding the installation of a public sewage system, and the related certificate of approval.249 Other examples could be adduced, but the truly grave attacks on the life and health that arise from environmental causes, may be found most often in cases involving Canadian First Nations (FNs), and we will return to those cases below. For now we can refer to one example in Ontario, involving the “chemical alley” area between Windsor and Sarnia, and the FN of the same area, the Aamjinwaang FN. The multiple grave health harms affected both local populations in Sarnia and Windsor, as well as the FN involved. Those populations have had no resource whatever and no redress in the courts, despite the fact that Health Canada has affirmed the truth of their situation, and the multiple health issues that beset everyone in the area. The person that researched the issue, Dorothy Goldin-Rosenberg, prepared a film to demonstrate what was happening: She termed it a case of “Toxic Trespass.”250 We will consider in another chapter the dearth of effective environmental/public health protection in domestic law, which is also

246

Smith Brotheres Excavating Windsor Ltd v. Camion Equipment arid Leasing Inc. (Trustee of) (1994), 21 CCLT(2d) 113 (Ont. Gen. Div.). 247 Charles and VanderZwaag, “Common Law and Environmental Protection,” pp. 81–83. 248 Gauvin v. Ontario (Ministry of the Environment) [1995] OJ no.2525 (Gen.Div.). 249 Charles and VanderZwaag, “Common Law and Environmental Protection,” pp. 83–85. 250 Dorothy Goldin-Rosenberg (executive director and producer), Toxic Trespass, film produced for OISE, National Film Board of Canada, 2007.

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present in international law, hence it seemed that the use of analogy based on the direct consideration of harms that one finds in the legal treatment of sexually based crimes, to be a good move to achieve justice for those harmed. The other, more recent approach we have considered, that is, the changing attitudes to criminal responsibility are a particularly fruitful avenue, it seems, and we will return to that important issue below.

4. DOES ANY LEGAL MEANS EXIST TO RESTRAIN HARMFUL ACTIVITIES INVOLVING THE ENVIRONMENT? In 1972 the United Nations Conference on Human Environment declared that ‘Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’. This grand statement might have provided the basis for subsequent elaborations of a human right to environmental quality, but its real world impact has been noticeably modest.251

Since we are examining crimes against humanity as a whole, it is appropriate that we consider environmental harms in order to ascertain (a) the international point of view on these issues; and (b) primarily in relation to their impact on human rights. Birnie et al. dutifully cover all aspects of international environmental laws, but their assessment of each separate aspect tends to express the same discouraging note reported in the opening passage here cited: “noticeably modest” which, if anything appears to be an overstatement. One of the misleading aspects of present environmental laws is their treatment of human rights, at best, as an economic/social right as promoted by the 1966 UN covenant on Economic, Social and Cultural

251

Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 3rd edition; Oxford University Press, Oxford, 2009, p. 27; see Stockholm Declaration on the Human Environment, 1972, Principle 1.

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Rights,252 a step that is essentially removes the most serious harms from consideration, that is, the interface between those harms and the right to life and health of human beings. The use of the term “environmental quality,” vague and inconclusive as it is, fosters the same wrong impression, that is, that the right to a safe environment is perhaps a desirable condition on a par – with – say – better economic conditions, cultural advancements for minorities or other social benefits, instead of being what it truly is: ecological safety is foundational for human survival, in the sense that unadulterated water is necessary for fish survival. The environment, at any rate, is not given primacy or even a more significant place in most human rights instruments, although the 1981 African Charter on Human and Peoples’ Rights proclaims environmental rights in broadly qualitative terms and article 24 of that Charter speaks of the state’s obligations to take “reasonable measures to prevent pollution and ecological degradation.”253 Of course “reasonable measures” left as they are to the judgment of each state’s bureaucracy, mean very little; and other examples of the same vagueness of language in the Charter, are typical the inconclusiveness of environmental legal instruments. The authors254 cite Ogoniland as a remarkable decision regarding human rights cases.255 Yet Ogoniland is a case which followed upon decades of multiple crimes against humanity, perpetrated against human persons (e.g., multiple rapes and other killings by Sani Abbacha’s Shell-funded and requested “kill and go squads”), and against human person through the environment (such as the presence of burning tar sand fields; the pollution of both water and land which eliminated the possibility of growing food and the access to other resources). 252

International Covenant of Economic, Social and Cultural Rights, 6 ILM (1967) 366; in force 23 March 1976. 253 African Charter on Human and Peoples’ Rights (Banjul) 21 ILM (1982), in force 21 October 1986; see discussion in Birnie et al., International Law and the Environment, p. 273. 254 Birnie et al., International Law and the Environment. 255 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, ACHPR, No. 155/96 (2002) [SERAC v. Nigeria]; see also Westra, Environmental Rights and the Rights of Indigenous Peoples, pp. 281–287 (appendix 2, “Development and Environmental Racism: The Case of Ken Saro-Wiwa and the Ogoni”).

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In fact this case is paradigmatic, an example of what a crime against humanity that entails environmental destruction actually involves. First of all, there is the question of “development” against the right to the “natural resources” of Nigeria. In this respect Birnie et al. say: “The issue arises whether a country may ban or restrict exports of natural resource products on the ground that it is necessary for conservation purposes.”256 The environmental disasters that ensued after dictator Sani Abbacha made a deal with Royal Dutch Shell Oil for the exploitation of that country’s oil deposits, included Shell building a hospital in the area of the Ogoni and a fully staffed school supplied with teachers. What happened was that eventually a clinic was built, staffed by a nurse, which could only be reached through a long trail through a field of tar sands with permanent flares; and the school remained an empty shell with neither supplies, materials not teachers.257 But the “conservation” of living resources” involve two concepts that have never being fully and explicitly defined. Even more fundamentally, the terminology of “resources” at best implies materials for human uses, thus avoiding the question Whether an anthropocentric approach can possibly be sufficient for the support of all life.258 The anthropocentric approach may support the sustainable exploitation of natural ecosystems,259 and it also supports one of the greatest sources of ecological disasters today: the concept of “sustainable development”: With the adoption of the Rio instruments, sustainable development became and has so far remained the leading concept of international environmental policy. The Brundtland Report characterized sustainable deve1op1emtn as a process that “meets the needs of the present without compromising the ability of future generations to meet their own needs.”260

256

Birnie et al., International Law and the Environment, p. 787. Westra, Environmental Rights and the Rights of Indigenous Peoples. 258 Laura Westra, Ecological Integrity and Global Governance, Routledge, London, 2016; Bosselmann, Klaus, Earth Governance, Edward Elgar, Cheltenham, 2015. 259 Birnie et al., International Law and the Environment, p. 585. 260 Ibid., p. 53. 257

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4.1. Environmental Law in Conflict Situations Given the history of environmental destruction in international conflict and the improbability of persecution of environmental war crimes as stand-alone violations, the international community should focus on persecuting environmental destruction when conducted to achieve another atrocity, such as genocide or crimes against humanity.261

There are treaties and customary laws intended to address the prevention of environmental destruction. starting with the revised Report of the United Nations Conference on the Human Environment, held at Stockholm, 262 which established the “fundamental right to … an environment of a quality that permits a life of dignity and well-being,” followed by the Rio Declaration on Environment and Development, which recognized that “warfare is inherently destructive of sustainable development,” as well as “states shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development as necessary.”263 More recently (after the Vietnam War), the Convention on the Prohibition of Environmental Development Techniques,264 as well as the Geneva Convention, Protocol I,265 forbids using “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”:266

Tara Weinstein, “Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?,” Georgetown International Environmental Law Review 17 (2004– 2005), pp.697–722, here p. 698. 262 UN Conference on the Human Environment, 16 June 1972, Principle I, UN Doc. A/CONF.48/14, revised by UN Doc. A/CONF.48/14/Corr reprinted in ILM 1416, 1417 (1972). 263 Rio Declaration on Environment and Development, princ. 23–24, UN Doc. A/Conf.151/26/Rev.l (1991). 264 ENMOD, Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 18 May 1977, 31 US T333, TIA no. 9614. 265 Protocol Addition to the Geneva Conventions Relating to the Protection of Victims of Armed Conflicts international, 8 June 1977, 16 ILM 1391, UN Doc. A/32/144(1977). 266 Protocol I, art. 35(3). 261

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The existence of specific documents, even coupled with international humanitarian law (IHL), particularly as it applies to jus in bello, however, has not resulted in the abundant jurisprudence one may expect, given the multiple conflicts harmful to both land and civilians in recent times, and ongoing today. Paolo Benvenuti explains the function of IHL: On the one hand it limits the choice of means and methods of conducting military operations (this branch is traditionally referred to as the Law of The Hague),; on the other hand, it obliges the belligerents to spare persons who do not or no longer participate in hostilities (this branch, concerning the victims, traditionally is referred to as the Law of Geneva stricto sensu).268

The UN Charter, A.2, para. 4, also states: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.

However, the “territorial integrity” referred to in this paragraph is only intended in the quantitative, NOT in the qualitative sense of the expression. This is a common flaw in both international and domestic law, the latter, particularly as it applies to Indigenous Peoples, such as the First Nations of

267 268

Protocol I, art. 55. Paolo Benvenuti, “International Humanitarian Law and the Means for Improving Its Effectiveness: A Comprehensive Appraisal,” in I. Papanicolopulu and T. Scovazzi (eds.), Quale Diritto nei Conflitti Armati, Giuffrè Editore, Milan, 2008, pp. 3–44, here p. 3.

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Canada.269 This is a basic flaw, unacknowledged and uncorrected in any environmental law or human rights regime, despite the grave problems inflicted on both ecological integrity and the biological integrity of individuals by climate change and other hazards of human origin. In part, the reason for the missing case law is the fact that, rather than wars governed by the law of war, today almost everywhere we are afflicted by illegal conflicts, that is internal conflicts taking place within nations, rather than between nations, most of which are not legally declared wars. The conflicts tend to have their origin in the economic or power interests of the “Great Nations” who presently support one or another warring faction, often with the support of the UN and its institutions, such as NATO.270 Then there are the unrecognized wars of liberation, primarily in Palestine, where the citizens are desperately trying by various means to shake off the illegal Israeli occupation, persisting against all UN Resolutions, declarations, and related legal instruments, for over half a century.271 Thus, even beyond the deliberate avoidance of the interface between human rights to health and environmental hazards,272 ongoing conflicts demonstrate the effects of the same powerful interests that support the approach to climate change denials. Another powerful illegal form of “war” is the so-called war on terrorism, or counter-terrorism, a “war” that does not recognize IHL or the rules of war, and one that respects neither active participants (not acknowledged as enemy combatants), nor civilians who somehow no longer deserve due process or even a proven crime, before being condemned to death by drone or other means.273 It is noteworthy that, whether legal or illegal, the reasons for the outbreak of conflicts, IHL is “ready to step in, notwithstanding the prohibition on the use of force, whenever a war breaks out, whether or not there is any justification for that war.”274 In fact, IHL also applies to cases of 269

Westra, Environmental Rights and the Rights of Indigenous Peoples, ch. 2. Laura Westra, The Supranational Corporation, Brill, Leyden, 2013. 271 Westra, Faces of State Terrorism. 272 Laura Westra, “Life, Health and the Environment, The Denied Connection,” in Laura Westra, Colin L. Soskolne and Donald W. Spady (eds.), Human Health and Ecological Integrity, Earthscan, London, 2012. 273 Westra, Faces of State Terrorism, ch. 4. 274 Benvenuti, “International Humanitarian Law and the Means for Improving Its Effectiveness,” 270

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internal conflicts, although not with equal strength.275 Nevertheless, despite the many instances when war has been devastating to the environment, and the latter used deliberately to inflict harm on whole populations, from the “scorched-earth policies” against the Persians of 512 BC to the use of Agent Orange in the Vietnam war in the 1970s, no prosecutions in international law have followed.276 All these practices imply a previous judgment that the harm that will befall others are justified by their lesser status, in comparison to that of the authors of these practices. The same discriminatory approach is basic to all conflicts: group or community X does not possess the same rights to life and to its members’ biological integrity that the attackers possess, must be the starting point. In fact most atrocities committed either within war or an internal conflict are humanitarian in nature, and they include “rape, murder, genocide and other crimes against humanity.”277 It is easy to see why environmental crimes, or the destruction of the environment needed by these inferior beings” for their survival, are far less likely to be prosecuted or even acknowledged. Tara Weinstein proposes that the commission of the direct humanitarian crime that accompanies the environmental destruction would be brought to a tribunal together with it, as a way of ensuring the criminalization of environmental attacks, at least as part of another grave crime. However, even if this approach were to succeed, it would still ignore the basic discrimination that fosters both crimes which, instead, remains the cause of both kinds of crime and – most important – is already singled out as a grave breach of human rights in international law, and which imposes a non-derogable obligation on all states. The racism and discriminatory intent that permits practices that ignore human rights were acknowledged clearly in the Principles of Nuremberg, beyond (a) crimes against peace; and (b) war crimes:

p. 5. Ibid., p. 8. 276 Weinstein, “Prosecuting Attacks that Destroy the Environment.” 277 Ibid. 275

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Article 6(c) Crimes against Humanity: namely murder extermination; enslavement, deportation, and other inhumane acts, committed against any civilian population, before or during the war or persecutions on political, racial or religious grounds, in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated.278

It is significant that the full listing of all possible inhumane acts is not present in this article, and that the means of accomplishing the “extermination” and “deportation” of the targeted population or community is not specified. Further, the document refers to “leaders,” “organizers,” “instigators and accomplices participating in the formulation or execution of a common plan or conspiracy”279 are all equally responsible for the execution of the criminal acts, and that the position of such individuals (participating in the common plan), whether they are heads of state or other responsible government officials, would not free them from either responsibility or punishment. Finally, the presence of “superior orders” would also not eliminate 1 accountability for the actions committed,280 and – in fact – whenever these individuals are tried, the Tribunal, at its discretion, “may declare … that the group or organization of which the individual was a member was a criminal organization.”281 This inclusive list of the aspects of individual accountability would appear to be sufficient to indict whoever is responsible for the collateral effects of conflicts, whether they are due to ecological disasters, as consequences of global warming, or to the deprivations and plunder of the means of sustenance of populations, or the deprivation of their water, or the health effects of disintegrity. It is not clear whether this approach can be used to advance the defence of eco-integrity in law and policy. At least it proposes an approach based on principles that are already entrenched in law through international legal instruments, such as the 278

Charter of the International Military Tribunal at Nuremberg, 8 August 1945. Ibid. 280 Ibid., p. A8. 281 Ibid., p. A9. 279

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principles of Nuremberg Tribunal, or even the International Convention on the Elimination of All Forms of Racial Discrimination.282

4.2. Sustainable Development and “Post-Truth” Politics The Oxford English Dictionary, which named “post-truth” its word of 2016, defines the term as “denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal beliefs.283

This editorial refers to the political scene that brought someone whose statements and pronouncements bore little relation to the truth in each case, to one of the most powerful posts in the world. But the same use of “posttruths” is quite diffuse in the world today, from the ridiculous claims regarding the “peace process” coming from the state of Israel, to a host of “post-truths” arising from industry funded, so-called scientific sources. The use of “sustainable development,” since the term was first introduced in the language of environmental governance, represents a prime example of “post-truth.” The legal understanding of the term is fluid, to say the least. Birnie et al. say: the notion of sustainable development is inherently complex and its implementation obliges governments to think in somewhat different terms than those to which they have become accustomed … A plausible interpretation is that sustainable development entails a compromise between environmental protection and economic growth.284

282

Adopted and opened for signature and ratification by General Assembly Resolution 2106 (XX) of 21 December 1965, into force 4 January 1969. 283 Editorial, “Lessons from the Year of Post-Truth Politics,” The Toronto Star (27 December 2016), retrieved from www.thestar.com/opinion/editorials/2016/12/27/liessons-from-theyear-of-post-truth-politics-editorial.html. 284 Birnie et al., International Law and the Environment, pp. 54–55.

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However, a compromise does not seem possible when one part, the economy, has all the power, both factual and legal through the WTO,285 the most powerful tribunal in the world, the secret deliberations and decisions of which are not open to debate or even public scrutiny. From the factual, scientific point of view as well, the “compromise” makes no sense: the ecological basis of life is not an optional choice, even a desirable one like all economic activities may be, but a necessity. The very expression, sustainable development, is thus an oxymoron, as when sustainability is understood in its full, proper sense of being based on ecological integrity,286 the development that is compatible can be only intellectual, moral or spiritual, not based on the economic plans and advantages of any corporate body. At any rate, the effects of “sustainable development,” intended to develop the economic abilities and in general the life opportunities of local people, can be followed and researched with ease. We can start to review one example of such policies, as it unfolded in Nigeria. In 1958, Shell discovered oil in Ogoniland, 404 square miles of largely wild, fertile land, home to a variety of flowers, plants and animals, both terrestrial, and marine, beyond its coast, and to 500,000 Ogoni people.287 Chevron moved its oil exploration to Ogoniland in 1977, and both companies, jointly, have extracted an estimated $30 billion US worth of oil from Ogoniland. Saro-Wiwa adds: In return for this we have received nothing but a highly polluted land where associated gas burns twenty-four hours a day, belching carbon monoxide, carbon dioxide, methane and soot into the air; and oil spillage and blow-outs devastate much needed farmland, threatening human existence. Flora and fauna are all but dead, marine life is destroyed, the ecosystem is fast-changing. Ogoni is a wasteland.288

285

World Trade Organization (Marrakesh), WTO Legal Texts, 3, in force 1 January 1995. Bosselmann, Earth Governance. 287 Ken Saro-Wiwa, “Human Rights, Democracy and an African Gulag,” unpublished talk, New York, 2 March 1994. 288 Ibid. 286

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However Nigeria’s military dictatorship was geographically removed from this devastation, and enjoyed a mutually supportive relationship with the oil companies, as they depended on the wealth the oil companies provided. In turn, the oil companies depended on the dictatorship to ignore the environmental disasters they continued to create, without imposing restraints or demanding remediation or compensation for the land and people affected. Throughout this increasingly distressing state of affairs, SaroWiwa maintained that “the environment is man’s first right. Without a safe environment, man cannot live to claim other rights.”289 He also steadfastly opposed the devastation of Ogoniland, demanding remediation of environmental problems and royalties to assist his people. The Ogoni desperately needed help, as the families could no longer depend on the land and the sea, but had to have financial help and medical aid to mitigate the many ills besetting them and destroying not only their livelihood, but also their health, as they were now living in “absolute poverty.”290 They had no access to safe water, to electricity, telephones, or any educational or health facilities.291 Examples of the harms inflicted on the Ogoni people from Shell’s economic exploitation abound. In one case, Grace Zorbidon was walking near her mud hut one night in January 1994, “carrying a kerosene lantern to light her way.” She did not see “the oil slick oozing from a rupture in a pipeline that runs hard up against her tiny village.”292 When she put down her lantern, she was engulfed by flames and, in May 1994, was still lying on the floor of a healer’s hut, in terrible pain, and treated only with traditional potions made from leaves. Shell neither inquired after her, nor saw to her treatment or to the fate of the eight children of this “subsistence farmer.” Their excuse? Shell said they were “hazy” on the accident, and could not substantiate Zorbidom’s report because of the “tensions in the area.”

Ken Saro-Wiwa, “Right Livelihood Award Acceptance Speech,” unpublished talk, Stockholm, 9 December 1994. 290 Vandana Shiva, Staying Alive, Zed Books, London, 1988. 291 Saro-Wiwa, “Human Rights, Democracy and an African Gulag”; see also Saro-Wiwa, “Right Livelihood Award Acceptance Speech.” 292 Brooks, Geraldine, “Slick Alliance: Shell’s Nigerian Fields Produce Few Benefits for Region’s Villagers,” The Wall Street Journal (6 May 1994), pp. A1, A4. 289

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Shell was much quicker to react to protests and demonstrations that had forced it to close its operations in early 1994. Shell’s reaction was to “ask for assistance” from the military authorities, who responded with swift and brutal retribution against the protesters. The Nigerian government was not prepared to tolerate any interference with its business relations with Shell: neither human rights, nor environmental concern could be allowed to interfere. The Wall Street Journal reports: Nigeria’s government depends on oil for 80% of its income, and sees any threat to the industry as imperiling its shaky hold on power. Oil produced by Shell accounts for about half of these revenues. 293

Nigeria’s military dictatorship and Shell operate as a “joint venture” in which Shell holds a 30 per cent interest, the Nigerian government holds 55 per cent, Elf Aquitaine of France, 10 per cent, and Agip Francaise, 5 per cent. Further, the US was also benefitting from the arrangement: they imported 36 per cent of Nigeria’s oil production in 1993, which accounted for about 11 per cent of all US oil imports. In all these large business transactions, what, if any, are the benefits the Ogoni have reaped from their land’s exploitation? When large multinationals interact with impoverished developing countries, the benefit accrue primarily to their constituents in the affluent Northwest. The usual “tradeoffs” offered in those cases are (a) employment; (b) “improvements” such as roads, hospitals and schools; and (c) remediation of environmental impacts Shell’s record appears to be dismal on all counts. “Of Shell’s 5000 employees in Nigeria, only 85 are Ogoni”;294 there are “96 oil wells, two refineries, a petrochemical complex and a fertilizer plant “in Ogoniland, but the only available hospital is described as an “unfinished husk,” and the promised schools are seldom open, “because there is no money available for teachers’ salaries.”295

293

Ibid. Ibid. 295 Ibid. 294

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In addition, Shell’s spokesman, Mr Nickson, claimed that Shell “deplored” the military “heavy-handed clampdowns and the pain and loss suffered by local communities.” However, there is no record of Shell initiating any policy to ameliorate the Ogoni’s lot, or to mitigate the damage they had perpetrated. Given the strength of their economic interests in Shell’s operations, the military continued to organize raids to “punish” the Ogoni for obstructing Shell, and responded to protests by “shooting into the crowd,” killing and maiming civilians, using any pretext to lay “entire villages to waste.” The raids were often conducted by a Mobile Police Unit, nicknamed “Kill and Go.” On Easter Sunday, 1994, villagers who had fled the raids were felled by random shooting. “One ten-year old girl says she was gang-raped. Three days later, the whites of her eyes were bloodshot the flesh around them purple and swollen”; she explained that the soldiers attempted to gouge her eyes out, so that “she would not be able to identify them.”296 Health facilities, says a European nurse are minimal, and Shell refused to even pave the roads to prevent patients having to walk through the mud to reach the clinic. What of the “economic benefits”? In response to increasing protests from the Ogoni, the government ostensibly offered 3 per cent of its oil revenues to them. In practice, these percentages never reached the Ogoni, as the money was spent in the tribal lands of the ruling majority instead, or vanished “in corrupt deals.”297 As far as remediation is concerned, one example will suffice. More than 20 years ago, a spill near the village of Ebubu has not been cleaned to date; today, in “an area the size of four football fields, cauliflower shaped extrusions of moist black tar cover the ground to a depth of about three feet.”298 Shell claims that while unrest continues, they are not prepared to do any clean-up work: it is worth noting that the spill occurred in the late 1960s. As an additional corollary to the government’s role in the economic development by the oil companies, foreign observers are denied access, and even a fact-finding mission from the Netherlands was denied permission to 296

Ibid. Ibid. 298 Ibid. 297

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visit, and “checkpoints” were set up instead in order “to monitor Western travellers.” The Wall Street Journal reporter who compiled most of the data summarized in this section, concludes by relating her own experience: When I approached an army officer to ask for the military’s account of a violent incident, I was handed over to the secret police, held and interrogated for two days, and then deported “for security reasons.”299

Although the US Government commissioned a “Human Rights Report” on the Ogoni in 1993, the report only admitted “some merit” to the Ogoni’s claims, but refused to accept the definition of “genocide” urged by SaroWiwa, as appropriate to describe the Ogoni’s plight. Saro-Wiwa remarked that “one thousand dead Ogonis out of five hundred thousand,” is comparable to five million dead US citizens, and that situation, had it occurred, would surely have been termed a case of “genocide.” In essence, the perversion of human rights and the clear presence of racism (or even of attempts at “ethnic cleansing”) that was manifested by the oil companies with the support of the military dictatorship of Nigeria was more than a particularly lethal case of environmental racism: 300 it was and is no less than an “ecological war” that was being waged (and still persists); it is “omnicide,” as Saro-Wiwa put it. He added: “men, women and children die unnoticed, flora and fauna are threatened, the air is poisoned, waters are polluted, and, finally, the land itself dies.”301

4.3. The Lie of Sustainable Development While millions of innocent human beings have been killed and maimed in the last century in armed conflict and by mass killings, the overwhelming majority of those who fall victims to adverse human agency, are not injured by proximate violence, but as a result of being compelled Saro-Wiwa, “Human Rights, Democracy and an African Gulag.” Laura Westra and Peter Wenz, Faces of Environmental Racism, Rowman & Littlefield, Lanham, MD, 2012. 301 The Globe and Mail, Canada, 21 November 1995, p. A17. 299 300

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It is hard to divide the many harms perpetrated through environmental· destruction into separate categories, as I attempt to do in this work. In fact, the many examples of grave harms induced by sustainable development” could be cited here, although perhaps they are more appropriate for (6) “Ecocrimes as Breaches of Global Justice,” better known as forms of environmental racism, and we will return to those crimes in another chapter. For now we need to focus on the scientific evidence increasingly indicting the destruction of the environment, this, of the ecology of natural systems and the undeniable effects they cause to human health and function. As we reflect on the example of Ogoniland, the first thing to note is that the complex attacks waged against the local people, are totally unprovoked. No single Ogoni, to my knowledge, has ever travelled to the Netherlands in order to attack anyone working for or directing the operations of Royal Dutch Shell Oil. Thus we can note that the presence of ecocrimes such as the elimination of both productive agriculture and fisheries that sustained the Indigenous local peoples, had it now been perpetrated by a corporation, but by a state, it would have been viewed as an act of aggression, as illegal as the de facto colonization that ensued. The presence of the flares and the conditions of the air surrounding the tar sands have not been studied there, and the ills that followed for the population have not been researched, or even acknowledged when the case was tried many years later. But there have been tar sands whose ill effects have been researched and studied in Canada’s Alberta Province. We can start with the story of Barbara Jewers, who passed away in September 2013 from bile duct cancer. Dr John O’Connor, who treated her, says:

302

E. Davidson, “Economic Oppression as an International Wrong or as a Crime Against Humanity,” Netherlands Quarterly of Human Rights 23(2) (2005), pp. 173–212, here p. 174.

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She had no medical history at all. She was a very healthy woman and lived an exemplary life, said O’Connor. It was absolutely shocking that someone with the background she has … [with] no bad habits, the only connection we could make trying to figure out why … the only connection with risk factors was the tar sands.303

But, as the report continues, “partly due to a lack of government research on tar sands toxins, there is no conclusive proof that Jawers’ cancer was linked to her work.”304 Yet “bile duct cancer (cholangiocarcinoma) occurs mostly in men over sixty, and at most the disease affects one out of 1,000,000 or 2,000,000 people per year,” but in the Wood Buffalo Municipality where Jawers lived, a community of 116,407 people, 6 cases were recorded in one year and 4 cases were confirmed in Fort Chipewyean (population 1,100), and Fort McMurray near the oil sands. These cases represent a cluster of a rare disease that raises questions demanding answers. Nor was that the only symptom of toxic exposures: the whole area was known for the deformed fish that could be found in local streams. It is worthy of note that even in Canada, because the province of Alberta benefits greatly from its oil revenues, he news were not welcome. Dr O’Connor was fired because he researched and studied the bile duct cancer epidemic in the area, and dared to contradict Alberta’s Chief Medical Officer, Dr James Talbot, who denied the connection between the oil sands and the increased cancer rates.305 Dr O’Connor had served for 15 years in the remote community of Fort Chipewyan, but on 8 May 2015, he received a notion of termination from Roxanne Marcel, Chairperson of the Nunee Health Board society: Please be advised that Nunee Health Board Society no longer requires your professional services to provide any patient consultation or on-call services to the staff at Fort Chipewyan Health Center. In addition, you have Wood, Linda Solomon, and Jenny Oechi, “A Life Cut Short in Fort McMurray Raises Questions about Concentrates Near Oil Sands”(2 June 2014), retrieved on 12 January 2017 from www.vancouverobserver.com/news/life-cut-short-fort-mcmurray-raises-questions-aboutcancer-rates-near-oil-sands. 304 Ibid. 305 Wood and Oechi, “A Life Cut Short,” p. 4. 303

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Laura Westra no authority to speak to or represent the Nunee Health Board Society in any way to any other individual, party or entity[sic].306

For over a decade Dr O’Connor had diagnosed an unusual number of cancers of the bile duct higher than the average rates of that disease as well as many other diseases and strange deformities had appeared in the area’s wildlife. His researched data were challenged by Health Canada and the authorities in Albertan who threatened several times to withdraw his license to practice, because he was raising “undue alarms.”307 Nevertheless, the doctor was not the only person who had noted the problems encountered in the region by the local population, including the Mikisew Cree First Nations: researchers for the University of Manitoba found “alarming links” between oil sands contaminants and incidence of illness arising from high concentrations of metals such as mercury, arsenic and cadmium in animals including ducks, muskrats, moose and beavers. Bitumen upgrading and extraction is a major emitters of these chemicals.308

Clearly, away from Ogoniland, the effects of oil-sand effluents have been researched and noted, although Big Oil has clearly tried to silence the voices that indicted the tar sands and their managing corporations for their crimes, despite the collaboration of global governments, who attempted to stifle well-meaning doctors, and even the presence of well-documented scientific evidence. This situation shows the ramifications of ecological disasters, and we will discuss the interface between these disasters and (1) resource deprivation (Chapter 5): (2) public health-related harms; and (3) intergenerational harms including harms to the first new generation, the children (Chapter 3).

Warren Bell, “Whistleblowing Albert Oil Sands Doctor Fired Abruptly,” retrieved on 11 January 2017 from www.nationalobserver.com/2015/05/11/opinion/whistleblowing-albertaoil-sands-doctor-fired-abruptly. 307 Ibid. 308 Jesse Ferreras, “John O’Connor, Fort Chipewyan Doctor, Fired with No Explanation,” The Huffington Post (12 May 2015), retrieved on 11 January 2017 from www.huffingtonpost.ca/2015/05/12/john-oconnor-fort-chipewyan-doctor-oilsandsn7267 136.html. 306

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For now, we simply discuss ecocrimes as such, and we must acknowledge that they are, indeed, a form of unprovoked aggression. Thus the conditions engendered by the activities under the general category of “sustainable development,” demonstrate the extent of that aggression. The “development” in question is that of the corporation seeking to mine, extract or otherwise gain from the resources of a poor country, with very little – if any – regard for the ecology, public health, or human rights of those to be “developed.” But the ecological harms are present and clear and cannot be denied. In addition, although the right to development is enshrined in law309, the right to say NO, which is the common response of most Indigenous peoples locally, is not. We will discuss other cases of “development” in Chapter 4 and 5. The present example is a commonplace one, one that is sadly repeated in South and Central America310 and even in North Africa in Sudan.311 All these and other cases share some common characteristics: 

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all involve a large multinational corporation intent on expanding its economic holdings in areas where resources are available and where the local inhabitants are too weak or too poor to mount effective protests against their operations; Most also involve powerless indigenous peoples who are intent on preserving their resources, but also their way of life and their independence; finally. when these cases are brought to courts such as the Alien Torts Claims Act312, they are eventually dismissed on various procedural grounds, so that the substance of the matter, that is the crimes against humanity that are committed as part of the so-called “development” are never brought to light and tried as such.

Draft International Convention Environment and Development, Commission on Environmental Law, IUCN, 2007. 310 Aguinda v. Texaco, Inc., 142 F. Supp.2d 534 (SDNY 2001); Doe/Roe v. Unocal Corp., 110 F. Supp.2d 1294, 1306 (CD Cal. 2000). 311 The Presbyterian Church of Sudan, Rev. John Gaduel, Nuer Community Centre Development Services and others v. Talisman Energy, Inc. 244 F. Supp.2d 289; 2003, US Dist. LEXIS 4085. 312 ATCA, 28 USC 1350, 1798.

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5. ECOCRIMES AND EXISTING LAW REGIMES: SOME FURTHER ASPECTS OF CLIMATE CHANGE It is now well-understood that climate change can and does adversely affect the enjoyment of a broad range of human rights. The United Nations Human Rights Council has stated that climate change poses an immediate and far reaching threat to people and communities around the world, and has adverse implications for the full enjoyment of human rights.313

We have shown that, for the most part, the jurisprudence dealing with human rights violations arising from a specific environmental condition, or hazardous environmental exposures. Hence the presence of this new document from the Office of the High Commissioner for Human Rights is highly significant, as it indicates a promising new development of environmental rights. At any rate, it will be useful to review briefly this work, in order to appreciate how explicitly human harm is linked to environmental/climate conditions, and which specific rights are judged to be under threat, starting with the right to life: the longest established human right.314 The right to life is termed the “supreme right,” requiring “positive measures for its protection”315 which would make the acknowledgment of the interface between climate change and the right to life the basis for a radical step forward. However, instead of offering protection against direct and indirect environmental threats, that connections has been completely ignored in the case law, despite the huge effects produced by climate change: Equally, climate change will affect the right to life through an increase in hunger and malnutrition and related disorders impacting on child growth Human Rights Council, “The Effects of Climate Change on the Full Enjoyment of Human Rights,” Resolution 18/22, Office of the United Nations High Commissioner for Human Rights, 21–20 April 2015; see also Office of the High Commissioner for Human Rights, A New Climate Change Agreement must Include Human Rights Protection for All, 27 October 2014, retrieved from www.ohchr.org/documents/HRBOdies/ SP/SP_To_UNFCCC.pdf. 314 UNHRD, Article 5. 315 UNHCHR, 2015, p. 4. 313

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and development; cardiorespiratory morbidity and mortality related to ground-level ozone. Climate change will exacerbate weather-related disasters which already have devastating effects on people and their enjoyment of the right to life, particularly in the developing world. For example and an estimated 262 million people were affected by climate disasters annually from 2000 to 2004, of whom 98 percent live in developing countries.316

Increases in temperature extremes result in heat-related deaths, but also in decreased food production, resulting in additional increases in malnutrition. Hence the right to Health is also under threat.317 Of course it is not only human health that is under severe stress, but also biodiversity will be and already is significantly reduced, thus affecting the very ecosystem services upon which all life depends: an increase in moderate nutritional stunting, an indicator linked to increased risk of death and poor health of 1 to 29%, depending on the region assessed, compared to a future without climate change, and a much greater impact on severe stunting for particular regions such as 23 percent for central sub-Sahara Africa and 62 percent for South Asia.318

Those who live in poverty are disproportionally affected, as climate change fosters a decline in available water, while disease vectors (mosquitoes, tse-tse flies) will continue to spread more disease.319 Extreme poverty also magnifies the lack of food as “all aspects of food security are potentially affected by climate change, including food access, utilization and price stability.”320 The Special Rapporteur on the Right to Food, Olivier de Schutter, has clearly related how that right is affected by climate change.321 Both the right 316

2009 OHCRHR Report no. 21 citing Human Rights Committee General Comments 6 and 14 (see also nos 22, 23). 317 A.12 ICESCR; General Comment 14, para. 11 318 IPCC AR5, Technical Summary WGII Report, p. 1056. 319 HCRC Report, 2015, p. 6. 320 AR5, WGII Report, p. 488. 321 Report submitted by the Special Rapporteur on the Right to Food, Olivier de Schutter, 20 December 2010, UN Doc. A/HRC/16/49 #9.

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to water and that to sanitation are also gravely affected by climate change. Finally the right to housing as well as – even more significantly – the right to remain in one’s chosen place of residence: Rolnik also related climate change impacts to an increase in migration and substantial human mobility. She explained that, as a consequence of environmental degradation due to climate change, depletion of natural resources and natural disasters, many people around the world find their lives and health threatened, their houses and lands destroyed and their sources of livelihood taken away.322

Children are the most obvious victims of climate change, together with the poor, especially in the developing world. Hence, all aspects of human rights are under attack through climate change, nor can any one aspect of this attack be separated from the others, as the disintegrity that is basic to all forms of environmental damage unites them all. No doubt climate change is one of the best known and most evident examples of harms perpetrated through the environment. As noted, many international legal instruments and declarations exist to correct or at least to ameliorate the problem, but we must also acknowledge that the situation has become progressively worse over the years. All treaties and Agreements thus far have been non-binding and there have been no serious repercussions for those states who chose not to abide by their commitments. The most recent withdrawal from their previous hard-fought commitment, is that of the US where the newly elected President Donald Trump has made the withdrawal from that commitment one of the first acts of his presidency, right after the elimination of health care. Nevertheless, legal scholars note that, whatever the status of the precautionary principle in law, its presence has been felt in the development of climate change regulatory regimes.323 Yet the final results today do not exhibit the influence of that principle although climate change involves most of the gravest

322

Raquel Rolnik, Report of the Special Rapporteur on Housing and Adequate Standards of living and on the Right to Non-discrimination in This Context, 6 August 2009, UN Doc. A/64/25. 323 Birnie et al., International Law and the Environment, p. 377.

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environmental problems that affect us, including “intergenerational equity and global governance,” hence that failure is particularly significant.324 In 2017, most people in the world are aware of climate change, as well most people everywhere in the world are affected by its results in some way, from the incontrollable fires in California Spain or Chile, to the unique heavy snowfalls in central Italy, to floods and unusual freezing temperatures- in Central Europe, in addition to the ongoing Arctic and Antarctic ice melts. Thus we must admit that if such a global environmental disaster does not help to bring together all the powers in the world, perhaps a stronger designation for the actions that cause the problem and an end to the impunity with which non-compliance has been met may help avert further disaster.

5.1. Environmental Disasters and Ecocrimes Attacks on Biodiversity and Ecological Integrity Early conservatory regulations thus aimed at securing sustainable exploitation ecologists, however, traditionally approached nature not as a collection of discrete exploitable resources, but as a series of overlapping but integrated biological systems or ecosystems. In their view the natural world is intricately organized and vital to human existence; nature is a world of living things constantly busy in discernible patterns producing goods and services essential for one another.325

Essentially, this is not simply the approach of “ecologists,” implying that different groups (e.g., economists, lawyers and others), may hold different but equally valid views. This is the reality on the ground, the way the natural world functions, whether or not such hard truths are compatible with the economic and power-driven goals of corporate entities or states. In fact the main difficulty arises precisely with the way nature is understood and defined in, public policy and even in environmental law, the latter clearly

324 325

Ibid., p. 378. Ibid., p. 585.

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relying on societal “myths” with little or no relation to reality. 326 Birnie et al. add: The commonly used term “natural resources” is unpopular with many environmentalists since it comprehends both living and non-living resources … the latter include non-renewable minerals such as oil, gas, coal and metals mined commercially on land and at sea, some- times to the point of virtual exhaustion, for human purposes.327

This explanation is helpful but insufficient: the main reason why scientists, environmentalists and all those who expect accuracy in definitions do not accept “natural resources,” is that although all that exists naturally is indeed a “resource” for humanity, the main role of all the components of natural ecosystems is to work harmoniously with each other to maintain all life, including ours. Any time we deplete these systems or otherwise interfere with their natural functions, we perpetrate an attack on that lifesupport function which is only present when their integrity is preserved. These attacks may be more or less grave and they may affect humanity in various ways directly as when the deprivation affects the basic necessities of those who live on the land or depend on the sea; or indirectly, as when the extraction of fossil fuels is not only immediately threatening to Indigenous peoples, but when the burning of fossil fuels contributes to the altered climate conditions that eventually prove harmful for people everywhere, not only the local inhabitants. All such forms of “development” contradict any form of conservation: “The conservation of living resources requires inclusion of plants, animals, micro-organisms and the non-living elements of the environment on which they depend.”328 Any industrial or extractive operation, whatever its euphemistic definition in public policy, disturbs ecological integrity in various degrees, which goes clearly beyond even biological diversity. Ecological integrity is Mickelson, Karin, and William Rees, “The Environment: Ecological and Ethical Dimensions,” in Elaine Hughes, Alastair R. Lucas and William A. Tilleman (eds.), Environmental Law and Policy, 2nd edition, Edmond Montgomery Publications, Toronto, 1998, pp. 1–40. 327 Birnie et al., International Law and the Environment, p. 586. 328 Ibid., p. 386. 326

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the state of nature closest to an ecosystems original condition prior to human intervention: that is the condition that ought to be preserved and protected329 as much as possible, and these are concepts far removed from that of “sustainable utilization.” Ecological or biological integrity originated as an ethical concept in the wake of Aldo Leopold (1949) and has been present in the law, both domestic and international, and part of public policy since its appearance in the 1972 US Clean Water Act (CWA). Ecological integrity has also filtered into the language of a great number of mission and vision statements internationally, as well as being clearly present in the Great Lakes Water Quality Agreement between the United States and Canada, which was ratified in 1988. The generic concept of integrity connotes a valuable whole, the state of being whole or undiminished, unimpaired, or in perfect condition. Integrity in common usage is thus an umbrella concept that encompasses a variety of other notions. Although integrity may be developed in other contexts, wild nature provides paradigmatic examples for applied research. In my work, I consistently based my argument on the scientific understanding of ecological integrity, because to accept it, as some have done, as a socially definable notion, meant to lose it as a firm point of reference. In that case, it could not be understood as a firm starting point, if it were open to a variety of opinions. I proposed the principle of integrity, as a solid principle of a new ethics,330 reaching beyond a simple environmental ethic, to a moral principle that acknowledges the primacy of a consideration for human rights and the human good, even the right to life, all must start with the protection for the habitat of mankind which also- at the same time – ensures respect for the biological integrity of all human beings. That understanding, based on science, was eventually fleshed out in its full meaning and connotations, by the members of the Global Ecological Integrity Group (GEIG), initially funded by SSHRC (1992–1999). Since then it has been meeting every year, starting with the 2000 meeting funded by NATO for a 50 per cent Eastern Europe participation, which took place in Budapest. The final collectively agreed upon definition was published 329 330

Ibid., p. 590. Laura Westra, The Principle of Integrity, Rowman & Littlefield, Lanham, MD, 1994.

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combining the work of ethicists, conservation biologists, ecologists and other scholars.331 Essentially, the Global Ecological Integrity Project (as it was known at the start), has been guided by two complementary policy imperatives: conserve integrity and live sustainably.332 I have defined sustainability as a systems capacity to retain its specific functions, that is, its critical lifesupport processes as well as its parts or components.333 The emphasis on the scientific meaning of integrity was never lost by the Group, but, after 2000, when the final definition was reached, basing ourselves primarily on the work of James Karr, and the development of his Index of Biotic Integrity,334 fidelity to the scientific consensus reached remained constant. This starting point was established against the arguments of philosophers of science,335 but also against the practical resistance of globalized corporate interests, strongest at Great Lakes Meetings and other venues. Their mantra of “development” at all costs contradicts the very basis of strong sustainability my Group and I have supported,336 which renders ecological integrity both hard to implement and unpopular. Essentially, the support of ecological integrity posed grave threats to the neoliberal economic interests that prefer to encounter no legal or scientific limits to growth.337 Ecological integrity is the standard that supports the need for the protection of the wild in quantities sufficient to ensure healthy conditions to the nature which includes human interventions. This reality entails that the

331

Laura Westra, David Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000; a definition of integrity is in Laura Westra, Peter Miller, J. R. Karr, William E. Rees and R. Ulanowicz, “Ecological Integrity and the Aims of the Global Integrity Project,” ibid., pp. 19–41. 332 Ibid., p. 3. 333 See Laura Westra, Living in Integrity, Rowman & Littlefield, Lanham, MD, 1998, ch. 8. 334 IBI; see J. Karr, “Assessment of Biotic Integrity Using Fish Communities,” Fisheries 6(6) (1981), pp. 21–27; J. R. Karr, “Ecological Integrity and Ecological Health are not the Same,” in P. Schulze (ed.), Engineering within Ecological Constraints, National Academy Press, Washington, DC, 1996, pp. 97–109. 335 See Kristin Shrader-Frechette and Earl D. McCoy, Method in Ecology, Cambridge University Press, New York, 1993. 336 Klaus Bosselmann, The Principle of Sustainability, Ashgate, Aldershot, 2008. 337 D. H. Meadows, D. L. Meadows and J. Randers, Beyond the Limits, Chelsea Green Publishing, Pest Mills, VT, 1992.

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human enterprise or – to turn to a recent buzzword, the prevalence of policies that prevail in the “anthropocene,” must be curtailed; it also entails that the single motive that characterizes the anthropocene, that is the power and economic interests that provide countless consumption choices to the population of wealthy countries, must be reversed. There is another principle that has priority, and that is one which is dangerous for corporate/consumptive interests, the principle of integrity,338 because using integrity as a measure of the rightness or not of policies and decisions, is dangerous for the same corporate/consumptive interests, because integrity refers to the wild, to areas that cannot be mined, dug-up, plundered, or paved over. However, no matter how threatening the concept is to the preferred choices of so-called civilized, western lifestyles, it is the absence of its protection that has proved to be the gravest danger. In earlier times there was another ongoing dispute, between “conservation” and “preservation”: the latter spearheaded by John Muir, the former, by Gifford Pinchot. Conservation is intended to protect – at best – the health of natural systems that have been altered in part for human purposes, in order to maintain the economic viability of their products. In contrast, preservation is the fundamental value of integrity: Aldo Leopold famously said: “A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community.” He did use the word “preserve,” and he evidently refers to processes or the scale of landscape planning where there is relative “stability.”339 But stability does not entail the preservation of a specific, present status quo of an area. Rather what must be preserved and protected is the capacity of ecosystems to evolve naturally over time. Although there has been, so far, little emphasis on ecointegrity as an important principle of policy in law since the Great Lakes Water Quality Agreement (1978, rat. 1988), or science, with the exception of the Canadian Parks Policy or, by implication,

338 339

Westra, The Principle of Integrity. Holmes Rolston III, “After Preservation? Dynamic Nature in the Anthropocene,” in Ben A. Minteer and Stephen J. Payne (eds.), After Preservation: Saving American Nature in the Age of Humans, University of Chicago Press, Chicago, IL, 2015, pp. 32–40, here p. 34.

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the law dealing with Canadian First Nations as we shall see below, the wild has fared somewhat better. At any rate, the preservation of the “wild” (supported as it is by several conventions and agreements, like the Convention on Biological Diversity), can be clearly contrasted with the approaches sanctioned by the policies prevalent in the “Anthropocene”: the wild, or the areas minimally impacted or disturbed by human activities, can be understood as another expression to designate areas of ecological integrity. Dave Forman cites the US Wilderness Act as follows: An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining primeval character and influence, without permanent improvements of human habitation, which is protected and managed so as to preserve its natural conditions, which (1) generally appears, to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable.340

There are several problems with this definition, the first of which the limited emphasis, as only American natural systems are considered, because the Wilderness Act is a US document. The second is even more problematic, as it defines human interference as “improvement,” more or less permanent, which recalls the words of John Locke. Of course Locke’s idea of “improvement,” though often understood or explained as any sort of economic/industrial development, is no such thing. The thought underlying that position is clearly in evidence in the second Treatise, as he speaks of the state of nature: The state of nature has a law of nature to govern it, which obliges everyone, and reason, which is that law, teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm another in his life, health, liberty or possession.341

Qualifying words in italics emphasis added; Dave Froman, “Anthropocene and the Ozymandias,” in Ben A. Minteer and Stephen J. Pyne (eds.), After Preservation, Chicago University Press, Chicago, IL, 2015, pp. 50–58, here p. 54. 341 John Locke, 1689, Two Treatises of Government, Awnsham Churchill, London, 2, 6. 340

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Hence property is based upon one’s efforts, as it is a natural right as when a man picks up an apple fallen from a tree, and that action is understood as the man’s input, his “labour.” Nevertheless, he says, when asked whether “anyone may amass as much as he likes,”342 “The same law of nature that doth by this mean give us property does also bound that property too.”343 But “the fruits of the earth are given for use and enjoyment”:344 “as much as anyone can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: Whatever is beyond this is more than his share and belongs to others.”345 Hence the capitalist quest for endless growth is not justifiable, even according to Locke who is perhaps the main proponent of the theory of the right to property. No doubt we can adapt the same approach to the quest and the need for water or land, thus the intrusion of unnecessary “development” activities into the wild. Such intrusions not only harm the integrity of the wild, but also its ability to continue to develop along its own evolutionary trajectory. Thus, what is beyond “our share,” is not ours to grab, alter, make into products for sale, for our eventual profit: it simply “belong to others.” When the natural product is either water or land that had not been previously altered, we can argue that not only this or that area of nature belongs to others, but the “natural service originating from those areas, also belong to others, morally if not legally.” Perhaps, as we consider the grave impact we have upon landscapes almost everywhere, it becomes clear that beyond the interest in and respect for famous old US parks, beyond the admiration for the wonders of wildlife that needs the wild to survive, there is the question of survival in general. General considerations of the survival of all life is tied inescapably to the preservation of ecological integrity and the wild, in quantities necessary from several points of view.346 That is the link between a scientific truth, one 342

Frederick Copleston, The History of Philosophy, vol. 5: Modern Philosophy, Doubleday & Co., New York, 1964, p. 140. 343 Locke, Two Treatises of Government, 2, 21. 344 Copleston, The History of Philosophy, p. 140. 345 Locke, Two Treatises of Government, 5, 31; italics added. 346 Reed Noss and Alan Cooperrider, Saving Nature’s Legacy, Island Press, Washington, DC, 1994;

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that has been deliberately misconstrued, even hidden for decades, and a moral obligation to preserve life, in direct conflict with our current legal regimes designed for the protection of economic interests and the states bureaucracies that are complicit with them. The laws we need to change drastically must be brought in line with the major principle on which all laws are based: the protection of the right to life. When the right to life extends to all life on Earth then the absence of a specific “victim” or even the absence of a well­defined “crime,” should not hold us back from insisting that clearer and more exhaustive instruments be designed to cover all attacks on life.

5.2. Ecocrimes and Water: The International Law of the Sea While occurring in various fields and different orientations, this process is governed by the factor which characterises the whole evolution of international law of the sea, that is the trend towards progressive erosion of the freedom of the sea.347

Most environmental disasters are land-related, both regarding the initial causality and the effects that ensue, although some cases of extreme pollution at sea regularly make the news. As well, most environmental legal regimes are related to land issues and eventually have to give way to agreements among interested parties (without any binding regulations; the final arbiters, as we shall see, are tribunals staffed by economists and lawyers, without a- single biologist, ecologist or qualified conservation or environmental scientist involved. This status quo underlies the “utilization of resources,” whether explicitly stated or implicitly understood, which is and has been the guiding light for most regulations. A rare exception can be found in the US Clean Water Act (US 1972) and the Great Lakes Water Quality Agreement,348 both Reed Noss, “The Wildlands Project: Land Conservation Strategy,” Wild Earth Special Issue (1992), pp. 10–25. 347 Tullio Scovazzi, “The Evolution of International Law of the Sea: New Issues, New Challenges, in Hague Academy of International Law,” Recueil des cours 286 (2001), pp. 39–243. 348 United States–Canada agreement on Great Lakes Water Quality with Annexes, 30 UST 1383,

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of which support biological integrity of water, but are far less influential than International UN agreements. Any law related to the sea was originally guided by the principle of the freedom of the seas, that is, “the needs of navigation and of so-called other internationally lawful uses of the sea,” now it needs to be understood in the light of the common interests in the protection of “marine resources.”349 Of course, in Grotius’s time, nobody had in mind the problems posed by supertankers, nuclearpropelled vessels, off-shore drilling, mining for polymetallic nodules, fishing with driftnets and many other activities which take place in the marine environment today.350

Thus, while the sea itself is getting inexorably prey to all forms of hazardous pollution, from the all-pervasive presence of plastic waste, to that of pesticides present and past that bioaccumulate in the body of large mammals such as DDT, the principle of the freedom of the sea must be put in question through effective legal regimes. Historically, the “concept of territorial sea” in the eighteenth century, a concept intended to protect the interests of the coastal states, was the first erosion of that freedom, as many novel activities and issues continued to emerge. Most of the states who accepted and ratified UNCLOS351, believe that its provisions should be interpreted “in an evolutionary way,” and that it is important to accept that the traditional links to the past should not be taken to render its mandates “immutable.”352 For instance, some considered it necessary to regulate the transit by sea of vessels carrying highly radioactive substances and the 1995 UN Fish Agreement353, contradict directly then principle of the freedom of the high seas.

in force 27 November 1978, rat. 1988. Scovazzi, “The Evolution of International Law of the Sea,” p. 229. 350 Ibid., p. 228. 351 UN Convention on the Law of the Sea (Montego Bay) 21 ILM (1989) in force 16 November 1994. 352 Scovazzi, “The Evolution of International Law of the Sea,” p. 232. 353 UN Agreement Related to the conservation and Management of Straddling Fish stocks and Migratory Fish Stocks, 34 ILM 1542, in force 11 November 2001. 349

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Hence the international law of the sea must adapt to modern necessities. However there is at least one aspect of UNCLOS that represents a step forward for the use of marine living resources354, as Article 3 sets up a “twelve-mile limit of the territorial sea.” In addition, Articles 55–57 establish the Exclusive Economic Zones (an area not exceeding 200 nautical miles from the low-water baseline of the territorial sea,” in order to provide a “more effective basis for conservation.”355 Finally, the “continental shelf” (Article 77) is where a lot of marine life is found, hence protection is needed for those areas. Article 118 “spells out a duty to cooperate in the management of high seas fisheries and it requires states to “enter into negotiations with a view of taking the measures necessary for the conservation.”356 However, as we quickly review some aspects of the law of the sea, we note that what is respected and protected is the economic interest of the coastal states first, then – at best – the economic interests of the weaker states. In contrast, ecologists are concerned with the biological integrity of the aquatic systems, its flora and fauna is not even mentioned in international law of the sea instruments, as it is instead in the Great Lakes Water Quality Agreement. In other words, the physical aspects of the natural marine systems also share an overarching legal system, but they are left to a number of treaties each addressing a specific form of ecological hazard or pollution, from the 1963 Treaty Banning Nuclear Weapon Tests under Water;357 to the 1969 International Convention for Oil Pollution;358 to the 1973 International Convention for the Prevention of Pollution by Ships;359 as well as conventions for specific sea areas, such as The Mediterranean (1976);360 or 354

Birnie et al., International Law and the Environment, p. 715. Ibid., pp. 716–717. 356 Ibid., p. 720. 357 Treaty Banning Nuclear Weapon Tests in the atmosphere, in Outer space and under water (Moscow) 480 UNTS 3 (1964), in force 10 October 1963. 358 International Convention on Civil Liability or Oil Pollution Damage (Brussels) 973 UNTS 3, in force 19 June 1975. 359 International Convention for the Prevention of Pollution by Ships (MARPOL) (London) UKTS 27 (1983, 12 ILM (1973) 1319; Amended by Protocol of 1978. 360 Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona) 15 ILM 976 in force. 355

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the 1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region;361 or the 1992 Convention on the Protection of the Baltic Sea.362 Examples could be multiplied, but harms to the marine environment continued unabated as the effects of pollution from multiple sources escalate., from the arctic to the Indian Ocean, where the surroundings of the Chagos Islands have been called a “legal black hole”363 because of the high and uncontrolled pollution and the death of the area’s famed coral reefs, among other issues. Thus, not only is the international law of the sea represented by a fragmented understanding of the multiple issues that threaten the integrity of the sea, much as we fine in relation to land issues; it is also divided for the protection of discrete areas of the world, which is futile, as it would be to attempt to guard and defend the air quality of discrete regions, rather than acknowledging that there are no impassable borders in either air or water, so that the harms that result from weak and fragmented protection are global, and we will explore the direct harms to humanity from these environmental disasters in the chapters that follow. For now we will review the legal instrument and regimes that are intended to protect the environment and our natural systems as a whole.

6. CRIMES AGAINST HUMANITY AND THE COMMON HERITAGE OF HUMANKIND The international community has developed several types of legal regimes to govern natural resources. In general terms these include:

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Cartagena de Indias, 22 ILM (1983) 221. Convention of the Protection of the Marine Environment of the Baltic Sea area (Helsinki), in force 17 January 2000. 363 Peter H. Sand, “Diego Garcia: British American Legal Black Hole in the Indian Ocean,” Journal of Environmental Law 21(1) (2009), pp. 113–137; Sand, Peter H., United States and Britain in Diego Garcia, Palgrave Macmillan, New York, 2009. 362

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recognizing property as the common heritage of mankind – or, to use a more contemporary phrase the Common Heritage of Humankind (CH) – whereby all manage resources and share in the rewards of exploiting them, even if they are not able to participate in that exploitation.364

In this section we will consider the Common Heritage of Mankind Principle (CH) as the principle which should exhibit the strongest, most protective characteristics of any international legal regime, there: as well, it should represent the best antidote to the principle of “economics and trade first” that one demonstrated in the position and the decisions of the WTO, as we shall see. Yet even the CH in the formulation cited, speaks of “natural resources” as “property,” to be “managed” and exploited, so that the common aspects appear to reflect exploitation, not preservation for the future of mankind. The integrity of natural systems, taking into consideration the irreparable damages inflicted by fragmentation, needs to be considered a unitary, common heritage, that is, a united “heritage” of the greatest value, a value that is only such for humanity, if it is not “managed” or “exploited” today, without losing its value for mankind in the future. I would argue that the CH, in its primary sense, encompasses historical, traditional value, existing in the past, but extending as it is into the future. Speaking of the CH, Noyes asks: “What are its component elements?,” and “What is its legal status?.”365 The first clear element pertains to its range of application: it pertains to areas “beyond the limits of national jurisdiction and to natural resources found there.”366 For that reason its clearest areas of application are to be found in the 1982 Law of the Sea,367 and the 1979 Agreement Governing the activities of States on the Moon and other Celestial Bodies,368 these areas, especially the John E. Noyes, “The Common Heritage of Mankind: Past, Present and Future,” Denver Journal of International Law and Policy 40(1–3) (2012), pp. 447–471, here p. 447. 365 Ibid., p. 448. 366 Ibid., p. 449. 367 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397 (LOS Convention). 368 1979 Agreement Governing the activities of States on the Moon and Other Celestial Bodies, 364

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one defined in the LOS, is “defined as the seabed and ocean floors and subsoil thereof, beyond the limits of national jurisdiction.” These treaties incorporate the ideals by the principle and the concepts present in its development through history: In 1995, Malta invoked the CH principle in proposing that the UN Trusteeship Council be transformed “from a guardian of dependent territories to a body that acts as guardian and trustee of the global concerns and the common concerns in the interest of present and future generations, a proposal directed at conserving the international environment.369

However, without the protection of ecological integrity, neither the “interests of future generations,” nor the “international environment” will be protected for the future. That is the case argued in the previous chapters of this work. Yet, the understanding which follows upon the previous remarks of the author (Noyes) who cites this important letter, include such concepts as “exploitation” although that concept appears to conflict with the language of the Letter of Malta the author also cites. It is interesting to consider the three elements Noyes cites as “the elements of the CH principle”: • • • • •

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a prohibition of acquisition of, or exercise of sovereignty over, the area or resources in question; the vesting of rights to the resources in question in humankind as a whole; reservation of the area in question for peaceful purposes; protection of the natural environment; an equitable sharing of benefits associated with the exploitation of the resources in question, paying particular attention to the interests and the needs of developing state; and governance via a common management regime.

Art. 11, 5 December 1979, 1363 UNTS 3 (Moon Treaty). Noyes, “The Common Heritage of Mankind,” p. 450, citing the Letter from the Permanent Rep. of Malta to the United Nations to the Secretary-General (2 June 1995), UN Doc. A/50/142, at 3 (16 June 1995).

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When we consider each element separately, it is clear that some support the interpretation here proposed as primary. For instance, the denial of the exercise of sovereignty (limited though it appears to be); the rights to the resources being vested in “humankind as a whole” (and the concept does not limit humankind to the presently existing human); the emphasis on peaceful purposes; the protection of the natural environment; but “sharing benefits” is not beneficial if the benefits in question are related to the economic exploitation of the resources, thus to their possible diminution or even elimination in relation to future. Perhaps we need to apply our conceptual analysis more stringently to the various “elements” in order not to tacitly allow the presence of conflicting elements both within the principle and in relation to the protection of integrity. The concept of CH implies first of all (a) something of great value; and (b) something that is to be inherited by humankind. An example might be for instance a great artwork, such as the Davide by Michelangelo (presently in the Galleria dell’Accademia in Florence), or the Mona Lisa (presently in the Louvre in Paris): it is easy to agree that such masterpieces represent part or elements of the common heritage of mankind. But it is difficult to speak of “exploiting” them, beyond showing them in a museum or art gallery. Their “benefits” cannot be shared literally, to enrich individuals or communities, except insofar as these masterpieces enrich humanity as a whole, provided they are not tampered with. The same understanding persists also in the “immaterial” or – better yet – the “intangible cultural patrimony of humanity.”370 What are the elements of this aspect of the CH principle? There are five elements that define the Intangible Cultural Heritage: (a) oral traditions and expressions, including language as vehicle of the intangible cultural heritage;

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This change of language is explained by Tullio Scovazzi: the French expression “immatériel” should not be translated literally as “immaterial” given the connotation of that term as “unimportant” in the English language; Tullio Scovazzi, “La Convenzione per la Salvaguardia del Patrimonio Intangibile,” in Tullio Scovazzi, Benedetta Ubertazzi and Lauso Zagato (eds.), Il Pa trimonio eulturale Intangibile nelle sue Diverse Dimensioni, Giuffrè Editore, Milan, 2011, pp. 3–27, here p. 4.

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(b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices including nature and the universe: (e) traditional craftsmanship.371

The major masterpieces mentioned above, like major works of poetry, philosophy or music, are unitary, they continue to enrich humanity only as long as no one interferes with their integrity: dividing a painting or a musical score in many parts in order to apportion the various parts to members of the human collectivity would destroy the works. But performances, practices and traditional events are such that different communities could “share” in the sense of participating at different times and places: they do not need the same integrity and unity as the masterpieces named above. Hence it is vital to confront what I consider to be the most basic aspect of the CH principle: its protection of the greatest values in their original form, and its supreme respect for the past, its traditions and its historical persistence into the future. As well, we cannot forget its clear defence of the rights pf humanity as a whole, against the partisan and mostly short-sighted interests of sovereign states. In this sense it is perhaps the only instrument that explicitly embraces the UN Declaration of Human Rights, in its protection of what is pre-eminently valuable for all of us, thus repeating the UN’s words, “We, the people. …” In fact, if we reflect on this brief analysis, the elements and components of the CH principle may well be more diverse than those for which we argued for ecological integrity, because they include cultural and artistic elements beyond the biological/ecological ones defended by the principle of integrity.372 Yet these purely human aspects do not negate the primacy of those that are exclusively biological, any more than all human right, be they political, social or cultural, depend exclusively on the existence and the primacy of the right to life, without which no further human activity or interest is possible.

“Prefazione: La Dimensione Interdisciplinare del Patrimonio Culturale e Intangibile,” in Scovazzi et al., Il Pa trimonio eulturale Intangibile nelle sue Diverse Dimensioni, pxvii. 372 Westra, The Principle of Integrity. 371

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Judge Christopher Weeramantry has argued for the indivisibility of the concept of human rights in all its aspects and applications373 so that life, health and the ability to function and think like a human depend absolutely on the biological integrity of each human being.374 Whether or not this Convention could be modified or at least interpreted to protect natural systems and preserve them in their original state, or at least used to curb disturbances as much as possible, the reality now is that it is not the 2003 UNESCO Convention, but the World Trade Organization (WTO), that is the final arbiter of decisions affecting nature, when disputes arise, and we will return to that topic below. In the next chapter we will consider the intergenerational aspects of the present situation.

REFERENCES Aminazadej, S. C., “A Moral Imperative: The Human Rights Implications of Climate Change,” Hastings Comparative Law Review 30 (2007), pp. 231–265. Anghie, Thomas, Imperialism, Sovereignty, and International Law, Cambridge University Press, Cambridge, 2006. Bassiouni, Cherif, Crimes Against Humanity, Cambridge University Press, Cambridge, 2011. Bell, Warren, “Whistleblowing Albert Oil Sands Doctor Fired Abruptly,” retrieved on 11 January 2017 from www.nationalobserver.com/ 2015/05/11/opinion/whistleblowing-alberta-oil-sands-doctor-firedabruptly. Benvenuti, Paolo, “International Humanitarian Law and the Means for Improving Its Effectiveness: A Comprehensive Appraisal,” in I.

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C. Weeramantry, 1997, Separate Opinion, Gabikovo-Nagymaros Arbitration. Alan Gewirth, Human Rights Essays on Justification and Applications, University of Chicago Press, Chicago, IL, 1982, esp. pp. 5–7; see also Laura Westra, “Environmental Rights and Human Rights: The Final Enclosure Movement,” in Roger Brownsword (ed.), Global Governance and the Quest for Justice, vol. 4, Hart Publishing, Oxford, 2004, pp. 107–121.

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Papanicolopulu and T. Scovazzi (eds.), Quale Diritto nei Conflitti Armati, Giuffrè Editore, Milan, 2008, pp. 3–44. Birnie, Patricia, Boyle, Alan, and Redgwell, Catherine, International Law and the Environment, 3rd edition; Oxford University Press, Oxford, 2009. Bosselmann, Klaus, The Principle of Sustainability, Ashgate, Aldershot, 2008. Bosselmann, Klaus, Earth Governance, Edward Elgar, Cheltenham, 2015. Brown, Donald, Navigating the Perfect Moral Storm, Routledge, Abingdon, 2012. Charles, W., and VanderZwaag, D., “Common Law and Environmental Protection: Legal Realities and Judicial Challenges,” in Elaine Hughes, Alastair R. Lucas and William A. Tilleman (eds.), Environmental Law and Policy, 2nd edition, Edmond Montgomery Publications, Toronto, 1998, pp. 80–98. Copleston, Frederick, The History of Philosophy, vol. 5: Modern Philosophy, Doubleday & Co., New York, 1964. Davidson, E., “Economic Oppression as an International Wrong or as a Crime Against Humanity,” Netherlands Quarterly of Human Rights 23(2) (2005), pp. 173–212. Devlin, Sir Patrick, “The Enforcement of Morals,” in Robert M. Baird and Stuart E. Rosenbaum (eds.), Morality and the Law, Prometheus Books, Buffalo, NY, 1998 [1959], pp. 13–36. Ferreras, Jesse, “John O’Connor, Fort Chipewyan Doctor, Fired with No Explanation,” The Huffington Post (12 May 2015), retrieved on 11 January 2017 from www.huffingtonpost.ca/2015/05/12/john-oconnorfort-chipewyan-doctor-oilsands_n_7267136.html. Fletcher, George, Rethinking Criminal Law, Little Brown, Boston, MA, 1978. Froman, Dave, “Anthropocene and the Ozymandias,” in Ben A. Minteer and Stephen J. Pyne (eds.), After Preservation, Chicago University Press, Chicago, IL, 2015, pp. 50–58. Gewirth, Alan, Human Rights Essays on Justification and Applications, University of Chicago Press, Chicago, IL, 1982.

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Hart, H. L. A., “Immorality and Treason,” in Robert M. Baird and Stuart E. Rosenbaum (eds.), Morality and the Law, Prometheus Books, Buffalo, NY, 1998 [1959], pp. 47–53. Karr, J., “Assessment of Biotic Integrity Using Fish Communities,” Fisheries 6(6) (1981), pp. 21–27. Karr, J. R., “Ecological Integrity and Ecological Health are not the Same,” in P. Schulze (ed.), Engineering within Ecological Constraints, National Academy Press, Washington, DC, 1996, pp. 97–109. Klein, Naomi, This Changes Everything, Allen Lane, London, 2014. Lacey, Nicola, Criminal Responsibility, Oxford University Press, Oxford, 2016. Luban, David, “A Theory of Crimes against Humanity,” Yale Journal of International Law 29 (2004), pp. 85–168. Meadows, D. H., Meadows, D. L., and Randers, J., Beyond the Limits, Chelsea Green Publishing, Pest Mills, VT, 1992. Noss, Reed, and Cooperrider, Alan, Saving Nature’s Legacy, Island Press, Washington, DC, 1994; Noss, Reed, “The Wildlands Project: Land Conservation Strategy,” Wild Earth Special Issue (1992), pp. 10–25. Noyes, John E., “The Common Heritage of Mankind: Past, Present and Future,” Denver Journal of International Law and Policy 40(1–3) (2012), pp. 447–471. Office of the High Commissioner for Human Rights, A New Climate Change Agreement must Include Human Rights Protection for All, 27 October 2014, retrieved from www.ohchr.org/documents/HRBOdies/SP/ SP_To_UNFCCC.pdf. Rolston III, Holmes, “After Preservation? Dynamic Nature in the Anthropocene,” in Ben A. Minteer and Stephen J. Payne (eds.), After Preservation: Saving American Nature in the Age of Humans, University of Chicago Press, Chicago, IL, 2015, pp. 32–40. Sachs, Wolfgang, “Preface to the New Edition,” in Wolfgang Sachs (ed.), Development Dictionary, Zed Books, London, 2009, pp. iii–xv. Sand, Peter H., “Diego Garcia: British American Legal Black Hole in the Indian Ocean,” Journal of Environmental Law 21(1) (2009), pp. 113– 137.

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Sand, Peter H., United States and Britain in Diego Garcia, Palgrave Macmillan, New York, 2009. Sands, Philippe, Lawless World, Allen Lane, London, 2006. Saro-Wiwa, Ken, “Human Rights, Democracy and an African Gulag,” unpublished talk, New York, 2 March 1994. Saro-Wiwa, Ken, “Right Livelihood Award Acceptance Speech,” unpublished talk, Stockholm, 9 December 1994. Scovazzi, Tullio, “The Evolution of International Law of the Sea: New Issues, New Challenges, in Hague Academy of International Law,” Recueil des cours 286 (2001), pp. 39–243. Scovazzi, Tullio, “La Convenzione per la Salvaguardia del Patrimonio Intangibile [The Convention for the Safeguarding of Intangible Heritage],” in Tullio Scovazzi, Benedetta Ubertazzi and Lauso Zagato (eds.), Il Pa trimonio eulturale Intangibile nelle sue Diverse Dimensioni, Giuffrè Editore, Milan, 2011, pp. 3–27. Shiva, Vandana, Staying Alive, Zed Books, London, 1988. Shrader-Frechette, Kristin, and McCoy, Earl D., Method in Ecology, Cambridge University Press, New York, 1993. Stiglitz, Joseph E., Globalization and its Discontents Revisited, W. W. Norton and Company, New York, 2018. Toronto Star, “Lessons from the Year of Post-Truth Politics,” Editorial, The Toronto Star (27 December 2016), retrieved from www.thestar.com/ opinion/editorials/2016/12/27/liessons-from-the-year-of-post-truthpolitics-editorial.html. Weinstein, Tara, “Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?” Georgetown International Environmental Law Review 17 (2004–2005), pp.697–722. Westra, Laura, The Principle of Integrity, Rowman & Littlefield, Lanham, MD, 1994. Westra, Laura, Living in Integrity, Rowman & Littlefield, Lanham, MD, 1998. Westra, Laura, Pimentel, David, and Noss, Reed, (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000.

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Westra, Laura, Ecoviolence and the Law, Brill, Leyden, 2004. Westra, Laura, “Environmental Rights and Human Rights: The Final Enclosure Movement,” in Roger Brownsword (ed.), Global Governance and the Quest for Justice, vol. 4, Hart Publishing, Oxford, 2004, pp. 107–121. Westra, Laura, Environmental Rights and the Rights of Indigenous Peoples, Earthscan, London, 2007. Westra, Laura, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, 2009. Westra, Laura, “Life, Health and the Environment, The Denied Connection,” in Laura Westra, Colin L. Soskolne and Donald W. Spady (eds.), Human Health and Ecological Integrity, Earthscan, London, 2012. Westra, Laura, Faces of State Terrorism, Brill, Leyden, 2012. Westra, Laura, The Supranational Corporation, Brill, Leyden, 2013. Westra, Laura, Ecological Integrity and Global Governance, Routledge, London, 2016. Westra, Laura, and Wenz, Peter, Faces of Environmental Racism, Rowman & Littlefield, Lanham, MD, 2012.

Chapter 3

CRIMES AGAINST HUMANITY AND THE RIGHT TO HEALTH 1. INTRODUCTION The area of environmental harms that demonstrates most clearly their status as crimes against humanity is the realm of public health. There is a direct, easily demonstrable connection between environmental pollution and human exposures which results in physical, mental or developmental harms. These harms affect us in numerous ways, only some of which are acknowledged and accepted as justiciable by governmental and legal authorities. When these harms reach the courts, the lack of appropriate categories under which to exact punishment, means that it is very seldom, if ever, that those from whom environmental harms originated are brought to justice. According to epidemiology, in order to protect whole populations, the only risks acceptable should be the ones that are proven to be safe for the most vulnerable of those populations as we shall see in the next section. In that manner, all others will be safe from risk. Hence, in this chapter we will discuss first the environmental exposures that affect children, as these are

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key to ensure the elimination of the multiple harms that – arguably, should be viewed as environmental disasters, hence as crimes against humanity. Starting with the Convention on the Rights of the Child (1989), we will trace the interface between the rights of the child and intergenerational justice, defends equally the rights of the child, given that children represent the first of all future generations. Thus it is easy to see why the child has a clear, positive right to protection, from the time when the child is most vulnerable, that is, during the perinatal period. It is during this period that the child present and future development are decided, according to the possible toxic exposures that will determine the child’s health far into the future, as we shall see. At this time, it is necessary to face the severity of the possible harms imposed according to the exposures the child has faced. We then must accept various forms of causal responsibility which, according to the analysis of H. L. A. Hart, reach far beyond the immediate causality that we normally accept. Once the causal chain is uncovered, the breaches of the right to health, combined with the attacks on other human rights of the child, including the right to life, represent a widespread, and presently unacknowledged environmental disaster, so that the possibility of involving the World Health Organization (WHO) appears highly desirable. The WHO could propose a novel Framework Convention for Global Health, intended to be as far reaching in its prohibition of noxious industrial exposures, as is the present Framework Convention Against Tobacco.

1.1. Environmental Disasters and Public Health: The Role of Epidemiology Epidemiologists must strive to conduct the highest quality of unbiased research and to recognize influences that may impair objectivity. Another core value is to assist environmental health practitioners and policy makers in advancing the health and welfare of the general public and of groups unusually exposed susceptible, or traditionally marginalised sub-groups, particularly when they are disadvantaged in other ways as well. These

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include vulnerable groups such as the foetus and young children. They have little voice and no vote and it is important to consider the long-term implications of today’s policy decisions on their future health. 375

It is important to start noting the role of epidemiology as the discipline that investigates clusters of emerging diseases and alerts public officials to emerging or worsening diseases and the circumstances surrounding the problem. They are best positioned to identify causes and to recommend interventions such as to see conditions change so that the disease seen lessens by going into decline. They provide, sine dubito, the major warning system for community/population health. Through understanding causality, epidemiologists are most qualified among the health professionals to recommend the removal of present ongoing exposures. Unlike medical doctors/physicians who deal with individual patients and are thus immersed in health care, epidemiologists are concerned with community/population health: the underlying conditions of health are the main concern of the epidemiologist. A critical role of this discip1ine from the environmental health perspective lies in its methods for determining causality and thus being best positioned to recommend preventive strategies that serve the public interest. Through this role, environmental disasters may be averted. Where resistance to the recommendations put forth by epidemiologists is rejected by the perpetrators of such harms, this may be considered a crime against humanity.376 Because of the importance of the discipline its practitioners are often under attack from various interested parties and their commitment to science and truth is tested both in their publications and in the courts. Rodolfo Saracci says: Hazard identification is a major theme and challenge from environmental epidemiology often fuelling heated debate as the recent and ongoing case of glyphosate carcinogenicity shows. Debates arises in the first place because the hazard identification process is inherently complex 375

International Society for Environmental Epidemiologists, Ethics Guidelines, 2012, retrieved from ethics.iit.edu/codes/Final ISEE Guidelines.pdf. 376 Colin Soskolne, unpublished manuscript on hand with the author, August 2017.

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Saracci lists the major difficulties that may affect the integrity of the work of the epidemiologist: “(1) hazard and risk terminology; (2) scientific questions versus scientific hypotheses; (3) assumptions and (4) conflicts of interest.”378 The general public is certainly aware of number 4, concerning the Goliaths of industry, whose interests are threatened by the Davids of science.379 Clearly the specific terminology employed by epidemiologists lends itself to questions, both honest ones intent upon seeking the truth in a situation, and malicious ones, commonly used to muddy the waters and create doubt. The artificial creation of doubt to discredit any truth that might be uncomfortable for the corporate community has now been unmasked and acknowledged at least in regard to climate change some years ago.380 Donald Brown notes the increasing human power through multiple technologies, coupled with the increasing lack of moral values in public life, as the prevailing economic interests fight to prevent the imposition of restraints of any kind: “There are some human activities about which time or economic resource constraints prevent resolving controversies about

Rodolfo Saracci, “The Hazards of Hazard Identification in Environmental Epidemiology,” Environmental Health 16 (2017), article 85, retrieved from https://ehjournal.biomedcentral.com/articles/10.1186/s12940-017-0296–3. 378 Ibid. 379 Colin Soskolne, “David v. Goliath: Voluntary Professional Societies of Epidemiology and the Industrial Juggernaut,” in L. Westra, J. Gray and A. d’Aloia (eds.), The Common Good and the Role of Ecological Integrity in the Support of Life, Earthscan, London, 2016, pp. 119– 128. 380 Donald Brown, “Lessons Learned from the Climate Change Disinformation Campaign,” in Laura Westra, Prue Taylor, Agnes Michelot (eds.), Confronting Ecological and Economic Collapse, Earthscan from Routledge, London, 2013, pp. 81–91; R. E. Dunlap, and A. M. McCright, “Climate Change Denial; Sources, Actors and Strategies,” in C. Lever-Tracy (ed.), Routledge Handbook of Climate Change and Society, Routledge, Abingdon, 2011, pp. 240– 259; P. Jacques, R. E. Dunlap and M. Freeman, “The Organization of Denial: Conservative Think-Tanks and Environmental Skepticism,” Environmental Politics, 17 (2008), pp. 349– 385; N. Oreskes, and E. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, Bloomsbury Press, New York, 2010. 377

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harm, and yet these activities greatly threaten human health and the environment.”381 Disinformation campaigns have been going on now for several decades, regarding the acknowledged environmental disaster that is climate change. Many of the authors who have been analysing and discussing the various forms of disinformation, outright lies and the well-funded campaigns to discredit all scientific information that emerges, compare the political power of corporations, that actively delayed for decades the facts regarding the harm of smoking. Eventually science and the work of the WHO prevailed and the Framework Convention against Tobacco was enacted, but not before millions had died. Those deaths could certainly count as a public health disaster, although, unlike the scientific truths that emerge from epidemiology regarding industrial/chemical exposures, one could say that tobacco is a choice (at least at the start, before addiction takes over), not an exposure imposed from outside agencies. But the history of tobacco, like that of climate change, show exactly how and why attacks on science are perpetrated. Saracci relates his Organization’s experience with the vexed question of carcinogenicity, such as the example of IARC’s “Monographs on the Evaluation of Carcinogenic Risks to Humans,” and the subsequent steps taken from different sources, “economical, ethical and political” which tend to modify the understanding of the risk, often in ways contrary to public health requirements.382 The difference between “scientific questions” and “testable hypotheses” tend to demonstrate the fact that epidemiology is not an exact science. If you consider the public’s and even the policy-makers lack of specific information regarding scientific questions in general, it is easy to understand the many areas where even accepted scientific information is open to attacks: To appreciate the gulf separating the scientific question from the testable hypothesis, it can be recalled that in the first ten to twelve years

381 382

Brown, “Lessons Learned from the Climate Change Disinformation Campaign,” p. 81. Saracci, “The Hazards of Hazard Identification in Environmental Epidemiology.”

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Thus even what constitutes “complete information on a hazard” is not a simple issue as epidemiology provides a number of different studies, all of which also must include the assumptions of the researchers. The question of thresholds is an equally vexed one affecting “quantitative risk assessment”384 hazard identification. refers to the human population, not to an individual. Even this superficial review of the many points open to attack in the various aspects of the work of epidemiologists show how the doubt industry can question even solid scientific information, although “beyond the shadow of a doubt” is a category pertaining to the perpetrators of grave harms, not to a science that never suggested it could deliver answers with mathematical precision. In addition to all these difficulties, we have the biggest obstacle to the clear distribution of scientific information. In the 2009 definition by the USA Institute of Medicine, “Conflicts of interest are defined as circumstances that create a risk that professional judgments or actions regarding a primary interest will be unduly influenced by a secondary interest.”385 All these difficulties contribute to the vulnerable position in which epidemiology finds itself against the powerful corporate interests who want their products to be viewed as safe and benign, rather than to allow the public to learn the real extent of the many harms wrought by the exposure to such products. Public health is at stake everywhere as truth and scientific integrity are under attack without legal protection. Epidemiologists as well as those concerned with biomedical research therefore, consider a first order principle of obligation to “protect the most vulnerable in society” (e.g., unborn children, Indigenous peoples” and others),386 which entails that 383

Ibid. Ibid. 385 B. Lo, and M. J. Field (eds.), Conflict of Interest in Medical Research, Education and Practice, National Academic Press, Washington, DC, 2009; see also discussion in Saracci, “The Hazards of Hazard Identification in Environmental Epidemiology.” 386 Colin Soskolne, “Global, Regional and Local Ecological Change: Ethical Aspects of Public Health Research and Practice,” in F. Zolzer and G. Meskens (eds.), Ethics of Environmental 384

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protection for the most vulnerable results in the best protection for all of society. At any rate every major public health organization tends to go through the motions of ensuring that their decisions are based upon real science, for instance, by not considering “using a paper in its deliberations if it has not undergone peer-review. Articles that have been published in peer-reviewed journals are assumed, often mistakenly, to be high quality. This is not necessarily so.”387 Michaels adds that there is now slew of “captured journals.”388 In fact the highly impressive Regulator Toxicology and Pharmacology which is the official mouthpiece of the International Society for Regulatory Toxicology and Pharmacology (ISRTP), is nothing but an association dominated by scientists who work for industry groups and consulting firms.”389 The director of that organization switched from being the director of a National Cancer Institute Program to a second career defending “Big Tobacco.”390 But “captured journals” with bogus “peer reviewed articles” are only the tip of the iceberg of junk science, which also serves the corporate interests in the courtrooms by using their own well-paid “experts” to testify for the courts. We will discuss the issue of imposing labels (or – as it was called in antiquity – “naming”) in Chapter 5, regarding the abuses of land grabbing. But the problem is equally cogent in this context as junk science, possessing the form but not the substance of sound science, “is a hodgepodge of biased data, spurious inference, and logical legerdemain … It is a catalog of every conceivable kind of error: data dredging, wishful thinking, truculent dogmatism and, now and then, outright fraud.”391 Most of the examples we can cite derive from the story of tobacco exposures, which is not quite germane to today’s toxic exposures, as none Health, Earthscan from Routledge, London, 2017, pp 3–16. David Michaels, Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, Oxford University Press, Oxford, 2008, p. 53. 388 Ibid. 389 Ibid. 390 Ibid., p. 54. 391 Ibid., p. 58; see also P. W. Huber, Galileo’s Revenge: Junk Science in the Courtroom, Basic Books, New York, 1993, pp. 2–3. 387

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of the latter are sought deliberately, but all are hidden in supposedly safe food, air and water, and are therefore unknowable and unavoidable, despite the efforts of public health professionals, who are themselves vulnerable at every turn: By its nature epidemiology is a sitting duck for uncertainty campaigns … Judgement is called for all along the way, so disciplined integrity is mandatory … the battle for the integrity of science is rooted in issues of methodology.392

Keeping in mind all these windows of opportunity for fraudulent attacks from powerful (but legal) entities, we must practice the greatest caution, as the number of health institutions that are absolutely reliable is – unfortunately – extremely limited, as aside from the WHO, one is hardpressed to name many others. At any rate, we will review some current health disasters: given the basis for their development, perhaps it will not be too hard, in the near future, to classify them as appropriate to join the remit of crimes against humanity.

1.2. Environmental Disasters and Public Health Today The disasters that arise when society is not protected are many and have been, for the most part, well-known for decades, by the WHO and other impartial agencies. Saracci is explicit and detailed about the problem of carcinogenicity and specifically, the problem of the pesticide glyphosate and the shameful lack of courage on the part of the international and European organizations that should pronounce themselves clearly on it and on other toxic substances minimally, by appealing to the precautionary principle although the evidence against glyphosate at least is overwhelming.393 392 393

Michaels, Doubt is Their Product, p. 61. See O. de Schutter, Final Report: The Transformative Potential of the Right to Food, UN Doc. GE.14-10537, Human Rights Council 25th session, 2014; World Health Organization, State of the Science of Endocrine Disrupting Chemicals: World Health Organization Summary for Decision Makers, World Health Organization, Geneva, 2012.

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The same approach should apply to the scientific reality of climate change, disregarding the corporate interests-funded campaigns, the doubt industry and their junk science, and all their efforts to discredit scientific findings. The unforgivable delays, the decades with no action and no improvements ensured that by now the international community may be too late to take steps to at least ameliorate the situation. Hence that environmental disaster is ongoing harming billions of people worldwide and the criminality of those who twisted scientific truths for decades is only now beginning to be recognized. A recent example is the fact that on 24 August 2017, The Guardian reported that for the first time a Russian tanker could sail through the Arctic without an icebreaker,394 and in the US, hurricane Harvey hits Houston Texas and other locations in August 2017, creating damages of epic proportions. In the previous section we noted the history of denial of tobacco harms, which delayed the enactment of the Framework Convention on Tobacco for decades, causing billions of unnecessary deaths as well. The chemical industry with its many branches and powerful tentacles everywhere inflicts terrible harms in too many ways, but despite the abundant evidence that exists, there are still no government controls, while they are allowed to continue their practices and strategies intended to avoid controls. An example may be the physical, mental and emotional harms perpetrated by mercury pollution, well-known since methyl-mercury was released in water in the early 1950s around the Mianamata Bay in Japan. Philippe Grandjean explains how mercury damages the unborn child’s brain, but does not harm the mother: The pollution problems in Minamata started in the early 1950s when residents in the Japanese fishing village began to show symptoms of a mysterious disease: sensory disturbances of the lower legs, lower arms, tunnel vision, deafness, ataxia (difficulty coordinating movements) and dysarthria (difficulty in speech) …

394

Patrick Barkham, “Russian Tanker Sails Through Arctic without Icebreaker for First Time,” The Guardian (25 August 2017), retrieved from www.the guardian.com/ environment/2017/24/aug/russian-tanker-sails-arctic-without-icebreaker-first-time.

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Consider the time elapsed between the first discovery of the chemical’s harms and the 16 August 2017 proclamation by the European Health Association: “An Historic Day: Minamata Convention enters into Force Today” (www.noharm-europe-org); the Convention had originally been signed in October 2013 but as it required 50 countries’ assent for ratification, and that was only reached in 2017. The Conference of the Parties to the Minamata Convention (COP1) took place from 24 to 29 September 2017 at the International Conference Centre in Geneva, committed to “make mercury history.”396 The problem returned also in Ontario, Canada, gravely affecting the First Nations of Grassy Narrows and White Dog Reserves, near Dryden, Ontario, where two pulp and paper plants (Dryden Paper Company Ltd, and Dryden Chemical Ltd, subsidiaries of Reed Paper Ltd of England were operating since the early 1960s).397 The Indigenous peoples of the two reserves were systematically poisoned, since the mainstay of their diet were the fish taken from the polluted waters in their communities, and some of the symptoms of the poisoning include statistically recorded increases in “violent and deviant behaviour,”398 added to the increases in cancers and other physical ailments. Grandjean discusses in detail the scientific aspects of the problem399 which appears to represent nothing less than a crime against humanity, that is, physical attacks, poisoning and mental harms normally leading to severe punishment for the criminal behaviour that produced those effects. One should think that such mass attacks, starting

395

Philippe Grandjean, Only One Chance (To Develop a Brain), Oxford University Press, Oxford, 2013, p. 47. 396 See www.mercuryconvention.org. 397 Laura Westra, On Hunger, Brown Walker, Irvine, CA, 2017, pp. 124–129. 398 L. West, “Mediated Settlement of Environmental Disputes: Grassy Narrows and White Dogs Revisited,” Environmental Law 18 (1987), pp. 131–150. 399 Grandjean, Only One Chance (To Develop a Brain), pp. 51–58.

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from exposures to the preborn, as well as mothers and children, should not be treated as torts and compensated accordingly, at best. Nor is this the only crime originating from an environmental disaster. We discussed various aspects of climate change, as well as the fact that it is now a universally acknowledged disaster. Still the causal aspect of industrial animal agriculture, a major source of the crime of land grabs, as we shall see in Chapter 5, is mostly being ignored. A number of recent reports demonstrate that there are few (if any) measures to restrain the practices that contribute to methane emissions, which are soaring instead:400 “Methane is 28 times more efficient than carbon dioxide at trapping heat from the sun, making short-term effects on global warming far more severe.” Although the concentrations of methane have been known to cause the effects described here, in the last few years methane concentrations have been surging. Hence these and too many other examples indicate that (a) despite all scientific efforts to ensure that the factual realties of chemical exposures are communicated to the public, most toxic exposures and other conditions that generate environmental (health) disasters persist unchanged or have worsened; and that (b) in order to ensure maximum protection to all, but especially to ensure that the source of those health disasters will be acknowledged not only through and in science, but also in law, it is imperative that those harms be identified from their inception in prebirth exposures. In fact, this is the reason why we seek to identify a category of victims which is ill-protected both in domestic and international law, as well as wrong choices, or as a category where no corporate effort can identify harmful lifestyles. As well, as we shall see, the thorough analyses that are emerging recently regarding children’s environmental health attest clearly to the lack of such scientific evidence in existing regulatory regimes. We will start by discussing the legal rights of the child.

400

Nike Knight, 2016, “Methane Emissions are Soaring, Report Finds, and Agriculture is to Blame,” retrieved on 27 August 2017 from www.commondreams.org/ news/2016/12/12/methane-emissions-are-soaring-report-find-and-agriculture-to-blame.

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2. FROM THE RIGHTS OF THE CHILD TO INTERGENERATIONAL JUSTICE This case, however, has a special and novel element, Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves and tor others of their generation and for succeeding generations, to file a class suit. Their personality to sue on behalf of the succeeding generations can only be based on the concept of inter- generational responsibility insofar as they right to a balanced and healthy ecology is concerned.401

This appears to be the only judgment that appeals specifically to intergenerational equity in intergenerational law. In general, appeals to future generation’s rights for ecological purposes and to preserve “environmental rights,” a nebulous concept according to most legal scholars, have wider implications than the protection of an area’s citizens, present and future, as they affect a much larger proportion of the Earth than this case assumes. From our point of view what is particularly important is the appeal to parens patriae doctrine, as the minors request explicitly the “protection of the State in its capacity as parens patriae.”402 Originally that doctrine had been used to solve inheritance problems, later for juridical use in cases that are medical and protective, and involve either minors or others incapable of acting on their own behalf. In this case, 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, hence emphasizing the links between the two major areas of concern of this work: children’s life and health, and the environment (at least in this chapter). Nevertheless, despite its explicit support or intergenerational justice and the use of parens patriae doctrine, subsequent cases did not follow in the footsteps of minors oposa. In 1997, the Courts in Bangladesh took an 401

Minors Oposa v. Secretary of the Department of Environment and Rural Resources, 33 ILM 173 (1994), Davide J. R.J., p. 200. 402 Ibid.

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opposite position.403 In this chapter we consider the crimes against humanity committed through the environment as attacks on human health, hence we started with a consideration of the way children are affected, and we will have to return to this topic below, because the gravest harms to humanity perpetrated through the environment attack children first, although they also persist through adulthood and old age. For now we consider the international aspects that result from disastrous environmental conditions because children are clearly the first of future generations. They also indicate precisely what are the necessities of future generations, what we can be certain they will need and what we can equally be certain they should not be exposed to, contrary to the sophistical approaches of those who claim future generations are so remote that we cannot even try to anticipate their needs.404 At any rate, the major work on intergenerational justice and the law is that of Edith Brown-Weiss.405 Hence it might be best to approach the topic with a review of the “Sustainable Development Symposium” where she revisits her 1990 and 1992 arguments and responds to the critiques brought against it, keeping in mind the understanding of development we have proposed: 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.406

403

Faroogue v. Governemnt of Bangladesh (1997) 49 DLR (AD) l. Richard De George, “The Environment, Rights and Future Generations,” in E. Partridge (ed.), Responsibilities to Future Generations, Prometheus Books, Buffalo, NY, 1981. 405 Edith Brown-Weiss, 1990, “Our Rights and Obligations to Future Generations for the Environment,” American Journal of International Law 84 (1990), pp. 198–207; Edith Brown-Weiss (ed.), Environmental Change and International Law, United Nations University Press, Tokyo, 1992; Anthony D’Amato, 1990, “Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility,” American Journal of International Law 84 (1990), p. 190. 406 Brown-Weiss, “Our Rights and Obligations to Future Generations for the Environment,” p. 198. 404

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What are the main characteristics of Brown-Weiss’s position? The first thing to note is that her proposal comprises both rights and duties, and that these include both “intragenerational” and “intergenerational” aspects.407 Intergenerational duties include the following obligations: (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) 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.”408 In addition, 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.409

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, as the proliferation of harmful chemicals, the exploitation Edith Brown-Weiss, “Intergenerational Equity: Toward an International Legal Framework,” in Nazli Choucri (ed.), Global Accord, MIT Press, Cambridge, MA, 1993, p. 333. 408 Paul A. Barresi, 1997, “Beyond Fairness to Future Generations: An Intergenerational Alternative to Intergenerational Equity in the Intergenerational Environmental Arena,” Tulane Law Journal 11(1) (1997), pp. 59–88, here p. 59. 409 Ibid., p. 60. 407

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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.410 In contrast, some have argued that both limitations on economic expansion and commercial activities on one hand, and the demand for increased respect for the preservation of endangered areas and species only represent a Western, imperialistic conceit, one that flies in the face of the South’s needs and cultural practices.411 Guha and others contrast the Western concern with the environment as a source of leisure-time amenities, rather than understanding its role as foundational to survival, as has been demonstrated by many, including the WHO.412 This partial understanding allows Guha to make a specious distinction between humanity and their habitat, something that is biologically impossible.413 The impossibility of separating human health and normal function from environmental conditions, and the consequences of human technological activities was also proven in regard to children and the preborn, on the basis of the WHO’s research. Nevertheless it is obviously true that it is easier for developed countries to institute remedial regimes to correct and restore presently harmful environmental conditions, than it is for developing countries to do so. Thus Brown-Weiss is quite correct as she links intergenerational obligations with intragenerational duties: rich countries and groups must discharge their duties intergenerationally in a direct form, but also by 410

Laura Westra, Ecoviolence and the Law, Transnational Publishers, Ardsley, New York, 2004, ch. 7. 411 Ramachandra Guha, 1989, “Radical Environmentalism and Wilderness Preservation: A Third World Critique,” in L. Pojman (ed.), Environmental Ethics, 4th edition, Wadsworth Publishing, Belmont, CA, pp. 312–319. 412 Anthony McMichael, Planetary Overload, Cambridge University Press, Cambridge, 1995; Anthony McMichael, “Global Environmental Change in the Coming Century: How Sustainable Are They?,” in Laura Westra, David Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000, pp. 245–260; Laura Westra, Living in Integrity, Rowman & Littlefield, Lanham, MD, 1998; Colin Soskolne and R. Bertollini, Ecological Integrity and Sustainable Development: Cornerstones of Public Health, World Health Organization, Rome, 1999. 413 Westra, Living in Integrity; Westra, Ecoviolence and the Law.

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fulfilling their intragenerational obligations to developing countries and impoverished populations. The latter would not be able to fulfil their own obligations without help. But the rich countries’ institutions can, and therefore must ensure that the global communal obligations to future generations be met not only by them, but also by those who require their help in order to comply (this relation between the ability to help and the duty to do so can be found in the “Kew Garden Principle” of 1972). The “principle of equitable resource use” can therefore be understood in this way: rather than exacerbating a conflict between North/West preferences and South/East basic needs, as Guha proposed, combining the two under the Kew Garden Principle ensures that both intergenerational and intragenerational basic rights are met and the correlative obligations are discharged. Paul Barresi lists Brown-Weiss’s proposed rights and duties, and her strategies for the implementation of these duties. He acknowledges that her point is that these should be more than just moral obligations: they should be codified as law.414 Strategies of implementation include establishing planetary rights commissions, which might serve as a forum where individuals and groups might bring complaints for the violations of these environmental rights.415 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.416 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 Barresi, “Beyond Fairness to Future Generations,” p. 62. Ibid. 416 Steven Rockefeller, “Foreword,” in Peter Miller and Laura Westra (eds.), Just Ecological Integrity: The Ethics of Maintaining Planetary Life, Rowman & Littlefield, Lanham, MD, 2002, pp. x–xiv. 414 415

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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.417 From that stand point, 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,418 as I will argue below. The rights of children to health and the environment419 clearly demonstrate how early these “pre-conditions” must be considered in this case, and these requirements must be factored into

Prudence Taylor, “>From Environmental to Ecological Human Rights: A New Dynamic in International Law?,” The Georgetown International Environmental Law Review 10 (1998), p. 309. 418 Alan Gewirth, Human Rights: Essays on Justification and Applications, University of Chicago Press, Chicago, IL, 1982. 419 Giorgio Tamburlini, “Children’s Special Vulnerability to Environmental Health Hazards,” in G. Tamburlini, O. Von Ehrenstein and R. Bertollini (eds.), Children’s Health and Environment: A Review of Evidence, joint report from the European Environment Agency and the WHO Regional Office for Europe (EEA report no. 29), Office for Official Publications of the European Communities, Luxembourg, 2002. 417

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public policy and introduced in binding legal instruments, for the protection of all children.

3. A “NEW BRANCH OF PEDIATRICS”: THE DEVELOPING FIELD OF “CHILDREN’S ENVIRONMENTAL HEALTH” Children’s environmental health is based on a very inclusive definition of childhood. It is concerned with environmental exposures that occur during pregnancy as well as in infancy, childhood and adolescence. It considers prenatal exposures prior to conception that may influence the health of children.420

The “new branch of pediatrics” emphasizes and supports a “new” or rediscovered reality that is neither acknowledged nor considered in law, either in national or international regimes. It is from that standpoint that this work has been argued. Landrigan and Etzel state that this new branch of medicine is “highly interdisciplinary,” as they acknowledge links with a number of medical specialties, but also to “architecture, urban planning; social work, education, ecology, economics and political science.”421 The sad part about this otherwise inclusive list, is that without the presence of strong laws, the wealth of scientific discoveries that underlie the chapters listed in this textbook, in fact the very research upon which the work of Landrigan and Etzel is based, will not succeed in advancing the rights of children to health. Essentially, the early discovery that measles or rubella were contagious would not have succeeded in preventing epidemics and contagion among children, unless the quarantine of affected patients were made mandatory. Similarly, the vaccine for pertussis, polio and any number of diseases, would not promote public health, without the requirement for vaccination in almost all developed countries.

Philip J. Landrigan, and Ruth A. Etzel, 2013, “Children’s Environmental Health: A New Branch of Pediatrics,” in Philip J. Landrigan and Ruth A. Etzel (eds.), Children’s Environmental Health, Oxford University Press, New York, pp. 3–17, here p. 3. 421 Ibid., p. 4. 420

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Clearly, the science, the discoveries, come first, and are basic. However, they remain the necessary first step, only insufficient without strong coercive measures to implement the protection of children. The reality is that the “epidemiological transition”422 is starting to reverse the gains in children’s health, and the decreases in children’s mortality due to infectious diseases, which are now largely under control, at least in developed countries, whereas, “Today the major pediatric health challenges are chronic diseases, asthma, obesity, learning disabilities, autism, attention deficit disorder and type 2 diabetes. These diseases are on the rise.”423 The origin of the “epidemiological transition” in children’s health were first noted in the aftermath of Hiroshima and Nagasaki, in the “epidemics of leukemia in the children who survived,” perhaps the first example of those toxic exposures.424 Even more obviously related to harm arising from the pre-birth exposures suffered by the fetus, were the results of thalidomide exposure,425 and that of girl babies exposed “in utero to diethylstilbestrol.”426 Landrigan and Etzel discuss these “sentinel” cases,427 but although some of these victims might have received some compensation eventually, the overwhelming majority of them did not. As well, no sooner were some of these threats neutralized or ameliorated, the ongoing manufacture of new industrial chemicals, most of which are only subject to in-house testing by their own manufacturers, continued the history of damaging exposures of children with impunity. The basis for those harms had already been identified that is, the children’s special nature, biology and development which disclosed the previously unacknowledged “exquisite vulnerability of children.”428 For example: 422

Ibid. Ibid. 424 R. W. Miller, “How Environmental Hazards in Childhood Have Been Discovered: Carcinogens, Teratogens, Neurotoxicants, and Others,” Pediatrics 113 (2004), pp. 945–951. 425 W. Lens, 1963, “Chemicals and Malformations in Man,” in M. Fishbein (ed.), Second International Conference on Congenital Malformations, International Medical Congress, New York, pp. 263–271. 426 A. Herbst, M. M. Hubby, F. Azizi and M. M. Makii, 1981, “Reproductive and Gynecological Surgical Experience in Diethylstilbestrol-Exposed Daughters,” American Journal of Obstetrics and Gynecology 141 (1981), pp. 1019–1028. 427 Landrigan and Etzel, “Children’s Environmental Health,” p. 5. 428 Ruth A. Etzel, and Philip J. Landrigan, 2013, “Children’s Exquisite Vulnerability to Environmental Exposure,” in Philip J. Landrigan and Ruth A. Etzel (eds.), Children’s 423

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In fact the “chemical environment” of children attacks them through the food they eat, the water they drink, the air they breathe: the exposure starts in utero, and continues through the earliest days as their life. But the starting point of the problem is the failure to use independent testing of those substances: “Widespread failure to test new chemicals for toxicity before they come to market is the most worrisome aspect of recent rapid increases in chemical production.”430 The failure to test responsibly results in no information on the potential developmental toxicity of most chemicals currently in use.431 Nor should this failure surprise, as all industrial chemicals are not only subject to in-house testing by the very industries that produce them, and therefore gain directly from their acceptance and diffusion.432 But this fact also ensures that the interaction of chemical exposures is never studied, evaluated, let alone made public or legislated. The problem is rendered even worse by the presence of the most powerful pesticide manufacturers, both within democratic Western countries’ governments, the US, as participants in the legislative processes of major legal regimes. As well, their presence is active in numerous lobbies, not only in North America but also in Europe.433 Yet the US remains the most dangerous location from the standpoint of the protection of children’s health, after President Obama enacted the Monsanto Protection Act in 2012,434 which Environmental Health, Oxford University Press, New York, pp. 18–27. Ibid., p.221. See also R. A. Etzel (ed.), Pediatrics Environmental Health, American Academy of Pediatrics, Elkgrove Village, IL, 2012. 430 Philip J. Landrigan, and Ruth A. Etzel, 2013, “The Chemical Environment and Children’s Health” in Philip J. Landrigan and Ruth A. Etzel (eds.), Children’s Environmental Health, Oxford University Press, New York, pp. 28–34, here p. 29. 431 Ibid. 432 Laura Westra, The Supranational Corporation, Brill, Leyden, 2013. 433 Ibid. 434 Laura Westra, Revolt Against Authority, Brill, Leyden, 2014, ch. 6. 429

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ensured that not only Monsanto could not be sued right then, no matter what harms their pesticides produce, but they could not be sued even in the future. It is somewhat reassuring that – in contrast – Europe does not have such laws. In contrast, France has been the first country to condemn and jail a Monsanto CEO after grave health effects produced by one of their pesticides, on Paul Francois, a farmer, in 2013.435 These scientific and economic realities conflict directly with children’s rights. Therefore, unless they are acknowledged, rendered visible to the public and – most of all – unless laws and regulations are enacted to control the problems they create, present and future children will continue to be harmed.

4. CRIMES AGAINST HUMANITY AND THE RIGHT TO LIFE AND NORMAL DEVELOPMENT Those defendants who did not physically commit crimes were held responsible as accomplices because of their functional participations in carrying on Nazi policies. These trials did not distinguish between principals and accomplices: [T]he person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of the commission, and the person who pulls the trigger are all principals or accessories to the crime.436

The US used the analogy of four men robbing a bank, as in that case “the acts of any of the four, within the scope of the overall plan, become the acts of all the others.”437 Aside from the crimes tried at Nuremberg, the 435

Westra, The Supranational Corporation, pp. 87–88. Cherif Bassiouni, Crimes Against Humanity, Cambridge University Press, Cambridge, 2011, p. 508; citing the US v. Alstotter et al. (the Justice case), reprinted in III Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No.10 954–1201 (US GPO, 1951), 1063. 437 The US v. Pohl (the Pohl case), reprinted in III. Trials of War Criminals Before the Nuremberg 436

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question for environmental crimes is clearly the issue of responsibility and accountability in Complex organizations”: Environmental disasters such as the explosion at the union carbide plant at Bhopal that killed thousands of people, the accident with the Exxon Valdez oil tanker that polluted a large part of the coast of Alaska, and the fire at the Sandoz chemical plant in Basle, which sent a toxic wave down the river Rhine, killing much of its wildlife, have given the petrochemical and chemical industries an extremely bad image. Such affairs did not remain confined to industry, but also affected the public sector.438

A “bad image” appears to be quite a minimal result for those who perpetrated/allowed/managed environmental disasters, with grave consequences for both natural systems and the wildlife that inhabited them, let alone the thousands of human deaths that followed upon the tragedy at Bhopal.439 Consider the dire consequences we have documented for the life, health and development of children that arise from the uncontrolled use and disposal of chemical substances, the effects of which we have discussed. I am proposing that the uncontrolled use of noxious substances and toxicants of various kinds should be considered nothing less than an extreme environmental disaster, a crime against humanity. No doubt this proposal raises a grave difficulty, as we cannot readily identify a perpetrator to hold accountable for the ongoing disaster. That difficulty arises as we are dealing with “the problem of many hands,”440 as today we are surely living in what Bovens terms “the age of complex organizations.”441

Military Tribunals under Control Council Law No. 10 (US GPO, 1951) at 958–1163. Mark Bovens, The Quest for Responsibility, Cambridge University Press, Cambridge, 1998, p. 3. 439 Upendra Baxi, “Voices of Human Suffering and the Future of Human Rights,” Transnational Contemporary Problems 8 (1999), pp. 125–169. 440 Dennis Thompson, “Moral Responsibility of Public Officials: The Problem of Many Hands,” APSR 74 (1980), pp. 905–916; see also Bovens, The Quest for Responsibility, pp. 4–5. 441 Ibid. See also Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought, Princeton University Press, Princeton, NJ, 2004. 438

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In the UK, the doctrine of “common design” applies to cases involving many hands.442 At any rate, Article 7 of the ICTY statute lists several forms of responsibility, and Article 6 of the ICTR Statute is identical to that: 1. A person who planned ordered, committed or otherwise aided and abetted in the planning, preparation, or execution of [a crime] shall be individually responsible for the crime; … 3. The fact that [a crime] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.443

The ICC Statute, arts. 25(3) (a), (d) lists “co-perpetration indirect perpetration and common purpose liability … as joint criminal enterprise or JCE.”444 Ratner et al. cite three different categories of JCE following upon the Tadic appeals; belonging to a group of persons with a common criminal purpose; participating in an “organized criminal system”; and where a group contains members who share a common criminal purpose.445 Finally, there could be physical perpetrators who commit the crimes without, however, sharing “a mutual understanding,” or common purpose with those who plan, direct and organize. More could be said about the development of responsibility in the international courts in such categories as “planning, instigating, and ordering” as they emerge from the ICTY and the ICTR, while in the ICC “they are ordering, soliciting and seducing.”446 But the first and major obstacle we face is the fact that those described as accomplices in various ways, are involved in a crime, both acknowledged and well-established now, whereas what we are proposing in these pages is to accept that the violent, harmful activities we have described, as they are perpetuated against those 442

Bassiouni, Crimes Against Humanity, p. 509. Steven R. Ratner, Jason S. Abrams and James L. Bischoff, Accountability for Human Rights Atrocities in International Law, 3rd edition, Oxford University Press, Oxford, 2009, p. 145. 444 Ibid., p. 143. 445 Ibid., p. 144. 446 Ibid., p. 145: see ICTY statute, art. 7(1); ICTR Statute art. 6(1); ICC Statute, art. 25(3) (b). 443

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who are both innocent and vulnerable, should be treated as criminal activities, although they are not presently classified in that way. No doubt nullum crimen sine lege is a well-established principle of law. But the crimes indicted at the Trials at Nuremberg, and the similar ones that followed were also, initially, not crimes according to the law of the time. Yet those atrocities called out to both laypeople and legislators, inspiring them to treat them as real crimes, and to indict as criminals those who participated, collaborated or in any way were complicit in the newly-minted crimes. The similarity between the two kinds of crimes, that is, racially motivated inhumane treatment and killing of innocents in order to support a specific power structure, like the crimes considered at Nuremberg on one hand, and the inhuman conditions, imposing abnormal development, multiple diseases and early death on billions of innocents, in order to support the growth and the profits of chemical enterprises on the other – are not so dissimilar. One could argue that there are no SS-style soldiers forcing people to live in an area where certain exposures occur, or to partake of contaminated food or water. Yet the hazardous conditions that obtain almost everywhere, as we have been arguing, make exposure almost unavoidable, hence coerced in some sense, at least in practice. The results we have discussed, I believe, can be termed atrocities: such activities as penetrating a woman’s body without her knowledge or consent, and with no regard for the effects on the preborn, whose bodily integrity is breached as is her present and future natural development both physical and mental, can only be termed a crime, although the effects may not be immediately visible but may continue to develop over time. Science has researched these issues and two recent important books confirmed the findings447, as well, additional ill-effects of many exposures are uncovered regularly: for instance the study of cancer has uncovered the multiple causes of that disease in all its manifestations, and also it has confirmed that that disease only develops over decades. Thus the similarities between the crimes now acknowledged since Nuremberg, and the crimes I propose, is fairly easy to trace. 447

Grandjean, Only One Chance (To Develop a Brain); Landrigan and Etzel, Children’s Environmental Health.

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In contrast, another difficulty needs to be addressed. One of the major requirements of a crime is –no doubt – the presence of mens rea, a specific intent we noted to be treated as a particularly grave in the Nuremberg trials, where all aspects of that racist enterprise dictated that all those involved could not escape responsibility for the horrors that followed, no matter how minor their involvement. But there is no such specific targeting of a population insofar as toxic exposures are concerned, no hatred, only a callous indifference. The question then is, is negligence coupled with callous indifference about the consequences of one’s actions, about the fate of the people you are harming, however they are, not culpable in itself? H. L. A. Hart proposes four forms of responsibility regarding crimes: (1) (2) (3) (4)

role responsibility; causal responsibility; liability responsibility; capacity responsibility.448

Several of these categories seem to fit the sort of responsibility of which we speak. For the first, “Role Responsibility” seems to fit very well, according to the example Hart presents: “A sea captain is responsible for the safety of his ship, and that is his responsibility, or one of his responsibilities.”449 The captain’s employment ensures his duty to the ship, but also to the safety of his passengers, whoever they are. Perhaps an industry “that flourishes from supplying chemicals to the public” for various purposes, also embodies a “role responsibility” not only as an employer to his employees, but also to the general public that expects the head of such an enterprise and his managers to take seriously his responsibility to customers and users alike, for their safety. Neither the sea captain nor the corporate CEOs know the people to whom they are responsible, nor do they have any specific feelings toward

448

H. L. A. Hart, Punishment and Responsibility, 2nd edition, Oxford University Press, Oxford, 2008, p. 212. 449 Ibid.

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them, good or bad, but neither fact diminishes their responsibility toward them. In his discussion, Hart adds: “To behave responsibly is to behave as a man would who took his duties in this serious way. Responsibilities in this sense may be either legal or moral or fall outside this dichotomy.”450 Hart, however, does not suggest that an appeal to the morality of the situation might possibly exclude the obvious legal aspects that persist. Of course, the next question that arises is whether aside from the manufacturers of toxic substances, any other individual or entity might share their “role responsibility.” The answer is obvious: each country has laws and institutional arrangements that permit the operation of each industry and – supposedly – exert some control over their operations, through licensing, taxing and other controls. Both industrial enterprises and government bureaucracies share “role responsibility” for the citizens affected by their activities, or their omissions. The second category Hart proposes, “causal responsibility” seems to fit rather well with the research discussed in the previous sections of this chapter, which clearly indicate the interface between chemical, industrial production and the harmful effects described in the reports of the WHO and the FAO, as well as UNICEF. I believe that scientific research increasingly demonstrates the causal connection between industrial chemicals and the effects they produce on the vulnerable first generation, that is, on children.451 As well, as time goes on, further links are traced between chemical substances’ exposures and health, so that the causal connection will become increasingly evident between such substances and the major determinants of health, although these are not fully indicated in current legal instruments. At any rate, Hart concludes his discussion of “causal responsibility” by saying “it is clear that in this causal sense not only human beings but also their actions or omissions, and things, conditions, and events, may be said to be responsible for outcomes.”452 This list indicates how complex it might be to establish causal responsibility on one hand, and how wide might be the

450

Ibid., p. 213. Grandjean, Only One Chance (To Develop a Brain); Landrigan and Etzel, Children’s Environmental Health. 452 Hart, Punishment and Responsibility, p. 214. 451

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pool of possible perpetrators, on the other. In other words, those responsible for “conditions,” “events” may be causally responsible for harms that may not appear to be directly related to the effects that eventually will surface. Hence the causal relation between various environmental disasters and the grave harms that affect whole communities and populations are far more extensive than most people think, and the expanded remit of the ICC appeared to be a timely decision indeed.

5. CRIMES AGAINST HUMANITY AND “CAPACITY RESPONSIBILITY” a person’s responsibility for his action may intelligibly be said to be “diminished” or “impaired,” as well as altogether absent, and persons may be said to be suffering from “diminished responsibility” much as a wounded man may be said to be suffering from a diminished capacity to control the movements of his limbs.453

This assessment of “capacity responsibility” clearly demonstrates the gulf that separates a natural from a legal person. A legal person cannot legitimately be said to suffer from any psychological condition such that its responsibility may be diminished. In contrast, their “capacity,” in the sense of their ability to influence or direct actions and activities is exponentially greater than that of a natural person. No doubt this conclusion is obvious in both its aspects, but still both need to be emphasized, as the current belief on many facets of legal personhood, attempts to obscure that difference completely and – correspondingly – hides the second aspect, that is the huge capabilities for harm of corporate persons. In fact, many of the aspects that are treated as pertaining to mens rea, or criminal intent, such as negligence, recklessness, inadvertence, all the possible modifiers of what might be a deliberate act, do not apply to legal persons.

453

Ibid., p. 228.

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From the standpoint of environmental disasters, it is unfortunate that the standard of strict liability is seldom used in the courts, since it emphasizes the exclusive “capacity” of an entity, in the sense of its ability to do harm, especially if it is one of the powerful corporations from whom most environmental disasters originate. Such harms could not possibly originate from a single individual, and it would be impossible to prove that connection. In that case, the standard that should be observed, is indeed that of strict liability, especially now when science increasingly demonstrates the dire effects of “non-natural uses” of the environment in relation to human rights, to the extent that the ICC has expanded its remit. The classic case of nonnatural use is the 1868 case of Rylands v. Fletcher. There have been … common law developments moving tort law away from fault and closer to a regime of strict liability. For example, the objective theory of the reasonable person, the use of statutes in negligence litigation, the doctrine of res ipsa loquitur, contributory negligence legislation, and other developments have indirectly edged negligence law toward a stricter form of liability. 454

Although the argument of this work has been that it is best to understand differently the nature of environmental offenses by viewing them primarily through their consequences and the harm they cause, avoiding the “due diligence” defence might be a good start to an approach that manifests more concern for our human rights. To this aim, it is worth considering strict liability offenses starting with Rylands v. Fletcher, a domestic case from the UK which is both environmental in its application, and foundational in spelling out clearly, especially in the appeal phase, the very principles that national as well as international legal systems too often attempt to avoid. The case is taken to be basic to strict liability jurisprudence, and even the description of the case is illuminating: “Liability of surface areas – without negligence or willfulness.”455 The case is a simple one: 454 455

Allen M. Linden, Canadian Tort Law, 6th edition, Butterworth’s, Toronto, 1997, p. 499. Rylands v. Fletcher, (1868) 3L.R.–3H.L. 330, 37 L.J. Ex. 161; 19 L.T. 220; 33 JP 70, HL) case as the final appeal after the Fletcher v. Rylands, (1866) LR 1 Exch 265, Exch, revg (1865) 3

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A was the lessee of mines. B was the owner of a mill standing on land adjoining that under which the mines were worked. B desired to construct a reservoir, and employed competent persons, an engineer and a contractor, to construct it. A had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected-with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. No care was taken to block up these shafts, and shortly after water had been introduced into the reservoir it broke through some of the shafts, flowed through the old passages and flooded A’s mine: Held A was entitled to recover damages from B in respect of this injury.456

Although the court at first instance found that B did not owe damages to A because he did employ competent contractors to do his work on the reservoir, and because he was not aware of the presence of mines and passages beneath his operation, the Appeals Court reversed the judgment. The well-known passage from Fletcher v. Rylands is the judgment for the plaintiff on the following grounds; Manisty, J.: 2. The principle of law which governs the case is that he who does upon his own land acts which, though lawful in themselves, may become the source of mischief to his neighbours, is bound to prevent the mischief from occurring, or in the alternative to make compensation to the persons injured. This will be peculiarly the case when the act done consists in the construction and use of artificial works, for the purpose of collecting and impounding in vast quantities an element which will certainly cause mischief if it escapes.457

It is very enlightening to see that it is not simply what happened that renders a person guilty, even though there was neither knowledge nor intent to cause the damage on his side, but the fact that the technologically altered condition of the property, and the risks inherent in this alteration, not its H&C 774. Fletcher v. Rylands, (1866) LR 1 Exch 265, 457 Ibid., at 269. 456

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natural functioning was that through which the damage occurred, made all the difference. On the same topic, Blackburn J. adds: “but the difficulty here is in saying that what was rightful in the first doing, became wrongful in the continuation. The other side will contend that their duty was to take care, but not successful care.”458 Almost all pollution-related environmental offenses are well-covered in these passages (although conservation issues are not). Whoever alters a natural system ought to take full responsibility for the eventual consequences, foreseen or unforeseen, that may follow upon that alteration, and this question will be addressed in detail in the next chapter. To say that it is unrealistic to expect such responsibility to attach to whoever owns, alters, and controls the property and the operation upon it, does not begin to address the question of equity in such cases. Blackburn, J. was equally astute in noting that, in this case (and we can add in most cases of transboundary pollution resulting in ecocrimes), it was a lawful, not an illicit act that caused the harm. Blackburn, J.: “When a party alters things from their normal condition so as to render them dangerous to already acquired rights, the law casts on him the obligation of fencing the danger, in order that it shall not be injurious to those rights.”459 It is worth noting that only economic harms and damages are present or envisioned in this case; hence, this absolute liability position would be even easier to support when the harms and damages concern human health instead, or even human life. It is encouraging to note that the present reliance on due diligence as a defense, is not even proposed for this case. Chief Baron and Martin B.,460 proclaim a principle of law that, were it enforced, would eliminate many of the problems we have discussed, and serve well to protect the environment: We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was 458

Ibid., at 270. Ibid., at 271. 460 Ibid., at 279. 459

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the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle, just.461

Simple, reasonable, and clear, this instance of domestic law inspires or should inspire equally clear and reasonable peremptory norms, even though the details of the environmental hazards are not set out in detail. The question details is covered nicely below, by Chief Baron and Martin B.: “And, upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.”462 Linden summarizes the “Scope of Strict Liability” in relation to the case: “Under the traditional view of Rylands v. Fletcher a strict liability will be imposed if two elements are present: (a) non-natural use of land, and (b) escape.”463 The importance of “non-natural use” cannot be overstated, despite the fact that the concept has been used as an escape valve in environmental cases. For instance, many argue that “an overflow from a domestic water heater, or other home plumbing systems” would not be covered by Rylands v. Fletcher, and neither are “authorized sewers and storm drains” as they are viewed as “ordinary and proper for the general benefit of mankind.”464 Non-natural use, therefore, became a use that exceeds accepted technologies and usual practices, rather than retaining the original meaning of the alteration to a natural system, a meaning that appears preferable when you consider the original case itself. But the meaning the courts ascribed to the expression is that of unusual activities or activities that were not ordinarily expected in that area or location. The case law following upon Rylands v. Fletcher and using its principle, appears to be, for the most part, departing from the simple meaning I have proposed for non-natural, that is, not the product of natural evolutionary processes. If one accepts as natural any number of activities that are based on man-made equipment or technologically enhanced processes and machinery, one has departed radically from the words and – I would add – 461

Ibid., at 280. Ibid. 463 Linden, Canadian Tort Law, p. 503. 464 Ibid., p. 504. 462

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from the spirit of the Rylands v. Fletcher principle. Linden discusses a great number of such cases.465 He says: “‘non-natural’ came to mean special, exceptional, unusual, out of the ordinary. In the same way, the word ‘natural’ took on the meaning of normal, common, everyday, or ordinary, rather than primitive or in the state of nature.”466 The same view is expressed by Newark, as he argues that “natural” means primarily that which exists by nature and is not artificial.467 In the secondary sense, however, it can mean that which is ordinary and usual even though it may be artificial. Newark supports his contention through UK case law, as Linden does, adding North American cases. But it is important to retain the original sense of non-natural as something that would not have come about in a natural way, or without direct human intervention, especially because of the many instances of such nonnatural uses of land, through which grave harm is inflicted, such as biotechnology in agricultural practices, or the chemical-induced global climate change.468 Rylands v. Fletcher imposes absolute liability and, in general, all cases involving environmental risks ought to be considered, minimally, under this category. Tony Honoré discusses “responsibility and fault” in tort law, and he explains this point through his discussion of the case of a ship officer “who was competent and experienced but who did not possess the certificate required by law.”469 The officer negligently involved his ship in a collision, but he denied that the lack of a certificate was “causally relevant.”470 As “the basis of liability was fault,” it is “rightly held that the lack of a certificate was irrelevant, since the officer would have navigated no better had he possessed one.”471 Honoré adds: “Since strict liability is liability not for wrongful conduct, but for engaging in risk-

465

Ibid., pp. 503–508. Ibid., p. 504. 467 F. H. Newark, “Non-Natural User and Rylands v. Fletcher,” Modern Law Review, 24(5) (1961), pp. 557–558. 468 Donald Brown, American Heat, Rowman & Littlefield, Lanham, MD, 2002. 469 Tony Honoré, Responsibility and Fault, Hart Publishing, Oxford, 1999, p. 101. 470 Ibid. 471 Ibid. 466

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creating activity, there would have been no need in this case to show that the lack of a certificate was causally relevant.”472 All activities that arise non-naturally in the sense I proposed as basic to Rylands v. Fletcher impose a certain amount of possible risk. In addition, all technological innovations, by definition, have no history upon which one may rely to ensure their safety, especially since, for the most part, only the manufacturer or originator of the equipment or process is ultimately competent to provide government agencies with the required test results. Hence, one could propose that liability “based on causing harm,” be replaced by “liability based on risk allocation.”473 Far-fetched, perhaps, but also useful to put risk-imposers on notice that even their potential for causing harm is duly noted, before harm appears. In this case, the “capacity responsibility” that is applicable to however has the ability to interfere with the natural order of things is obvious: it is however allowed something “non-natural” and noxious to escape and inflict harm, that is the entity possessing capacity responsibility. In fact the ability to do grave harm through its actions seems to be the defining characteristic of the legal person, without any psychological characteristics needed in order to define the crime: the power to do or not, in their case, is sufficient.

6. THE RIGHT TO HEALTH AND ENVIRONMENTAL DISASTERS In confronting the insalubrious ramifications of globalization human rights scholars and activists have argued for greater national and international responsibility pursuant to the human right to health … However, in pursuing 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.474

472

Ibid., p. 101. Ibid., p. 115. 474 Benjamin Mason Meier, “Employing Human Rights for Global Justice: The Promise of Public 473

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It is precisely the “insalubrious ramifications of globalization” that produce the disastrous environmental attacks on public health. Hence it is vital that the few existing legal instruments intended to protect public health should be revised and updated, in order to meet the demands of today’s environmental conditions. My concern is that, for the most part, the interface between human rights and environmental hazards is not well represented in legal regimes; in fact, most often the interface is deliberately misunderstood with a view to protecting commercial interests and maintaining the status quo.475 However, these instruments are neither mandatory nor enforced, so that the results that follow are that the proven interface between life, health, and the environment is not acknowledged in practice. Many examples can be adduced and we will return to that topic in the next chapter, when we examine the racial discrimination present in many of the environmental disasters that can be characterized as crimes against humanity. The WHO could and should perform a much stronger role than it presently does, and that organization in fact has noticed some problems in the way it interacts with the nations that support it and depend upon it: 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.476

The WHO, with the cooperation of the World Health Assembly (WHA), appears to be the only international institution capable – at least in principle – of mandating and supporting the needed remedies for the situation briefly described above. That situation includes (a) lacunae in the clarity and specifically of the language of legal regimes; (b) grave inadequacies in the education of lawyers and judges; and, perhaps the best area where the WHO Health in Response to Insalubrious Ramifications of Globalization,” Cornell International Law Journal 39 (2006), pp. 711–752, here pp. 711–712. 475 Ugo Mattei and Laura Nader, 2009, Plunder, Blackwell Publishing, Oxford, 2009. 476 World Health Organization, sixty-fourth World Health Assembly A64/4, 5 May 2011, Provisional Agenda, Item 11, Executive Summary.

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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 Framework Convention against such products and substances, particularly those that involve the chemicals that have already been indicted by the WHO’s own publications.477 It is urgent that the intimidation and outright bullying practiced by many multinational corporations, especially those connected with chemical and other extracting and mining industries worldwide, against weak, national governments and the local and indigenous community areas which are most often the target of their operations, should not be allowed to continue with impunity, in order to eliminate the ongoing “collateral damage”478 they create. It was not easy for the WHO to prevail against Big Tobacco, as they finally produced their 2005 Draft Convention.479 It would be harder, no doubt, for them to alienate most of the industrial conglomerates 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 were involved in an ongoing battle to discredit climate change science, and to ignore the plight of those exposed to their toxic operations. It is worth noting that even the reform agenda of the WHO does not, at this time, include any action in regard to the main problems and outlined as follows: The WHO reform agenda includes: (1) a proposal for a global stakeholder forum to help shape the global health agenda; (2) clearer articulation of WHO’s unique role and functions; and (3) managerial reforms within the WHO to increase its accountability to Member states, improve organizational structure and revive its human resource strategy.480 Tamburlini et al., Children’s Health and Environment; Licia Licari, Linda Nemer and Georgia Tamburlini, (eds.), Children’s Health and the Environment, World Health Organization Regional Office for Europe, Copenhagen, Denmark, 2005; and by other scholars (see, for instance, Philippe Grandjean and Philip Landrigan, “Developmental Neurotoxicity of Industrial Chemicals,” The Lancet 368 (16 December 2006), pp. 2167–2178). 478 Sheldon Leader, “Collateralism,” in Roger Brownsword (ed.), Global Governance and the Question of Justice, vol. IV, Hart Publishing, Oxford, 2004, pp. 53–68. 479 Tobacco Convention, retrieved from www.who.int/tobacoo/fctc/text/en/fctc)en.pdf. 480 O’Neill Institute, 2011, “The World Health Assembly: Reforming the WHO and Global 477

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6.1. A Framework Convention on Global Health (FCGH) 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.481

The following are the two most important components of an instrument designed for the protection of human rights and are present in Gostin’s proposal: (1) recognition of the environmental aspects of human health; and (2) understanding the right to health as being more than the right to medical care when ill, important though that is. For the former, “basic survival needs” include “clean air and water” and “nutrition”; for the latter, “health systems for the prevention, detection and mitigation of disease and premature death.” In addition, rather than leaving these aspects of the right to health to the goodwill of individual states, Gostin also proposes that the WHO or a newly created institution could set ongoing standards, monitor progress, and mediate disputes.482 Such a Convention would go to the heart of the environmental justice issue (i.e., to the blatant inequalities in life expectancy, the incidence of infectious diseases and chronic diseases disproportionately present among the poor and developing countries on the one hand, and rich nations, on the other hand483):

Governance for Health,” retrieved from www.oneillinstitute.org. Lawrence O. Gostin and Lance Gable, “The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health,” Maryland Law Review 63 (2004), pp. 20–121. 482 Ibid. 483 Gostin, 2008; WHP Commission on Social Determinants of Health, at www.who.int/social_determinants/en; also Hill, Kenneth, 2006, “Making Deaths Count,” in 84 Bull.WHO 161; Ruger, Jennifer and Hak-Ju, Kim, 2006, “Global Health Inequalities: An International Comparison,” 60 J. Epidemiology Community Health 928 928–936; Laura Westra, Environmental Justice and the Rights of Unborn and Future Generations, Earthscan, London, 2006, appendix. 481

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Chances of living merely to the age of five are low among the world’s poor compared to the wealthy. The poorest 25% of children in the world are two and a half times more likely to die before age five than the wealthiest 25%. In fact, of the 10.8 million children under five who die each year, 10 million are from low-income countries – more than twice the number of children born annually in the United States and Canada combined … The World Bank reports that, in one year alone, 14 million of the poorest people in the world died, while only four million would have died if this population had the same death rate as the global rich.484

These are just some of the statistics that indicate the ongoing injustice that has been viewed as criminal by some.485 No one denies the pivotal importance of socioeconomic status in health statistics, and the conclusion is that the poorer and less powerful are the most affected, globally. In fact, one could argue that they are kept deliberately from affecting the favoured, at the expense of minorities: “Indigenous persons experience an ‘epidemiological accumulation’, whereby disease and disability are exacerbated due to unmet basic needs.”486 The situation of local and Indigenous communities, as globalization and global change conspire to render their conditions non-liveable demonstrates clearly why (1) the nations and corporate agents that contribute to the situation or at times, are directly causative of it, cannot and should not claim ignorance and avoid their responsibility; and (2) most often, even after migration, the conditions of those individuals and communities remain equally hazardous. Unlike other human rights concerns, health concerns are readily accepted, for the most part, by national infrastructures, and promoted to the public, although, in many cases, economy and trade might be affected. In other cases, however, powerful economic interest blocks obstruct the 484

Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, University of California Press, Berkeley, CA, 2008, p. 5; see also Global Health Council, “Child Health Fact Sheet,” retrieved from www.globehealth.org.view_top.php3?id=226; Davidson R. Gawtkin and Michel Guillot, “The Burden of Disease Among the Global Poor: Current Situation, Future Trends, and Implications for Strategy,” The Lancet 354(9178) (14 August 1999), pp. 586– 589. 485 Westra, Environmental Justice and the Rights of Unborn and Future Generations. 486 Gostin, Public Health Law; see also Stephen J. Kunitz, “Globalization, States and the Health of Indigenous Peoples,” American Journal of Public Health 90(10) (2000), pp. 1531–1539.

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appropriate measures: the best example can be found by large chemical interests and their influence on preventative measures for cancer;487 and the ongoing proliferation of untested chemicals, despite their documented effects.488 The WHO Constitution envisaged an agency that would use law and exercise power to proactively promote the attainment of “the highest possible level of health.” But the agency has never met these key expectations.489 Many scholars have criticized the WHO’s passive/reactive position, and have advocated a much stronger involvement in the right to health on their part than what their past performance has demonstrated. WHO’s advancement of national and international public health and supervisory institutions is critical to furthering the realization of the right to health. Encouraging countries to develop specific binding legal obligations with respect to the right to health, and publicizing their compliance and non-compliance with those obligations, can powerfully influence states to rethink priorities and redirect national resources to national health care.490

WHO’s mandate of “Health for All,” declared in 1977, was intended to be achieved for all the world’s citizens by 2000.491 Nevertheless, it is hard to find any appeals to science or health in the jurisprudence concerning Indigenous People’s rights. There appears to be a disconnect between the WHO health mandate, despite its position in the UN, and other documents which, even if they address the question of health, do so in general terms and with no reference to the WHO, let alone to the possibility of binding regulations. 487

Samuel Epstein, The Politics of Cancer, Sierra Club Books, San Francisco, CA, 1978. Grandjean and Landrigan, “Developmental Neurotoxicity of Industrial Chemicals”; see also Laura Westra, Environmental Justice and the Rights of Indigenous Peoples, Earthscan, London, 2007. 489 Gostin, Public Health Law, p. 26. 490 Allyn Lise Taylor, “Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health,” American Journal of Law and Medicine 18 (1992), pp. 301–346, here p. 302. 491 WHA, the legislative organ of WHO, issued the WHA Res. 30.43, 30th World Health Assembly, 14th plenary meeting (19 May 1977). 488

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Yet the WHA has a power that could (should?) be exercised in addition to the technical recommendations it normally issues: WHA also enjoys authority to adopt regulations regarding sanitary and quarantine requirements to deter the international spread of disease, and standards for safety, purity and potency of biological and pharmaceutical products that move in international commerce, among other things.492

Thus a precedent exists whereby an arm of the WHO, that is the WHA, its legislative organ, is empowered to limit trade, and also to limit freedom of action of individuals in the usual public health fashion, through sanitary regulations and quarantines. Public health is the mandate and the duty of the WHO, internationally, and they do have a history of speaking for the most vulnerable, for instance for children’s exposures and diseases: all the signatories of the CRC are obliged to report periodically to Geneva on how their countries are integrating the mandates of that document in their own domestic laws.493 Essentially, then, the right to health, guaranteed by the International Covenant of Economic, Social and Cultural Rights,494 Article 12.1 provides for “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”; hence, it recognizes the right to health. Yet the WHO has recently achieved an important success, despite the powerful interests that have been deployed against it for far too long: The Framework Convention on Tobacco Control.495 Gostin adds:

Taylor, “Making the World Health Organization Work,” p. 302, footnote 1. See, for instance, a summary of some of these reports from five developing countries in Westra, Environmental Justice and the Rights of Unborn and Future Generations, ch. 9 and appendix 2. 494 UN GAOR, 21st Sess., Supp.No.16, 49, UN Doc. A/6315(1966). 495 WHO, Framework Convention on Tobacco Control, WHO Doc. A56/VR/4 (21 May 2003), retrieved from www.who.int/gb/ebwha/pdf_files/WHA56/ea56rl.pdf; see also Allyn Taylor and Jean Leviriere, “Origins of the WHO Framework Convention on Tobacco Control,” American Journal of Public Health 95 (2005), p. 936. 492 493

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Therefore we can conclude that there is one more area where an institution of the UN, that is the WHO, is not functioning as well as it could. Thus far it shows itself reluctant to declare itself clearly against the effects arising from the activities of corporate legal persons, or even national policies that support harmful practices in affluent countries. The difficulties present in demonstrating the grave harms that ensue, affecting the most vulnerable, but also persisting throughout human life following most industrial exposures, are many. The first is the invisibility of the child, due to an ongoing ideology that refuses to grant the growing child the rights of other human beings from the start. The second is the inherent difficulty present in the only discipline that is able to show the harms that ensue from uncontrolled environmental exposures, but which is, by its very nature unable to produce results beyond a reasonable doubt. Worse, its procedures are open to question and debate, almost at every step. Finally, and precisely because of these difficulties, MNCs and governments complicit with their lucrative operations, can band to use their vast resources to thwart the findings that, if accepted, might serve to protect human life and health. If the combination of unchecked toxicity497 and the well-financed denials of the kind that perpetuated doubts regarding climate change498 can also be viewed as disasters engendered in and through the environment, then perhaps these crimes may be acknowledged as such and their perpetrators brought to justice. These harms are directed first to the most vulnerable, without any effort to ensure their protection, and they are part of a politically planned policy intended to maintain and expand corporate power. But unless the attacks on public health are acknowledged to be criminal in nature, as well as systemic and embedded in the “normal” functioning of most

496

Gostin, Public Health Law, p. 28. Carl F. Cranor, Legally Poisoned, Harvard University Press, Cambridge, MA, 2011. 498 Michaels, Doubt is Their Product. 497

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governments, there is little hope that either international law or domestic regimes will be able to change the situation.

REFERENCES Barkham, Patrick, “Russian Tanker Sails Through Arctic without Icebreaker for First Time,” The Guardian (25 August 2017), retrieved from www.the guardian.com/environment/2017/24/aug/russian-tanker-sailsarctic-without-icebreaker-first-time. Barresi, Paul A., 1997, “Beyond Fairness to Future Generations: An Intergenerational Alternative to Intergenerational Equity in the Intergenerational Environmental Arena,” Tulane Law Journal 11(1) (1997), pp. 59–88. Bassiouni, Cherif, Crimes Against Humanity, Cambridge University Press, Cambridge, 2011. Baxi, Upendra, “Voices of Human Suffering and the Future of Human Rights,” Transnational Contemporary Problems 8 (1999), pp. 125–169. Bovens, Mark, The Quest for Responsibility, Cambridge University Press, Cambridge, 1998. Brown, Donald, American Heat, Rowman & Littlefield, Lanham, MD, 2002. Brown, Donald, “Lessons Learned from the Climate Change Disinformation Campaign,” in Laura Westra, Prue Taylor, Agnes Michelot (eds.), Confronting Ecological and Economic Collapse, Earthscan from Routledge, London, 2013, pp. 81–91. Brown-Weiss, Edith, 1990, “Our Rights and Obligations to Future Generations for the Environment,” American Journal of International Law 84 (1990), pp. 198–207. Brown-Weiss, Edith (ed.), Environmental Change and International Law, United Nations University Press, Tokyo, 1992. Brown-Weiss, Edith, “Intergenerational Equity: Toward an International Legal Framework,” in Nazli Choucri (ed.), Global Accord, MIT Press, Cambridge, MA, 1993.

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Cranor, Carl F., Legally Poisoned, Harvard University Press, Cambridge, MA, 2011. D’Amato, Anthony, 1990, “Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility,” American Journal of International Law 84 (1990), p. 190. De George, Richard, “The Environment, Rights and Future Generations,” in E. Partridge (ed.), Responsibilities to Future Generations, Prometheus Books, Buffalo, NY, 1981. Dunlap, R. E., and McCright, A. M., “Climate Change Denial; Sources, Actors and Strategies,” in C. Lever-Tracy (ed.), Routledge Handbook of Climate Change and Society, Routledge, Abingdon, 2011, pp. 240–259. Epstein, Samuel, The Politics of Cancer, Sierra Club Books, San Francisco, CA, 1978. Etzel, R. A. (ed.), Pediatrics Environmental Health, American Academy of Pediatrics, Elkgrove Village, IL, 2012. Etzel, Ruth A., and Landrigan, Philip J., “Children’s Exquisite Vulnerability to Environmental Exposure,” in Philip J. Landrigan and Ruth A. Etzel (eds.), Children’s Environmental Health, Oxford University Press, New York, 2013, pp. 18–27. Gawtkin, Davidson R., and Guillot, Michel, “The Burden of Disease Among the Global Poor: Current Situation, Future Trends, and Implications for Strategy,” The Lancet 354(9178) (14 August 1999), pp. 586–589. Gewirth, Alan, Human Rights: Essays on Justification and Applications, University of Chicago Press, Chicago, IL, 1982. Gostin, Lawrence O., and Gable, Lance, “The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health,” Maryland Law Review 63 (2004), pp. 20–121. Gostin, Lawrence O., Public Health Law: Power, Duty, Restraint, University of California Press, Berkeley, CA, 2008. Grandjean, Philippe, and Landrigan, Philip, “Developmental Neurotoxicity of Industrial Chemicals,” The Lancet 368 (16 December 2006), pp. 2167–2178.

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Grandjean, Philippe, Only One Chance (To Develop a Brain), Oxford University Press, Oxford, 2013. Guha, Ramachandra, 1989, “Radical Environmentalism and Wilderness Preservation: A Third World Critique,” in L. Pojman (ed.), Environmental Ethics, 4th edition, Wadsworth Publishing, Belmont, CA, pp. 312–319. Hart, H. L. A., Punishment and Responsibility, 2nd edition, Oxford University Press, Oxford, 2008. Herbst, A., Hubby, M. M., Azizi, F., and Makii, M. M., 1981, “Reproductive and Gynecological Surgical Experience in Diethylstilbestrol-Exposed Daughters,” American Journal of Obstetrics and Gynecology 141 (1981), pp. 1019–1028. Honoré, Tony, Responsibility and Fault, Hart Publishing, Oxford, 1999. Huber, P. W., Galileo’s Revenge: Junk Science in the Courtroom, Basic Books, New York, 1993. International Society for Environmental Epidemiologists, Ethics Guidelines, 2012, retrieved from ethics.iit.edu/codes/Final ISEE Guidelines.pdf. Jacques, P., Dunlap, R. E., and Freeman, M., “The Organization of Denial: Conservative Think-Tanks and Environmental Skepticism,” Environmental Politics, 17 (2008), pp. 349–385. Knight, Nike, 2016, “Methane Emissions are Soaring, Report Finds, and Agriculture is to Blame,” retrieved on 27 August 2017 from www.commondreams.org/news/2016/12/12/methane-emissions-aresoaring-report-find-and-agriculture-to-blame. Kunitz, Stephen J., “Globalization, States and the Health of Indigenous Peoples,” American Journal of Public Health 90(10) (2000), pp. 1531– 1539. Landrigan, Philip J., and Etzel, Ruth A., 2013, “Children’s Environmental Health: A New Branch of Pediatrics,” in Philip J. Landrigan and Ruth A. Etzel (eds.), Children’s Environmental Health, Oxford University Press, New York, pp. 3–17. Landrigan, Philip J., and Etzel, Ruth A., 2013, “The Chemical Environment and Children’s Health” in Philip J. Landrigan and Ruth A. Etzel (eds.),

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Children’s Environmental Health, Oxford University Press, New York, pp. 28–34. Leader, Sheldon, “Collateralism,” in Roger Brownsword (ed.), Global Governance and the Question of Justice, vol. IV, Hart Publishing, Oxford, 2004, pp. 53–68. Lens, W., 1963, “Chemicals and Malformations in Man,” in M. Fishbein (ed.), Second International Conference on Congenital Malformations, International Medical Congress, New York, pp. 263–271. Licari, Licia, Nemer, Linda, and Tamburlini, Georgia, (eds.), Children’s Health and the Environment, World Health Organization Regional Office for Europe, Copenhagen, Denmark, 2005. Linden, Allen M., Canadian Tort Law, 6th edition, Butterworth’s, Toronto, 1997. Lo, B., and Field, M. J., (eds.), Conflict of Interest in Medical Research, Education and Practice, National Academic Press, Washington, DC, 2009. Mattei, Ugo and Nader, Laura, 2009, Plunder, Blackwell Publishing, Oxford, 2009. McMichael, Anthony, Planetary Overload, Cambridge University Press, Cambridge, 1995. McMichael, Anthony, “Global Environmental Change in the Coming Century: How Sustainable Are They?,” in Laura Westra, David Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000, pp. 245–260. Meier, Benjamin Mason, “Employing Human Rights for Global Justice: The Promise of Public Health in Response to Insalubrious Ramifications of Globalization,” Cornell International Law Journal 39 (2006), pp. 711– 752. Michaels, David, Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, Oxford University Press, Oxford, 2008. Miller, R. W., “How Environmental Hazards in Childhood Have Been Discovered: Carcinogens, Teratogens, Neurotoxicants, and Others,” Pediatrics 113 (2004), pp. 945–951.

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Newark, F. H., “Non-Natural User and Rylands v. Fletcher,” Modern Law Review, 24(5) (1961), pp. 557–558. Oreskes, N., and Conway, E., Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, Bloomsbury Press, New York, 2010. Ratner, Steven R., Abrams, Jason S., and Bischoff, James L., Accountability for Human Rights Atrocities in International Law, 3rd edition, Oxford University Press, Oxford, 2009. Rockefeller, Steven, “Foreword,” in Peter Miller and Laura Westra (eds.), Just Ecological Integrity: The Ethics of Maintaining Planetary Life, Rowman & Littlefield, Lanham, MD, 2002, pp. x–xiv. Saracci, Rodolfo, “The Hazards of Hazard Identification in Environmental Epidemiology,” Environmental Health 16 (2017), article 85, retrieved from https://ehjournal.biomedcentral.com/articles/10.1186/s12940-017 -0296–3. Soskolne, Colin, “David v. Goliath: Voluntary Professional Societies of Epidemiology and the Industrial Juggernaut,” in L. Westra, J. Gray and A. d’Aloia (eds.), The Common Good and the Role of Ecological Integrity in the Support of Life, Earthscan, London, 2016, pp. 119–128. Soskolne, Colin, “Global, Regional and Local Ecological Change: Ethical Aspects of Public Health Research and Practice,” in F. Zolzer and G. Meskens (eds.), Ethics of Environmental Health, Earthscan from Routledge, London, 2017, pp 3–16. Soskolne, Colin, and Bertollini, R., Ecological Integrity and Sustainable Development: Cornerstones of Public Health, World Health Organization, Rome, 1999. Tamburlini, Giorgio, “Children’s Special Vulnerability to Environmental Health Hazards,” in G. Tamburlini, O. Von Ehrenstein and R. Bertollini (eds.), Children’s Health and Environment: A Review of Evidence, joint report from the European Environment Agency and the WHO Regional Office for Europe (EEA report no. 29), Office for Official Publications of the European Communities, Luxembourg, 2002.

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Taylor, Allyn Lise, “Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health,” American Journal of Law and Medicine 18 (1992), pp. 301–346. Taylor, Allyn, and Leviriere, Jean, “Origins of the WHO Framework Convention on Tobacco Control,” American Journal of Public Health 95 (2005), p. 936. Taylor, Prudence, “From Environmental to Ecological Human Rights: A New Dynamic in International Law?,” The Georgetown International Environmental Law Review 10 (1998), p. 309. Thompson, Dennis, “Moral Responsibility of Public Officials: The Problem of Many Hands,” APSR 74 (1980), pp. 905–916. West, L., “Mediated Settlement of Environmental Disputes: Grassy Narrows and White Dogs Revisited,” Environmental Law 18 (1987), pp. 131– 150. Westra, Laura, Living in Integrity, Rowman & Littlefield, Lanham, MD, 1998. Westra, Laura, Ecoviolence and the Law, Transnational Publishers, Ardsley, New York, 2004. Westra, Laura, Environmental Justice and the Rights of Unborn and Future Generations, Earthscan, London, 2006. Westra, Laura, Environmental Justice and the Rights of Indigenous Peoples, Earthscan, London, 2007. Westra, Laura, The Supranational Corporation, Brill, Leyden, 2013. Westra, Laura, Revolt Against Authority, Brill, Leyden, 2014. Westra, Laura, On Hunger, Brown Walker, Irvine, CA, 2017. Wolin, Sheldon, Politics and Vision: Continuity and Innovation in Western Political Thought, Princeton University Press, Princeton, NJ, 2004. World Health Organization, State of the Science of Endocrine Disrupting Chemicals: World Health Organization Summary for Decision Makers, World Health Organization, Geneva, 2012.

PART 2: ECOVIOLENCE AND LAND GRABBING

Chapter 4

ECOVIOLENCE, LAND GRABBING AND THE RIGHT TO FOOD 1. INTRODUCTION: APPROACHES TO LAND GRABBING A human rights framework also entails a distinct right of land as a productive, rights-fulfilling asset which unlocks the realization of many human rights, including the right to food.499

It is useful to approach land grabs through the right to food, as in that case, it entails a deprivation that clearly connects land grabs to crimes against humanity. In fact, land grabs’ connection with the right to be free from hunger, was present as a precursor of capitalism itself in an early form, as primitive accumulation, including the enclosures of agricultural commons, and the dispossession of peasant holdings.500 No doubt the wellknown enclosures movement represents a direct attack on peoples’ right to Christopher Golay, and Biglino Ipane, “Human Rights Responses to Land Grabbing: A Right to Food Perspective,” in Marc Edelman, Carlos Oya and Saturnine M. Borras, Jr. (eds.), Global Land Grabs, Routledge, Abingdon, 2016, pp. 114–134, here p. 115. 500 I am indebted to Richard Westra for a clarification of the notion of primitive accumulation and for his illuminating discussion of Marx’s position on the topic. See also Derek Hall, 2015, “Primitive Accumulation, Accumulation by Dispossession and the Global Land Grabs,” in Marc Edelman, Carlos Oya and Saturnine M. Borras, Jr. (eds.), Global Land Grabs, Routledge, Abingdon, 2016, pp. 66–88. 499

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food. Derek Hall describes “four uses of primitive accumulation and accumulation by dispossession (ABD),” but he acknowledges that the two may be understood as separate and different. Anyway, aside from the treatment of the topic in Capital, for the rest most of the discussions present in the literature are part of the land grab research published since 2000.501 Hall’s proposed “four uses” or approaches to the understanding of primitive accumulation, starts with (1) a focus on the enclosures of common land and the creation of private property rights, which remains on ongoing problem today; the second use (2) views it as “capitalist responses to crisis,” so that capital can be accumulated as assets could be released at the lowest possible cost: this use involved the financial and credit systems “backed by state powers” while the crises are manipulated and facilitated by those who profit; the third focus (3) is on “the extra-economic means of capital accumulation” which include particularly “political and legal power and violent force”; finally the fourth one (4) views primitive accumulation and ABD as nearly synonymous, that is, as concepts that can be used interchangeably without any effort to pinpoint the specific meaning of the terms, treating them as simply “unjust acquisition of assets,” so that land grabs can be discussed and analysed without a prior assignment of a specific period or theoretical approach.502 While I acknowledge the validity of these approaches and their historical significance, starting from the original enclosure movement, the fact is that today land grabbing is understood together with environmental disasters, and are recognized as crimes against humanity not the incentive to a novel social upheaval or a change in social relations. Thus the most significant aspect of land grabbing from our point of view, is the legal connection between environment and land grabs, in relation to human rights. The economic, social and financial aspects, no matter, how important, even foundational in relation to the history of humanity, should be viewed as secondary from our perspective. In contrast, the legal aspects connected to racial discrimination and the rights of indigenous peoples are very relevant to the ICC statute, and which 501 502

Ibid., p. 69. Ibid., pp.69–70.

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will be discussed in the next chapter. At this time we need to focus on the aspects of environmental harms directly connected with land grabs, the first of which is clearly the interface between land grabs and the right to food. As we shall see when we consider the actual grabs in various locations, there is an important, though indirect, right to food involved, as most often these “grabs” entail transforming agricultural areas which supported local populations, into either biofuel or monocultures intended to feed animals, industrially grown in far off locations, to satisfy the demands of the wealthy in other countries. The focus that Hall cites as no. 3 however, is closer to what can be viewed as a crime against humanity, although it does not appear to be directly related to food or water. The “political and legal power and violent force” increasingly present in the agrochemical chemical corporate powers that are increasingly involved in the grabs, actually foster many of the crimes against humanity involved, as we shall see below. Leaving aside for now the interface between land grabs and the specific rights of Indigenous peoples, we can start by considering the right to food and water as it is protected by numerous international legal instruments, hence being the closest to the right to life, thus closest to a criminal activity.

2. THE RIGHT TO FOOD AND WATER AND LAND GRABBING AS A BREACH OF HUMAN RIGHTS Despite the harms associated with excessive and unsafe pesticide use, it is commonly argued that intensive industrial agriculture, which is heavily reliant on pesticide inputs, is necessary to increase yields to feed a growing world population, particularly in the light of negative climate change impacts and global scarcity of farmlands. … However this has come at the expense of human health and the environment. Equally increased food production has not succeeded in eliminating hunger worldwide. Reliance on hazardous pesticides is a short

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This paragraph clearly links the right to food to current practices, environmental problems and conditions, and the “global scarcity of farmlands.” That is most often due to the corporate quest for profit making through intensive industrial agriculture.” Examples can be found anywhere in the world. A clear example may be found in the recent events in Brazil, one of the preferred locations of land grabbers. In the area inhabited by Guarani Indians, the inhabitants tell their story, a story that is becoming familiar, as it is repeated in many other locations today. Stefano Liberti describes the situation in the area of Mato Grosso do Sul, in Western Brazil:504 the landscape is green but flat: there are no trees. Only plantations that extend as far as the eye can see. Once this was a cerrado, a tropical environment similar to the savannah, an ecosystem with a high degree of biodiversity. Today it is mostly soya cultivation.505

The old Guarani recall the sequence of events that led to the present disastrous situation that is their lot now: “They took our land away. And now we are here with nothing in our hands, in what used to be our home.”506 “White colonists” came, not with guns or bombs, but their “arms” were more dangerous to the people: they were chainsaws to cut down the trees, and tractors to till the resulting fields. Those activities led to mass deforestation and [to the presence of] the landowners who finally removed them from their lands.507 The main problem was that the Guarani had no legal documents to prove their ownership of the land they had occupied since time immemorial. In the next chapter I shall return to this theme, as in Canada, for instance, the First Nations may legally rely upon their oral history relating their UNGA, Human Rights Council, 34th session, “Report of the Special Rapporteur on the Right to Food,” A/HRC/34/48 (2 January 2017), p. 3. 504 Stefano Liberti, Land Grabbing, Verso Publishing, London, 2013, p. 144 ff, “Brazil.” 505 Ibid. 506 Ibid. 507 Ibid., p. 145. 503

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traditions to ensure land ownership. But aside from the specific legal regimes of various countries regarding the Indigenous inhabitants of their lands, the tenets of international law are explicit in this regard. Article 1 of both the UN Covenant on Economic, Social and Cultural Rights and the UN Covenant on Civil and Political Rights state: All peoples have the right of self-determination By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudices to any obligations arising of our international economic cooperation, based on the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.508

Antonio Cassese adds that the right to self-determination is a “continuing right” as the language of the covenant originally proposed that “all peoples shall have the right to self-determination” which was modified in the final text, which reads “all peoples have the right to selfdetermination,” which indicates that the right is a permanent one.509 Hence it is clear that the commercial interests of both wealthy individuals and corporations cannot acquire rights to supersede those of the local inhabitants to their own resources. Even in the case of countries or areas that were originally colonized, the achievement of political independence ensures their economic selfdetermination: As the achievement of political independence by colonial countries soon turned out to be only one step towards real independence, the problem arose within the United Nations of the claimed right of newly independent States freely to dispose of their natural resources.510

508

ICESCR, 1966, UNTS 3; ICCPR, 1966, 999 UNTS 171. Antonio Cassese, Self-Determination of Peoples, Cambridge University Press, Cambridge, 1995, p. 54. 510 Ibid., p. 99. 509

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This conclusion was based on the resolution of the General Assembly of 14 December 1962,511 which included the Declaration on Permanent Sovereignty over Natural Resources, which “gradually turned into a corpus of customary rules.”512 Given the clear legal background of people’s rights over their own resources, it is hard to justify either the large landowners or the multinationals that simply take possession of lands, with no consideration for those who now “live on the fringes on the little or nothing that has been left to them, and take refuge in alcoholism or slide into depression.”513 Nor is this a “new” problem. From the arrival of the conquistadores in the Americas, especially in Central and South America, the approach was to a new land, where the inhabitants were considered to have no rights, and the land was taken to be terra nullius. In that regard, Richard Falk observes: The jurisprudential starting point of the rights of peoples is a direct assault upon the positivist and neopositivist views of international law as dependent upon state practice and acknowledgement. In this regard, the rights of peoples can be associated with the positivist conception of natural law which, at the very birth of international law were invoked by Victoria (sic) and others on behalf of Indians being cruelly victimized by the Spanish conquistadores.514

Natural law is basic to human rights of indigenous peoples, in direct contrast with the prevailing “statism.” J. Crawford reinforces this belief in his work on “The Aborigine in Comparative Law.”515 The first thing to notice is statism. Discussion of Aborigines takes place against the background of the division of the world into states or state

511

Res. 1803(XVII). Cassese, Self-Determination of Peoples, p. 100; see text of UN Yearbook 1962, 503 ff. 513 Liberti, Land Grabbing, p. 150. 514 Richard Falk, “The Rights of Peoples (in Particular Indigenous Peoples),” in J. Crawford (ed.), The Rights of Peoples, Oxford University Press, Oxford, 1988, pp. 127–128. 515 James Crawford, “The Aborigine in Comparative Law,” Law and Anthropology 2 (1987), pp. 5–28, here p. 14. 512

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areas and the assumption that primary human collective, above the family, is the state.

By dissolving peoples and communities into individuals within states, and by identifying the latter’s interests with those of the former, positivism ignores and in fact eliminates indigenous communities and groups, as well as the individuals themselves, from consideration in international law. Natural law is based on a series of principles that use human nature as foundational, hence it has no obvious application to states or other aggregates. In fact, Thomas Aquinas explicitly contrasts the rights of individuals against inappropriate laws enacted by a state, thus clearly showing that states are not the ultimate authority, nor can they be substituted for individuals and indigenous communities. Unjust laws are even more likely to appear when the “governed” are far from the governing body, both geographically and in other senses. This is the situation encountered by Spain and Spanish colonizers, in relation to the indigenous peoples inhabiting the Americas. The problems presented by such a “conquest” are well described in the work of the Spanish school and natural law scholars such as Bartolome’ De Las Casas and Francisco de Vitoria. The “Spanish School of International Law” provided the point of origin for international law: the discovery of America gave rise to a modern law of nations … the Spanish School came into being and passed on within the course of a century, but it has to its credit the modern law of nations. 516

Natural law, the treatment of the theological/juridical work of De Las Casas and de Vitoria, was the basis of the universalization of international

516

James Brown Scott, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations, Clarendon Press, Oxford, 1934, p. 8.

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law.517 This is also the argument of G. C. Marks,518 and it is fully supported by our earlier analysis of natural law in the work of Aquinas. The first point to consider, is that these early scholars disputed the classification of the “conquered” lands as terra nullius, and argued for establishing indigenous rights in law. In addition, Vitoria proclaimed a “natural community of all mankind, and the universal validity of human rights.”519 Vitoria, and especially De Las Casas, argued that indigenous peoples were not “barbarians,” and therefore they did ndot fit Aristotle’s understanding of “natural slaves.” In contrast, they argued, these people, although unable to read or write had laws, religion, a good form of governance, and held most values that were dear in the home country. Hence colonialism (or the “first conquest”) could not be justified, although Vitoria’s position is somewhat softer, as it allows for colonization if that appeared to benefit the indigenous peoples themselves (thus unfortunately providing a first step toward the ensuing paternalist domination). From the point of view of our argument, one of the most important points is captured in Las Casas’ understanding of indigenous rights, as Marks argues: and his wide view of such rights to encompass material security, cultural integrity and political autonomy, [which] make his doctrine comparable with modern notions of self-determination and assertion of indigenous rights.520

The most important concept in this passage is that of “material security.” At any rate the “material security” of local people must be based on having access to their own resources. Hence the natural resources present in Brazil’s 517

James Leslie Brierly, The Law of Nations: An Introduction to the International Law of Peace, Clarendon Press, Oxford, 1963, p. 26. 518 G. C. Marks, “Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartolomé de Las Casas,” Australia Yearbook of International Law 13 (1990– 1991), pp. 1–51. 519 Julius Stone, Human Law and Human Justice, Stanford, CA: Stanford University Press, 1965, p. 61. 520 Marks, “Indigenous Peoples in International Law,” p. 19; emphasis added.

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example, belonged to the tribes that lived there, as “Brazil was an Indigenous state.”521 Some may argue that, since then, “the land has been tilled. Fields have been cultivated.”522 Which brings the problem back to its social dimensions, beyond the aspect of basic human rights. The law is clear on this point: it is up to the inhabitants of the land to decide what will be to their benefit. In other words, it is not up to either investors, corporate interests, or even the official rulers of the land, to force their decision on how to proceed.

3. CORPORATE LAND GRABS AND FOOD SCARCITY Big business [is] investing in etharilo because this is the fuel of the future.523

In Brazil, “5 percent of the 63 million hectares of land being cultivated in the country” (ibid.) is lost to local people, as agribusiness surges ahead with the local extensive monocultures, as they compete with the local “sugar barons” for the most valuable asset that exists: the land. Nor is Brazil the only locus for the quest for land, as Tanzania, in Africa is increasingly known as “the frontier for biofuels.”524 The biofuel plant is Jatropa, a plant that grows with minimal need for water, while its seeds remain its most valuable part. The village chief explains how the land was secured. In 2006 a government official came to the village, asking that it should give up most of its land to a businessman, whose project in turn would build “a hospital, a school, a water pump, roads. It will also give compensation money to all the families. And it will create new jobs.”525 Only the last promise was kept, from backbreaking work in the hot sun for the equivalent of about 54 euros a month. 521

Liberti, Land Grabbing, p. 152. Ibid. 523 Ibid., p. 156. 524 Ibid., p. 171. 525 Ibid., p. 172. 522

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But the worse aspect of the “deal” was that the business, they were told, was interested in the land of eleven villages, most of which had already signed up: they were the only ones holding out. After they had signed, they found out that the same trick was used with all the other villages as well. By then Sun Biofuels had taken over 1,705 hectares, but since the villagers has no legal documents to attest to their ownership, more land could be taken at will, and without their approval.526 Nor is Tanzania the only African land that attracts land grabbers: British Sugar is carving “a whole new sugar empire in Africa,” directed by the “Weston family from Canada,” making them an example of “major African land grabbers.”527 These corporations are not only land grabbers; because sugar cane requires large amounts of water, they are equally “water grabbers.” Another large corporation, Illovo, which started in the 1990s, has been buying up “farms in Malawi, Mauritius, Zambia, Tanzania and Mozambique” as well. Further Illovo purchased British Sugar, which allows it to access the European Union.528 Thus it is not only that corporations inquinate the food – as much as it is in their power – inadequate for its role to supply adequate nutrition, and unable to truly satisfy hunger.529 Even before cultivation and distribution, the crime of land grabbing is also committed. It is easy to identify the deprivation of the means for survival for whole population who lose the products of their land, hence face hunger or famine with an environmental disaster. It represents a grave, diffuse breach of human rights to life and health, as being malnourished makes people, especially the most vulnerable prey to various deadly diseases. Water deprivation is equally grave, and it can also fit the definition of environmental disaster, and a crime against humanity, given that the present accepted and permitted corporate practices foster and support both forms of deprivation.

526

Ibid., p. 173. Fred Pearce, The Land Grabbers: The New Fight over Who Owns the Earth, Beacon Press, Boston, MA, 2012, p. 238. 528 Ibid. 529 UNGA/HR /34/48; Laura Westra, On Hunger, Brown Walker, Irvine, CA, 2017. 527

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To repeat: both should be acknowledged to be crimes against humanity, because (1) they represent attacks on life and health, depriving people and whole populations of their basic survival needs (both water and food); and (2) the emphasis should be on the “criminal” aspect of the activities that produce such results. Richard Falk, speaking of the ICC’s importance if the UN is to fulfil its role in civil society, said: We should also be aware that the ICC once established and operating has been chasing the mice, while ignoring the tigers.530

But the first step is to establish beyond a doubt whether any domestic or international law instrument exists to allow to capture, or at least indict, the “tigers” to which Falk refers.

3.1. Land Grabs, Food Scarcity and International Law The International Code of conduct on Pesticide Management, established by WHO and FAO is a voluntary framework that guides governments, the private sector, civil society, and other stakeholders on best practices in managing pesticides throughout their life cycle, particularly where there is inadequate or no national legislation to regulate pesticide management.531

Hence the most recent document related to the right to food and international law states clearly that there are only “non-binding practices” and “international codes of conduct,” but no solid law to curb and control the grave dangers inherent in the current industrially grown and distributed food. The onus is on the pesticide industry but a recent European case demonstrates that the agrochemical industry defends its products with no concern for the dangers it imposes on the public: Falk, Richard, “UN Under Siege: Geopolitics in the Time of Trump,” talk at International Youth and Students Movement for the United Nations (ISMUN), Summer School, Geneva, 28 June 2017. 531 A/HRC/34/48, para. 61. 530

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Laura Westra The Aarhus Convention has recently been invoked concerning confidentiality of information regarding glyphosate. In a recent case brought by non-governmental organizations to the European Court of Justice, the Court ruled that safety and health information about the pesticide must be made available to the public. The case stems from the European commission’s refusal to grant access to such information.532

It is clear that the intrusion of the agrochemical/pesticide industry in the capacity of international legal regimes to protect the public is the main problem: neither “non-binding codes of conduct” nor “voluntary frameworks” may be invoked in order to control their criminality, as their activities give rise to environmental disasters which often start with land grabs. The International Criminal Court thus may have a pivotal future role, as it moves to call what is happening by its real name: a crime against humanity. While our claim that the current food deprivation and inquination is an environmental disaster is not generally accepted at this time, in contrast, the consequences of climate change are commonly viewed as an environmental disaster (see previous chapters). That appellation gains additional power, when we consider their impact on food: Climate change has clear and immediate implications for the full enjoyment of human rights, including inter alia the right to life, the right to take part in cultural life, the right to use and enjoy property, the right to an adequate standard of living, the right to food, and the right to the attainment of the highest standard of physical and mental health.533

This declaration shows the other end of the spectrum of climate change issues, small islands and seaside areas bear climate change damage more

532

533

See A/HRC/30/40, paras 46–47; Case C–673/13P, Commission v. Stichting Greenpeace Nederland and Pesticide Action Network (Europe Judgment of 23 November 2016); A/HRC/34/48 para. 60. Male Declaration on the Human Dimensions of Global Climate Change, Declaration of the Representatives of the Small Island Developing States meeting in Male, 13–14 November 2007, retrieved from www.ciel.org/Publications/Male_Declaration_Nov07.pdf (emphasis added).

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directly, whereas, as we saw, globalized corporate power is present and powerful, but only indirectly involved in the disasters it causes. Small islands damages involve different actors than those of a small case in a relatively protected area, with far less casualties. Yet in all cases both small events and large terrifying episodes are engendered and magnified by the same interests, that is, primarily those of “dominant states, international financial institutions (IFIs) and transnational corporations (TNCs) both of which have wreaked havoc on the global food systems.”534 The presence of climate change represents an ongoing attack on the right to food, because of a normative legal framework that is simply not powerful enough to resist the combination of the other three major elements (states, IFIs and MNCs) despite the presence of explicit international law instruments that ought to be binding:535 The right to adequate food is a “relative” standard. In contrast, the right to be free from hunger is “absolute.” As a minimum core obligation, State Parties must act immediately to mitigate and alleviate hunger … even in times of natural disasters.536

In addition to the weakness of the legal instruments intended, minimally, to “mitigate and alleviate hunger,” the difficulties introduced by the various elements of climate change affect the production and distribution of food at every level. Extreme heat produces desertification and other forms of land degradation: In the United Nations Convention to Combat Desertification land degradation is defined as a “reduction or loss in arid, semi-arid, and dry subhumid areas, of the biological or economic productivity and complexity

Smita Narula, 2010, “Reclaiming the Right to Food as a Normative Response to the Global Food Crisis,” Yale Human Rights and Development Journal 13(2), pp. 403–420, here p. 404. 535 See Article11 (1) of the ICESCR and the Right to be Free From Hunger. 536 Narula, “Reclaiming the Right to Food …,” p. 405; see also UN Economic and Social Council (ECOSOC), Committee on Economic, Social and Cultural Rights (CESCR) General Comment No.l2/1999/s (12 May 1999). 534

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It is unfortunate that no legal document takes into consideration the effects of climate change on the land, the soils and manipulation of seeds that is added by agriculture, as serious threats to the alleviation of hunger. Land degradation affects previously productive lands in all continents, and this climate-engendered degradation is additional to the degradation arising in genera from human activities and habitation patterns, as they include “(i) soil erosion caused by wind and/or water; (ii) deterioration of the physical, chemical, and biological or economic properties of soil and (iii) long-term loss of natural vegetation.”538 Aside from the inappropriate addition of “economic” to the otherwise scientific list above, this paragraph describes the impact of climate change on the integrity of the land.539 Climate affects the land and is affected in turn: Land surface is an important part of the climate system. It controls the partitioning of available energy at the surface between sensible and latent heat, and controls the partitioning of available water between evaporation and run-off. Land-atmosphere interaction is essentially the exchanges of water and energy between the land and the atmosphere. 540

It is easy to identify the powerful tidal waves, tsunamis and increasingly powerful hurricanes as the major aspects of climate change; these events together with the altered seasonal patterns that affect all continents, combine to form a significant aspect of the damages brought by climate change to our food supply. Another problem engendered by climate change is indirect, as it attacks food security, while trying to address the need for greener energy: Mannava V. K. Sivakumar, “Climate and Land Degradation,” in Thomas J. Sauer, John Norman and Mannava V. K. Sivakumar (eds.), Sustaining Soil Productivity in Response to Global Climate Change, Wiley-Blackwell, Chichester, 2011, pp. 141–154, here p. 141. 538 Ibid. 539 Laura Westra, Ecological Integrity and Global Governance, Routledge, Abingdon, 2016, especially ch. 1; Laura Westra, “Ecological Integrity and the Right to Food,” in Thomas J. Sauer, John Norman and Mannava V. K. Sivakumar (eds.), Sustaining Soil Productivity in Response to Global Climate Change, Wiley-Blackwell, Chichester, 2011, pp. 103–116. 540 Sivakumar, “Climate and Land Degradation,” p. 142. 537

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it is the use that is made recently of grain that would be needed to prevent hunger: At present world agricultural land supplies more than 99.7 per cent of all world food (in term of calories) while aquatic systems supply less than 0.3 per cent (FAOSTAT, 2004). Worldwide, during the last decade, per capital available cropland decrease by 20 per cent and irrigation land by 12 per cent.541

David Pimentel is a well-known soil expert, thus although his research is somewhat dated, the use of corn ethanol has not decreased, and he adds, “Using corn, a basic human food resource for ethanol production raises ethical and moral issues.” Expanding ethanol production entails divesting valuable cropland for the production of corn to nourish people.542 Thus not only climate change inflicts grave damages to food production, affecting the natural sequence of the seasons, the elimination of productive soil through desertification, but even the measures intended to mitigate its effects may add to the damage instead.

3.2. The FAO Report on Hunger and Climate Change The FAO study estimated that the livestock sector was responsible for 18 percent of greenhouse gas emissions measured in CO2 equivalent – a larger share than transport. Once livestock respiration and the loss of greenhouse gas reductions from photosynthesis that are foregone by using large areas of land for grazing or feedcrops are taken into account, livestock is found to be responsible for 51 percent of anthropogenic greenhouse gas emissions …543

David Pimentel, “The Ecological and Energy Integrity of Corn Ethanol Production,” in Laura Westra, Klaus Bosselmann and Richard Westra (eds.), Reconciling Human Existence with Ecological Integrity, Earthscan, London, 2009, pp. 245–255, here p. 251. 542 Ibid., p. 252. 543 O. De Schutter, Final Report: The Transformative Potential of the Right to Food, UN Doc. GE.14-10537, Human Rights Council 25th session, 2014; quotations in subsequent paragraphs are taken from this report. See also Goodland, Robert, and J. Anhang, Livestock 541

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I have discussed the problem of Western diets elsewhere,544 and the focus was primarily on the interface between diet and health. It is important now to add the concerns raised by the FAO Rapporteur regarding food availability and climate change, and the interface between the two. We’ve already discussed many of the points that emerge in the Report, but it is important to sum up the main points emphasized by this official document, which include the following. Paragraph 7 refers to “the most potentially devastating impacts of industrial modes of agricultural production stem from their contribution to increased greenhouse gas emissions.” This adds to the interface between industrial food production, and the overuse of energy: the globalized system of “free trade” does not respect local customs and practices related to food. In addition to the harms wrought be pesticides, fertilizes and herbicides, “the long-distance transport and packaging of food” all use a great deal of energy that would not be needed if food were to be grown and used locally. Paragraph 8 states: “partly as a result of climate change, but also due to unsustainable and destructive fishing practices and distorting subsidies, the productivity of global fisheries as a source of food is declining.” Fish is often ignored and its importance as a source of nourishment is under played, while the harm to health wrought by the overconsumption of meat is as grave a concern as is “the unsustainable production of meat,” as the latter is expected “to reach 470 million tons” to meet demand, more than double the production of 2007.545 Paragraph 15 addresses “the threats that food systems face, particularly those linked to climate change and soil degradation,” which must force a shift to “agroecological modes of production” (para. 16). This shift would entail “intercropping,” “the recycling of manure- and food scraps” all of which “reduce the use of external inputs.” Still, not enough is said about fisheries in this regard: many species are extremely sensitive to water and Climate Change: What if the Key actors in Climate Change are Cows, Pigs and Chickens? WorldWatch, New York, November/December 2009. 544 Westra, On Hunger. 545 FAO, How to Feed the World in 2050, FAO, Rome, retrieved from www.fao.org/fileadmin/templates/wsfs/docs/expert_paper/How_to_Feed_the_World_in_20 50.pdf.

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temperature, as well as to pollution derived from a number if activities on the seas, but especially run-off agricultural pollution in the case of rivers and lakes. Non-point pollution is and has been especially problematic in the Great Lakes area, and we will return to this topic below. Paragraphs 18, 19 and 21 address the “demand-side of the issues” that produce negative effects in food production and distribution. The “three priorities” that are cited are, “the negative impacts of industrial livestock production”; the second priority is “to constrain the demand for liquid biofuels in transport fuels” (US and EU), and the related subsidies; the third priority is to reduce “losses and waste.” A 2011 study estimates that 1.3 billion tons of food is “lost or wasted” each year. This Report is extremely important for what it emphasizes, but also for what it minimizes or ignores altogether. Both of these major issues are somewhat related to climate change: first, the effects of non-point pollution on lake and river water; second, the increasing effect of out-of-control wildfires.

3.3. Climate Change and Land Grabbing Climate change is already affecting the Middle East and North Africa (MENA) region in dire ways, but it is expected that climate change will cause extreme heat to spread across more of the land for longer periods of time, this ill makes some countries like Kuwait and Saudi Arabia uninhabitable because it will create humid heat conditions at a level incompatible with human existence. It will also play a major role in reducing growing areas for agriculture – which is one of the most important sectors in the region.546

This situation appears somewhat removed from land grabs like those we have been discussing: there is neither a short-sighted greedy government of 546

Lina Yassin, “Climate Change Threatens Uninhabitable conditions for the Middle East and North Africa,” Counterpunch (4 July 2017), retrieved from www.coutnerpunch.or /2017/07/04/climate-change threatens-uninhabitable-conditions-for-the middle-east-andnorth-africa.

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a so-called “developing country,” nor a corporation intent on profit maximizing. Thus it is hard to pinpoint the perpetrator(s), the criminal elements that might render these events, as we argue, “crimes against humanity.” It can be argued that depriving whole populations, indeed, whole countries and regions of their usable land (for cultivation to support their own inhabitants), constitutes the equivalent of a land grab, as well as representing an environmental disaster. We need to fully appreciate this point in order to be able to properly assess the results that ensue from this kind of land deprivation in order to better understand (a) how to identify the culpability for such results; but also, most importantly, (b) how to revise domestic regulatory regimes and international legal instruments to deal appropriately with the consequences that follow. The most obvious example that comes to mind, is the way that present laws deal with migrants and refugees, who already present a grave, almost insoluble problem, primarily in southern Europe. That is the area where wars have been raging in support of Western interests in the MENA regions, but as noted, wars are no longer the only form of aggression suffered by those unfortunate populations, as hunger and other deprivations, also follow western interests. The main question that arises is: who is responsible for this state of affairs? No single perpetrator could create such disastrous conditions on his own. Thus we must consider collective responsibi1ity, as we do in criminal law, where all the participants in a crime such as a violent bank robbery are found to be guilty, and accountable for the commission of the crime, from the insider providing the intelligence prior to the crime, to the aggressor, the robbers, and the drivers of the get-away car. Collective and hierarchical models of accountability are in a sense constructions. For one does not look at who “really” did it, but in order to get around the problem of many hands, constructs a form of accountability.547

547

Mark Bovens, The Quest for Responsibility, Cambridge University Press, Cambridge, 1998, p. 106.

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The “collective model of responsibility,” according to Bovens is based on several basic conditions, one of which is especially relevant: “(a) the collective must be characterized by a high degree of de facto solidarity,” a condition that seems basic to group responsibility. In contrast, the fact that “(d) those who are held responsible should have the chance to exercise a certain degree of influence on the eventual outcome,” appears to be off the mark instead. Even silence, coupled with the ongoing participation in some measure in the activities and goals of a specific complex collectivity, are sufficient to ensure that a certain amount of responsibility is retained. No doubt that is implied by Peter French’s emphasis on the Corporate Internal Decision-making Structure of the corporation (CID Structure),548 which apportions responsibility according to the degree of input they have into corporate decisions. But it is his contention that all who participate in the corporate decisions or operations are – in various measure – accomplices in the crimes that are being committed by a specific corporate collectivity. States have the responsibility to empower corporations to operate, but they also have the obligation to protect citizens, especially now that corporations are no longer created for a single limited purpose as they initially were.549 Thus, enabling corporate bodies to perpetrate wholesale starvation of whole populations while pursuing their economic objectives, as we saw in the work of the Special Rapporteur de Shutter, should be viewed as a crime against humanity. The ILC identified as jus cogens the prohibition of aggression and the illegal use of force, the prohibitions against slavery and the slave trade, genocide and racial discrimination and apartheid, the prohibition against torture, the basic rules of international humanitarian law and the right to self-determination.550

548

Peter French, Collective and Corporate Responsibility, Columbia University Press, New York, 1984. 549 Laura Westra, The Supranational Corporation, Brill, Leyden, 2013, ch. 2. 550 Report of the International Law Commission, 53rd Sess. GAOR; 56th Sess. Supp. No. 10 (A/56/10), 2001, pp. 283, 284, paras. 4–5; see also discussion in Stefan Talmon, “The Duty Not to Recognize as Lawful a Situation Created by the Illegal Use of Force and Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Substance?,” in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International

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To those norms, others were added, such as the prohibition of cruel, inhuman and degrading treatment,551 “crimes against humanity,” the prohibition of piracy and the principle of “permanent sovereignty over natural resources.”552 As well, the “basic rules for the protection of the environment” was viewed as part of jus cogens by the German Constitutional Court.553 This expanding list appears to cover both acts that can only originate from a state, and others that describe many harmful activities we have discussed as part of industry. It is important to note that the obligation does not only apply to the states involved, or perhaps to “quasi-states” or corporations, if that position can be accepted, but that the same obligation NOT to accept an illegal situation is the duty of all “third states” and the global community itself. When US State/Corporate interests are viewed essentially as one, as for instance, the 2006 Terrorism Act identifies acts hostile to corporate/industrial operation with acts against the State,554 and when this identification, like the one covering so-called “counter-terrorist” measures, views as totally permissible all sorts of murderous, aggressive acts – then the impunity with which both are treated should not occasion any surprise. If you can kill, even using drones which, by definition, cannot distinguish between combatant and non-combatant, in the advancement of US economic interests, then surely simply depriving people of their livelihood should be viewed as a far lesser crime.555 The inequitable distribution of resources driven by the strong at the expense of the weak which constitutes the broad definition of plunder, finds in the rule of law the rhetoric of legitimization. This rhetoric constricts the very meaning of the word plunder, to the point of Legal Order, Jus Cogens and Obligations Erga Omnes, Martinus Nijhoff Publishers, Leyden, 2006, pp. 99–125, here p. 99. 551 German Federal Constitutional Court, 2nd Chamber, Order of 24 June 2003, 2 BvR 685/03,B Verf GE 108, p. 129 at para 67. 552 Ibid., p. 100. 553 Order of the German Federal Constitutional Court of 26 October 2004, 2BvR 955/00 Deutsches Verwaltugsblatt 2005, pp. 175–183, at p. 178. 554 Jeffrey D. Clements, Corporations Are Not People, Berrett-Koehler Publishers, Inc., San Francisco, CA, 2012. 555 Laura Westra, Revolt Against Authority, Brill, Leyden, 2014.

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naturalizing, legalizing and ultimately denying the outrageous disparity in resource allocation, following many social processes in contexts of power imbalance.556

The enrichment of corporate “criminals” proceeds apace with the impoverishment of the rest (or the 99%, according to the Occupy Movement). The impunity of corporate harmful actions is supported and defended through that enrichment. The present situation is the continuation of “colonial domination,” now hiding behind the mask of neoliberal “development.”557 Mattei and Nader dub the situation which combines elements of criminality with the legal infrastructure of impunity, the “imperial rule of law.”558 Nor is the obligation of “leaders” of all kinds to provide for the satisfaction of the basic needs of all those for whom they are responsible, a recent development, although it is now entrenched in many UN instruments, especially the ICESCR and the ICCPR. Even in Ancient times, in the Bible, we find that God actually responds to the people’s needs, when these are related by Moses: The whole congregation of the children of Israel complained against Moses and Aaron in the wilderness. The children of Israel said to them, “If we only had died by the hand of the Lord in the Land of Egypt, when we sat by the fleshpots and ate our fill of bread. For you have brought us into the wilderness to kill the whole assembly with hunger.559

Aside from what Moses and God himself thought of the requests of the “Children of Israel,” this passage seems to express, in a nutshell, the argument of this work in simple words. The statement can be divided into three separate but connected arguments. First, that hunger is the first human consideration, the most basic need of all people; second, that ensuring the

556

Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal, Blackwell Publishing, Malden, MA, 2008, p. 137. 557 Ibid.; see also Laura Westra, Faces of State Terrorism, Brill, Leyden, 2012, pp. 87–92. 558 Mattei and Nader, Plunder, p. 137. 559 Exodus 16.2-4.

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survival of the people they command and lead, is the first responsibility of such leaders; third, these basic rights and responsibilities precede for all people the civil and political rights to which they might be entitled. The Hebrews even professed to prefer slavery itself to suffering the hunger that appeared to accompany the liberation they had enjoyed with Moses. Nor was their request for food judged to be unacceptable: God himself through Moses, informed the people that their (just) request was to be met, and food was to be given to them, enough to satisfy their hunger. It is therefore, worthy of note that those responsible for the welfare of the Hebrews, a responsibility arising from their status as leaders, accepted that the very boon they had bestowed upon these peoples, that of freedom from slavery, was not sufficient to remove their primary obligation to provide for their survival. In biblical times, the situation was much simpler than it is today: whoever was the “leader,” the “chief” of a city, region or group, was responsible for the welfare of the citizens of his community. Today, responsibility for the citizens of a given area or nation, has given way to a diffuse responsibility for the human rights of all those affected by the decisions of all countries leaders, in fact, as erga omnes obligations entail, every leader can be held responsible for any and all human rights breaches anywhere, both to those to their own citizens, and to those of other nations (at least in principle), provided that the harmful practices that produce harms to human rights, originate with the state we hold responsible. Hence, leaders’ responsibility has increased exponentially, as has the potential for harm of numerous human activities.560 In contrast, the ability of a community to object democratically to a ruler’s decision at the time of Moses, brought almost immediate results and redress for their plight; whereas those who are deprived of necessities or otherwise oppressed in democratic countries, and those who readily and noisily defend and proclaim their rights through marches and protests, only succeed in bringing some of the worst issues to the attention of the media, at best.

560

Jonas, H., 1984, The Imperative of Responsibility, University of Chicago Press, Chicago, IL.

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But thus far, we have not seen any ruler or government’s immediate response to redress the human rights violations, so clearly and so quickly shown on television or reported in other media outlets. We know about the outrageous situation in the occupied Palestinian territories, through the UN Rapporteur’s reports;561 we are regularly informed about the effects of climate change on island communities, Indigenous and local communities, and the people of the Arctic regions; we see the hundreds of thousands of refugees in the democratic Republic of Congo, in Sudan and elsewhere, we see their abysmal living conditions, their hunger, their lack of water, medicines, and of their very human dignity.562 Yet our international legal institutions appear to be unable or unwilling to respond to the many human rights crises that develop almost daily, and show no sign of decreasing, let alone of disappearing.

3.4. The State’s Role: Beyond “Gatekeeping” Therefore the paradigmatic shift in our understanding of the state must involve a move away from the concept of the state as a medieval gatekeeper towards a more modern concept. In this concept, the state is still the ultimate authority in the regulation or migration, but the legitimacy of its regulatory power should be based not on its ability to control immigration. Just as is the case in the area of free movement of goods and capital, the legitimacy of its regulatory policies should be determined by whether its actions are welfare-improving.563

561

Human Rights Situation in Palestine and other Occupied Territories: Report of the special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, John Dugard, UN doc. A/HEC/7–17, 21 January 2008; see also Amnesty International, Israel/Gaza, Operation “Cast Lead”: 22 Days of Death and Destruction, Amnesty International, London, 2009; Laura Westra, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, 2009, ch. 6. 562 Westra, Environmental Justice and the Rights of Ecological Refugees. 563 Ugur Mehmet, “The Ethics Economics and Governance of Free Movement,” in Antoine Pécoud and Paul de Gucheteneire (eds.), Migration Without Borders, UNESCO Publishing, Paris, 2009, pp. 65–96, here p. 85.

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States’ actions, like corporate activities are carried out by employees and functionaries, all of whom are part of the internal operation of a complex organization. For corporate participants, any conflict that might arise with their own conscience and moral principles might lead, at worst, to dismissal. That is a far lesser personal harm than that incurred by army personnel who might find themselves in a similar situation, and refuse to obey superior orders. The best known example of the latter situation, clearly demonstrating the problem of “many hands” regarding personal responsibility, is that of the My Lai massacre Lt. Calley was ordered to carry out a so-called “searchand-destroy mission” during the Vietnam war. Calley was the commander of a platoon whose action resulted in the death of 107 civilians in 1968. He was eventually condemned to 4 years detention, served for the most part at home.564 Even in this extreme case, like in many other cases, the rules of Nuremberg prevail. In contrast, almost like examples taken from army situations, within a corporate milieu, there exists a strong pressure to conform “to engage in loyal ‘teamwork’, often strengthened by ‘groupthink’ mechanisms, and social pressure that make it particularly difficult to back out of reprehensible activities.”565 Today’s situation reflects the problematic side of a corporate culture that shares much of its unquestioning silence in the face of unspeakable horror, with the silence and lack of critiques that prevailed in Nazi Germany during the Second World War: “As Eichmann told it, the most potent factor in the soothing of his own conscience, was the simple fact that he could see no one, no one at all, who actually was against the Final Solution.”566 Hence, the compliance of the followers of corporate culture is comparable to the activities of the perpetrators of genocide, and the differences that exist between these two sets of actions, substantive though they are, are not sufficient to establish a difference in kind between government and corporate crimes. Bovens cites Nagel, stating that “the great modern crimes

564

Bovens, The Quest for Responsibility, p. 48. Ibid., p. 124. 566 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Viking, New York, 1965, p. 116. 565

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are public crimes,”567 but adds, instead, that “the great modern crimes are corporate crimes.”568 Responsibility, in the sense of “being a responsible person,” no matter what one’s role in an organization, is and remains extremely difficult, as it may impose a grave burden on individuals who might want to adhere to a personal morality, and still retain their ability to provide for themselves and their families. Nevertheless, as in the decision-making structure of a corporate organization, which includes all those involved in the carrying out of corporate operations, when we seek to establish the accountability of corporate criminals we must include both those involved in the bureaucracies of the states that permit/enable their operations, and all those who work within the corporations, albeit with different degrees of responsibility. As we saw, as we considered the roots of the poverty and the hunger that cause the need to flee, both the impoverishment of people in large cities in advanced western countries and the deprivations due to the elimination of the resources needed by third world people, it is the corporations who are the main beneficiaries of the situation, and within the corporations, primarily the CEOs in each organization, although their operations are based on and supported by government approval in all cases. Thus, as we trace the aetiology of the flight from those particular conditions, we find the clear causal link between the specific chosen activities of those involved in the food industry, including those who facilitate and promote their operations. The latter, it bears repeating, are state bureaucracies, legally bound to protect their citizens, and legally obliged to follow the mandates of conventions, charters, and other UN documents related to their interaction with both natural and legal persons. In contrast, corporate bodies only have non-binding directives, and lists of “ethical commitments” most of which are simply ignored. Hence, the effects of their negligence and non-compliance continue unabated, and unpunished. Perhaps we can view the situation described in the UN Report Thomas Nagel, “Ruthlessness in Public Life,” in Stuart Hampshire (ed.), Public and Private Morality, Cambridge University Press, Cambridge, 1978, pp. 75–94, here p. 75. 568 Bovens, The Quest for Responsibility, p. 131. 567

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as a symptom of an even graver, deeper structural problem, as both gross inequality and hunger/malnutrition are the products of the same wrongheaded system, moving steadily forward in the wrong direction, as recent OECD reports indicate.569 As UN Special Rapporteur Oliver de Schutter affirmed, a radical reorganization of the food supply systems is absolutely necessary. But, while that radical change appears to be necessary, it seems it is not sufficient, as long as the general system of neoliberal globalization is still in place. The treatment of asylum seekers and the presence of fortified borders is only one aspect of the conflict between the present instantiations of state sovereignty, with its emphasis on economic interests and its total neglect of the rights of humanity, in the face of deprivation that constitute crimes against humanity.

4. ACCOUNTABILITY FOR LAND GRABBING The oligopoly of the chemical industry has enormous power. Recent mergers have resulted in just three powerful corporations: Monsanto and Bayer, Dow and Dupont, and Syngenta and Chemchina. They control more than 65 percent of global pesticide sales. Serious conflicts of interest issues arise, as they also control almost 61 percent of commercial seed sales. The pesticide industry’s efforts to influence policymakers and regulators have obstructed reforms and paralysed global pesticide restrictions globally.570

In order to continue to produce the huge profits of the “oligopoly of the chemical industry,” the powerful corporations here named need to ensure they control the land for their monocultures, their seeds, and their genetically modified organisms. Whether the corporations grab their land they want directly, or prefer to deal through the government officials of various target countries, the ultimate results persist. The bureaucracies of the countries they target ensure that laws are enacted that are favourable to those

569

OECD Social, Employment and Migration DELSA/ELSA/WD/SEM(2013)2, 17 February 2014. 570 A/HRC/34/18, para. 86.

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enterprises and their goals. Thus it is hard to find domestic laws capable of restraining land grabbers, and this difficulty exists in most countries, even in those which are most affluent and secure in their geopolitical position. The US is a prime example, as its federal legal system actually appears to equate its government with one of the “oligopoly”: Monsanto. The transfer of power from state-controlled agricultural expansion to “corporate food regime” has been foundational to the present situation of land grabs: take nineteenth century settler state agro-exporting anticipated a general offshoring of industrial agriculture, as the US-centered food regime morphed into a corporate food regime, anchored by the WTO (1995) as it institutionalized liberal trade and /investment relations. It is this trajectory that has laid the foundations for the contemporary offshore land grabs. 571

McMichael terms the new development in land grabbing, a “new territorialisation,” intended to use land offshore, in order to eventually repatriate the food or other required product grown offshore.572 This approach is “designed to curb dependence on markets” as exemplified by China’s direct agreement with Argentina to secure millions of acres for their use: In Africa, Beijing has 1.5 million nationals building infrastructure and digging water-canals, and pursuing irrigation schemes in Mali … manning seed labs in South Africa … tilling soil from Senegal to Mozambique.573

In addition, there is “the expanding role of agrofuels in global land grabs” as “the EU green fuel mandates [is]stimulating palm oil expansion in Malaysia and Indonesia, in Guatemala and Colombia.”574 Both food and energy shortages go hand in hand, and “technification” is viewed as the answer, so that land grabs in faraway areas such as sub-Saharan Africa, Philip McMichael, “Land Grabbing as Security: Mercantilism in International Relations,” in Matias Margulis, Nora McKeon and Saturnino M. Borras (eds.), Land Grabbing and Global Governance, Routledge, Abingdon, 2014, pp. 47–64, here p. 49. 572 ibid.p.48. 573 Pearce, The Land Grabbers, pp. 202–203. 574 McMichael, “Land Grabbing as Security,” p. 52. 571

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appear to offer substantial profits. This movement is even presented as a laudable effort at “feeding the world.”575 Oxfam produced an important briefing paper on the topic “Land and Power” (The growing scandal surrounding the new wave of investments on land),576 where land grabs are defined as land acquisitions which do one or more of the following:     

violate human rights, and particularly equal rights of women; flout the principle of free, prior, and informed consent of the affected land users, particularly indigenous peoples; ignore the impacts on social, economic, and gender relations, and on the environment; avoid transparent contracts with clear and binding commitments on employment and benefit sharing; and eschew democratic planning, independent oversight, and meaningful participation.577

This Oxfam document states that rather than collaborating to ensure that poor people had the natural resources to which they were entitled, “too many investments have resulted in dispossession, deception, violation of human rights, and destruction of livelihoods.578 The document considers in detail land grabs in Uganda, Indonesia, Guatemala, Honduras and South Sudan.579 Regarding the lack of prior, informed consent, the World Bank had a special complaints mechanism, to allow those who felt a project funded by the Bank had not treated fairly a community and had not secured the community’s prior informed consent.580 Margulis and Porter acknowledge this grave difficulty as the emphasis on simple “transparency” tends to advocate “reliance on a process of N. L. Peluso and C. Lund, “New Frontiers of Land Control,” Journal of Peasant Studies 38(4) (2014), pp. 667–681, here pp. 673–674. 576 Oxfam Briefing Paper 171, 22 September 2011, Summary. 577 ILC, Tirana Declaration, 2011, retrieved from www.landcoalition.org/en/resources/tiranadeclaration. 578 Oxfam Briefing Paper 171, 22 September 2011, Summary. 579 Ibid. 580 Kirk Herbertson, Rim Thompson and Robert Goodland, A Roadmap for Integrating Human Rights into the World Bank Group, Washington, DC, World Resources Institute, 2010. 575

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information dissemination which obscures the deficiencies of that process itself,”581 while the same process also obscures the difference between disparate groups, thus hiding the complex relations that produce exploitative transaction that define land grabbing.582 The authors argue that the recent circumstances within which land grabs take place indicate a complete change from the earlier geopolitical situation, characterized by the clear North/South and West/East conflicts, and dominated by the power of US hegemony after the Second World War and the era of colonialism of the European sovereign states, such as Spain, the Netherlands, France and Great Britain. During that period of US power, the authors believe, included the power of multinational corporations, like “Monsanto and Cargill.”583 But in recent times, the geopolitical map is substantially changed because of the input from many other actors as the sources of capital for “food-feed-fuel” now include private investors, the powerful agri-food business, de-regulated through global trade, and the developing of land as a new asset. Land grabs now often proceed through novel formal practices. While these changes are undeniable, it seems that rather than replacing the obvious relations between the “US-led capitalist West and state-centric regions elsewhere,” the newer complexity is superimposed on the existing forms of imperialism. The reason for this suggestion is that the increasingly evident trend is the actual identification of the US itself with the agribusiness multinational corporations it supports. In turn the latter control in various ways the legal regimes originally intended to control their activities in protection of the public interest, either through economic means, or through direct intrust on in the regulatory process.

Matias E. Margulis and Tony Porter, “Governing the Global Land Grab: Multipolarity, Ideas, and Complexity in Transnational Governance,” Globalizations 10 (2013), pp. 65–86, here p. 73. 582 Ibid. 583 Ibid., p. 70. 581

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4.1. Agribusiness and Its Corporate Power: The Quest/ Acceptance of Economic and Other Benefits as Corruption Subject to its constitution and the fundamental principles of its legal system, each State Party shall prohibit and punish the offering or granting directly or indirectly by its nationals, persons having habitual residence in its territory and businesses domiciled there, to a government official of another state, of any article of monetary value or other benefit, such gift, favour, promise or advantage, in connection with any economic or commercial transaction in exchange for any act or omission in the performance of that official’s public function. 584

Before even considering the history and development of “combating corruption under international law,”585 we need to acknowledge some of the basic differences between the activities targeted by these documents and the practices we have been indicting in these pages. First, in many cases, as we noted regarding Monsanto, the benefits, economic and in kind are primarily bestowed upon officials in that corporation’s own country. However, that is not true when we consider Monsanto’s efforts to pursue their stated goals in other countries, from Europe to other countries, such as India, as Vandana Shiva shows,586 as well as in many other examples discussed in this work. Another divergence between our position and that of corruption regulations, is the fact that only economic harm is taken in consideration in those documents, whether such harm might be suffered by corporations or by countries. In addition the council Regulation 2988/95 in Europe established a legal framework based on the Protection of Community Financial Interests, just as the OECD Convention’s description of bribery’s

584

Interamerican Convention Against Corruption, 29 March 1996, 35 ILM 724, Article VII. Alehandro Posadas, “Combating Corruption Under International Law,” Duke Comparative and International Law 10 (2000), pp. 345–414; United Nations Office on Drugs and Crime, Compendium of International Legal Instruments on Corruption, second edition, United Nations, New York, 2005. 586 Vandana Shiva, “Make Monsanto Pay,” Commondreams (24 February 2016), retrieved from www.commondreams.org/views/2016/02/24/make-monsanto-pay. 585

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motive is “a briber’s motive is to obtain or retain business or other improper advantage in the conduct of international business.”587 The economic motive of course is basic to corrupt practices in agribusiness’s various operations, but no legal document mentions as a significant factor the direct attack on life and health of affected people, although both food and water are basic to human survival thus should give rise to non-derogable obligations on the part of those responsible for their safety. Hence, although both food and water are so vitally important, no document dealing with corruption considers the bribery of officials entrusted with their safety as an aggravating factor. One must question why both the bribers and the bribed/corrupted government officials and bureaucrats, are judged solely on the economic damage their actions may inflict on their country and/or the bribing corporation, while the human rights violations that may ensue as result of their actions or omissions are not considered. This situation replicates the operation of the most powerful tribunals/institutions in the world today, the WTO, as cited in the language of the “Chapeau” of Article XX, as well as the composition of the “experts” in that organization, including its judges, which excludes completely both medical and ecological experts. Further, one wonders why the corruption of officials in another state is viewed as totally unacceptable and illegal, whereas the corruption of officials in one’s own country, for the profit and advantage of one corporation, should be judged not only acceptable but also unremarkable. No doubt, public officials are hired to perform a specific job, a public service: their work is not originally intended to enrich a specific corporation or an industry, in general, and through that, even acquire advantages for themselves beyond the salary agreed upon. As far as government officials are concerned, the corruption may assume an even more insidious aspect. Let us consider the case of agencies charged with the protection of public health. In some cases the whole agency may benefit from the largesse of one industry, so that the very role of its 587

OECD, Convention Combating Bribery of Foreign Public Officials in International Business Transactions, Paris, 18 December 1997, 37 ILM; see also discussion in·Posadas, “Combating Corruption Under International Law,” p. 386.

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employees is unclear; are they to protect the public interest, the role for which they were originally employed? Or, once the agency is under pressure in some way (primarily financial, one surmises) from an industry to hide or at least to modify facts should its officials stand by their employers thereby fulfilling their obligation to the corrupt agency, or does the obligation to the public interests retain its primacy? Nor is this example primarily an intellectual exercise, simply created to make a point: this is the situation presently in Europe and also elsewhere, in the case of Monsanto’s use of glyphosate, proven carcinogenic, but still “in doubt” according to many agencies established to protect public health, not the chemical industry. It would seem that this case, now well-known globally, although denied staunchly by agribusiness’s representatives, would best serve to illustrate corruption at the global level in many countries. Nor is this an isolated case. Vandana Shiva cites yet another example of agribusiness’s pursuit of economic advantage at any cost, using all the tools, legal and illegal at its disposal, including the use of the “doubt industry,” false propaganda and misinformation, as well as direct corruption of those who might attempt to block its interests in the bureaucracy of various governments. Shiva turns to India to demonstrate just how Monsanto functions in her recent short piece titled “Make Monsanto Pay”: The Competition Commission of India (CCI), the country’s antitrust regulator, has recently said that it suspects Monsanto joint venture abused its dominant position as a supplier of genetically modified (GM) cotton seeds in India and has issued an order citing prima facie violations of Section 3(4) and 4 of the Competition Act to be investigated by CCI’s Director General.588

Shiva adds that Monsanto has treated the laws of India “as mere hurdles in its way to swindle India and its farmers,” as it smuggled 100 grams of cotton seeds “containing the MON531-Bt.gene into India without the approval of the Genetic Engineering Appraisal Committee (GEAC).” Unfortunately “GMO traits, once released into the environment, cannot be 588

Shiva, “Make Monsanto Pay.”

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contained or recalled,”589 thus allowing Monsanto-Mahyco to establish large open-field trials across nine states of India, by-passing the required approval by GEAC: the following year, in many states, the trial fields were used to plant wheat or other plants. Of course the advantages to Monsanto were huge: they charged farmers 80 per cent of the cost of Bt cotton seeds (Rs·1,600 per 450 gram package of Bt cotton seeds), Rs 1, 250 was charged by Monsanto-Mahyco Biotech (MMB) as a “trait fee.” Hence, farmers were forced to spend for the expensive seeds as well as the chemicals their GMOs required, thus losing gradually any hope of surviving on their lands: “Of the 300,000 farmer suicides in India since Monsanto smuggled the Bt gene into India in 1995, 84 per cent, almost 252,000 are directly at tributed to Monsanto’s Bt cotton.”590 The government of India is now suing Monsanto for “breaking Indian laws and corrupting” their regulatory system. Of course this form of “corruption” goes hand-in-hand with the familiar “explosion of cancers where glyphosate is used,” while, Shiva adds, the Roundup herbicide has failed across the world at controlling weeds, creating superweeds instead. Perhaps these forms of corruption are not examples of land grabs when they occur in the home country of the corporation involved. But what is happening in India, as the local farmers lose control of their land and of its actual output, surely represents a qualitative if not a quantitative land grab: the land may still be nominally belonging to the local farmer, but its cultivation is no longer under his control, thus it is no longer “his” as it was before the forceful intrusion of unwanted chemical substances or of modified organisms.591 At any rate, these novel forms of land-grabbing are superimposed on the North/West–South/East power imbalances, as the support of the US is the platform from which many – if not most – of existing land grabs are launched, although aside from the alliances with

589

Ibid. Ibid. 591 Westra, On Hunger, ch. 5, where the question of corruption is discussed in relation to the agrochemical industry. 590

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Bayer/Monsanto and others a powerful connection with China is now also included as noted above. On the whole, without denying “the complexity of transnational governance,”592 the emerging and increasing complexity to be found in the geopolitical relations that support the ongoing land grabs do not supplant – much less exclude – the existing Northwest power structures.

5. MULTIPLE FORMS OF LAND GRABS: QUANTITATIVE AND QUALITATIVE LOSS OF CONTROL The emphasis we provide on the human rights abuses experienced by local peoples often goes missing in the typical metrics used to define and measure land grabs. In our view these states of cases provide a very different picture and hence the potential understanding of land grabbing by global publics and policymakers compared to what is typically conveyed in the mainstream discourse on governing land grabbing. 593

The introduction of a qualitative aspect of landgrabs, widens the field substantially: one area which demonstrates this point is the intensified mining and extractive industries operations in recent times. We have spoken briefly about the necessity for free, prior and informed consent, which, most often is translated at best into “consultation” instead. The latter is further subject to manipulation and the interpretation required to turn it somehow into informed consent, is far less than transparent. People are convinced, at best, without any clear grounds upon which to base their decisions. What is offered is, at best, a nebulous goal such as “development”: but most indigenous groups want to be left alone to live their lives in the traditional ways they have practiced since time immemorial, NOT to “develop” in some forced and foreign direction. For instance, an Indigenous

592 593

Margulis and Porter, “Governing the Global Land Grab,” p. 74. Rolf Kunnemann and Sofia Monsalve Suarez, “International Human Rights and Governing Land Grabbing: A view from Global Society,” Globalizations 10 (2013), pp. 123–139, here pp. 124–125.

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Mayan Group in Guatemala, the Sipakapa of San Marcos, live peacefully in their little country, practicing agriculture and animal husbandry. In 2005, Montana Exploradora, a subsidiary of the Canadian/US Transnational corporation Glamis Gold, received 45 mill US$ from the World Bank Group to exploit an open pit gold mine in their area.594 The original video with English subtitles, demonstrates clearly the vast gulf between the arguments and proposals of the mine representatives, and the responses of the local people. In the final analysis, the people’s “no” should have meant just that. The ILO Convention No. 169 and even the Constitution of Guatemala demand a consultation with the indigenous peoples, the result was not consensus but a resounding “no” to the project, but that was not respected and the exploration and work continued. While the Guatemalan Courts are still to pronounce themselves on the topic, in April 2006 the open pit mining was in full operation with its highly toxic cyanide ponds required by that operation, and its heedless use of the scarce local water for industrial activities. Repeated in the video, the people ask “what is our advantage?” The answer to this question remains unclear, while the damages inflicted emerge clearly, and the Courts deliberately proceed at a slow pace, while the corporation continue with their unwanted and harmful “development.” From the present point of view, it is important to note that the local people were not, technically, deprived of their land. But their traditional cultivation and domestic animal food sources were no longer available as before: gold mining requires that the metal be cleansed in a cyanide pond. The pond is constructed by mine executives for their purpose, but the problem is that the expected leakages render the surrounding area, hence the cultivated fields of the Indigenous locals, and the fields on which their domestic animals graze, unsafe and unusable. We can conclude that, although the community did not formally lose the land on which they depended, they were equally unfairly dispossessed, as the quality of the land and their resources was no longer theirs, as it would

594

Sipakapa No Se Vende, video documentary, Caracol Productions, Guatemala, 2005, retrieved from www.sipakapanosevende.org.

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have been gone had they been victims of a land deprivation. Their plight represented a novel form of “enclosure.” Kunnemann and Suarez view mining and extractive land grabs as particularly prone to deprive communities of their human rights, as they most often are “displaced from prime agricultural lands without being adequately resettled and compensated for their livelihood losses.”595 The authors view these projects as representative, in a first “set of cases.” These and others are clearly cases of land grabbing in the quantitative sense: in many cases the qualitative aspect is additional, and it may be present separately from the actual land dispossession. The second set of cases these authors propose involve “large-scale infrastructure developments such as the construction of dams for hydropower and irrigation purposes, airports, highways and harbors.”596 These large projects are often initiated by “banks and private companies from the ‘BRICSA’ (Brazil, Russia, India, China and South Africa).”597 The third set of cases comprise more of the groupings of food-feed-fuel in general, the aim of which is to produce monocultures as preferred by the investors, with the resulting ousting of the peasant families and communities from their land. The last grouping may include such projects as large-scale reforestation, projects that hold a strong appeal for northern European countries, such as The Netherlands, Norway and Sweden.598 This sort of land grab is particularly difficult to assess from an ecological point of view, as “green grabs” seem to place two admirable goals in direct conflict: peasant food security, and reforestation or other similar projects. The issue needs to be studied in detail to ensure that human rights are respected first, as well as the Indigenous cultures and traditions (and we will return to that topic in the next chapter). This problem emphasizes once again the need for establishing policy priorities based on human rights and needs, Kunnemann and Suarez, “International Human Rights and Governing Land Grabbing,” p. 125; see also FIAN, Land Grabbing in Kenya and Mozambique: A Report of Two Research Missions and a Human Rights Analysis of Land Grabbing, Heidelberg, FIAN, 2010. 596 Kunnemann and Suarez, “International Human Rights and Governing Land Grabbing,” p. 125. 597 Ibid. 598 Ibid., pp. 126–127. 595

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properly understood as based on the ecological integrity of the earth, rather than on organizational profit seeking. We cannot simply assume that the “socalled green economy which encompasses the appropriation of land and resources for alleged environmental ends such as those implied in the establishment of natural reserves and carbon-trade schemes” are necessarily desirable.599 This chapter’s main focus has been the right to food and land in the face of the newly established criminalization of land grabs. But in this final discussion, we have seen the emergence of clear discriminatory aspect, as too many other so-called “development “goals appear to take precedence over the rights of local communities and Indigenous peoples to their own resources, as established in law. We will turn to these aspects of land grabbing in the next chapter, as that aspect of crimes against humanity now also appears to coincide with the obligation to avoid all forms of racial discrimination, already a jus cogens norm and an obligation erga omnes.

REFERENCES Amnesty International, Israel/Gaza, Operation “Cast Lead”: 22 Days of Death and Destruction, Amnesty International, London, 2009. Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil, Viking, New York, 1965. Bovens, Mark, The Quest for Responsibility, Cambridge University Press, Cambridge, 1998. Brierly, James Leslie, The Law of Nations: An Introduction to the International Law of Peace, Clarendon Press, Oxford, 1963. Cassese, Antonio, Self-Determination of Peoples, Cambridge University Press, Cambridge, 1995. Clements, Jeffrey D., Corporations Are Not People, Berrett-Koehler Publishers, Inc., San Francisco, CA, 2012.

599

Ibid., p. 129; see also J. Fairhead, M. Leach and I. Scoones, “Green Grabbing: A New Appropriation of Nature?,” Journal of Peasant Studies 39(2) (2012), pp. 237–262.

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Crawford, James, “The Aborigine in Comparative Law,” Law and Anthropology 2 (1987), pp. 5–28. Fairhead, J., Leach, M. and Scoones, I., “Green Grabbing: A New Appropriation of Nature?” Journal of Peasant Studies 39(2) (2012), pp. 237–262. Falk, Richard, “The Rights of Peoples (in Particular Indigenous Peoples),” in J. Crawford (ed.), The Rights of Peoples, Oxford University Press, Oxford, 1988, pp. 127–128. FAO, How to Feed the World in 2050, FAO, Rome, retrieved from www.fao.org/fileadmin/templates/wsfs/docs/expert_paper/How_to_Fe ed_the_World_in_2050.pdf. FIAN, Land Grabbing in Kenya and Mozambique: A Report of Two Research Missions and a Human Rights Analysis of Land Grabbing, Heidelberg, FIAN, 2010. French, Peter, Collective and Corporate Responsibility, Columbia University Press, New York, 1984. Golay, Christopher, and Ipane, Biglino, “Human Rights Responses to Land Grabbing: A Right to Food Perspective,” in Marc Edelman, Carlos Oya and Saturnine M. Borras, Jr. (eds.), Global Land Grabs, Routledge, Abingdon, 2016, pp. 114–134. Hall, Derek, 2015, “Primitive Accumulation, Accumulation by Dispossession and the Global Land Grabs,” in Marc Edelman, Carlos Oya and Saturnine M. Borras, Jr. (eds.), Global Land Grabs, Routledge, Abingdon, 2016, pp. 66–88. Herbertson, Kirk, Rim Thompson and Robert Goodland, A Roadmap for Integrating Human Rights into the World Bank Group, Washington, DC, World Resources Institute, 2010. Kunnemann, Rolf, and Monsalve Suarez, Sofia, “International Human Rights and Governing Land Grabbing: A view from Global Society,” Globalizations 10 (2013), pp. 123–139. Liberti, Stefano, Land Grabbing, Verso Publishing, London, 2013. Margulis, Matias E., and Porter, Tony, “Governing the Global Land Grab: Multipolarity, Ideas, and Complexity in Transnational Governance,” Globalizations 10 (2013), pp. 65–86.

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Marks, G. C., “Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartolomé de Las Casas,” Australia Yearbook of International Law 13 (1990–1991), pp. 1–51. Mattei, Ugo, and Nader, Laura, Plunder: When the Rule of Law is Illegal, Blackwell Publishing, Malden, MA, 2008. McMichael, Philip, “Land Grabbing as Security: Mercantilism in International Relations,” in Matias Margulis, Nora McKeon and Saturnino M. Borras (eds.), Land Grabbing and Global Governance, Routledge, Abingdon, 2014, pp. 47–64. Mehmet, Ugur, “The Ethics Economics and Governance of Free Movement,” in Antoine Pécoud and Paul de Gucheteneire (eds.), Migration Without Borders, UNESCO Publishing, Paris, 2009, pp. 65– 96. Nagel, Thomas, “Ruthlessness in Public Life,” in Stuart Hampshire (ed.), Public and Private Morality, Cambridge University Press, Cambridge, 1978, pp. 75–94. Narula, Smita, 2010, “Reclaiming the Right to Food as a Normative Response to the Global Food Crisis,” Yale Human Rights and Development Journal 13(2), pp. 403–420. Pearce, Fred, The Land Grabbers: The New Fight over Who Owns the Earth, Beacon Press, Boston, MA, 2012. Peluso, N. L., and Lund, C., “New Frontiers of Land Control,” Journal of Peasant Studies 38(4) (2014), pp. 667–681. Pimentel, David, “The Ecological and Energy Integrity of Corn Ethanol Production,” in Laura Westra, Klaus Bosselmann and Richard Westra (eds.), Reconciling Human Existence with Ecological Integrity, Earthscan, London, 2009, pp. 245–255. Posadas, Alehandro, “Combating Corruption under International Law,” Duke Comparative and International Law 10 (2000), pp. 345–414. Scott, James Brown, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations, Clarendon Press, Oxford, 1934. Shiva, Vandana, “Make Monsanto Pay,” Commondreams (24 February 2016), retrieved from www.commondreams.org/views/2016/02/24/ make-monsanto-pay.

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Sivakumar, Mannava V. K., “Climate and Land Degradation,” in Thomas J. Sauer, John Norman and Mannava V. K. Sivakumar (eds.), Sustaining Soil Productivity in Response to Global Climate Change, WileyBlackwell, Chichester, 2011, pp. 141–154. Stone, Julius, Human Law and Human Justice, Stanford, CA: Stanford University Press, 1965. Talmon, Stefan, “The Duty Not to Recognize as Lawful a Situation Created by the Illegal Use of Force and Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Substance?,” in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Martinus Nijhoff Publishers, Leyden, 2006, pp. 99–125. United Nations Office on Drugs and Crime, Compendium of International Legal Instruments on Corruption, second edition, United Nations, New York, 2005. Westra, Laura, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, 2009. Westra, Laura, “Ecological Integrity and the Right to Food,” in Thomas J. Sauer, John Norman and Mannava V. K. Sivakumar (eds.), Sustaining Soil Productivity in Response to Global Climate Change, WileyBlackwell, Chichester, 2011, pp. 103–116. Westra, Laura, Faces of State Terrorism, Brill, Leyden, 2012. Westra, Laura, The Supranational Corporation, Brill, Leyden, 2013. Westra, Laura, Revolt against Authority, Brill, Leyden, 2014. Westra, Laura, Ecological Integrity and Global Governance, Routledge, Abingdon, 2016. Westra, Laura, On Hunger, Brown Walker, Irvine, CA, 2017. Yassin, Lina, “Climate Change Threatens Uninhabitable conditions for the Middle East and North Africa,” Counterpunch (4 July 2017), retrieved from www.coutnerpunch.or/2017/07/04/climate-change threatens-uninhabitable-conditions-for-themiddle-east-and-northafrica.

Chapter 5

ECOVIOLENCE, LAND GRABBING AND THE RIGHT TO BE FREE FROM RACIAL DISCRIMINATION On the streets of the town can be seen the latest SUVs and brand new motorcycles: The Toyota dealer’s office is always full. The shops are stacked with pricey electrical goods. Meanwhile, on the side of streets, the few citizens with darker skin travel on foot or cling to battered bicycles. Class distinctions here are clear and unabashedly flaunted, and follow welldefined ethnic lines. The whites are the bosses, they have come from elsewhere and have taken public power by force and connivance, and now they run what used to belong to others. The colonialization is complete. 600

This passage describes well the multiple levels of discrimination that are at play when the land grabbing takes place in a region inhabited by Indigenous peoples, a common occurrence. The first level of discrimination is the obvious one: the land was grabbed from Indigenous peoples, people of colour, on behalf of the corporations or organizations and financial institutions. Liberti describes such an interaction along expected, almost choreographed lines, as the language used by both parties appears to be pre600

Stefano Liberti, Land Grabbing: Journeys in the New Colonialism, Verso, London, 2014, p. 150.

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ordained almost, like the expected quest for a “win–win” situation appears to have been staged. The players may include FAO officials, the World Bank: the institutions speak of “opportunity, development, productivity,” while civil society’s representatives, when allowed to respond speak of “underselling the land,” “theft, neocolonialism” and “violated rights.”601 Clearly, what is at play, is a “duel” of sorts, between two sets of players, but also between two difference development models,” that are actually “two different cultural models.”602 The institutional/industrial model purports to support “development,” through technologies and monocultures they say are necessary to feed a growing world population. The local farms, instead, supports traditional relations with the earth and with the land they understand and respect: they are not “anachronistic savages,” or out of place in the modern world. But, aside from this expected level of discrimination, the passage cited discloses no less than two other levels of discriminatory conflict: the first contrasts the wealthy landowners, who share the business interests and the approach of the international institutions, in the sense that they are on the side of development and modern productivity; they are the “big fazenderos” in Brazil. One of them, Blairo Maggi, is known as “o rei de soia” as he holds 300,000 hectares of soya cultivation: he was even elected to the governance of the region of Mato Groso.603 His forceful presence adds yet another level of inequality to that society, and to what takes place within it: class discrimination in addition to the obvious racial one. Discrimination is considered to be a particularly heinous crime in international law. Maurizio Ragazzi says; Protection from Racial discrimination is the fourth example of obligation erga omnes given in the Barcelona Traction case. A convenient starting point to examine this obligation is the principle that all human beings are equal. This principle was proclaimed in the solemn declarations that belong to the foundations of modern democracies.604 601

Ibid., p. 88. Ibid., p. 89. 603 Ibid., p. 149. 604 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, Clarendon Press, 602

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In fact all major international legal instruments forbid discrimination in all its aspects. The most specific is the Declaration of the Elimination of all Forms of Racial Discrimination, adopted on 20 November 1963 and the International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 7 March 1966. The International Covenant on Civil and Political Rights, as well as the International Covenant on Economic Social and Cultural Rights605 also demand equality, as mandatory in law, although there might be a distinction between “equality in law, and “equality in fact.”606 In fact Ragazzi also points out that, like the Genocide Convention607, and the convention against Apartheid,608 there are clear analogies between these crimes and the protection from racial discrimination, as all were judged to be “morally condemnable” and repugnant to the ideas of any human society.”609 For that reason, racial discrimination as well as genocide and apartheid all represent obligations erga omnes for the international community. As well, all the named conventions impose obligations that derive “from rules of general international law belonging to jus cogens.”610 These obligations represent the highest demands the international community can place on any of the “people” the UN is pledged to represent. If we read carefully the opening paragraph of this section, there are several levels of discrimination in evidence. The most obvious is racism, or discrimination against Indigenous peoples, peoples of a different colour, on the part of both government bureaucracies and powerful organizations from other countries. The second level is precisely resting on the corporations, that is the “rights” they assume together with their country of origin not to comply with legal requirements of international law, when their economic rights are at play, essentially, they should need to ensure that the people whose lands or

Oxford, 1998, p. 118. ICCPR, 16 December 1966, Doc.A/6316; ICESCR, 16 December 1966, Doc. A/6316. 606 Ragazzi, The Concept of International Obligations Erga Omnes, p. 121. 607 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. 608 International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, Doc. A/9030. 609 Ragazzi, The Concept of International Obligations Erga Omnes, p. 129. 610 Ibid., p. 133. 605

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resources are to be sued are fully informed so that their consent will precede the start of any industrial operation. Finally, not all local people are treated or live equally.

1. THE WORLD BANK, INDIGENOUS PEOPLES AND THE ISSUE OF CONSENT Not all major industrial projects are funded by the World Bank, but the problem of consent can be discussed from the standpoint of their operations, as the IMF and the World Bank Group have protocols in place to ensure that the decisions reached by Indigenous peoples with whom they deal, are based upon full information. For the most part, it is these large-scale activities that result in ecofootprint crimes, that give rise to criminal activities such as grave breaches of human rights, beyond the obvious overuse of local resources to the detriment of indigenous peoples and their lands. Large scale activities by transnational corporations based in wealthy North/West countries tend to be supported by the International Monetary Fund (IMF) or the World Bank Group (WBG), both of which are ostensibly committed to the alleviation of poverty, especially in developing countries. The World Bank has prepared studies and developed policies since the early 1980s, intended to “mitigate harms to indigenous groups” through the projects they finance.611 But we cannot expect too much from these documents: at best the WBG documents state that the Bank “should avoid unnecessary or avoidable encroachment onto territories used or occupied by tribal peoples.” It also rules out involvement

611

Robert Goodland, Economic Development and tribal Peoples: Human Ecologic Considerations, World Bank Group, Washington, DC, 1982; Fergus MacKay, “The Draft World Bank Operational Policy 4.10 On Indigenous Peoples: Progress or More of the Same?,” Arizona Journal International and Comparative Law 22 (2005), pp. 65–98, here p. 65.

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not agreed to by tribal peoples, requires, guarantees from borrowers that they would implement safeguard measures, and advocates respect for indigenous peoples rights to self-determination.612

Compliance with the first Operational Manual Statement produced by the Bank (OMS 2.34) in 1982 was slow. The 1986–1987 first review of implementation of the policy, four years after it had been adopted, found that “only 2 out of 33 WBG projects substantially complied with the policies,”613 leading to ongoing critiques by indigenous peoples as well as NGOs. The major lack of compliance with the policy prompted a revision and update of OMS 2.34, so that in 1991, the Operational Directive 4.20 on Indigenous Peoples, was adopted instead.614 This document represents an improvement on the previous “Operations Manual” as it requires indigenous input for all projects, as well as respect for indigenous lands and resources rights; it also demands that local domestic legislation be strengthened.615 Nevertheless the requirements of OD 4.20 were still judged to be insufficient, by far the major lack (as) was the limited compliance by both Bank and Borrower with those requirements. Internal evaluations continued to note that newer drafts under discussion had to respond, minimally, to indigenous demands that their internationally mandated rights be respected: their right to free, prior and informed consent, recognition and protection of territorial rights, self-identification (as the fundamental criterion in determining the peoples covered by the policy), a prohibition of involuntary resettlement, and respect for indigenous people’s rights to self-determination.616

MacKay, “The Draft World Bank Operational Policy 4.10 …,” p. 65. Ibid. 614 Operational Directive 4.20 on Indigenous Peoples retrieved from http://documents.worldbank.org/curated/en/ 692341468761684285/Implementation-of-Operational-Directive-4-20-on-indigenouspeoples-an-evaluation-of-the-results. 615 MacKay, “The Draft World Bank Operational Policy 4.10 …,” p. 66. 616 Ibid. 612 613

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Even if the policy prescriptions of the instruments of the WBG were sufficient to reflect the mandates of the UN Permanent Forum on Indigenous Issues, the results of the applications of those policies, “were not satisfactory in the energy, mining, transportation and environment sectors, which comprise 65% of Bank commitments.”617 However, even if their intentions were the best, there are several problems that the WBG projects encounter: some are formal and internal; others are external and contingent, as we shall see. But the role played by the WBG cannot be underestimated when we consider the jurisprudence that involves indigenous groups. In order to fully appreciate both their policies and the respective applications of those policies, it might be useful to start with the “Preambular Paragraphs” of OP 4.10, which is the document presently on the table: Para. 1 states that the document “contributes to the Bank’s mission of poverty reduction and sustainable development by ensuring that the development process fully respects the dignity, human rights, economics and cultures of indigenous peoples.618

This statement is neither fully defensible as “true” as it stands, nor does it represent a clear plan of action of the bank’s future projects. In addition, in the same paragraph, we find that “the borrower must engage in free prior and informed consultation (‘FPICon’) with indigenous peoples,” and that this mandate is valid for both projects where the Bank is the sole lender, and when it is simply one of several.619 Further, the Bank will “include measures to avoid potential adverse effects,” or, if “not feasible,” it will “minimize, mitigate or compensate for such effects.” The second paragraph of this document, however, does “recognize that indigenous peoples’ cultures and identities are inextricably related to

617

World Bank Group, Implementation of Operational Directive 4.20 on Indigenous Peoples: An Independent Desk Review, 10 January 2003, OED Report no. 25332. 618 MacKay, “The Draft World Bank Operational Policy 4.10 …,” p. 46. 619 World Bank Group, The World Bank Operational Manual, Operational Policy 4.10: Indigenous Peoples, 1 December 2004, retrieved from http://lnweb 8.worldbank.org/ ESSD/sdvext.nsf/63ByDocName/Indigenous Peoples.

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traditional lands and resources,”620 thus that these people will be exposed to risks and impacts beyond those to which other groups would be exposed. In contrast, indigenous peoples “play a vital role in sustainable development” so that special (and increasing) recognition must be given to their rights.621 In the next section we will consider more closely these preambular requirements, both at the internally generated position of the World Bank and through the conflicts that arise from those requirements.

2. INTERNAL ISSUES WITHIN THE WORLD BANK: CONSENT OR CONSULTATION? THE MEANING OF “FREE,” “PRIOR” AND “INFORMED” “Consent” is a concept that is clear to understand: it should mean that the indigenous group in question should be able to veto a project that after a period of discussion, information gathering and consultation, it finds it cannot approve. When we turn to “consultation” instead, we find a truncated approach to the broad “community consensus” each project is intended to secure. That is the main difference between consent (FPIC) and consultation (FPICon). The former implies an ongoing process requiring the latter. Both consent and consultation need full prior disclosure of information presented in terms and in a language that are fully understandable by the people affected by the decision. Nor is the “broad community support” clearly defined: “It is a general principle of law that consent is not valid if obtained through coercion or manipulation.”622 Given the inequality present in processes involving indigenous peoples and powerful and wealthy corporations and their lenders, at least some level of manipulation can be assumed. In addition, neither the “community support” nor the “freedom” of the final decision is ever monitored by established mechanism. The sequencing itself is unclear; when is the support to be secured? Probably, the MacKay, “The Draft World Bank Operational Policy 4.10 …,” p. 46. United Nations, Report of the World Summit on Sustainable Development, 26 August to 4 September 2002, at 10, Article 25, UN Doc. A/CONF.199/20/Corr.1, at 10, art. 25. 622 MacKay, “The Draft World Bank Operational Policy 4.10 …,” p. 53. 620 621

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intention is to seek it after the borrower has submitted a proposal to the Bank. At that stage there must be a clear interplay between the Bank, the borrower and the country where the specific indigenous group lives, and we’ll return to this topic in the next section. For now it is sufficient to mention that various countries’ domestic law defines their own requirements for FPIC.623 The process of consultation is therefore basic and necessary, but it is not sufficient, and the concept is by no means equivalent to “consent,” a far stricter requirement. The effective switch from one term to the other, is reminiscent of the industry-led initiative by chemical companies to engage in “consultation” with the general public affected by their hazardous operation in North America. The result of such a process of “consultation,” based on all parties sitting around a table while the affected people voiced their concerns, usually resulted in some PR efforts, but no real change, makes it is easy to be cynical about the possibility of some real, tangible change ever resulting from “consultation” alone. In fact, the whole process could be termed simply a PR operation, even in countries like Canada where people’s human rights are somewhat better developed and enforced than they are in other areas where indigenous peoples live.624 One needs to understand the basic imbalance between such different groups with disparate interests, and-most of all-with entirely different powers, to see these exercises for they really are. Indigenous peoples have been clear on what they wanted: their right to express “free, prior and informed consent” (FPIC).625 The World Bank Draft Indigenous Peoples Policy Draft,626 is criticized because it does not incorporate previous recommendations by indigenous peoples, because it confuses consultation with effective participation and “it fails to recognize the right to free, informed prior consent.”627 623

See for instance, Aboriginal Lands Rights (Northern Territory) Act, 1976 B42(6) 77A (Austl.); Philippines Indigenous Peoples Rights Act, 1997, B3(g), 59. 624 Laura Westra, The Principle of Integrity, Rowman & Littlefield, Lanham, MD, 1994. 625 Indigenous Peoples Statement at the 19th Session of the United Nations Working Groups on Indigenous Populations, 29 July 2001, retrieved from http://forestpeoples. gn.apc.org/briefings.html. 626 Draft OP/BP 4.10, 7 October 2002. 627 Ibid.

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The affected groups clearly understood that “FPICon resulting in broad community support” is not the same as FPIC, so that the manipulation involved in making the latter appear to be like the former is an action that “lacks any basis in international law.”628 What is offered is, at best, a nebulous goal such as “development”: but most indigenous groups want to be left alone to live their lives in the traditional ways they have practiced since time immemorial, NOT to “develop” in some forced and foreign direction. Some have argued that it is wrong to (a) view the WBG as a fully homogeneous group, inherently inimical to any policy of respect for human rights and ecological integrity;629 and (b) as incapable of influencing domestic laws in a way that “facilitates norm internalization.”630 Sarfaty does present evidence of the presence of agreements between various “parties” within the World Bank, and she emphasizes the conflict that exists between environmentalists (as “second class” group) and anthropologists on one side, and the economists, on the other. Nevertheless, the Bank Group is a unitary body, making important decisions through its own International Decision Making processes. In fact these processes and that unitary decision making define it as a legal entity.631 The presence of internal conflicts, even if proven, is only meaningful up to a point. It parallels the case of accused persons speaking of their own internal conflicts leading to a criminal act: interesting mainly to psychologists, and useful at the penalty stage of trials, but essentially not fully exculpatory. The second point of Sarfaty’s argument about “how the World Bank Shapes Domestic Law,” actually makes the weight of responsibility resting

628

Comments on the World Bank Management Response to the Final Report of the Extractive Industries; see MacKay, “The Draft World Bank Operational Policy 4.10 …,” p. 52. 629 See for instance the ECA Watch, Jakarta Declaration for Reform of Official Export Credit and Investment Insurance Agencies, retrieved from http://eca-watch.org/goals/jakartadec.html; the guidelines address questions of environmental reviews to “benchmark projects … against the safeguard policies published by the World Bank Group,” especially when they involve involuntary resettlement or “indigenous peoples and cultural property”; Galit A. Sarfaty, “The World Bank and the Internationalization of Indigenous Rights Norms,” Yale Law Journal 114 (2005), pp. 1791–1818, here p. 1792, note 4. 630 Ibid., p. 1794. 631 Laura Westra, Ecoviolence and the Law, Brill, Leyden, 2004, ch. 4.

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on their collective shoulders even clearer. Some of the positive aspects of this reality will be the topic of the next section.

3. INDIGENOUS PEOPLES AND LAND GRABS: NON-FOOD DISPOSSESSIONS [The Case of the Awas Tingni v. Nicaragua] … is the first legally binding decision by an international tribunal to uphold the collective land and resource rights of indigenous peoples in the face of a state’s failure to do so.632

The decision was reached by the Inter-American Court of Human Rights (31 August 2001), as it held that the state of Nicaragua, by allowing a foreign company the rights to log within the community’s land, had violated the rights of the Awas Tingni community. The Dominican-owned company, Maderas y Derivados de Nicaragua, SA (Madensa) was granted about 43,000 hectares of land for their logging operation in 1993, but under pressure from the World Wildlife Fund (WWF), the Nicaraguan government agreed to ask that Madensa suspend these operations until environmental regulations could be put in place.633 Although lawyers from the Iowa Project (Indian Law Resource Center), at the request of the Awas Tingni community, asked that all concessions be revoked as unconstitutional according to Nicaraguan law, the government attempted “to have the constitutional defence ‘cured’ by securing a post hoc ratification of the concession by the Regional Council.”634 Eventually and through another legal action, the concession was cancelled. Despite this important success, however, the question of the Awas Tingni’s land tenure had not been addressed, let alone resolved. The community and their legal

S. James Anaya, and Claudio Grossman, “The Case of the Awas Tingni v. Nicaragua; A New Step in the International Law of Indigenous Peoples,” Arizona Journal of International and Comparative Law 19(1) (2002), pp. 1–15, here p. 2. 633 Ibid., p. 5. 634 Ibid., p. 7. 632

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representatives presented their case to the Inter-American Court of Human Rights and the case was decided on 31 August 2001.635 There were two main problems to granting title, according to Nicaragua. The first was the fact that the listed members of the Community were no more than 300 or 400, and even the more recent census only established the number of 1,000 members, thus too few to require a deed to 16,000 hectares, requested by the legal representatives, Dr Anaya and Dr Acosta in 1993: The State, in turn, has argued that the extent of the territory claimed by the Mayagna [Suma] is excessive, bearing in mind the number of members of the Community determined by the official census, and that the area claimed by the Community is not in proportion to the area it effectively occupies.636

In addition, the second problem was the claim by Nicaragua that their main village had only been established in 1940, hence contradicting the Community’s claim to traditional historical occupation, whereas other indigenous groups had similar land claims in that general area.637 The witnesses before the Inter-American Court stressed how vital the land, in all its variety, was for “their cultural, religious and family development,” and that territory was not only necessary for their hunting and fishing activities (as agreed by the Community, based upon their conservation goals), but also the territory included several sacred hills and places where fruit trees grew. Their people were accustomed to walking through those areas as in silence, “as a sign of respect for their dead ancestors, and the great Asangpas Muijeni, the spirit of the mountain, who lives under the hills.”638 According to the testimony of Rodolfo Stavenhagen: Indigenous peoples are defined as those social and human groups, culturally identified and who maintain a historical continuity with their

The Mayanga (Sumo) Awas Tingni Community Case – Series C, No.79 [2001] IACHR 9 (31 August 2001), retrieved from www.worldlii.org/int/cases/IACHR/2001/9.html. 636 Ibid., p. 16. 637 Anaya and Grossman, “The Case of the Awas Tingni v. Nicaragua,” p. 9. 638 Ibid., p. 17. 635

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ancestors, from the time before the arrival of the first Europeans to this continent.639

Stavenhagen adds that the historical continuity can be established not only through their self-identification, but also through the use of a preHispanic language they speak.640 Under Article 25 of the Constitution of Nicaragua (1995), indigenous peoples have the right to “juridical protection,” hence to prevent the group’s access to the judiciary represents an act of discrimination.641 In fact, Article 25642 states that States are obliged to offer all legal remedies against “acts that violate their fundamental rights” and, under Article 5, the existence and rights of indigenous peoples are reaffirmed. Article 5 guarantees political pluralism and the respect for the sovereignty of all nations and states Nicaragua’s strong opposition to discriminations: Article 5 … [Nicaragua] is opposed to any form of discrimination, and it is anticolonial, anti-imperialist, anti-racist and rejects all subordination of one state to another State (translated by the author).

Further, Article 89 adds: The Community of the Atlantic Coast have the right to maintain and develop their cultural identity within national unity; to their own forms of social organization and to manage their local affairs according to their traditions.643

Nicaragua was responsible for violations of the Awas Tingni community relationship with the lands and natural resources under a “combination” of breached articles of the American Convention:

639

Ibid., p. 19. Ibid. 641 Ibid., pp. 48–49. 642 Constitución Politica de la Republica de Nicaragua, Manaqua, 9 January 1982. 643 Ibid., p. 54. 640

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Article 4 (the right to life); article 11 (right to privacy); 12 (Freedom of Conscience and Religion); 16 (freedom of association); 17 (rights of the family; 22 (freedom of movement and residence); and 23 (right to participate in the government).644

In this case then, the doctrine of uti possidetis would appear to be appropriate because their traditional presence in the same area strengthens their interdependence with those lands and no others. But, although in 1998 the government of Nicaragua drafted a bill, “Organic Law Regulating the Communal Property System of the Indigenous Communities of the Atlantic Coast and the Bosawas” to implement the sections of the Constitution to formally provide legal instruments “to regulate and provide borders for indigenous lands” in 2001, that bill has not yet been adopted as law in 2006.645 Aside from granting monetary compensation to the Community, the Court unanimously decided that Nicaragua should create “effective mechanisms for delineation, demarcation and titling of property of indigenous communities,” pursuant to Article 2 of the American Convention on Human Rights.646 The Court also decided unanimously that the state must abstain from any acts that might lead the agents of the state itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property, located in the geographical area where the members of the Mayagna (Sumo) Awas Tingni Community live and carry out their activities. 647

Therefore, as well as the groundbreaking judgment upholding the collective land rights of an indigenous group, this judgment breaks new ground by ensuring that a State should not be allowed to “acquiesce” to or to “tolerate” activities that may affect “the existence, value, use or enjoyment” of the newly allocated lands.

644

Ibid., p. 66. Ibid., p. 48. 646 Ibid., p. 71. 647 Ibid. 645

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The lack of buffer zones to protect the integrity of the indigenous lands is important: without it, the land’s “existence,” “value,” or “use” is affected so that it no longer provides the same services, or permits the same enjoyment to the community. Although the particular point in the Court’s decision refers explicitly to the period before the “delimitation, demarcation and titling of the corresponding lands” could be carried out, the principle supporting the argument remains the same, once the scientific evidence is understood. If it is wrong to affect the “existence,” “value” and “use” of the lands through possible activities that might affect the land’s natural functions and services, then, if it can be demonstrated (as it has been), that industrial or extractive activities, just outside the established borders have the same deleterious effects, then those activities should be equally forbidden, for the same reason. The Court’s decision was based neither on the tenets of conservation biology, nor on those of public health. But the principle upon which it based its decision (point no. 4 of the judgment), may well be adapted to reflect both, once stated. The understanding of the “protection of indigenous territories can and should incorporate the science developed since the 1970s, demonstrating beyond a doubt the effects of industrial/extractive activities beyond the borders of a specific territory, unless the territory is protected by a properly sized corridor or buffer zone. In this case, Nicaragua had not fulfilled its international obligations, “because of the particular acts and omissions of legislative, executive, and judicial agencies that, in the aggregate, resulted in failure to protect indigenous land rights.”648 The InterAmerican Court of Human Rights found that Nicaragua has “an inadequate legislative and administrative framework to address land titling procedures,” as well as inappropriate way of allowing logging in traditional lands, without indigenous consent.649

James Anaya, “Self-Determination as a Collective Human Right Under Contemporary International Law,” in Pekka Aikio and Martin Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination, Institute for Human Rights, Åbo Akademi University, Turku, 2000, p. 190. 649 Ibid., pp. 190–191. 648

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This case is emblematic of the effects of land grabs on a number of human rights, including the right to their resources, their land, and the protection of the state wherein the community is living.

3.1. Native Title in Australia: Mabo v. Queensland … this means that if traditional nation title was not extinguished before the Racial Discrimination Act came into force, a state law which seeks to extinguish it now will fail.650

The question before the Australian High Court was whether the Queensland Coast Island Declaratory Act 1985 (The Queensland Act), that purported “retrospectively” to abolish “the rights and interest of the Miriam people of Murray Island,” and to have the traditional lands revert to the Crown instead [Some words are missing?]. The Plaintiffs (Miriam Peoples or Murray Islanders), now own and have both proprietary and usufructuary interests “in relation to the land, seabeds, reefs and fishing waters of the Murray Islands.” The Murray Islanders are a distinct indigenous group and §9(1) of the Federal Racial Discrimination Act (RDA), (Australia), states that: it (is) unlawful for a “person to do any act” involving racial discrimination which has the purposes or effect of nullifying or impairing the recognition, enjoyment or exercise of any human right or fundamental freedom in the field of public life.651

In addition, “Section 109 of the Constitution …resolves any conflict between competing laws in favour of the paramountcy of the Commonwealth law; to the extent of that inconsistency the State law is inoperative.” Thus §3 of the Queensland Act, declaring that the lands in

650 651

Mabo and Another v. State of Queensland and Another, 83 ALR 14, Breenan J. Ibid., Mason, CJ.

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question were “freed” from all previous right claims, and became simply “wastelands of the Crown,” cannot stand. The RDA §10, also aims at eliminating discrimination in all legal instruments (Commonwealth, State or Territory law), so that persons of all races, colour, national or ethnic origin must be permitted to enjoy the same rights under conditions of full equality a position also held by the International Covenant on the Elimination of all Forms of Racial Discrimination (CERD), Article 5(d), which includes the right to own property (v) as well as the right to inherit (vi). The presence of Murray Islanders in their lands from time immemorial is not in question, thus the Queensland Act is invalid and unable to impair the “traditional rights of these peoples on three separate grounds: (1) “As a matter of Construction,” as it cannot extinguish the specific rights of a people; (2) “As a matter of power,” as there are limits to the power of Queensland on how to deal with Crown lands and to deprive people of their property rights; and (3) “As a matter of inconsistency,” as it is inconsistent with the provisions of s 9 of the Racial Discrimination Act of `1975, as well as s 10(1), that ensures the continuation of traditional rights.652 Brennan J (CLR at 120-1), adds a very important point regarding racial discrimination. He argues that “The dominant theme that runs throughout the Convention, is equality before the law.” But depriving the Murray Islanders of their rights, even to allow their lands to become the property of anyone else, without discrimination, does not correct the “inequality,” because “a deep sense of injustice may remain.” Formal equality in law is not the same as “effective and genuine equality.” “Equality in law precludes discrimination of any kind, “whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations.”653 This is the sort of correct argument that has been advanced in defence of quotas and other anti-discrimination procedures in the workplace and elsewhere, in North America.

652 653

Ibid., Mason J. Ibid.

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Hence the most important consequences of the resolution of this case are. First, no domestic or regional law may impair basic international human rights and promote instruments in direct conflict with such rights. Second, formal, procedural “equal treatment” is insufficient to support the human and community rights of indigenous peoples, as they represent a sui generis case, and they require special treatment under conditions of substantive justice instead. Echoing the pattern of the Canadian judiciary, however, the Australian High Court followed several opinions upholding the environment-related rights of indigenous peoples with a series of opinions severely curtailing those rights.654

Three years after Mabo v. Queensland decision, discussed above, the Court returned to the same or similar issues, in Wik Peoples v. Queensland.655 The question was, once again, aboriginal rights regarding “pastoral leases granted by the government to non-indigenous lessees”656: If the government had entered into leases that extinguished native title, the appellants argued, those leases were illegal and a breach of the sovereign’s fiduciary duty to the tribe as its trustee. 657

The majority of the judges in the case concluded that pastoral leases could co-exist with the kind of land uses aboriginal peoples practiced, hence demonstrating the court’s acceptance of the specific ties of aboriginal peoples to the land and their environmental rights.658 Nevertheless, after the Amendment of the Act in 1998, subsequent cases do not follow the lead of Mabo and Wik. In Ward, for instance,659 and in Peter Manus, “Indigenous Peoples’ Environmental Rights: Evolving Common Law Perspectives in Canada, Australia, and the United States,” British Columbia Environmental Affairs Law Review 33(1) (2006), article 2, p. 1. 655 Wik Peoples v. Queensland (1996) 187 CLR 1. 656 Manus, “Indigenous Peoples’ Environmental Rights,” p. 42. 657 Ibid., p. 43. 658 See also Native Title Act, 1993, 223; later however, amended as Native Title Amended Act, 1998, 2B (Austl) 659 Western Australia v. Ward (2002) 213 CLR 1. 654

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Yorta Yorta,660 the tribal peoples hoped that the Court would declare their right to “exclusive possession,” of their territories, the right “to speak for” the lands, and the right to protect “culture knowledge related to it.”661 It is interesting to note that although the Court recognized the spiritual/religious relation between Aboriginal people and their land, and also acknowledged that it amounted to “a protective dominion or stewardship over its environment”662 it reached a conclusion quite different from that hoped for by the local tribes. The Court argued that this “spiritual” relation, had to be “translated” into “non-indigenous legal rights and interests.”663 This approach runs counter to that of the Canadian courts which, increasingly, accept oral histories and other indigenous witnesses as equivalent to other more formal legal histories. The Australian Court treated native title as a “bundle of rights,” implying that each needed to be proved separately, and each could be extinguished by the Crown.664 Even more damaging than this understanding by the Court, is the formal interpretation of the relation between Aboriginal People and the land one finds in Yorta Yorta. Various government policies and activities both legal and illegal had conspired in several ways to force the alteration or elimination of Aboriginal traditional practices, from the removal of local children from their families, to the near elimination of the use of tribal languages, to the interference with the right to perform traditional ceremonies. The Court however, concluded that their present lifestyle and practices did not have “a continuous existence and vitality since sovereignty.”665 It seems to be particularly offensive to an indigenous group, that a government should first allow and support activities that destroy the integrity of a group’s territories and their cultural identity, by affecting 660

Yorta Yorta Aboriginal Community v. Victoria (1998) 1606 FLR (Austl.). Western Australia v. Ward (2002) 194 ALR 538; Manus, “Indigenous Peoples’ Environmental Rights,” p. 44. 662 Ibid. 663 Ibid., p. 45. 664 Ibid., pp. 47–48. 665 Yorta Yorta, 214 CLR 444; see also Manus, “Indigenous Peoples’ Environmental Rights,” p. 49. 661

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negatively the lands and declaring their cultural and religious practices forbidden, then look at the group’s lifestyle today, and declare that there is no “continuity” between traditional ways and their present practices in their “adapted” form.666 Nevertheless, at the time of the British settlement of Australia in 1788, the land was viewed as terra nullius, that is, “the land was treated as if it had been vacant or desert so as to be available for claim by any nation that established settlements upon it.”667 This understanding implied that the “Aboriginal people were so primitive that their occupation was inconsequential.”668 Hence, Aboriginal peoples there had to battle on their hands to demonstrate, at the start, that they were human beings with rights. The fact that they presently have the same rights as other Australians therefore, is an indication of great progress, although they have neither “sovereignty” nor other special rights. The High Court, in the Mabo decision, found that, “the common law of this country recognizes a form of native title which in cases where it has not been extinguished, reflects the entitlements of indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.”669 Thus, the Mabo case was by no means the final word on Aboriginal rights: The Racial Discrimination Act of 1975 (according to Section 9 and 10) provides that “if Aboriginal people are deprived of certain rights by discriminatory laws, then those rights are not lost.”670 The Native Title Act (1993) codifies the fact that the common law in Australia “recognizes native title,” rather than creating it.671 As noted in Yorta Yorta672, the “bundle of rights” of Aboriginal groups were determined as “a matter of fact,” by reference to the traditional laws, customs and

666

Yorta Yorta, 214 CLR 435. Bradford Morse, “Comparative Assessments of the Position of Indigenous Peoples in Quebec, Canada, and Abroad,” 2002, retrieved from http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=312401, p. 57. 668 Ibid. 669 Margaret Stephenson, “Native Title: An Overview,” in Clive Turner (ed.), Australian Commercial Law, 25th edition, LBC, London, 2004. 670 Ibid. 671 Ibid. 672 Aboriginal Community v. Victoria (2002) 194 ALR 538. 667

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practices of the particular indigenous community,”673 thus avoiding a decision enshrining a clear definition of native title rights. In conclusion, although clear progress has been made by Aboriginal communities in Australian law, grave problems remain, given the apparent lack of an overarching protective principle or instrument, and the ad hoc treatment of Indigenous rights.

3.2. Canadian First Nations and Sui Generis Land-Based Rights Aboriginal title encompasses the right to choose to what uses land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples. 674

The question of Aboriginal title, and the difference between “ownership” and “possession” based on continued occupation and the use of traditional lands at the time of sovereignty, rather than the first time of contact675, clearly shows the centrality of land to the Aboriginal way of life. It is ironical that, although that centrality to their survival as a people is acknowledged, their consent to any use of their land may “even” be required in some cases, and, when their title is infringed, “fair compensation will ordinarily be required.”676 But anything that is taking place in Aboriginal people’s traditional areas that affects their lands is more than likely to affect their present and future survival: in that case we are looking at incompensable harms, not harms that can be “fairly compensated.” The special relationship between First Nations and the land will be the topic of the next section, as we consider the historical background of the Canadian Government policies regarding their Aboriginal peoples. Nations or Tribes of Indians … should not be molested or disturbed in the possession of such Parts of our Dominions and Territories as not having 673

Ibid. Delgamuukw v. British Columbia [1998] 1 CNLR14, 11 December 1997, Lamer CJ (Cory, MacLachlin and Major J.J. Concurring) para. 21 675 Ibid., para. 6. 676 Ibid., paras 21–22. 674

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been ceded to our purchased by Us, are reserved to them … as their Hunting Grounds … We do … strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any lands reserved to the said Indians … but that if, at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be Purchased only by Us in our Name, at some public meeting or Assembly of the said Indians …677

After the Constitution Act of 1982, specifically, after the adoption of Section 35(1) of that Act, Aboriginal rights or title cannot be extinguished without the consent of Aboriginal peoples,678 despite ongoing settlement treaties disputes.679 Prior to European occupation, and after the Treaty of Paris (1763), which ended the war between Britain and France regarding Canada, the Aboriginal peoples did not sign treaties giving and Europeans the power to decide their fate. In fact, as noted above, the Royal Proclamation of 1763 was intended to protect he land rights of Aboriginal people in the region. However, before the Constitution Act of 1982 proclaimed that consent was needed before native rights could be extinguished, the situation was somewhat unclear. The Crown had a “fiduciary duty,”680 so that its power regarding indigenous peoples was limited by its obligation to observe “the principles of recognition and reconciliation.”681 The Crown has the obligation to ensure that there are limits to its sovereign power, in order to protect Aboriginal peoples.682 The Aboriginal peoples once had sovereignty over the lands they occupied historically and the Crown did not avail itself of the categories of terra nullius, discovery or conquest, recognizing that these were organized native societies already present there.683 677

Royal Proclamations, 7 October 1763 (1985), RSC Appendix II, No. 1, in part. Özlem Ülgen, “Aboriginal Title in Canada: Recognition and Reconciliation,” Netherlands International Law Review 47(2) (2000), pp. 146–180. 679 M. Asch and N. Zlotkin, “Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations,” in M. Asch (ed.), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference, UBC Press, Vancouver, 1997, pp. 209–211. 680 Reorganized in 1984 in Guerin v. Canada [1984] 2 SCR 335. 681 Ülgen, Özlem, “Aboriginal Title in Canada: Recognition and Reconciliation,” p. 151. 682 Sparrow [1990] 1 SCR, p. 1075. 683 Ülgen, Özlem, “Aboriginal Title in Canada: Recognition and Reconciliation,” p. 153. 678

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The 1990 case Sparrow v. The Queen provides a clear statement of the obligation of the Crown regarding the protection of indigenous environmental rights. The case appears at first to be a fairly trivial one, as it deals with native fishing rights and the fact that “…the net restriction in the Band’s License violated Section 35.”684 The court pointed out that, “An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982.”685 Yet, while “the taking of Salmon was an integral part of their lives,”686 and indeed the Indians of all bands had “a constitutionally protected, existing Aboriginal rights to fish,”687 there are, I believe, good and compelling reasons to view Mr. Sparrow’s actions in a critical vein. Questions raised by the Court were many. Among them, whether the new restrictions “reduced the Musqueam fish catch to levels below that needed for food and ceremonial purposes,” and “whether the net length restriction caused the Musqueam to “Spend undue time and money per fish caught,” both of which are not the most important consideration in the light of dwindling natural resources.688

4. LAND GRABS AND THE RIGHTS OF PEOPLES What is particularly significant regarding the land grabs affecting Indigenous peoples is that, as we saw, for the most part, it is the special status they enjoy regarding the laws of the land that houses their community, that is the primary consideration. Nevertheless there are also international laws that are designed for their protection. Article 27 of the Covenant on Civil and Political Rights “grants persons who are members of ethnic, religious, or linguistic minorities the right to enjoy their own culture, to profess and practice their own religion, and to use their own language.”689 Manus, “Indigenous Peoples’ Environmental Rights,” p. 6. Sparrow [1990] 1 SCR, p. 1901. 686 Ibid., p. 1094. 687 Manus, “Indigenous Peoples’ Environmental Rights,” p. 7. 688 Ibid., p. 11; see Sparrow at 1112–1113. 689 Antonio Cassese, Self-Determination of Peoples, Cambridge University Press, Cambridge, 684 685

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Cassese also notes that first, the listed rights refer to individuals, and that group rights as such are not named. Second, “article 27 does not contemplate political, economic or social autonomy690 although these additional (or primary) rights are already listed in Article 1, to which Article 27 is additional. Yet; if one considers the “cultural and religious freedoms” of Indigenous communities, it is clear that these practices can only exist as long as the community is allowed to remain where it is and to use the land according to their cultural/religious requirements, as was obvious in the case of FN’s cases in Canada. Hence, in these casas, it would seem that land grabs, whether quantitative or qualitative would contravene the mandates of an international covenant, even aside from the recent ICC expanded remit. In fact Article 1(2) establishes that the right to control and benefit from the natural resources of a territory lies primarily with its inhabitants.691 It is unfortunate, however, that this right is limited by States’ promotion of international trade and cooperation.692 That is where legal regimes governing each state’s relation with its Indigenous populations should take effect to ensure their protection. What of the general rights of non-Indigenous peoples living on the land?

4.1. Development and Food-Related Land Grabs in the Third World There is a violence of representation at play here. This violence is extreme; scientific representations of hunger and “overpopulation” (they often go together) are most dehumanizing and objectifying. After all, what we are talking about when we refer to hunger or population, is people, human life itself; but it all becomes for western science and media, helpless

1995, p. 61. Ibid. 691 Ibid., p. 55. 692 Ibid., p. 56. 690

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Escobar lays bare “the-language of hunger,” the way we attempt to protect our sensibilities in the West. And “sanitize” the horrors of suffering and the pain of the poor, helping us to tolerate why the “multinational merchants of grain” ignore their plight as they thrive through the agricultural markets. The corporate powers and the financial institutions of the West manifest their cynicism as “the discourse of development” has little to do with the real world, as instead it manifests the power of the west over the Third World, as their discourse continues to objectify the reality of human life.694 Escobar discusses the way the discourse of development unfolds, as he observes: The daily practices of institutions are not just rational or neutral ways of doing. In fact much of an institution’s effectiveness in producing power relations is the result of practices that are often invisible, precisely because they are seen as rational.695

It is these institutions that define the “Third World beneficiaries – peasants, poor women” and the like in the 1970s and 1980s. The World Bank, together with other institutions worked to create the Food and Nutrition Policy and Planning (FNPP). Given the difficulty if not the impossibility of dealing with the complex problems of hunger through piecemeal programs, a body of theory was developed to guide the institutions in what eventually produced the “practices of development.”696 Escobar is certainly not the only scholar to understand “development” as a noxious ideal as it is understood and practiced today. Many scholars have understood “sustainable development’ to be an oxymoron,697 primarily 693

Arturo Escobar, Encountering Development, Princeton University Press, Princeton, NJ, 2012, pp. 103–104. 694 Ibid., p. 104. 695 Ibid., p. 105. 696 Ibid. 697 Laura Westra, Ecological Integrity and Global Governance, Routledge, Abingdon, 2016; Ugo

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because the environmental failures of that goal. In addition, the positive aspects of “development when scrutinized, were always on the side of the corporations involved, their growth, their success, in a word, their development, certainly not that of the unfortunates who lived in the area targeted for it.698 But Escobar shows the institutional, structural violence that is at work long before the corporations involved arrive in the area they intend to “develop.” The main point that emerges from his analysis is that the “relations of domination” that prevail against those in the Third World start precisely with the way their problems are framed, documented, and effectively institutionalized. Before the inception of policies of development, the Third World was, for the most part, comprised of rural areas, as three quarters of the populations were peasants: that figure today is reduced to less than 30 percent of the existing population. These persons, have now been turned into “client categories” such as “the malnourished,” or “small farmers,” or “landless labourers,” and through these bureaucratic categories, they solidify the reproduction of today’s capitalist relation.699 Escobar adds, as he presents his research: The underlying premise of this investigation is that as long as institutions and professionals are successfully reproducing themselves materially, culturally, and ideologically, certain relations of domination will prevail; and to the extent that this is the case, development will be greatly conceptualized by those in power. 700

It is the domination upon which the land grabs are based, from their inception at the time of the enclosures of the commons,701 and the ideologies through which arise the corporate rights to pursue development, which are Mattei, and Laura Nader, Plunder, Blackwell Publishers, Malden, MA, 2009; Klaus Bosselmann, Earth Governance: Trusteeship of the Global Commons, Edward Elgar, London, 2016. 698 Laura Westra, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, 2009; Laura Westra, On Hunger, International Publishers, Irvine, CA, 2017. 699 Escobar, Encountering Development, p. 106. 700 Ibid., p. 106. 701 Garrett Hardin, 1968, “The Tragedy of the Commons,” Science 162(3859) (1968), pp. 1243– 1248.

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present before a land grab can happen. It is a climate that favours the persistence of the “right to development” enshrined in international law, although there is not proof that the introduction of a development project in a third world country does in fact benefit the local population, or “develop” it in a positive way. Hunger and development are viewed as two sides of the same issue, where the latter must be understood as the only possible solution for the former, despite all factual accounts to the contrary. The real human beings involved are only viewed as objects, as “socially constructed” categories to be studied, their interactions with the institutions involved are then reported as “facts.” In turn, these constructed “facts” upon which the policies of the institutions and organizations that foster the development and the interactions that follow are based, are listed in the documents where these standardized “facts” are perpetuated; In this sense facts must be seen as an aspect of social organizations, a practice of knowing that, through the use of ready-made categories, constructs an object as external to the knower and independent of him or her.702

“Categories,” “constructs,” “client categories” are nothing but labels imposed on human subjects; who are thus transformed into objects, while the power to dispose of their lives has passed into other hands. That is why “labeling … [is] a fundamental feature of organizations.”703 It is a normal feature, whether the organizations are commercial or political, and they are basic to any development discourse as they define clearly who does the labelling and who is eventually labelled through another’s choice. Indeed “labels function as mechanism of power.”704 We cannot ignore the devastating effect on the labelled group, as stereotyping, by normalizing various peoples’ experiences, does not help those who are labelled: it takes away their very right to know their own

702

Escobar, Encountering Development, p. 107. Ibid., p. 109. 704 Ibid., p.110. 703

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problem, and to propose their own solutions while deciding what sort of help would most benefit them. But only “experts” from the World Bank or other officials are considered to be qualified to decide on “development” options. This intransigent position is confirmed by the fact that while there is a treaty on the Right to Development, the communities that are targeted have no right to say no. Before returning to the details of land grabs intended to promote development to control hunger, it might be useful to consider the ancient roots of the practice of labelling, or naming, as it was known then.

4.2. An Aside on the Philosophical and Political Roots of Labelling as Naming Of all things (chremata) the measure is man, of the things that are that they are, and of the things that are not that they are not. 705

Plato interpreted his words as a clear enunciation of the doctrine or the relativity of truth, as Protagoras suggests that each person’s opinion is valid as such. Following upon the works of the Sophists, who prided themselves on their ability to teach that the “wisdom” of a ruler or would-be ruler could be presented convincingly to the citizens as irrefutable truth, whereas if could have simply be a paid for political opinion.706 The governing or a polis, its “virtue” and that of its citizens, who were entrusted to govern it, were of the utmost importance in Ancient Greece, as the works of the most important thinkers of the time, Plato and Aristotle indicate. But the most important consideration, the foundation of good governance, as to ensure that the leaders would respect the laws of the city and govern according to the truth of each situation [The verb is missing]. The political debates intended to help choose the best leaders in Athens, were based on arguments intended to discover the truth of statements and positions. Each citizen, in order to be worthy of that name, had the right to 705 706

Protagoras of Abdera, c.490–420 BC, Fr. 1. Joseph Owens, Ancient Greek Philosophy, Appleton-Century-Crofts, New York, 1959, pp. 155– 156.

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speak at political assemblies. But, “The art of swaying these assemblies was the key to political power. Consequently training in the art was regarded as of prime importance for the sons of the leading families.”707 Thus young men were trained in the rhetorical arts, as political areté (virtue) was highly prized, and Greek families were prepared to pay hefty fees to the Sophists, who travelled from city to city, enjoying fame and wealth for their work of training would-be leaders. Both Plato and Aristotle viewed the Sophists as despicable, because their teaching hinged on the ability to convince others, regardless of the value of what was proposed. They were not teaching young people to seek out what was right and true, but acted like lawyers, in some sense, as their success hinged on the presentation of the case whether or not their defence was based on the truth of the matter. Today, however, lawyers have to observe the law, and the principles of their profession, whereas the Sophists only presented their case according to whom paid them the most. One needs to understand the importance of truth and virtue not only in individuals, but also in the polis itself at that time, a position almost unthinkable in today’s political life, where freedom of individual choice is almost the only value that is emphasized with no consideration of the value of the choice itself, and when, at least in North America, particularly in the US, there are few limits to economic incentives and marketing/promotion in political campaigns leading to a vote.708 Replacing the importance of truth with “opinion,” especially paid opinion, as the only form of knowledge available, was viewed as despicable at the time of Protagoras, who is also credited with teaching that the rhetorical arts were intended to show that the weaker argument (logos) could be made to look like the strongest, thus the most persuasive, in the allimportant public speaking that was intended to convince the citizens.709 Protagoras’ interests, reasoning and motivations are totally alien to today’s political thought. But it is worthy of note that the connection between “naming,” or “labelling” and power is alive and well, especially 707

Ibid., p. 156. Westra, On Hunger, ch. 5. 709 Owens, Ancient Greek Philosophy, p. 159. 708

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clear today when neither virtue nor the right are clearly sought or made primary in governance. We need to acknowledge that there is nothing benign in many institutions’ work to simplify and codify in various ways those they might want to help. Before such help is offered, the first step is to study them, to objectify them, to “name” them, thus transforming beneficence into control, a control that is then perpetuated: “Labels are invented and maintained by institutions on an ongoing basis, as part of an apparently rational process that is essentially political.”710 From this point of view, even in the case of hunger, “local situations are subsumed under the professional discourse of agricultural economist planners, nutritionists, extension workers…and so on.” These professionals are convinced that the labelled groups, whether they are “the malnourished,” or the “illiterate peasants” can only be solved by their procedures and – of course by “sustainable development.”711 However, as noted above, development imposes severe problems on local populations, as the development, the betterment affects the developers, corporations, investors and international institutions that have concluded on that form of development though their protocols, not through thorough consultation followed by consent.

5. LAND GRABBING IN ALL CONTINENTS AND SUSTAINABLE DEVELOPMENT Industrial-scale farming is what most land grabbers have in mind … As one agribusiness proponent, James Siggs of Toronto-Based Feronia, admitted at an investment conference in 2011. Exclusively industrial-scale farming displaces and alienates peoples, creates few jobs and causes social disruptions.712

710

Escobar, Encountering Development, p. 110. Ibid., p. 111. 712 Fred Pearce, The Land Grabbers, Beacon Press, Boston, MA, 2012, p. ix. 711

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The stark contrast between sustainability and development is papered over by the emphasis on so-called “sustainable development.” In 1992 the General Assembly convened a conference on Environment and Development (UNCED), which was later known as the Rio Conference. It eventually demonstrated two major points: North/South conflicts over natural resources, and the growing emphasis on biological diversity.713 The interest in the protection of nature was viewed by poor countries as an effort on the part of the wealthy North to by-pass their sovereignty regarding their own natural resources. At that time, the Rockefeller Foundation (primarily John Rockefeller, ably assisted by Mikhail Gorbachev) proposed the Earth Charter, which, through its principles, reconciled two major issues as listed above, but their approach was not generally accepted, and two other conventions, the climate Change Convention and the Convention on Biological Diversity were somewhat diluted in their environmental content. Thus the Rio Declaration on Environment and Development714 did not take a strong position. In 2002, the World Summit (WSSD) in Johannesburg was the final conference on environment and development715 but already with the adoption of the Rio instruments “sustainable development became and has so far remained the leading concept of international environmental law and policy.”716 The Brundtland Report defined sustainable development as follows: “a process that meets the needs of the present without compromising the abilities of future generations to meet their own needs.”717 State governments should thus approach their “social, political and economic choices” in a different way, primarily considering how to address “natural resource exploitation over nature protection, to industrial development over the air, water quality, to land-use development over conservation of forests

713

Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 3rd edition; Oxford University Press, Oxford, 2009, pp. 50–51. 714 UNCED, Repro I (1992). 715 UN Report of the WSSD, UN Doc. A/conf199/2012002, Resolution and Annex. 716 Birnie et al., International Law and the Environment, p. 53. 717 World Commission on Environment and Development (WCED), Our Common Future [the Brundtland Report], Oxford University Press, Oxford, 1987, p. 43.

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and wetlands.”718 Essentially the concept entails “a compromise between environmental protection and economic growth.”719 But we must acknowledge the weakness of international environmental law and its instruments, against the background of the most powerful tribunal in existence; the World Trade Organization with its environmental exceptions in the Chapeau, Article XX: Agreements shall be construed to prevent adoption or enforcement by any contracting party of measures: … (b) necessary to protect human, animal or plant life or health; … (g) relating to the conservation of exhaustible resources if such measures are made effective in conjunction with restriction on domestic production or consumption.720

The burden of proof lies on those who assent to the points in (b) or (g) in their defence, and the possibility of success of such appeals is minimal, given that the WTO has no open procedures or cases, no possibility of appeals, and it is only staffed by economists and lawyers, with no one to express an authoritative opinion regarding ecological or biological issues, let alone public health. In contrast, the Separate Opinion of Christopher Weeramantry J. in 1997, saw clearly the human rights possibilities the principle of sustainable development could embody: Throughout the ages, mankind has for economic and other reasons, constantly interfered with nature. In the past this was often done without consideration of the effects upon the environment. Owing to scientific insights and to a growing awareness of the risks for mankind-for present and future generations, of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken in consideration, and such new standards given proper weight, not only when states contemplate new activities, but also 718

Birnie et al., International Law and the Environment, p. 34, emphasis added. Ibid., p. 55; as it seeks (at least on paper) to support the needs of the poor of today (intra generational justice), and those of future generations (inter-generational justice). 720 See discussion in Birnie et al., International Law and the Environment, pp. 760–761. 719

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Weeramantry’s works cement the belief that “environmental rights are human rights,” as he also states in the same Separate Opinion, but unfortunately his optimistic interpretation of the content of the principle and of its present and future role, did not proceed as he had anticipated. Much has been written on the principle of sustainable development in law, but from our point of view we need to start by understanding as well as possible the meaning of its terms, primarily, but not exclusively the meaning of sustainability and the normative constraints it should represent: to identify the normative core is not difficult, at least from the logical point of view. If “sustainable” qualifies “development” as distinguished from unsustainable development, its meaning must be clear. If, on the other hand the attribute “sustainable” remains undefined, the direction away from unsustainable cannot be found, which means that no political guidance could be provided and to legal imperatives can follow [Some words are missing]. Clarity can only come from defining the essence of sustainability in respect to its object. The essence is neither “economic sustainability,” nor “social sustainability,” nor “everything sustainable,” but “ecological sustainability.”722

Given that the ecological aspect of the principle has never been explicitly defined, added to the lack of justiciable standards for review,723 sustainable development is left, at best, as a process to permit the integration of environmental considerations in other social obligations.724

721

Gabcikovo Nagymaros, Hungary/Slovakia, ICJ, 25 September 1997, Rep. 1997, §140. Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance, Ashgate, Aldershot, 2008, pp. 52–53. 723 A. Boyle, and D. Freestone, “Introduction,” in A. Boyle and D. Freestone (eds.), International Law and Sustainable Development Past Achievements and Future Challenges, Oxford University Press, Oxford, 1999, p. 16. 724 F. Francioni, “Sviluppo Sostenibile e Principi di Diritto Internazionale dell’Ambiente,” in P. Fois (ed.), Il Principio dello sviluppo sostenibile nel Diritto internazionale ed europeo de11’ambiente, IX Convegno, Alghero, 16–17 June 2006, Scientific Edition, Napoli, 2007. 722

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Whatever the intent in proposing the principle, perhaps primarily to pacify Third World Countries who saw the principles that recommend conservation and respect for nature in the areas still wild in their region as a Western intrusion in their sovereign rights, the result neither promoted sustainability nor improvement in the conditions of poverty in the third world. Sustainability is based on the conservation of ecological integrity.725 The problem, therefore, is that both sides were mistaken when the principle was proposed: the need for ecological integrity, that is, for environmental conditions that support both human life and life in general, cannot be contrasted with social/economic development: the former is foundational for the latter, when the science is properly understood and followed, as Weeramantry insisted. But when “development” means industrial development, with neither ecological nor human rights limits, the poor, the peasants who attempted to protect themselves from Western intrusions, eventually found themselves taken over, often against their will, by the very development on which they had counted. We have seen in this work numerous situations in various countries and continents. Poor people want to better their conditions, but what they achieve, at best, is the loss of autonomy over their lands and their lives, plus slavery conditions if their labour is needed. One can understand that any effort to take land in order to effect protected areas to save endangered species and wild lands at the cost of local communities’ agricultural and survival needs, may be nothing but a “green land grab,” if the situation is not arranged in a way that both respects and protects the local communities. We need to understand the extent and the forms of land grabs: There are at least three important ways in which land grabbing manifests itself today. Grabbing land for purposes of using it as a factor in agricultural production to produce food, feed, biofuels, and other industrial products is probably the roost common type. In addition there is the emergence of “green grabbing” – land grabbing for environmental ends.

725

Bosselmann, The Principle of Sustainability; Westra, Ecological Integrity and Global Governance.

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In all these species of land grabs the industrial interests prevail, especially for the various aspects of agricultural production. In addition, these forms of industrial land grabs tend to enjoy governmental support – as “sustainable development” examples. The “green grabs” are now implicated in several new enterprises, for example in “tree plantations” that can be used for “chip-based biofuels,” or can be traded for carbon offsets, such as “Reducing Emissions through Deforestation and forest Degradation (REDD+).727 Another example may be found in South Sudan where in 2009 the ministry gave the Al Aim National Wildlife, the control of a large area. The Anbu Dhabi Resort that was built there indicates that even efforts to protect wildlife, or to “green” a city may well be deleterious to the population which is neither considered nor protected while the green grab takes place.728 Yet, the value of the wild and of the ecological integrity upon which it thrives, is also, at the same time, a basic need for the survival of all.

5.1. Development in Conflict with the Integrity of Life Support System In his book Uneven Development the geographer Neil Smith brilliantly formulates how capitalism historically has produced a particular kind of nature and space, an unevenly developed landscape that integrates poverty with wealth, industrial urbanization with agricultural diminishment. The culmination of this process is imperialism, which dominates, classifies, and

Saturnino M. Borras, Jr., Jennifer C. France and Chun Yu Wang, “The Challenge of Global Governance of Land Grabbing: Changing International Agricultural Context and Competing Political Views and Strategies” in Matias E. Margulis, Nora McKeon and Saturnino M. Borras Jr. (eds.), Land Grabbing and Global Governance, Routledge, Abingdon, 2014, pp. 161–179, here p. 162. 727 Ibid. 728 Pearce, The Land Grabbers, pp. 77–78. 726

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universally commodifies all space under the aegis of the metropolitan centre.729

The examination of the interface between culture and imperialism is beyond the scope of this work. But the relation between Western imperialism and others who were either colonized in earlier times or controlled and treated as inferior by the dominant cultures, is highly relevant to our topic. As Said describes it, the “massive colonial system whose economy, functioning and history had acquired the status of a virtual fact of nature,” depends upon considering other peoples and other races as “inferior, dependent, subject.”730 The capitalist enterprise, ultimately expanded into globalization, entails domination, not only of workers, as Marx had it, but beyond them. “The idea of Western salvation and redemption through its civilizing mission”731 always entails fostering and promoting the idea that somehow violence, directed to both the environment and to humans is somehow justified, part of the political goals of Western affluent countries, but also totally ingrained as part of the culture of those Western nations.732 The only possible way that colonization could be justified, is by originating from a deep-seated belief in the inferiority of the colonized, coupled with the equally unshakeable belief in the “mission” to bring about “the steady improvement in the condition, character and custom of primitives as a result of their contact with European civilization.”733 Whatever their language, traditions, beliefs, these “colonized” individuals were victims. But the end of colonization did not mean either the end of national greed, or that of the belief in the superiority of those who could be exploited and dominated, even as “free people” under such fictional categories as, for instance, “sustainable development.” Europe’s imperialism is based on the aspect of cultural “improvement” based 729

Edward W. Said, Culture and Imperialism, Vintage Books, Random House, New York, 1994, p. 225. see also Neil Smith, Uneven Development: Nature, Capital and the Production of Space, Blackwell, Oxford, 1984, p. 102. 730 Said, Culture and Imperialism, p. 134. 731 Ibid., p. 131. 732 Ibid., pp. 162–163. 733 Ibid., p. 168.

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primarily on Eurocentrism.734 In contrast, the whole foundation of American imperialism was and is based on the “commercial cause of empire,”735 and the claimed superiority which includes still the possession of a moral higher ground, while pursuing an unrestrained policy of plunder.736 The true goal of plunder is the exploitation of land and peoples, and for many decades they have been supported by the armed violence of American exceptionalism.737 Since colonization is now obsolete according to international law, whatever happens now must be judged from the perspective of the customary rule of internal self-determination: Internal self-determination means the right to an authentic selfgovernment, that is, the right of a people really and freely to choose its own political and economic regime –which is much more than choosing among what is an offer perhaps from one political or economic position only. It is an ongoing right.738

This rule, as Cassese points out, entails that any use or exploitation of natural resources of a territory under colonial domination … without a foreign acting in the exclusive interest of the people at issue, amounts to a gross infringement of the rights of people to self-determination.739

Hence this rule, derived from the indisputable authority of the former one, can be seen most clearly as the illegal ongoing occupation by the Israeli government of the Palestinian territories.740 Leaving aside for the moment 734

Ibid., pp. 221–222. Ibid., p. 221. 736 Mattei and Nader, Plunder. 737 Laura Westra, Revolt Against Authority, Brill, Leyden, 2014, pp. 118–120; see also Donald E. Pease, The New American Exceptionalism, University of Minnesota Press, Minneapolis, MN, 2009. 738 Cassese, Self-Determination of Peoples, p. 101. 739 Ibid., p. 100. 740 H. Awartani, “Israel’s Economic Policies in the Occupied Territories: A Case for International Supervision,” in E. Playfair (ed.), International Law and the administration of Occupied Territories, Oxford University Press, Oxford, 1992, pp. 399–417; Peter H. Sand, United States and Britain in Diego Garcia, Palgrave Macmillan, New York, 2009. 735

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the exploitation of the Palestinian peoples and territories, and the multiple human rights breaches committed by the illegal occupation and the presence of the apartheid wall, we can simply review the legal ongoing plunder and exploitation practiced by Western nations, determined to continue to avail themselves of former “colonies” and lands for their exclusive interests. the legal basis for the transformation of self-determination into jus cogens cannot of course be found in views – however authoritative – put forward by persons acting in their individual capacity. 741

The main point is that internal self-determination may not be explicitly cited as a jus cogens norm, but it is based on customary rules although the law does not provide procedures for allowing self-determination,742 while several states have gone on record as supporting the status of jus cogens for self-determination.743 At any rate, economic self-determination presents a challenge for states to be free to dispose of their national resources, as a true indication of real independence.744 In fact, scholars have understood self-determination in two separate ways: Thus courts and scholars came up with two· different forms of selfdetermination: internal and external. The former, potentially applies to all peoples, and signifies that all peoples should have a set of respected rights within the central states. Minority groups should have cultural, social, political rights and those rights should be respected by the mother state.745

Cassese, Self-Determination of Peoples, p. 135; with reference to Judge Ammoun’s sep. op. in the Barcelona Traction Case, ICJ Reports, 1970, 304, 312. 742 Cassese, Self-Determination of Peoples, p. 131. 743 Ibid., p. 137. 744 Ibid., p. 99. 745 Milena Sterio, “On the Right of External Self-Determination: ‘Selfistans’, Secession and the great Powers Rule,” Minnesota Journal of International Law 19 (2010), pp. 137–176. 741

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The main case in point is the Canadian case on the Secession of Quebec746 which distinguishes clearly between these two forms of selfdetermination as it would apply to the Quebecois.747 Of course, in our context, the main issue is not the relation between a people and the “mother state” only, but the interface between people and the powerful corporate persons intent on depriving them of their resources for profit, even if that includes the means for their survival. However, the latter, has not “crystallized into a rule of international customary law, applicable to and binding on all states.”748 One can understand the reason for the legal neglect of this alternative: for the most part the complicity between what Sterio terms “the Great Powers”749 and the largest and most powerful among the MNCs is not explicit in law. As well, corporations are not legally bound by any international instrument, or directly accountable for human rights violations.750 The aspect of self-determination that supports the defence of integrity is neither explicitly recognized nor even implicitly acknowledged in any inter national or domestic legal instrument. This basic lacuna in fact, remains the most important reason for the lack of support for the ecological integrity of systems, and the biological integrity of individual organisms, including humans. What is at stake, is the “internal self-determination” of peoples, that is, their de facto ability to “determine” their own forms of governance, including the use or disposal of their own resources. But this right, although acknowledged, is not without limits. Just as people have the right to their own resources, they also share “transborder obligations,”751 in the case of 746

Secession of Quebec [1998] 2 SCR 217. See also Michael P. Scharf, “Earned Sovereignty: Judicial Underpinnings,” Denver Journal of International Law and Policy 31 (2003), pp. 273–379, where Scharf discusses the different forms of self-determination available to people, which include autonomy, self-government, free association, and ultimately secession. 748 Ibid., p. 378. 749 Sterio, “On the Right of External Self-Determination,” p. 140. 750 John Gerald Ruggie, Business and Human Rights: The Evolving International Agenda, Working Paper 38, John F. Kennedy School of Government, Harvard University, Cambridge, MA, June 2007. 751 H. Patrick Glenn, The Cosmopolitan State, Oxford Press, Oxford, 2013, p. 172. 747

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their natural ecology, to transcend their own specific interests, in the interest of the survival of global society, as in today’s world, no nation or country is “a closed system isolated from other societies” as Rawls had it instead.752 Hence, it appears that the very presence of global ecological integrity is necessary to counter the existence of global ecological problems. These indisputably attack the very notion of “closed societies” as survival is and remains the common concern of humanity. In contrast, although international legal instruments defend at best the rights of individuals, ecologically speaking, those rights cannot be protected without protecting the rights of the collective.753 It is sad to note, that despite Judge Weeramantry’s hope that science would provide the last word and direct public policy, today almost all forms of development are simply land grabs justified by the facile prose of documents, unclear regarding both the meaning of sustainability and the related human rights, so that neither is protected, and the development that is advocated, is only that of the industries initiating the so-called sustainable development, as the protection of both ecology and human beings is not enforced. One can only hope that with the brave move of the ICC the nature of unsustainable, harmful development will be acknowledged clearly for what it is: a crime against humanity as a land grab.

6. LAND GRABS AS CRIMES AGAINST HUMANITY: THE PRESBYTERIAN CHURCH OF SUDAN, REV. JOHN GADUEL, NUER COMMUNITY, DEVELOPMENT SERVICES AND OTHERS V. TALISMAN ENERGY INC. …Talisman, a large Canadian energy Company, collaborated with Sudan in ethnically cleansing civilian populations surrounding oil 752

John Rawls, A Theory of Justice, Harvard University Press, Cambridge, MA, 1971, p. 8; as cited in Glenn, The Comopolitan State, p. 173, where Rawls’s doctrine is faulted for its basic premise, but also for the lack of an egalitarian component 753 Laura Westra, Human Rights: The Commons and the Collective, University Press of British Columbia, Vancouver, 2011.

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concessions located in Southern Sudan in order to facilitate oil exploration and extraction activities.

This is a case where the gross human rights violations, from forced displacement to killings, can be described as genocide, because they were all directed at the specific ethnic and religious groups in the south of Sudan. Historically, Sudan was a “collection of small independent kingdoms and principalities.”754 After a period of Egyptian, then British rule, Sudan became independent in 1956. Nevertheless, the Arab-controlled northern part reinstituted Sharia law and even transferred some of the judges to the Christian south, where Christianity and indigenous religions were practised. In fact, that government, according to the Plaintiffs, pursued a war of genocide against the population in the southern part of the country. This genocide, which Plaintiffs also described as a jihad or holy war, is purportedly aimed at the forced Islamization of the south, and has resulted in approximately two million deaths and the displacement of for million people.755 Against the background of this ongoing conflict and the accompanying human rights violations, first Chevron, the Arakis Energy Corporation (later “Talisman”), a Canadian company, collaborated fully and deliberately with the government of Sudan in its genocidal activities: In exchange for oil concessions, the government promised to clear the area around the oil fields of the local population. The oil companies agreed to invest in the infrastructure, such as transportation, roads and airfields and communication facilities, to support exploration, and the government would use the infrastructure to support its genocidal military campaign of ethnic cleansing against the local population.756

The targeted inhabitants were the Dinka and the Nuer people, “Who are Christians or practice traditional indigenous religions.”757

754

Ibid., p. 296. Ibid., p. 298. 756 Ibid., p. 13. 757 Ibid., p. 19. 755

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The Plaintiffs detail the various forms taken by this “ethnic cleansing” or, as it was also put, “to provide a cordon sanitaire” to facilitate the exploration and extraction of oil”: murder of civilians (including women and children), destruction of villages and the enslavement of surviving civilians.758 These details were provided by a number of affected parties, also by the Presbyterian Church of Sudan and some of its Pastors. Aside from the usual requests to dismiss the Plaintiffs’ motion, based on forum non conveniens, as was repeatedly argued in most of the ATCA cases we have considered, Talisman also alleged that the court would have no jurisdiction, as well as other grounds such as the “act of state” doctrine, and others. But the Alien Tort Claim Act was indeed expected to deal with all torts “in violation of the land of nations,” which is understood to be synonymous with international law. In fact, after Filartiga served to catapult “a largely overlooked statute in the limelight as a means of vindicating rights under international law.”759 ATCA became the best known vehicle to deal with jus cogens violations of erga omnes obligations. Talisman insisted that (a) corporations are not legally capable of violation of international law, despite the wealth of precedents;760 and (b) that the reach of international law was limited to the states and those acting under color [sic] of state law,761 despite the presence of the Genocide Convention, which states (Article 4): Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.

As well, common articles of the genocide Convention does not support Talisman’s contention. there are several references to Wiwa,762 because the two defendants in that case were private corporations:

758

Ibid., p. 33. Ibid., p. 28. 760 Ibid., pp. 40–41. 761 Ibid., p. 45. 762 Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2d Cir. 2000). 759

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In light of the fact, Wiwa clearly extended the decision in Kadic to apply the ATCA to the acts of corporations that constitute jus cogens violations;763 corporations were sued under ATCA in Jota, Wiwa, Tachiona v. Omugabe764 and United States v. FMC Corporation765 extending criminal liability to a corporation for violating the Migratory Bird Treaty act. As we saw in Doe v. Unocal Corp,766 the US Ninth Circuit court recognized explicitly that a corporation could be sued under ATCA, and, “The court, citing Kadic, held hat because the complaint alleged jus cogens violations (including rape, torture and summary execution), no state action was necessary and Unocal could be held liable.”767 The plaintiffs’ complaint in this case also involves similar jus cogens violations, so Talisman’s claims to the effect that corporations could not be found to be acting against the law of nations, cannot stand, according to both ATCA’s principles and according to the precedents in law. Talisman also adduced (a) forum non conveniens, and (b) the “political question,” as obstacles to the ATCA trial. On (a) the court responded that neither Sudan nor Canada were better as alternative forms. The affidavit of Dr. Abdel Rahman Ibrahim al Khalifa explains in detail why, according to the Sudanese judicial system, a fair trial in that country would be impossible especially because of the reduced right of various groups: “these reduced rights include a total lack of legal personality for plaintiffs who practiced traditional African religions, and diminished testimonial competence for Christians.”768 Canada fares no better as a trial choice (b) according to the testimony of experts in both Alberta and Ontario. In Alberta, the court would “prima facie apply the lex loci delicti, or the law of the place where the activity occurred,” and in this case, that would be Sharia law, thus defeating

763

Ibid., p. 54. Tachiona v. Omugabe, 234 S. Supp 2d.401, no. 00 Civ. 6666 (VM), 2002 WL 317 9018 (SDNY 11 December 2002). 765 United States v. FMC Corporation, 572 F.2d 902 (2 Cir. 1978). 766 Doe v. Unocal Corp., 2002 U.S. App. LEXIS 19263, nos. 00-56603, 00-57197, 00-56628, 0057195, 2002 WL 3103976 (9th Cir. 18 September 2002). 767 Doe v. Unocal, para. 9. 768 Ibid., paras. 17–18. 764

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the purpose of seeking a different forum for the violations of human rights of the indigenous Christian groups.769 If the case were to be tried in Ontario, according to the affidavit of Christopher D. Bredt,770 as for Mr. Foran’s affidavit, jus cogens violations of the law of nations are not even mentioned, and the focus remains on Canadian domestic rather than on international law. The court remarks that “Genocide may quantitatively be the same as large number of murders, but it is qualitatively different, and this difference is recognized by the fact that the acts enjoys special status under international law.”771 Finally, the court noted that “Canada does not have a well-placed class action procedure.”772 Because of these reasons, the Plaintiffs’ choice of forum should be respected. Talisman’s request to dismiss because the action raises non justiciable political questions was also found to be without merit. The questions raised are not political and internal to Sudan, rather the issue was whether Talisman violated international law. The court denied Talisman’s motion to dismiss the Plaintiff’s Amended Complaint, for all these reasons, on 19 March 2003. This case seems to be an egregious example of “development,” sanctioned and encouraged by the very government who welcomed the extractive development but, at the same time, thought to effect other goals that amounted – to say the last – to crimes against humanity, although that was not a legal reality in 2003. All the factors we have examined in this chapter seem to be present in this case. The incapacity of legal regimes, both national international to cope with such terrible crimes within their ambit at the time is primary: not only Canadian law was insufficient to restrain a Canadian corporation, but all that international law could offer, was a tribunal (under ATCA), that dealt with torts, rather than the real crimes that were perpetrated. Additionally, in this case the land grab and the concomitant denial of human rights of the local community, was initiated by the country’s own

769

Affidavit of F. Fran, paras 15–16. Ibid., para. 13–15. 771 Ibid., p. 132. 772 Derensis v. Cooper and Lybrand Chartered Accountants, 930 F. Supp. 1003, 1007 (DNJ 1996). 770

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government complicit with the extractive industry. That government was willing, in fact eager to facilitate even ethnic cleansing in order to enjoy the development” of roads, airfield and the income derived from the extraction of fuels. The Talisman case represents an extreme one, but it was based on desire of both Sudan and Talisman to grab the land of indigenous peoples with no impediment, pleading the need for development, a development which, as we know, also represents an unsustainable choice. We can only hope that the ICC would eventually provide an alternative to the present lack of appropriate legal regimes first, then appropriate legal fora: that would represent an immense step forward for human rights.

REFERENCES Anaya, James, “Self-Determination as a Collective Human Right Under Contemporary International Law,” in Pekka Aikio and Martin Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to SelfDetermination, Institute for Human Rights, Åbo Akademi University, Turku, 2000. Anaya, S. James, and Grossman, Claudio, “The Case of the Awas Tingni v. Nicaragua; A New Step in the International Law of Indigenous Peoples,” Arizona Journal of International and Comparative Law 19(1) (2002), pp. 1–15. Asch, M., and Zlotkin, N. “Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations,” in M. Asch (ed.), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference, UBC Press, Vancouver, 1997, pp. 209–211. Awartani, H., “Israel’s Economic Policies in the Occupied Territories: A Case for International Supervision,” in E. Playfair (ed.), International Law and the administration of Occupied Territories, Oxford University Press, Oxford, 1992, pp. 399–417. Birnie, Patricia, Boyle, Alan, and Redgwell, Catherine, International Law and the Environment, 3rd edition; Oxford University Press, Oxford, 2009.

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Borras, Jr. Saturnino M., France, Jennifer C., and Wang, Chun Yu, “The Challenge of Global Governance of Land Grabbing: Changing International Agricultural Context and Competing Political Views and Strategies” in Matias E. Margulis, Nora McKeon and Saturnino M. Borras Jr. (eds.), Land Grabbing and Global Governance, Routledge, Abingdon, 2014, pp. 161–179. Bosselmann, Klaus, Earth Governance: Trusteeship of the Global Commons, Edward Elgar, London, 2016. Bosselmann, Klaus, The Principle of Sustainability: Transforming Law and Governance, Ashgate, Aldershot, 2008. Boyle, A., and Freestone, D., “Introduction,” in A. Boyle and D. Freestone (eds.), International Law and Sustainable Development Past Achievements and Future Challenges, Oxford University Press, Oxford, 1999. Cassese, Antonio, Self-Determination of Peoples, Cambridge University Press, Cambridge, 1995. Escobar, Arturo, Encountering Development, Princeton University Press, Princeton, NJ, 2012. Francioni, F., “Sviluppo Sostenibile e Principi di Diritto Internazionale dell’Ambiente [Sustainable Development and Principles of International Environmental Law],” in P. Fois (ed.), Il Principio dello sviluppo sostenibile nel Diritto internazionale ed europeo de11’ambiente, IX Convegno, Alghero, 16–17 June 2006, Scientific Edition, Napoli, 2007. Glenn, H. Patrick, The Cosmopolitan State, Oxford Press, Oxford, 2013. Goodland, Robert, Economic Development and tribal Peoples: Human Ecologic Considerations, World Bank Group, Washington, DC, 1982. Hardin, Garrett, 1968, “The Tragedy of the Commons,” Science 162(3859) (1968), pp. 1243–1248. Liberti, Stefano, Land Grabbing: Journeys in the New Colonialism, Verso, London, 2014. MacKay, Fergus, “The Draft World Bank Operational Policy 4.10 On Indigenous Peoples: Progress or More of the Same?” Arizona Journal International and Comparative Law 22 (2005), pp. 65–98.

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Manus, Peter, “Indigenous Peoples’ Environmental Rights: Evolving Common Law Perspectives in Canada, Australia, and the United States,” British Columbia Environmental Affairs Law Review 33(1) (2006), article 2. Mattei, Ugo, and Nader, Laura, Plunder, Blackwell Publishers, Malden, MA, 2009. Morse, Bradford, “Comparative Assessments of the Position of Indigenous Peoples in Quebec, Canada, and Abroad,” 2002, retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=312401. Owens, Joseph, Ancient Greek Philosophy, Appleton-Century-Crofts, New York, 1959. Pearce, Fred, The Land Grabbers, Beacon Press, Boston, MA, 2012. Pease, Donald E., The New American Exceptionalism, University of Minnesota Press, Minneapolis, MN, 2009. Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes, Clarendon Press, Oxford, 1998. Rawls, John, A Theory of Justice, Harvard University Press, Cambridge, MA, 1971. Ruggie, John Gerald, Business and Human Rights: The Evolving International Agenda, Working Paper 38, John F. Kennedy School of Government, Harvard University, Cambridge, MA, June 2007. Said, Edward W., Culture and Imperialism, Vintage Books, Random House, New York, 1994. Sand, Peter H., United States and Britain in Diego Garcia, Palgrave Macmillan, New York, 2009. Sarfaty, Galit A., “The World Bank and the Internationalization of Indigenous Rights Norms,” Yale Law Journal 114 (2005), pp. 1791– 1818. Scharf, Michael P., “Earned Sovereignty: Judicial Underpinnings,” Denver Journal of International Law and Policy 31 (2003), pp. 273–379. Smith, Neil, Uneven Development: Nature, Capital and the Production of Space, Blackwell, Oxford, 1984. Stephenson, Margaret, “Native Title: An Overview,” in Clive Turner (ed.), Australian Commercial Law, 25th edition, LBC, London, 2004.

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Sterio, Milena, “On the Right of External Self-Determination: ‘Selfistans’, Secession and the great Powers Rule,” Minnesota Journal of International Law 19 (2010), pp. 137–176. Ülgen, Özlem, “Aboriginal Title in Canada: Recognition and Reconciliation,” Netherlands International Law Review 47(2) (2000), pp. 146–180. Westra, Laura, Ecological Integrity and Global Governance, Routledge, Abingdon, 2016. Westra, Laura, Ecoviolence and the Law, Brill, Leyden, 2004. Westra, Laura, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, 2009. Westra, Laura, Human Rights: The Commons and the Collective, University Press of British Columbia, Vancouver, 2011. Westra, Laura, On Hunger, International Publishers, Irvine, CA, 2017. Westra, Laura, Revolt Against Authority, Brill, Leyden, 2014. Westra, Laura, The Principle of Integrity, Rowman & Littlefield, Lanham, MD, 1994. World Commission on Environment and Development (WCED), Our Common Future [the Brundtland Report], Oxford University Press, Oxford, 1987.

Chapter 6

CRIMES AGAINST HUMANITY: LEGAL PATHWAYS AND APPROACHES TO JUSTICE 1. INTRODUCTION In the previous chapters we related the newly acknowledged crimes against humanity to the ongoing disasters arising from environmental conditions and to the land, and included the largely ignored public health dimensions of these disasters. The argument is simple: what could be demonstrated to be harmful enough to merit the appellation of crime against humanity? For decades, the information about the multiple aspects of environmental disasters have become known and accepted by most, despite the relentless war waged against scientific’ integrity by powerful moneyed interests. What was missing, and is still missing today is the realization that these are not only environmental problems or unfair uses of land in developing countries, but these problems and that unfairness represent gross violations of human rights, ongoing and unpunished. Hence this work is intended to show the connection between the environmental disasters that have been acknowledged, but also between those that have not yet been recognized as such because of the denied connection to public health in that regard – and the so-called instances of development fostered by industrial enterprises eventually surfacing as cases

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under ATCA, at best. The only environmental disaster that has been accepted fully as such, is climate change in all its manifestations, whereas the worldwide imposition of hunger and poverty through wrong and immoral food distribution systems, as well as the grave harms imposed by the uncontrolled spread of pesticide-laced food, are in fact a true public health disaster almost as grave as the more obvious starvation. I have called the latter “Hunger” because of all the diseases that arise from the uncontrolled toxic substances that render food unhealthy and lacking in nutrition.773 Both actual starvation in the third world and the highly toxic and harmful food promoted as healthy in the wealthy countries for all except those who can afford organic food, should be acknowledged to be a disaster of enormous proportions. Recent UN and FAO Reports tend to confirm the culpability of the food distribution systems that persist today, linking globalization practices and large corporate interest to food related harms that also connect with climate change.774 In addition, these unhealthy practices are also related to the other newly acknowledged crimes against humanity, that is, land grabs. The corporate interests that are the source of the grave health problems we have discussed, must start by securing the land they need to ensure their lucrative monocultures by any means available: corporations grab the land they want by using various tricks (see Chapters 4 and 5), thus linking the two major forms of crimes against humanity through their impact on human life and public health. In this work we have affirmed the inescapable connection between environmental disasters, land grabs and human life and health, in order to justify the appellation they merit as crimes against humanity. These seem to be the closest pathways of interpretation, although there is no explicit connection in the ICC language. One could suppose that they assumed the connection to gross violations of human rights to be obvious. But in that case, the question remains: on what was that assumption based, when there is no legal instrument, national or international, or any case that actually affirms that connection? This is a point I have been lamenting in my 773 774

Laura Westra, On Hunger, International Publishers, Irvine, CA, 2017. Oliver De Schutter, Final Report: The Transformative Potential of the Right to Food, UN Doc. GE.14-10537, Human Rights Council 25th session, 2014.

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works for years. Yet it is encouraging to see the connection between environment and human rights to be finally affirmed and by such an authoritative body as the ICC, even if not stated outright. However, it is hard to envision any other reason for the additional crimes against humanity if the one proposed is not the one intended. Land grabs may be open to a less focused interpretation, perhaps social rights or the rights to a territory, to the freedom to choose one’s place of residence. But given the connection between land grabs and some of the environmental disasters we have proposed, it seems that the attacks to the right of life/health cannot be denied. At any rate, whatever the ICC’s reasons for expanding its considerations, the main undeniable fact remains: they have been defined as crimes. And that, in turn, opens wide an even more difficult question, that is the further requirement to trace the causality between the proclaimed crime(s) and the identity of the criminal(s) involved. The only solid starting point is that a crime must have one or more perpetrators, thus environmental disasters are no longer open to the interpretation that they are “natural,” let alone “acts of God.” Similarly, one hopes, land grabs cannot continue to be viewed as desirable forms of “sustainable development.” Questions should be asked now to see which corporate or governmental activity does in fact result in the development (which should be understood as economic and social advancement of the specific area/community intended for such development). If the blanket approval of so-called “sustainable development” can now be questioned, and the envisioned end-results scrutinized before approval is granted, that would be a wonderful success for the protection of the human rights of the poor and of Indigenous peoples. This has been the argument of this work so far. The next issue that should be discussed is whether anything has been developing in law, be it legal instruments or case law that might restrain perpetrators, to curb ongoing problems and establish human rights protection, if any. Before considering what is available today, it is important to consider the problem of responsibility and accountability for these crimes.

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2. A QUESTION OF RESPONSIBILITY AND ACCOUNTABILITY Criminal law has not infrequently invoked a notion of outcome responsibility, attributing responsibility primarily or purely on the basis of the defendant’s having caused an outcome proscribed by the criminal law. Here, the underlying philosophical frame is consequentialist: criminal law is conceived as a distinctive system of regulation-oriented to public harm reduction.775

Nicola Lacey lists four possible categories of responsibility: the one described in the passage above, is the third one she lists, and the one that appears to be closest to the description of crime against humanity, as we have interpreted them. This third category includes strict liability,776 a particularly useful form of responsibility regarding environmental disasters. Another category clearly related to our issues is that “criminal responsibility is founded in capacity,” which assumes an emphasis on freedom of the will, thus “implies a stringent set of legitimating requirements for state criminalization and punishment.”777 Nevertheless, it is the presence of these stringent requirements that render this category hard to apply in the case of multiple perpetrators, largely unknown or hard to locate. Equally inapplicable is the “notion of responsibility funded in character” as a variant of Aristotelian or virtue ethics appears to be quite distant from the culpability we are seeking to identify. The fourth category however, can be combined with the first one we have identified: Finally, and overlapping with both outcome responsibility and character responsibility is founded in risk. Again, responsibility as risk comes in several different versions with risk being conceived in either clinical or actuarial terms.778

775

Nicola Lacey, In Search of Criminal Responsibility, Oxford University Press, Oxford, 2016, p. 41. 776 Ibid., p. 42. 777 Ibid., p. 27. 778 Ibid., p. 46.

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Crimes against humanity are the manifestation of a causality that is extremely diffuse and hard to pinpoint, so that it is the outcomes that are the most important indications of criminal activities, and these are related, at the start, to clinical risks, as they are also indicative of a “character,” rather, to a total lack of moral character as another indication of the nature of the perpetrators. It seems that these aspects of responsibility can only go so far, because identifying the perpetrators is the truly difficult task, using reverse causality from the effects, that is the disasters that have now been termed crimes against humanity. We need to return to the history of the concept, although the original definition we have seen in Chapter 1 is suggestive. At any rate the origin of crimes against humanity gives one hope for further developments, since the Nuremberg principles indicted as crimes acts that have never been viewed as such before then: This process began with the general assembly’s endorsement in 1946 of the principles of international law recognized in the IMT Charter, its request to ECOSOC to draft a convention on genocide, and its request to the ILC to formulate the Nuremberg principles and to draft a Code of Offenses Against the Peace and Security of Mankind. 779

There are two important points to be learned here: first nullum crimen sine lege did not stop the UN from criminalizing Nazi atrocities; second, the “peace and security of mankind” are clearly under attack through the newly minted crimes, so that their addition appears to fulfil the original requirements of the creation of a new Draft Code, eventually completed by the ILC in 1983.780 There is also another distinguishing feature of crimes against humanity, that is the fact they are mass crimes, not directed at one or another specific person1 moreover, then events that cause the grave harms are imposed in a systematic manner.781

779

Steven R. Ratner, Jason S. Abrams and James L. Bischoff, Accountability for Human Rights Atrocities in International Law, 3rd edition, Oxford University Press, Oxford, 2009, p. 50. 780 Ibid., p. 51. 781 Ibid., pp. 59–60.

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The problem, however, remains that not only specific discriminatory intent cannot be proven as such – although it can most often be found in the results of the crimes, as we showed in Chapter 5. The Rome conference and Statute further expanded on acts committed “as part of a widespread or systematic attacks directed against a civilian population,” but even more prophetic regarding the newly proclaimed crimes “involving the multiple commission of acts pursuant to or in furtherance of a State or organizational policy to commit such attacks.”782 Thus although the specific intent to harm in general, or to harm a specific group or population is not present, what is clearly stated is that systematic acts committed to further “a State or organizational policy” are clearly present, and that they do not need to be motivated by hatred. In fact the question of motivation is not mentioned, so that advantages related to power or even economics could well supply the reason for the crimes. The ICC simply requires that “the State or organization actively promote or encourage such an attack.783 The later trials, according to the ICTY and the ICTR Statutes seem to involve primarily cases that involve persecution. But if we return to the original issue that gave rise to the Nuremberg Charter, and the atrocities that forced the international community to transcend nullum crimen sine lege, we should be encouraged that the same may follow the newly proclaimed crimes. Bayer’s criminal precedents is a case in point: The Bayer Company became part of the IGFarben, a German chemical company conglomerate … During World War II, IG Farben used slave labor in factories that it built adjacent to German concentration camps, notably Auschwitz, and the sub-camps of the Mauthausen-Gusen concentration camp. IG Farben purchased prisoners for human experimentation of a sleep-inducing drug and later reported that all test subjects died. IG Farben employees frequently said, “If you don’t work faster, you’ll be gassed.” IG Farben held a large investment in Degesch which produced Zyklon B used to gas and kill prisoners during the Holocaust. 782 783

Ibid., p. 61. ICC Elements of Crime, Art. 7, Introduction, para. 3.

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After World War II, the Allies broke up IG Farben and Bayer reappeared as an individual business “inheriting” many of IG Farben's assets. Fritz ter Meer, an IG Farben board member from 1926 to 1945 who directed operations at the IG Farben plant at Auschwitz, was sentenced to seven years in prison during the IG Farben Military Tribunal at Nuremberg. He was elected Bayer's supervisory board head in 1956.784

This brief passage seems to sum up the argument of this work: the activities of corporations are totally amoral. Their aim is to pursue profit at the expense of any cost, including the life of innocent people. In fact, questions beyond the economic motive are not even raised. If the Nazis were prepared to pay for it, the manufacture and sale of the gas eventually used at Auschwitz was not questioned. And that was not a product that at least purported to have a “safe,” non-criminal use, like pesticides. Instead, like Agent Orange, Zyklon B. was a tool of destruction, and could only be used as such. Nor was that just a temporary aberration, or the mistake of a CEO: after the man’s guilt was proved beyond doubt, and he was convicted at the Nuremberg trials and incarcerated, Bayer “rewarded” Fritz ter Meer with the position of head of the supervisory board of Bayer. Nor was that the only criminal activity connected with Bayer: in 2006 Bayer was involved in providing blood donated by high-risk individuals such as prisoners and homosexual donors, and were thus charged in several lawsuits.785 During the same year, the US rice crop (Liberty Rice 601) was contaminated by unapproved genetically engineered Bayer CropScience rice, containing a herbicide resistant trait.786 As well, their seed treatment “inidacloprid” killed honeybees in French Canada and Nova Scotia, and Bayer CropScience was named defendant in that civil suit. In 2001, 52 deaths were found to have resulted from side effects of Bayer’s anticholesterol drug Baycol.787 In October 2001, Bayer was also “Bayer,” retrieved from http://en.wikipedia.org/wiki/Bayer; see also Peter Hayes, Industry and Ideology: IG Farben in the Nazi Era, Cambridge University Press, New York, 1987, p. 361. 785 See www.hemophiliabloodproducts. 786 See http://money.cnn.com/magazines/fortuen/fortune_archive/2007/07/09/100122123/index.htm . 787 C. D. Furberg and B. Pitt, “Withdrawal of Cerivastatin from the World Market,” Trials 2 (2001), 784

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sued and found guilty of criminal responsibility for the death of 24 children and the severe poisoning of another 18 in Peru, because of a powdered milk substitute contaminated with methyl/parathion, an insecticide. In 2009 Bayer’s claims about prostate cancer regarding its “men’s Onea-Day multivitamins caused another lawsuit, and in 2008 there was an explosion at Bayer CropScience in West Virginia. Their presence as corporate owners of the chemical facility MAL in Hungary was not noted in the press. Thus there is hardly any need for additional examples of corporate culpable negligence – to say the least – or outright criminality, to give these activities their proper name. What emerges is the “lifestyle” of a number of powerful legal persons who, singly and collectively, are intent upon furthering their own interests, while the collective interest of the global citizenry simply does not figure in their calculations. Their power is increasing steadily, even in Europe, where at least some resistance is present to the global, mostly uncritical acceptance we note in the US. Imagine an individual, a natural person, with a grave criminal record dating back to the second World War, who, after being rehired after a prison sentence, continues to operate with the same disregard for law and human rights that he manifested before his first incarceration. Could such a person gain ascendency in this own country’s public life? In the governance of the international community? Even the slightest involvement with the official bureaucracy of a country demands – as a starting point – a clean record as well as the proven ability to act in a responsible manner in the interests of that country’s citizens. But note that Fritz ter Meer only received a sentence of 7 years, a ridiculous penalty for his active complicity in large-scale extermination, first in both scope and size in the world. But from our point of view in this work, what is most significant is the fact that his crime against humanity (or complicity in genocide), was based on the manufacture and sale of a toxic substance, although he clearly did not personally kill a single Jew. Thus the first application of the Nuremberg Charter, right after the Holocaust, did not consist in the trial of a general, a soldier or a bureaucrat, directly under the

retrieved from https://link.springer.com/article/10.1186/cvm-2-5-205.

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order of Hitler, but the trial of a CEO of a commercial enterprise involved in supplying the poison used by the soldiers and commissioned by Nazi bureaucrats. Thus the perpetrator of this case is quite similar to the perpetrators we have indicted; the end of the line in the causal regression from environmental disasters lies in the lucrative corporate activities that produce the poisons that affect public health, or that secure the land needed in order to produce products to need their poisons, for their further enrichment.

3. DOES ANYTHING EXIST TODAY TO IDENTIFY AND PUNISH THE PERPETRATORS OF ENVIRONMENTAL CRIMES AGAINST HUMANITY? The challenges and limitations of persecuting international crimes through domestic law enforcement institutions have led states, international organizations, and non-governmental organizations to contemplate the creation of international criminal tribunals that could directly try individuals for such crimes.788

Various international ad hoc tribunals were established after the Second World War set up since domestic courts could not possibly deal successfully with local issues where no properly functioning tribunals were present.789 It would seem that the establishment of such tribunals would be the best approach to deal with the newly minted crimes against humanity as other possibilities such as investigatory commissions or UN commissions of inquiry would be both slow and hard to locate especially in the case of global disasters. The only other possible option, that is, civil suits, would represent a real travesty of the gravity of the crimes under consideration, and we have seen a similar situation in the US approach to such crimes through ATCA,

788 789

Ratner et al., Accountability for Human Rights Atrocities in International Law, p. 209. Ibid., pp. 246–247.

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an approach that Canadian scholar Craig Scott described as treating “torture as torts.”790 At this time, there is no information about required standards of evidence and of proof or any other detail about how the new international crimes against humanity will be prosecuted, as the previous ad hoc tribunals dealt with one country or region at a time, and environmental disasters perhaps even more than land grabs, are truly global in nature. Nevertheless, even a global phenomenon may be broken down into multiple areas. The most common response to an ongoing public health disaster – the decision to call a Conference of the Parties, as we saw in the case of climate change, has been less than successful to stopping the disasters’ causes or bringing the perpetrators to Justice. The problems with that “solution” have become obvious the meetings seek consensus, not necessarily serious action to stop the ongoing disaster, let alone any effort to identify the causes or the perpetrators. Thus each successive COP entails a lot of talking, and a lot of behind-the-scenes effort on the part of the most powerful countries to ensure their interests are protected and that the demands of the weaker countries are not allowed to prevail. There is never any talk of perpetrators even when – finally – the anthropogenic causes of the disaster is acknowledged and accepted by most. Of course, up to now, they were acknowledged to be environmental disasters, not crimes against humanity. We have noted the same sequence in the case of the Minamata COP taking place in 2017, decades after the origin of the public health disaster were known. The parties are not coerced to force the industries guilty of producing methyl mercury pollution to close their current hazardous operations. And the industries, the CEOs who direct their operations, are not closed down directly, or their officers jailed, although they were the only ones who knew from the start what their product could do, like Bayer’s Fritz ter Meer knew. The latter was jailed as his action was declared to be a crime against humanity, part of a genocidal operation. Is that what will happen now? Is the 790

Craig Scott, “Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms,” in C. Scott (ed.), Torture as Tort, Hart Publishing, Oxford, 2001, pp. 45–63.

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understanding of the criminal status of environmental disasters sufficient to change the minimal form of restraint that is presently in existence? That is exactly what could and should happen, but it is too early to say whether the present truncated system that declares a situation a grave hazard for a community or an area, caused by a specific product/industry, and ordered by people who knew full well the results of the use of that product, will be indicted and charged with criminal activity. The current situation is like a legal decision to call rape a crime but limit its “punishment” to regular discussions of how harmful it is, followed by agreements that all countries should forbid it. The Key point, however, is that so far environmental disasters, whether involving public health or not, were not viewed as crimes, despite the grave harms they produced: now they are, at least in international law, and logic and consistency would demand a completely changed approach. The question remains though: what else is possible or available today. An interesting move is the one involving groups and communities, and cities that are becoming active on their own as they attempt to move forward against environmental disasters, where their own countries, especially in the west, have been unwilling to make any serious move in that direction. Donald Brown sees these efforts as highly desirable strategies, and his research showed no less than 44 cities around the world that are involved and committed to ameliorating the present disastrous situation.791 The 44 cities involved range from Tokyo to Boulder, from Amsterdam to Edmonton, from New York to Dublin, from Addis Ababa to Melbourne. The strategies in act also cover a wide range of activities: the ones that are most used include “educating citizens,” reducing “GHG emissions from transportation” “reducing energy use in building”; “increasing energy efficiency.” Others involve building green buildings, management of waste

791

Donald Brown, “The Enormous Potential of Cities to Reduce GHG Emissions, 571 Strategies Adopted by 44 Cities Around the World,” 1 September 2017, retrieved from https://ethicsandclimate.org/2017/09/01/the-enormous-potential-of-local-governments-toreduce-ghg-emissions-a-paper-that-identifies-571-strategies-adopted-by-44-cities-aroundthe-world/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+ EthicsAndClimate+%28ETHICS+and+CLIMATE%29.

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disposal, cooperative government climate strategies.792 Laudable and worthwhile activities, no doubt, and in fact indicative of what is already happening in regional activities everywhere in the West. Note, however, that industrial agricultural practices that contribute more than half of the emissions that perpetuate global warming, are not considered. As well, all local initiatives refrain from targeting any specific industry, or any set of practices that promote climate change, hence my impression is that that lack of focus on the obvious perpetrators will need to change after the 2016 ICC changes. However, and this is perhaps the basic reason why North America’s citizens and US sympathizers everywhere would avoid both strategies I propose, is that they are not appropriate in a country who is not a party to the ICC, so that it cannot ever be indicted by that court. on a lesser level, any attempt to attack major corporations are subject to sanctions in the US, under several national legal instruments, as even the distribution of leaflets against corporations whose practices negatively impact animals or the environment, are viewed as forms of ecoterrorism. The problem is that all pro-Western countries take for granted the capitalist/globalized system based on the power of the corporate sector, although many admit that system may need to be corrected and corporate activities would bear better controls. I confess I cannot propose an alternative form of governance leading to an immediate betterment of the situation. But the immense growth of the power of entities that now – at least in the US and in all the countries that accept to be their allies or dependents in some way – has inverted the relation between governed and governing to the extent that the governing entities are either identified with the most powerful among the governed, or the latter actually have found multiple ways of controlling the government, rather than being controlled by it, as the voting citizens expect. Legally this is a particularly grave situation, because all human rights and humanitarian instruments that are globally significant are ratified by countries, not by

792

Ibid.

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corporate bodies whose human rights obligations are therefore non-existent in law and in practice.

3.1. Climate Change and State Obligations The current state of affairs… reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits… [The] modern judiciary has enfeebled itself to the point that law enforcement can rarely be accomplished by taking environmental predators to court.793

The works of this judge represent a veritable leap forward from the few earlier existing cases addressing climate change and its effects. It is particularly interesting to see the lesser effects of climate change cited in this case,794 and the correspondingly more serious views take by the courts in each of these cases. The Kivalina case examined in Chapter 2 presented the most grave and immediate harm: the whole village and community were in the immediate danger of being eliminated by glacial melts and extreme storms, yet the case came to court primarily as a “nuisance,” with the addition of another grave problem beyond the immediate danger: the presence of a “civil conspiracy.” If this case were to be re-examined today, in light of the ICC’s indictment of environmental disasters as crimes against humanity, perhaps the case would have better results for the Indigenous inhabitants. In 2009, a parallel case ended with a far better decision (although that decision was reversed in 2010). The State of Connecticut case was far more general and far more explicit in apportioning blame, and blaming perpetrators. First, several “Trusts,” that is the Open Air Institute, Inc., Open

793

Cascadia Rose Juliana et al. v. United States of America et al., Judge Goodvin, as cited in Kathryn Gwiazdon, “The State v. The Environment: The Ethical and Legal Implications for Non-State Action in Protecting the Foundations of Life,” in Laura Westra, Klaus Bosselmann, Janice Gray and Kathryn Gwiazdon (eds.), Ecological Integrity, Law and Governance, Earthscan from Routledge, London, in press. 794 Ibid.

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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.”795 Third, although Defendants claimed the whole issue was a “nonjusticiable 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.”796 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.”797 In the sixth place, the Land Trusts add “how the ecological value of specific properties in which they have an interest, will be diminished or destroyed by global warming.”798 Hence the emphasis on the connection between ecological values and public health, for instance, is particularly relevant, as is the argument presented to the courts. Well beyond the expected focus on economic impacts and property values (although these are also a significant part of the States and Trusts’ argument), is the rejection of the “political question” doctrine, and especially in the use of the parens patriae doctrine. This doctrine, I believe, provides the first new approach to the problems have

795

State of Connecticut, et al. v. American Electric Power Company, Inc. et al., 2009. Ibid., p. 8. 797 Ibid., p. 9. 798 Ibid., p. 10. 796

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discussed, although it is a principle, rather than a legal instrument, either domestic or international: Parens patriae is an ancient common law prerogative which “is inherent in the supreme power of every state … [and is] often necessary to be exercised in the interests of humanity and for the prevention of injury to those who cannot protect themselves.”799

There is a history of protective jurisprudence, dating back as far as the Middle Ages. In its most recent instantiations, the parens patriae doctrine has been used to support judicial decisions that deal with the protection of those who cannot speak for themselves, especially in the case of health issues.800 The language of these judgments is extremely suggestive and well worthy of attentive study. But before turning to the cases, it might best to review briefly the history of the doctrine. The doctrine of parens patriae, despite its Roman name, is entirely a common law doctrine, and while for instance, the Canadian Supreme Court makes use of it, it does not exist in Quebec law.801 It is perhaps an anomaly that a doctrine with a Roman name and origin is presently only found in the common law, as Morin indicates in his description of the doctrine’s historical background.802 Until 1873 a fundamental dichotomy prevailed in Britain’s legal system. From the Middle Ages, royal tribunals used the “communeley,” but the great majority of cases were heard by the lords and the local courts. Only rarely did the King, as “fountain of justice” participate in decisions of the courts through the person of his Chancellor, who until the sixteenth century was, at the same time, the King’s confessor, hence perhaps the use of the Latin phrase.803 799

Late Corp. of the Church of Jesus Christ of Latter Day Saints v. United States; State of Connecticut, et al. v. American Electric Power Company, Inc. et al., 2009: 38. 800 E. (Mrs.) v. Eve 1986; Winnipeg Child and Family Services (Northwest Area) v. D.G.F. 1997. 801 Michel Morin, “La Competence Parens Patriae et le droit prive,” Revue de Barreau Tome 50(5) (1990), pp. 827–924; Droit de la Famine [1988] RJQ1542 (CA). 802 Morin, “La Competence Parens Patriae et le droit prive.” 803 Ibid. 830; J. H. Baker, An Introduction to English Legal History, 2nd edition, Butterworth, London, 1979, p. 273.

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The Chancellor’s aim was the promotion and the triumph of equity principles, learned in his study of Roman law. The rules guiding these judgments and their results eventually became codified, hence “precedent” was born.804 The doctrine was used for custody and guardianship matters involving the relation between the lord and a minor, perhaps one whose father might have been a tenant of the lord before his death, so that guardianship was required until such time as the child could be recognized as a tenant in his stead, at age fourteen. Eventually the “Court of Wards and Liveries” was instituted by Parliament, after 1540,805 and this court remained in operation for some time. The concept of royal protection was substituted in the fifteenth century by a Court of Chancery, which kept the concept of wardship alive, and was able to introduce a novel move by 1792, when it forbade a violent father to interrupt his son’s schooling and continue with his guardianship.806 Although the Court of Wards was abolished, the concept of “wardship” remained as an aspect of its parens patriae jurisdiction: “In time wardship became substantively and procedurally assimilated to the parens patriae jurisdiction, lost its connection with property, and became purely protective in nature.”807 With this statement we come a lot closer to the possibility of protecting health, in the sense we have been seeking to find explicitly, in legislation, without much success. If “prospective harm” is explicitly a part of the parens patriae doctrine, then it is not only a juridical tool to be used after some crime has been committed or to prevent some obvious injustice. It could be instead especially powerful when there is an unconsented medical treatment at issue, as there it can be used “to prevent … damage being done.” A similar approach exists in the US.808 In another American case, Matter of Sallmeier,809 the Court said:

Morin, “La Competence Parens Patriae et le droit prive,” p. 830; Baker, An Introduction to English Legal History, p. 273. 805 Morin, “La Competence Parens Patriae et le droit prive,” p. 832. 806 Skinner v. Warner, Dickens 799, 21 ER 473 (Ch.1792). 807 La Forest, J. 1986, Re Eve. 808 Stump v. Sparkman 1978. 809 378 NYS 2d 989 (Sup. Ct., 1976), at para. 991. 804

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The jurisdiction of the Court in this proceeding arises not by statute, but from the common law jurisdiction of the Supreme Court to act as parens patriae with respect to incompetents.810

Cascadia Rose reprised the issue of present and future harms, although the plaintiffs were “youth plaintiffs” (ages 8 to 19 years) whose interests were represented by Earth Guardians and by Dr James Hansen, as guardian for future generations, a reminder of the early case Minors Oposa.811 In this case the plaintiffs themselves cite numerous examples of deprivation of their present and future rights, while alleging that defendants (US then President Barack Obama and numerous government agencies, including the Department of Energy, of Defense, of Agriculture and the Environmental Protection Agency (EPA)), whose decisions engendered and fostered the present worsening climate situation: This lawsuit challenges decisions defendants have made across a vast set of topics – decisions like whether and to what extent to regulate CO 2 emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, how much to charge for use of those lands, whether to give tax breaks to the fossil fuel industry, whether to subsidize or directly fund that industry … They draw a direct causal link between defendants’ policy choices and floods, food shortages, destruction of property, species extinction, and a host of other harms.812

The case discusses climate change stating outright that “these facts are indisputable” referring to climate change, then proceeds to trace the causal chain leading from those facts to the perpetrators, including the US government bureaucracies that encourage and facilitated the damaging results. The court, unlike that of State of Connecticut, refused to consider the case before them to be “a political question,” citing detailed precedents for

810

Moore v. Flagg; Matter of Weberlist, 79 Misc. 2d 753, 360 NYS 2d 783 (emphasis added). Minors Oposa v. Secretary of the Department of the Environment and Rural Resources, 33 ILM 173 (1994). 812 Cascadia Rose, Opinion and Order, p. 3. 811

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their position, before concluding that “this case does not raise a nonjusticiable political question”813, as they focus instead on what constitutes and “injury”: In an environmental case, a plaintiff cannot demonstrate injury in fact by merely alleging injury to the environment; there must be an allegation that the challenged conduct is harming (or imminently will harm) the plaintiff.814

An example, far less dire than those present (not alleged) in Kivalina or State of Connecticut is that the permitted activity “impairs his or her economic interests or aesthetic and environmental well-being.”815 Although none of the other cited examples reaches the level of the injuries in Kivalina or State of Connecticut, the Opinion and Order continues: “Each link of these causal chains may be difficult to prove, but the spectre of difficulty down the road does not infirm (the) justiciability determination at this early stage of the proceedings.”816 At the pleading stage, plaintiffs have adequately alleged a causal link between defendants’ conduct and the asserted injuries.817 Finally, in the section on the “Infringement of a Fundamental Right,” the Opinion Order states: “In framing the fundamental right at issue is the right to a climate system capable of sustaining human life.”818 Thus, tying climate change directly to human life in all its aspects, and in tracing causality back to both corporate perpetrators and government facilitators and complicit parties, this case clearly supports the claims advanced in this work regarding environmental disasters and those who engender them. Recently several other countries have acknowledged the grave harms arisen from climate change in the courts: the Dutch government exercised its “duty of care” as it ruled “in favour of the Urgenda Foundation 813

Cascadia Rose, p. 16. Cascadia Rose, A. Injury in Fact, p. 18. 815 Washing Environmental Council v. Bellon, 732 F.3d 1131, 1140 (9th cir. 2013) as cited in Cascadia Rose, p. 18. 816 Alperin, 410 F. 3d at 539. 817 Cascadia Rose, B., p. 26. 818 Ibid., p. 32. 814

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(representing multiple generations of citizens) … [and made it necessary] for the Dutch government to reduce the Dutch greenhouse gas emissions at a much bigger pace.”819 Pakistan’s government also supported the public trust doctrine and their commitment to the support of human dignity.820 Hence we can note that the global community is far more aware of the issue today than it was in 2009. We will turn to yet another highly conflicted situation, which will only be acknowledged given the strength of its presence globally, but not researched or discussed in depth as it exceeds the limits of the present work.

3.2. Other Land Grabs: Unacknowledged and Intractable Today Recent weeks have seen an escalation of violence against the Rohingya’s in Rakhine, the poorest state in Myanmar … Religious and ethnic differences have been widely considered the leading cause of the persecution. But it is becoming increasingly hard to believe that there are not other factors at play …821

What is at stake is land grabbing, despite the international community’s insistence that it is a case of human rights breaches due to religious discrimination. Of course the official version according to the government of Myanmar was denial: the persecution of the Rohingyas was due to the fact that they were “terrorists.” This response could be expected: there is no legal definition of terrorism.822 Thus that appellation is freely used by anyone to justify attacks, murder, dispossession of any group whose ideas differ from the local power, who assert their own rights to self-

819

Urgenda Foundation v. The States of the Netherlands (Ministry) of Infrastructure and the Environment) Hague District Court (24 June 2015). 820 Rabab Ali v. Federation of Pakistan, Supreme Court of Pakistant (29 June 2016). 821 Giuseppe Forino, Jason von Meding and Thomas Johnson, “Religion is Not the Only Reason Rohingya’s Are Being Forced out of Myanmar,” The Conversation (12 September 2017), retrieved from http://theconversation.com/religion-is-not-the-only-reason-rohingyas-arebeing-forced-out-of-myanmar-83726. 822 Antonio Cassese, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law,” European Journal of International Law (12 November 2001), pp. 993–1003.

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determination, or any number of other causes unacceptable to those in power. Or, in addition, in the case they possess something the local government wants to take: land grabbing and confiscation in Myanmar is widespread. It is not a new phenomenon. since the 1990s military juntas have been taking away the land of smallholders across the country, without any compensation and regardless of ethnicity or religious status.823

The link between conflicts and dispossessions is a common presence in the Middle East, Asia and Africa. It may be enough to recall the ongoing land grabs that have been obvious for at least fifty years as Israel continues to grab Palestinian lands, including smallholders’ cultivated lands, often bisected by the Israel apartheid wall so that the Palestinians can be charged with not cultivating their lands.824 These are forms of imperialism, masquerading as self-defence; or as rendering assistance, or even as defending democracy, when the origin of the aggression is in the interests of the US or its allies. As well, it may be a case of simple greed, as it is in the case of Myanmar, where no less than a Nobel Prize winner has masterminded or at least permitted land grabbing/persecution against a minority. However, state-initiated land grabs and other warlike aggressive intrusions in the life of local inhabitants represents an extremely complex topic that merits a separate treatment, and in depth research additional to what we have been discussing in these pages. The new subject should also involve humanitarian-law and the laws of war. Hence it is best to acknowledge the issue, but not to attempt a brief and superficial survey at this time and in this context, that is primarily intended to uncover environmental crimes. The geopolitical situation today is such that even the UN’s efforts to rein in aggression are mostly unsuccessful if the country involved is or is protected by the US. For instance, we have seen years of UN resolutions against Israel’s apartheid wall and in general its 823 824

Forino et al., “Religion is Not the Only Reason Rohingya’s Are Being Forced out of Myanmar.” Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, John Dugard special Rapporteur, E/CN.4/2005/29, 7 December 2004.

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illegal land grabs, by a country that simply ignores whatever the global community forbids, in total immunity.825 Perhaps the expansion of the statute of the ICC will follow the same path to oblivion, since, as we already noted, neither the US nor Israel are parties to that Statute. Of course when we consider the gravest crimes against humanity and other grossly immoral actions we do not accept the need for ratification of the major instruments such as that against racism and other forms of discrimination, or against genocide. Time will tell whether the crimes against humanity we have been discussing will also join the crimes that are now viewed as those that must be avoided at all costs, as obligations erga omnes, based on jus cogens norms. In the next section we will turn to another extremely difficult issue, albeit one that is well within the limit of our present work, as it links ecology, environmental disasters and land grabs instead.

4. A DIFFICULT QUESTION: GREEN LAND GRABS REVISITED I argue that we must examine how protected area creation is a particular form of primitive accumulation that involves both enclosure and dispossession of land and natural resources. Using primitive accumulation as a lens of analysis, I hope to show how protected areas create and reproduce the means of capitalist production and through neoliberal conservationist practices, are able to become capital themselves in the form of environmental services, spectacles and genetic storehouses …826

Kelly sees the “protected areas as capital”827 as she termed the creation of protected areas as a newer version of the original enclosures (or as reenclosures of the commons). These areas, she argues, “exclude the resident 825

Laura Westra, Faces of State Terrorism, Brill, Leyden, 2012, ch. 6. Alice B. Kelly, “Conservation Practice as Primitive Accumulation,” in Nancy Lee Peluso and Christian Lund (eds.), New Frontiers of Land Control, Routledge, Abingdon, 2013, pp. 17– 34, here pp. 17–18. 827 Ibid., p. 23 826

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population to achieve a ‘natural’ and therefore pleasing environment for wildlife tourists.”828 This is the main point that demonstrates that the author misunderstands the reason for the creation of protected areas, and their very role. Protected areas, unlike ecotourism spots, are intended to ensure that natural wilderness areas possessing as much ecological integrity as may be found today, protect biodiversity, the wildlife of each area, and the natural services provided by those ecosystems. Indeed, these are “taking the land out of production.”829 That is precisely the goal when conservation/protected areas are created: Not to extend capitalist production, or to satisfy the whims of rich tourists, but to exclude human activities of all kinds, including tourist travel. The latter belongs in a different location altogether, one we may agree with Kelly is at best a limited, maybe less damaging form of commodification. Primitive accumulation, as I understand it, refers to the confiscation of land from the commons for commercial purposes. In contrast, the creation of protected areas, including wildland corridors, does not permit any form of human activity, let alone commercial exploitation. When we speak of protected areas or areas of conservation, we are doing far more than implementing and describing the choices of wealthy tourists: we are attempting to protect the natural services that are necessary for the continuation of all life: “Once you start destabilizing large-scale natural systems, you are actually tinkering with the very foundation of life support.”830 McMichael was an epidemiologist, a well-known representative of a profession we have argued was vital for the identification of crimes against humanity through attacks on public health.831 He does not address directly the question at issue, but many other scientists join their voices to

828

Ibid., p. 22 Ibid., p. 18. 830 Anthony J. McMichael, Planetary Overload, Cambridge University Press, Cambridge, 1995. 831 See Chapter 3 more recent descriptions of those attacks. See also Georgina Downs, “Poison in the Fields: Agriculture as Chemical Warfare,” Counter Punch (22 September 2017), retrieved from www.counterpunch.org/2017/09/22/poison-in-the-fields-agriculture-as-chemicalwarfare, for the necessity to protect the land, but also the wildlife: Damian Carrington, “Sixth Mass Extinction of Wildlife Also Threatens Global Food Supplies,” The Guardian (26 September 2017), retrieved from www.theguardian.com/environment/2017/sep/26/ sixth-mass-extinction-of-wildlife-also-thraatens-global-food-supplies. 829

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his, conservation biologists first among them,832 for an in depth discussion of the scientific importance of protected areas, not only for biodiversity, but also for many other aspects of the foundational value of undisturbed natural systems, or areas of ecological integrity. Hence we must acknowledge that from a great variety of scientific points of view, areas of conservation are basic to the survival of all life, including the Indigenous peoples possibly displaced by one of these areas. Kelly acknowledges that “theoretical conservation considerations” can be viewed as “the ultimate concommodity.”833 But it is too facile to condemn the creation of conservation areas as “a violent ongoing process that alters social relations and practices … [and produce] … the creation of the conditions for capitalist production that allows a select few to accumulate wealth.”834 In fact, the very peasants/land holders that fight against corporate intrusion into the traditional agricultural practices, stand united on the side of conservation, because even areas of integrity allow the presence of those who live traditionally on the land. Canadian law gives primacy (in principle) to the protection of ecological integrity in our national parks, as well as in the reservation areas occupied by the First Nations of Canada.835 It is true that the victims of land grabs may not be conversant with the foundational value of ecological integrity and the

Reed F. Noss, “Sustainability and Wilderness,” Conservation Biology 5(1) (1991), pp. 120– 122; Reed Noss, “The Wildlands Project: Land Conservation Strategy,” Wild Earth Special Issue (1992), pp. 10–25; Reed Noss, and A. Y. Cooperrider, Saving Nature’s Legacy, Island Press, Washington, DC, 1994; W. E. Rees and M. Wackernagel, Our Ecological Footprint, New Society Publishers, Gabriola Island, BC, 1996; James J. Kay and E. Schneider, “The Challenge of the Ecosystem Approach,” Alternatives 20(3) (1994), pp. 1–6; David Pimentel, C. Harvey, P. Resosudarmo, K. Sinclair, D. Kurz, M. McNair, S. Crist, L. Shpritz, L. Fitton, R. Saffouri and R. Blair, “Environmental and Economic Costs of Soil Erosion and Conservation Benefits,” Science 267(5201) (25 February 1995), pp. 11–23. 833 Citing Tania M. Li, “Contested Commodifications: Struggles Over Nature in a Natural Park,” in J. Nevins and N. L. Peluso (eds.), Taking South Asia to Market: Commodities, Nature and People in the Neoliberal Age, Cornell University Press, Ithaca, NY, 2008, p. 124; see also Kelly, “Conservation Practice as Primitive Accumulation,” p. 21. 834 Kelly, “Conservation Practice as Primitive Accumulation,” p. 21. 835 Shaun Fluker, “Environmental Norms in the courtroom: The Case of ecologic al Integrity in Canada’s National Parks,” in Laura Westra, Prue Taylor and Agnes Michelot (eds.), Confronting Economic and Ecological Collapse, Earthscan from Routledge, London, 2013, pp. 1–31. 832

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true meaning of protected areas, although most of them value the traditional ways of dealing with the land they respect.

4.1. What Is Ecological Integrity? Ecological integrity was first required as part of the Clean Water Act (US, 1971), then it was mandated by the US/Canada Water Quality Agreement (GLQWA) of 1978, ratified in 1987: The purpose of the Parties is to restore and maintain the chemical, physical and biological integrity of the great Lakes Basin Ecosystem, where the latter is defined as … “the interacting components of air, land, water and living organisms including humans within the drainage basin of the St. Lawrence River.”836

Further, integrity does not denote an ecosystem’s excellence, as it must possess at its optimum point an ecosystem capacity for sustaining species instead, while dissipating energy, therefore ecosystem integrity is not a static point. A complex systems theorist, James Kay says: It could be argued that any environmental change that permanently changes the optimum operating point affects the integrity of the ecosystem … It also could be argued that any time that the system can maintain itself at an optimum operating point it has integrity. 837

Henry Regier et al., “Integrity and Surprises in the Great Lakes Basin Ecosystem” in Clayton J. Edwards and Henry A. Regier (eds.), An Ecosystem Approach to the Integrity of the Great Lakes in Turbulent Times, Special Publication 90-4, Ann Arbor, MI, Great Lakes Fishery Commission, 1990, pp. 17–36. 837 James Kay, and E. Schneider, “Life as a Manifestation of the Second Law of Thermodynamics,” Mathematical and Computer Modelling 19(6–8) (1994), pp. 25–48 for a detailed explanation of ecological integrity, see collaborative definition in Laura Westra, The Principle of Integrity, Rowman & Littlefield, Lanham, MD, 1994, pp. 24–25; also final definition in Laura Westra, David Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000, ch. 2. 836

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This brief excursion into the debated scientific understanding of ecological integrity, a foundational aspect of conservation protected areas is necessary in order to explain our opposition to the assessment of conservation areas as one preference among many, in fact a preference in direct conflict with social justice. Before you can have social justice in a community, you have to ensure the protection of basic human rights to life and to what in Canada is termed (albeit with a different meaning) “security of persons.” Because of the importance of ecological integrity, I have suggested that the “principle of integrity” is an imperative which must be obeyed before other human moral considerations are taken into account. Just as life is presupposed before moral choice can be effected by humans, so too, the basis for all life is a holistic value, prior to all other values that can be discussed. This principle is proposed as a moral imperative, rather than simply a prudential consideration.838 The significance of integrity is that it is basic to the natural conditions that support life. In plain words, the undisturbed ecology is naturally such that it supports all life within it, that is, within that natural landscape as well as providing optimum natural services for all including human life. Thus ecological integrity is the ideal condition not only to establish conservation areas, but also it represents the best condition to ensure that human life is environmentally secure. When ecological integrity declines because of industrial or other human development, that protection and those conditions decline apace. The clearest example might be the final interference with a natural area: when that area’s natural conditions are completely removed as an area is paved over for human purposes, it no longer supports any kind of life, animal or vegetation. Moderate interference permits the continuation of certain species but not others, so that the conditions of biological/ecological integrity, as indicated in the Index of Biotic Integrity (IBI) support the widest possible conditions of life support, and when these are no longer present the range of life support, the number of life forms, is diminished, as the

838

Westra, The Principle of Integrity; Laura Westra, Living in Integrity, Rowman & Littlefield, Lanham, MD, 1998.

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human/industrial intrusion increases.839 A recent example in real life might be the situation in Spain in the autumn of 2017. Euronews reported that the main rivers are almost dried up, after a very hot Summer, and the previous conditions favorable to agriculture are no longer present, as Spain is soon facing complete desertification. As for the social rights that these conditions indicate, rather for the loss of such rights, we can recall that in 2017 we celebrate the 800th Anniversary of the Charter of the Forest. In London on 7 November 2017 a Keynote Address on the topic was delivered in the state Rooms of the House of Commons.840 The first of its seventeen chapters reads in part: In the first place, all the forests which Henry, grandfather, afforested shall be visited by good and lawful men; and if he afforested any woodland other than that of his own demesne to the damage of him to, whom the woodland belonged, let it be diafforested. And if he afforested his own proper woodland, let it remain forest, saving common herbage and other things in the same forest to those who were accustomed to have them before.

Perhaps this the earliest statement of the principle of the commons: it permits “herbage and pannage, customs of the commons,” as well as “estovers,” the taking of wood to build houses and furniture. Thus all of nature should be available for the sustenance of the common people, it was not something that should be destroyed or to be bought and sold for the economic interests of some, while gravely affecting the “sustenance” of others instead.

J. R. Karr, “Protecting Ecological Integrity: An Urgent Social Goal,” Yale Journal of International Law 18 (1993), pp. 297–306; J. R. Karr, “Landscapes and Management for Ecological Integrity,” in K. C. Kim and R. D. Weaver (eds.), Biodiversity and Landscapes: A Paradox for Humanity, Cambridge University Press, Cambridge, 1994, pp. 229–251; J. R. Karr, “Health, Integrity, and the Biological Assessment: The Importance of Measuring Whole Things,” in Laura Westra, David Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000, pp. 209–226. 840 Peter Linebaugh, “On the 800th Anniversary of the Charter of the Forest,” CounterPunch (20 November 2017), retrieved from www.counterpunch.org/2017/11/20/on-the-800thanniversary-of-the-charter-of-the-forest. 839

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Today most of the world is affected by man-made “progress” in some way, with the corresponding loss of integrity, hence pristine conditions no longer dominate, and the presence of dangerous toxic substances and conditions, as we argued are a major factor in eliminating the safety of naturally evolving landscapes and water bodies. Although this inescapable relation between the conditions of the natural areas where we live and our own health/survival are net openly acknowledged, that connection is nevertheless true, in various degrees. That is, while in cities wealth may offer some degree of protection to some by providing climate controls, the availability of organically – grown food to the well-to-do, in many cases that is not enough. The dangerously polluted air in major cities in China, and even at some times of the year to some cities in northern Italy, are clear examples of the limits that even wealthy may have, to ensure safety. Of course wealth also provides the means to choose one’s residence, but for most for the world’s citizens that is not an option. In contrast, those who live off the land have no such choices. If their water or land is polluted because of so called “development” related projects, they have no choice and no infrastructure, either social or medical to offer support. Their conditions, as we noted, are often precarious, as they mostly have no formal legal ownership documents for their land, land they have occupied traditionally for a very long time. Indigenous peoples are subject for their lands to the laws of the country where they reside. But even when their areas are technically protected and set aside specifically for them, no one controls the harms that affect them as pollution still inquinates their air, water and land from the uncontrolled industrial operations that continue, uncontrolled, just beyond their borders.841 Their land has been “grabbed” in the sense that it is not theirs to enjoy safely, according to their traditions and their choices, although the title remains theirs. And the examples can be repeated in too many areas globally,

841

Dorothy Goldin-Rosenberg, 2005, Toxic Trespass, a video relating the desperate situation of the Aamjinwaang First Nation in the area near Sarnia, Ontario, as well as the citizens of the area, is a clear example, one that the Ontario Government is finally prepare to acknowledge in 2017, despite the presence of many Health Canada reports confirming their plight.

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affecting too many Indigenous communities. Hence the possibility of setting aside some areas, in order to prohibit industrial development, but to protect ecological integrity, are not on a par with using such areas for the entertainment of wealthy tourists, especially when the entertainment sought involves destroying megafauna, including capstone species. It is rather a matter of responsibility to humanity as a whole, now as well as for future generations. Hans Jonas argued that the nature of human action has changed and that the prevailing ideology of the age, the “scientific view of nature,” is no longer acceptable for the viable ethic, if it ever was. All previous ethics, he claims, were flawed in regard to our main problem, that of the future. In brief, all previous ethics (a) treated the nonhuman world as ethically neutral and the human techne connected with the world in the same vein; (b) were anthropocentric; (c) considered man’ essential being as unchanging with the result that the mutual impact of the man/techne was not explored; (d) and viewed all “ends” of man as “proximate,” both temporally and geographically. Present circumstances demand a changed worldview. Once we realize that when we interact with the nonhuman world we are-at the same time-affecting not only specific human beings but, a fortiori, humanity as such, the claim of ethical neutrality can no longer be sustained. The main change which Jonas perceives is in the import of human power. This understanding and the position that follows upon it, alters completely the relation between human beings and the rest of nature. Holmes Rolston emphasizes the lack of “clear demarcation” between one’s self and the environment, as he meditates on a lake’s shore: The waters of the North Inlet are part of my circulatory system, and the more literally we take this truth the more nearly we understand it. I incarnate the solar energies that flow through the lake, No one is free living … Bios is intrinsically symbiosis.842

842

Holmes Rolston III, “After Preservation? Dynamic Nature in the Anthropocene,” in Ben A. Minteer and Stephen J. Payne (eds.), After Preservation: Saving American Nature in the Age of Humans, University of Chicago Press, Chicago, IL, 2015, pp. 32–40.

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Thus not only does nature have, as Jonas puts it, a “dignity of ends,” but more to the point for the metaphysics required and implied by the new ethic, its ends are also our ends.

4.2. Green Land Grabs: From Theoretical Reasons for Protection to the Reality of Dispossession  



agrobiodiversity includes crop varieties, livestock and fish breeds, and agriculturally useful insects and microbial species … If conserved and used sustainably, agrobiodiversity could make an important contribution towards resolving the problems of hunger, food insecurity, malnutrition and climate change … The world is facing rapid loss and extinction of biodiversity. It is estimated that species are being lost at 1,000 to 10,000 times the rate at which natural extinction takes place at any time … Extinction of biodiversity and associated traditional knowledge is an irreversible process and hence must receive priority allocation. In fact, loss of a gene is a major loss for our future generations.843

The Delhi Declaration certainly confirms the point of view we are defending here: the protection of biodiversity in all contexts is a common good, shared by people on the land and conservationists, at least as far as food systems are concerned. In fact any sort of land grabs, even if not intended for agricultural purposes, but for any sort of “development,” will contrast directly with the traditional practices of local inhabitants and Indigenous communities. Thus to support and protect biodiversity, specifically agrobiodiversity is a common goal of environmentalists and local farmers, whether or not the latter are aware of the implications their position has in support of natural systems, wilderness and life in general.

843

Biodiversity International, Delhi Declaration on Agrobiodiversity Management adopted,” 12 November 2016, retrieved from www.biodiversity.international.org/news/detail/delhideclaration-on-agrobiodiversity-management-adopted.

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An example would be the situation in Tanzania, where the property laws “divide the land into three categories,” which are “reserved land” belonging to national parks and other reserves and which cannot be sold; “general land, property of the government to use or sell: and “village land,” which is the property of the local communities.844 The only legal way for a corporation to gain possession of any of the “Village” land in that country, is to have the government change an area’s designation from “village” to “general” land, with the full consent of those who were using that land. Unfortunately, the “consent” is – at best-based on promises of income, infrastructure such as water wells, and other benefits, such as schools or hospitals. However, when the consent has been obtained, the communities are left destitute, with no assistance or protection from the agribusiness who benefits from some plantation product and the government that facilitated the transfer. In fact the relation between local peasants or Indigenous communities and environmentalists attempting to establish a conservation area where local cultivation supports the inhabitants may be unjust in its final results. It may become similar to the relation that exists between the purveyors of “sustainable development” and the same local communities. Escobar addresses “the spread of sugar cane [which] was met by fierce opposition by mostly Afro-Colombian peasants in the region,” citing Taussig: Peasants represent as vividly unnatural, even as evil, practices that most of us in commodity-based societies accept as natural in the everyday workings of our economy, and therefore of the world in general. This representation occurs only when they are proletanized and refers only to the way of life that is organized by capitalist relations of production. It neither occurs nor refers to peasants way of life. 845

We have spoken several times of the dangers inflicted legally on the land-based communities. Those examples can be multiplied and (unfortunately) so can the negligence and unconcern – evidenced by both 844

Stefano Liberti, Land Grabbing: Journeys in the New Colonialism, Verso, London, 2014, p. 174. 845 Michael Taussig, The Devil and Commodity Fetishism in South America, University of North Carolina Press, Chapel Hill, NC, 1980, p. 2.

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groups, that is, environmentalists and development pushers, as they are intent upon securing their goals. The environmentalists, hoping to retain some biodiverse wilderness for the support of life, the others, for the support of their economic interests. We must acknowledge that both may be singleminded in the achievement of their goals. However the environmentalists have solid scientific evidence for the promotion of the general good on their side, whereas the “developers” would have a hard time to demonstrate that their “development” actually improves and betters the life of local people without harming them. In both cases, the final result is indeed displacement and dispossession, a situation that calls for radical reform of the “transnational land governance” that exists today.846 Margulis and Porter note the diminished influence of the US in comparison with the complexity of multi-state influence on the global economy, but they view “collaboration among states” as a viable alternative, and I find both positions somewhat problematic, although I cannot give a specific argument at this time, other than to refer the reader to the previous chapters. As well, transnational advocacy networks and states’ ability to work toward social justice also appears doubtful at best. In fact the “complexity” the authors acknowledge impacts directly not only on social justice, but equally on “the material limits of the earth”: normative beliefs and scientific knowledge are important not only because they influence states, but also because they directly interact with the intensified resource challenges and land conflicts that accompany the earth’s diminishing physical ability to sustain our civilization.847

I have suggested that what is actually at stake is not only our civilization, but life on earth as well. Of course in 2014 no one had yet dared to suggest that land grabs were actually crimes, so that to suggest a “working together”

Matias E. Margulis and Tony Porter, “Governing the Global Land Grab: Multipolarity, Ideas, and Complexity in Transnational Governance,” Globalizations 10 (2013), pp. 65–86. 847 Ibid., p. 66. 846

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pattern among states and NGO associations to reach just governance, seems to be both inadequate and inappropriate now. The problem is to have to refer to the increasingly weakened and politically controlled UN system as the only source of guidance. But, as Carl Cranor noted regarding toxic exposures,848 although the law (as it stands now) is the present source of many of the harms we face, because of the lack of controls it is able to impose, the law is also the only possible source of solutions to redress the problem. The ICC has given us the initial impetus, now it is up to NGOs, civil society, and the states themselves to incorporate these new international legal principles into their own constitutions. Further support for the claim that the best way to connect environmental disasters and land grabs to criminal activities is to relate them as we have attempted to do in this work, to human rights and public health can be found in a 2017 World Health Organization report, which states: What is least known is that environmental factors are also the main causes of non-communicable diseases (NCDs); ambient (outdoor) and household air pollution together caused more than 6 million deaths from cardiovascular diseases, chronic respiratory diseases and lung cancers in 2012. Other important environmental risks include second-hand tobacco smoke, exposure to chemicals, radiation and noise, and occupational risk factors.849

This introductory statement reiterates clearly the importance of environmental factors to public health, but by listing them as equivalent it does not do justice to the situation, although it gives 23 per cent to environmental causes, as opposed to other causes. But when it does not differentiate between “noise pollution,” cancers and the long-term effects of pre-birth exposures, then the listing of the results of their research must be questioned. Their research includes public health’s many aspects, such as the “lack of physical activity,” or “the lack of fruits in the diet,” which 848 849

Carl F. Cranor, Legally Poisoned, Harvard University Press, Cambridge, MA, 2011. World Health Organization, Preventing Noncommunicable Diseases (NCDs) by Reducing Environmental Risk Factors, WHO/FWC/EPE/17.ID, World Health Organization, Geneva, 2017.

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although true enough, are like smoke itself quite different from exposure to chemicals, air pollution and second-hand smoke: the former are like smoking, choices, not unavoidable, imposed harms. Clearly a choice to be physically active, not to eat enough fruit or even to smoke (at the start, before the expected addiction kicks in), are not crimes on someone’s part, although I have argued that the deliberate, ongoing promotion of unhealthy diets is one, to some extent.850 Also the WHO Report cites diets “with high sodium” content, and “diets low in fruits,” like “lack of physical activity” as significant contributory factors to NCD deaths attributable to these risk factors, some of which rank even higher than air pollution.851 The important distinction between the two group of risks is that one group of risks represent unavoidable, imposed environmental harms most of which have effects that are deliberately and carefully kept away from the general public’s information; the other risks are chosen behaviours. That distinction is a vital one today in the light of the ICC’s decision about crimes against humanity. Imposed high risks of NCDs, including cancers, cardiovascular diseases, and the multiple harms both physical and mental that follow upon pre-birth exposures, particularly those involving EDCs, can be treated as crimes.852 In Chapters 2 and 3 we have argued that the results of imposing high risk conditions, create unavoidable mass harms grave enough to merit the appellation of environmental disasters, thus reaching to the level of crimes against humanity. However, the latest WHO Report lists all environmental risks as though they were all in the same category, as well as equally “normal,” in the sense of not being criminal in nature, while any other form of violence or attack on human beings would be described as criminal. But an attack on human beings through environmental means, no matter how diffuse, widespread, unavoidable, and involving grave risks and resulting in

850

Westra, On Hunger. World Health Organization, Preventing Noncommunicable Diseases …, p. 5. 852 World Health Organization, State of the Science of Endocrine Disrupting Chemicals 2012: World Health Organization Summary for Decision Makers, World Health Organization, Geneva, 2012. 851

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serious harms or death, does not even merit being viewed and treated like a beating, perhaps: it is not treated as a crime. Now the UN’s International Criminal Court has spoken, and the ether organs of the UN should take notice and incorporate the latest legal decisions into the findings of the other UN organs, prior to also reaching a declaration or resolution on the part of the UN General Assembly requiring all countries to include the new crimes against humanity in their constitutions. Thus, at least theoretically, one could say that any effort to maintain land untouched by manmade substances that foster human harms, could be justified, given that the harms would revert to both local inhabitants as well as humanity at large. Nevertheless the indisputable fact that a true conservation area (not a tourist location) is to the common benefit of the displaced locals and to humanity at large, does not justify the social injustices that too often follow. Clearly it is quite unacceptable to take a purely utilitarian position and make the good of the many sufficient to permit grave harms to some, especially given the fact that the great majority of the dispossessed are also at the same time victims of racial discrimination, as we argued in Chapter 5. Thus, in the next section we will discuss the reality of dispossessions, and consider whether any acceptable approach is possible.

5. THE REALITY OF DISPOSSESSION Land is the central issue, the biggest threat to stability. Every week conflicts over land are reported in the papers. Land is being concentrated in ever fewer hands.853

We will return to the results of land grabs, keeping in mind that when the ultimate purpose for the grab is a corporate takeover for some lucrative monoculture, or for a supposedly “green” project or development project related to agriculture, the results to local populations are disastrous. We will

853

Fred Pearce, The Land Grabbers, Beacon Press, Boston, MA, 2012, p. 77.

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start by returning once again to some of the harmful effects on local people, already discussed in Chapters 4 and 5. Perhaps it is best to review once again the results of dispossession: where it happens, whatever the reason for it, before attempting to propose solutions, by relating some other examples. In South Sudan, Howard Eugene Douglas intends to secure 1.5 million acres in the area’s “prized green belt” in order to grow “oil palm, hardwood trees, and the biofuel jatropha,” in a region where no official survey is available, and without the presence, let alone the consent of the community. As well, the proposed areas of natural forest to be included in the deal, is to be selected at a later date, by the investors alone.854 In the same continent, one of the problems is that many countries cannot grow rice. The Senegalese government is “offering Saudi Arabia 400,000 hectares of farmland for that purpose”: “Contracts say that 70 percent of the rice would be destined for Saudi mouths, and only 30 percent for locals. So this is a water grab as well as a land grab.”855 But the local cattle herders will lose “dry-season pastures near the river.” Although Senegalese diplomat Jacques Diouf had condemned “land grabbing as ‘neo-colonialism” he participated in the UNFAO ceremony to award King Abdullah of the Saudi, the organization’s “Agricola Medal for improving world food security.”856 In Kenya, the Yala Swamp was home to locals who used the land as grazing pasture for their cattle, and even the poorest had at least twenty animals. As well, the Yala swamp near Lake Victoria was rich in wildlife, so much so that conservationists termed it “a living museum.” About 700,000 people lived within 10 miles of the swamp, and took fish, wild game, papyrus and used the dryer spots for grazing and farming vegetables.857 They used the papyrus to make mats, baskets and as thatch for their huts. The promised clean water was never brought in, however, and the promised “four acres each” never materialized, and neither did the promised

854

Ibid., p. 47. Ibid., p. 33. 856 Ibid., p. 34. 857 Ibid., p. 55. 855

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jobs. About 1,500 Indigenous people are now left, “huddled together like squatters around the edge of the farm.” Dominion’s rice processing plant and rice fields, “fenced and bearing signs saying ‘No Trespassing’ in English, Swahili, and Luo,” are their only neighbours.858 In Tanzania, the land of Maasai is equally under threat, as a billionaire from Tennessee bought a concession in 2002 from the Tanzanian government. Now Gulf Sheiks and their friends hunt wild game while the Ortello Business Corporation, a safari company, has exclusive hunting rights to the million-acre Loliondo Game Controlled Area, “a crossroad for wildlife between the Serengeti National Park to the west … and the Maasai home reserve in Kenya to the North”: although Ortello does not own the land (which is traditional Maasai Territory), but the government employs a paramilitary force to keep out the Maasai, as·an independent assessment states: James Anaya, a law professor from the University of Arizona and the UN special Rapporteur on human rights and indigenous peoples More than two hundred thousand homesteads were burned down, he said. Their cornfield and food stores were destroyed. Ten thousand people were left without shelter, food or water and fifty thousand cattle without grazing land. Tear gas was used. A woman was raped, some men chained, and three children have disappeared.859

In all cases, the development, whether purporting to be green or not, starts with the imposition of grave harms to local indigenous communities who are displaced. Even a UN rapporteur of the caliber of James Anaya suffers the same fate as the UN rapporteurs deployed to Israel to monitor the illegal situation in Palestine: he is ignored by the local government and the international community. Some years ago James Anaya partnered with Sheila Watts-Cloutier for a thorough and well-supported petition to the International Court of Justice regarding climate change and the harms the arctic peoples were suffering

858 859

Ibid., p. 57. Ibid., pp. 211–212.

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because of the prevailing Western practices, particularly those in the US.860 The individual governments do not respond to shaming by the global community, and the UN can only act decisively through the Security Council which, unfortunately, has a clear history of not responding to any request for punitive measure that might be contrary to the interests of the US and its friends. What is left, internationally, appears to be confined to UN resolutions and declarations which – once again – do very little to redress the harms suffered by the victims of what has now been defined as crimes. In some sense it is easier to link crimes against humanity directly to land grabs, if we understand the dispossessions and other breaches of human right as related to food/survival of whole communities, than to see the immediate link for the only acknowledged environmental disaster of today, climate change. There are obvious deprivations of living space, as part of the attacks on life and health, as desertification changes whole areas from living spaces to uninhabitable spaces; or where hurricanes, tsunamis and other such environmental extremes shrink coastal areas, lowlands and eliminate small islands; or where glacier and ice melts render the while Arctic unliveable for its Indigenous inhabitants. Thus, even in the case of climate-related environmental disasters the “grabbing” in the sense of eliminating the presence of living spaces comes first and the link between the two cited forms of crimes against humanity remains solid. That said, what remains to discover is some sort of legal protection, prior to the disasters-in-the-making, since, as most people realize, prevention, not end-of-pipe scrambling to find a solution after the fact, is always the best way, for both environment and public health, and that is the only way to attempt to avoid a disaster.

860

Petition on Human Rights Violations Resulting from Global warming Caused by the United States, Sheila Watts-Cloutier, James Anaya and others, 7 December 2005.

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5.1. From Social Catastrophe to Crimes against Humanity When people hear the words ‘chemical warfare’, the first and possibly sole thought will be threats to civilians for the use of chemical weapons – whether in war-torn countries or from a terrorist attack. … Yet highly poisonous chemicals that were originally designed as weapons of war – have been allowed for many decades … to be sprayed on crop fields all over the UK with literally no protection at all from the many millions or rural citizens living or attending schools in the localities of such chemically treated areas.861

This paragraph refers to Britain, but when we consider the situation in the wealthy western countries, starting with the origin of those chemicals in the US, the trickery and dispossession from safe fruitful fields is still present, but it consists in more or less serious conditions which only rarely make it to the courts as legal cases.862 The denial of the harms present in the products farmers have been conditioned to accept, relying on largely non-existent governmental regulations to ensure safety, is an ongoing fact.863 The presence of these chemicals, promoted, as well as allowed, is still a form of dispossession, although it comes in a subtler form as the replacement of safer, traditional methods of growing food, by whatever processes and methods enrich the corporate manufacturers, while they harm farmers and communities. As well, the uncertain and changing weather conditions no doubt play a part in convincing farmers to try a new and “better” way. These conditions persist in most western countries in various measures and the denial of truths include public health problems, from the raising of doubts, to the twisting of scientific facts, as we noted in Chapter 3. The result of these crimes is not limited to the western countries from where the powerful corporations originate, but it is spread worldwide, and the plight of Indian farmers comes to mind:864 yet the reports of the UNFAO and other UN

Downs, “Poison in the Fields.” Monsanto (Canada) Inc. v. Schmeiser (2004) ISCR 456. 863 Carey Gillam, Whitewash: The Story a Weed Killer; Cancer and the Corruption of Science, Island Press, Washington, DC, 2017. 864 Vandana Shiva, Staying Alive, Zed Books, London, 1988. 861 862

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agencies only report the dire facts of starvation and malnutrition in the Third World, not taking in consideration these facts, despite the abundant scientific literature that, despite all the efforts of the corporate interests to the contrary, emerge to attest to their contribution to what Connor terms correctly “a social catastrophe” to which we can add the more precise definition of “environmental disaster.” The Independent Science News of 9 October 2017, reports on the recent scientific research on regularly used GMO crops, that the industry claims are safe to eat for humans.865 These supertoxins are regularly part of GMO corn, soybean and cotton, and the pesticides are manufactured by Mosanto, Syngenta and Dow,866 thus supporting the headline noted earlier regarding Britain’s cultivated areas, of “chemical warfare,” particularly as at least Monsanto and Dow have a history of providing chemical war materials to the US, such as Agent Orange. The reality of these additional attacks supports my argument that hunger is not only a quantitative concept, but also a qualitative one, in the sense that the food we have a right to according to law, must be “adequate,” that is, both safe and providing nutrition. I have termed those suffering from the deprivation of safe food that is also nutritious, as suffering from Hunger.867 Thus, if the number of these affected persons were added to the numbers cited as starving in FAO documents, the appellation of environmental disasters should not be hard to accept.

5.2. Can These Crimes against Humanity Be Prevented? The first step is to take the addition of other crimes against humanity as seriously as the other, previously acknowledged crimes, both by including Jonathan Latham, “Have Monsanto and the Biotech Industry Turned Natural BT Pesticides into GMO ‘Super Toxins’?,” CounterPunch (9 October 2017), retrieved from www.counterpunch.org/2017/10/13/have-monsanto-and-the-biotech-industry-turnednatural-bt-pesticides-into-gmo-super-toxins; J. R. Latham, M. Love and A. Hilbeck, “The Distinct Properties of Natural and GM Cry Insecticidal Proteins,” Biotechnology and Genetic Engineering Review 533(1) (2017), pp. 62–96. 866 Latham, “Have Monsanto …,” p. 2. 867 Westra, On Hunger. 865

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them in domestic constitutions and by ensuring that all international legal instruments acknowledge the presence of these crimes as clearly as they did the previous ones: this has been the aim of this work, because unless all the possible aspects of the additional criminality are fully explored and accepted, there would be no incentive to amend legal regimes, existing institutions and the very reach of the courts. Even before the declaration of the ICC, some of the means for restraining some of these crimes were already present in most countries. Many countries have already included the right to food in their constitutions, and the proclamation of such instruments as the Framework Convention Against smoking attests to the possibility of restraining lucrative corporate industries, in the interest of public health, at least in principle. In contrast, even the simple quantitative land grabs are not illegal in most countries or, as we noted, if they are most governments see the economic advantages of outright permission or at least of ignoring the rights of local communities. Perhaps land regulatory regimes, tied as they can be to governments’ claims of territorial sovereignty, may be possible, if enforced. In contrast, air/climate requirement for health and environment are singularly lacking: when such human rights are claimed in the courts, as we noted above, the success of those claims is far from assured: in fact, the failure of those claims is an expected occurrence. We should also note that there have been no cases on the right to food, except for some of the aspect of the ATCA cases connected to development and Indigenous peoples, where inquinated food supplies are a regular result of industrial operations primarily in central and South America, and the right to food is not often considered even then.868 Thus we must come to the conclusion that either the existing laws are not respected, or that the “right to development” supersedes all other human rights. No doubt, the first step required is to ensure that the new crimes against humanity are enshrined in the constitutions of all countries. The 868

Aquinda v. Texaco, Inc. 1945 F. supp. 625 (5DNY 1996) 1 and 2 surp.2d 53 (SDNY 200l); Bancoult v. McNamara 370 supp., dl US Dist., LEXIS 27882 (21 December 2004, decided); Beanal v. Freeport McMoran Inc. and Freeport McMoran Copper and Gold, Inc. 969 F. Supp. 362, 1997; Doe/Roe v. Unocal Corp., 110 F. Supp. 2d 1294, 1306 (CD Cal 2000); Jota v. Texaco, Inc. 157 F3d 15 (2d. Cir. 1998).

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second step is the obvious requirement of tight controls for all multinational corporations, whether for their products or – in general – for all their development projects. It is common knowledge that the main obstacle is the fact that – at present – corporations are “persons” with no legal obligations as they are not signatories to any major human rights instrument. Yet the major corporate players possess assets amounting to those of many states added together, and this amounts to corresponding power on their part. Hence, as Ratner has remarked that they are in fact “quasi states”:869 some industries, such the chemical industry for instance, selfdefine as “the largest nation of earth” (the author received this response when, at a meeting of European country’s ministers sponsored by the WHO, that was the response when their right to intervene as a country was questioned). In that case, large corporate persons should be accountable both as persons and as “quasi-states,” and should be treated accordingly: that would be a significant step forward. Other examples could be mentioned: perhaps a convention should be drafted that acknowledges that a corporation with large assets should be subject to the same controls as other powerful entities, such as countries. The controls would be aimed at directing power so that it does not breach basic human rights, as the assumption that states are the only ones that need to be controlled is no longer valid. And in that case, the, relevant legal instruments should be adjusted appropriately. That is not a new idea, but the ICC’s decision to criminalize the results of corporate endeavours (even with the obvious complicity of state governments), has now gained a new urgency. In the case of an acknowledged environmental disaster, climate change, we noted that even the US government was indicted in the recent case of Cascadia Rose. Another possibility might be demanding the presence of an impartial, state-appointed realtor to oversee all aspects of land grabs’ negotiations, and an appointed team including public health and ecological specialists to review proposed development projects before deciding on their feasibility,

869

Steven R. Ratner, “Corporations and Human Rights: A Theory of Legal Responsibility,” Yale Law Journal 111(3) (2001), pp. 443–447.

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as well as demanding that the WTO adopt a similar team of adjudicators, beyond its present legal and economic experts. One can only hope that these and other such emendations will be made to present legal regimes, both international and domestic. Many such steps should be taken urgently, regarding all actions that impact on the environment and on persons through the environment. They should all be scrutinized now in a thoroughly critical vein so that their acknowledged criminality will be openly affirmed. This work is only a first step in the research and discussions needed to uncover the true nature of environmental disasters and land grabs, so that their perpetrators can be indicted for their crimes.

REFERENCES Baker, J. H., An Introduction to English Legal History, 2nd edition, Butterworth, London, 1979. Brown, Donald, “The Enormous Potential of Cities to Reduce GHG Emissions, 571 Strategies Adopted by 44 Cities Around the World,” 1 September 2017, retrieved from https://ethicsandclimate.org/ 2017/09/01/the-enormous-potential-of-local-governments-to-reduceghg-emissions-a-paper-that-identifies-571-strategies-adopted-by-44cities-around-the-world/?utm_source=feedburner&utm_medium= email&utm_campaign=Feed%3A+EthicsAndClimate+%28ETHICS+a nd+CLIMATE%29. Carrington, Damian, “Sixth Mass Extinction of Wildlife Also Threatens Global Food Supplies,” The Guardian (26 September 2017), retrieved from www.theguardian.com/environment/2017/sep/26/sixthmass-extinction-of-wildlife-also-thraatens-global-food-supplies. Cassese, Antonio, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law,” European Journal of International Law (12 November 2001), pp. 993–1003. Cranor, Carl F., Legally Poisoned, Harvard University Press, Cambridge, MA, 2011.

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Downs, Georgina, “Poison in the Fields: Agriculture as Chemical Warfare,” CounterPunch (22 September 2017), retrieved from www. counterpunch.org/2017/09/22/poison-in-the-fields-agriculture-aschemical-warfare. Fluker, Shaun, “Environmental Norms in the courtroom: The Case of ecologic al Integrity in Canada’s National Parks,” in Laura Westra, Prue Taylor and Agnes Michelot (eds.), Confronting Economic and Ecological Collapse, Earthscan from Routledge, London, 2013, pp. 1– 31. Forino, Giuseppe, Meding, Jason von, and Johnson, Thomas, “Religion is Not the Only Reason Rohingya’s Are Being Forced out of Myanmar,” The Conversation (12 September 2017), retrieved from http://theconversation.com/religion-is-not-the-only-reason-rohingyasare-being-forced-out-of-myanmar-83726. Furberg, C. D., and Pitt, B., “Withdrawal of Cerivastatin from the World Market,” Trials 2 (2001), retrieved from https://link.springer. com/article/10.1186/cvm-2-5-205. Gillam, Carey, Whitewash: The Story a Weed Killer; Cancer and the Corruption of Science, Island Press, Washington, DC, 2017. Gwiazdon, Kathryn, “The State v. The Environment: The Ethical and Legal Implications for Non-State Action in Protecting the Foundations of Life,” in Laura Westra, Klaus Bosselmann, Janice Gray and Kathryn Gwiazdon (eds.), Ecological Integrity, Law and Governance, Earthscan from Routledge, London, in press. Hayes, Peter, Industry and Ideology: IG Farben in the Nazi Era, Cambridge University Press, New York, 1987. Karr, J. R., “Protecting Ecological Integrity: An Urgent Social Goal,” Yale Journal of International Law 18 (1993), pp. 297–306. Karr, J. R., “Landscapes and Management for Ecological Integrity,” in K. C. Kim and R. D. Weaver (eds.), Biodiversity and Landscapes: A Paradox for Humanity, Cambridge University Press, Cambridge, 1994, pp. 229–251. Karr, J. R., “Health, Integrity, and the Biological Assessment: The Importance of Measuring Whole Things,” in Laura Westra, David

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Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000, pp. 209–226. Kay, James J., and Schneider, E. “The Challenge of the Ecosystem Approach,” Alternatives 20(3) (1994), pp. 1–6. Kay, James J., and Schneider, E. “Life as a Manifestation of the Second Law of Thermodynamics,” Mathematical and Computer Modelling 19(6–8) (1994), pp. 25–48. Kelly, Alice B., “Conservation Practice as Primitive Accumulation,” in Nancy Lee Peluso and Christian Lund (eds.), New Frontiers of Land Control, Routledge, Abingdon, 2013, pp. 17–34. Lacey, Nicola, In Search of Criminal Responsibility, Oxford University Press, Oxford, 2016. Latham, J. R., Love, M. and Hilbeck, A. “The Distinct Properties of Natural and GM Cry Insecticidal Proteins,” Biotechnology and Genetic Engineering Review 533(1) (2017), pp. 62–96. Latham, Jonathan, “Have Monsanto and the Biotech Industry Turned Natural BT Pesticides into GMO ‘Super Toxins’?” CounterPunch (9 October 2017), retrieved from www.counterpunch.org/2017/10/13/ have-monsanto-and-the-biotech-industry-turned-natural-bt-pesticidesinto-gmo-super-toxins. Li, Tania M., “Contested Commodifications: Struggles Over Nature in a Natural Park,” in J. Nevins and N. L. Peluso (eds.), Taking South Asia to Market: Commodities, Nature and People in the Neoliberal Age, Cornell University Press, Ithaca, NY, 2008. Liberti, Stefano, Land Grabbing: Journeys in the New Colonialism, Verso, London, 2014. Linebaugh, Peter, “On the 800th Anniversary of the Charter of the Forest,” CounterPunch (20 November 2017), retrieved from www.counterpunch.org/2017/11/20/on-the-800th-anniversary-of-thecharter-of-the-forest. Margulis, Matias E., and Porter, Tony. “Governing the Global Land Grab: Multipolarity, Ideas, and Complexity in Transnational Governance,” Globalizations 10 (2013), pp. 65–86.

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McMichael, Anthony J., Planetary Overload, Cambridge University Press, Cambridge, 1995 Morin, Michel, “La Competence Parens Patriae et le droit prive [The Parens Patriae Jurisdiction and Private Law],” Revue de Barreau Tome 50(5) (1990), pp. 827–924. Noss, Reed F., “Sustainability and Wilderness,” Conservation Biology 5(1) (1991), pp. 120–122 Noss, Reed, “The Wildlands Project: Land Conservation Strategy,” Wild Earth Special Issue (1992), pp. 10–25. Noss, Reed, and Cooperrider, A. Y. Saving Nature’s Legacy, Island Press, Washington, DC, 1994. Pearce, Fred, The Land Grabbers, Beacon Press, Boston, MA, 2012. Pimentel, David, Harvey, C., Resosudarmo, P., Sinclair, K., Kurz, D., McNair, M., Crist, S., Shpritz, L., Fitton, L., Saffouri, R. and Blair, R. “Environmental and Economic Costs of Soil Erosion and Conservation Benefits,” Science 267(5201) (25 February 1995), pp. 11–23. Ratner, Steven R., “Corporations and Human Rights: A Theory of Legal Responsibility,” Yale Law Journal 111(3) (2001), pp. 443–447. Ratner, Steven R., Abrams, Jason S., and Bischoff, James L., Accountability for Human Rights Atrocities in International Law, 3rd edition, Oxford University Press, Oxford, 2009. Rees, W. E., and Wackernagel, M. Our Ecological Footprint, New Society Publishers, Gabriola Island, BC, 1996. Regier, Henry, et al., “Integrity and Surprises in the Great Lakes Basin Ecosystem” in Clayton J. Edwards and Henry A. Regier (eds.), An Ecosystem Approach to the Integrity of the Great Lakes in Turbulent Times, Special Publication 90-4, Ann Arbor, MI, Great Lakes Fishery Commission, 1990, pp. 17–36. Rolston III, Holmes, “After Preservation? Dynamic Nature in the Anthropocene,” in Ben A. Minteer and Stephen J. Payne (eds.), After Preservation: Saving American Nature in the Age of Humans, University of Chicago Press, Chicago, IL, 2015, pp. 32–40. Scott, Craig, “Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights

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Harms,” in C. Scott (ed.), Torture as Tort, Hart Publishing, Oxford, 2001, pp. 45–63. Shiva, Vandana, Staying Alive, Zed Books, London, 1988. Taussig, Michael, The Devil and Commodity Fetishism in South America, University of North Carolina Press, Chapel Hill, NC, 1980. Westra, Laura, The Principle of Integrity, Rowman & Littlefield, Lanham, MD, 1994. Westra, Laura, Living in Integrity, Rowman & Littlefield, Lanham, MD, 1998. Westra, Laura, David Pimentel and Reed Noss (eds.), Ecological Integrity: Integrating Environment, Conservation and Health, Island Press, Washington, DC, 2000. Westra, Laura, Faces of State Terrorism, Brill, Leyden, 2012. Westra, Laura, On Hunger, International Publishers, Irvine, CA, 2017. World Health Organization, State of the Science of Endocrine Disrupting Chemicals 2012: World Health Organization Summary for Decision Makers, World Health Organization, Geneva, 2012. World Health Organization, Preventing Noncommunicable Diseases (NCDs) by Reducing Environmental Risk Factors, WHO/FWC/EPE/17.ID, World Health Organization, Geneva, 2017.

ABOUT THE AUTHOR Laura Westra, PhD University of Windsor Sessional Instructor Faculty of Law, Visiting Professor Faculty of Jurisprudence University of Parma, Canada [email protected]

INDEX A acts of aggression, 16, 19 actual output, 203 adverse effects, 216, 272 advocacy, 289 aesthetic, 276 aetiology, 36, 47, 52, 195 affirming, 45 Africa, 20, 41, 101, 179, 180, 197, 278 African Americans, 34 aggression, 19, 38, 39, 41, 62, 96, 99, 188, 189, 278 agricultural market, 234 agriculture, 96, 133, 165, 173, 174, 184, 187, 197, 205, 280, 284, 292, 301 air quality, 113, 272 Alaska, 66, 144 Albania, 9 alcoholism, 176 ancestors, 221, 222 animal husbandry, 205 anthropologists, 219 antitrust, 202 aquatic systems, 112, 185 Argentina, 197

Aristotle, 178, 237, 238 armed conflict, 1, 85, 95 arsenic, 98 Asia, 278 assessment, 15, 29, 82, 149, 283, 294 assets, 4, 172, 265, 299 asthma, 141 asylum, 196 ataxia, 131 atmosphere, 69, 72, 112, 184 atrocities, 13, 88, 146, 263, 264 autism, 141 autonomy, 178, 233, 243, 248

B bad habits, 97 Bangladesh, 134, 135 basic needs, 138, 191 Beijing, 197 Belgium, 13 beneficiaries, 30, 195, 234 benefits, 29, 93, 94, 97, 115, 116, 200, 288 bile duct, 96, 97, 98 biodiversity, 34, 101, 174, 280, 281, 287 biofuel, 173, 179, 293

Index

308 biological integrity, 87, 88, 105, 111, 112, 118, 248, 282 biological systems, 103 biotechnology, 154 biotic, 107, 136 black hole, 113 blood supply, 49 Brazil, 38, 174, 178, 179, 206, 212 Britain, 113, 121, 231, 246, 256, 273, 296, 297 bullying, 157 bureaucracy, 12, 83, 202, 266

C cadmium, 98 campaigns, 65, 79, 127, 130, 131, 238 cancer, 72, 96, 97, 146, 160 capital accumulation, 172 capitalism, 171, 244 capitalist production, 279, 280, 281 carbon, 72, 91, 133, 207, 244 carbon dioxide, 72, 91, 133 carbon monoxide, 91 carcinogenicity, 125, 127, 130 cardiovascular disease, 290, 291 Caribbean, 113 case law, xvi, 87, 100, 153, 154, 261 cattle, 293, 294 causality, 10, 110, 124, 125, 261, 263, 276 causation, 49, 50, 51 Central Europe, 103 chemical, xvii, xviii, 35, 50, 70, 73, 81, 127, 131, 132, 133, 142, 144, 146, 148, 154, 157, 160, 173, 184, 196, 202, 203, 218, 264, 266, 280, 282, 296, 297, 299, 301 chemical industry, xvii, 131, 196, 202, 299 childhood, xvii, 31, 140 children, ix, xii, xvi, 35, 61, 92, 95, 98, 123, 124, 125, 128, 132, 133, 134, 135, 137,

139, 140, 141, 142, 143, 144, 148, 159, 161, 191, 228, 251, 266, 294 Chile, 15, 103 China, 27, 55, 197, 204, 206, 285 cholangiocarcinoma, 97 Christianity, 250 Christians, 250, 252 chronic diseases, 141, 158 CID, 189 civil law, 2 civil society, 181, 212, 290 civilization, 24, 245, 289 clarity, 42, 156 classification, 52, 178 clean air, 158 Clean Water Act (CWA), 105, 110, 282 climate change, ix, xiv, xvi, xvii, xix, 36, 42, 47, 48, 61, 63, 64, 65, 68, 74, 75, 87, 100, 101, 102, 103, 126, 127, 131, 133, 157, 162, 173, 182, 183, 184, 185, 186, 187, 193, 260, 268, 270, 271, 272, 275, 276, 287, 294, 295, 299 climate change issues, 182 clusters, xvii, 125 CO2, 66, 70, 72, 185, 275 coal, 69, 70, 71, 104 coastal communities, 69 codes of conduct, 181, 182 collaboration, 11, 98, 289 collateral damage, 30, 157 Colombia, 197 colonization, 96, 178, 245, 246 commercial, 10, 137, 156, 175, 196, 200, 236, 246, 267, 280 commodity, 288 common law, 2, 4, 52, 69, 74, 80, 150, 229, 272, 273, 275 common sense, 30, 32 communication, 250 community relations, 222 community support, 217, 219

Index compensation, xviii, 62, 92, 141, 151, 179, 223, 230, 278 complex organizations, 144 complexity, 50, 183, 199, 204, 289 compliance, 103, 160, 194, 195, 215 composition, 44, 69, 73, 201 conception, 140, 176 conference, 239, 240, 264 confidentiality, 182 conflict, 8, 39, 76, 85, 88, 110, 115, 138, 143, 194, 196, 206, 212, 219, 225, 227, 250, 283 Congo, 193 Congress, 40, 141, 166 consensus, xvii, 8, 20, 66, 106, 205, 217, 268 consent, xviii, 146, 198, 204, 214, 217, 218, 224, 230, 231, 239, 288, 293 conservation, 84, 104, 106, 107, 110, 111, 112, 152, 221, 224, 240, 241, 243, 280, 281, 283, 288, 292 conserving, 115 conspiracy, 4, 69, 89, 271 constituents, 93 Constitution, 160, 205, 222, 223, 225, 231 construction, 151, 206 consumption, 107, 241 contaminated food, 146 convention, xvii, 16, 62, 213, 263, 299 Convention on Biological Diversity, 108, 240 cooperation, 8, 11, 37, 66, 156, 233 coral reefs, 113 corporate sector, 270 corruption, 4, 19, 200, 201, 202, 203 cost, 30, 172, 202, 203, 243, 265, 272 cotton, 202, 203, 297 country of origin, 213 Court of Appeals, 272 crimes, ix, xi, xii, xiii, xiv, xv, xvi, xvii, xix, 2, 6, 11, 12, 13, 14, 15, 19, 20, 21, 22, 23, 24, 25, 30, 33, 34, 35, 36, 37, 38, 39,

309 46, 47, 48, 49, 52, 62, 63, 75, 76, 82, 83, 85, 88, 96, 98, 99, 123, 124, 130, 135, 143, 145, 146, 147, 156, 162, 171, 172, 173, 181, 188, 189, 190, 194, 196, 207, 213, 214, 253, 259, 260, 261, 263, 264, 267, 268, 269, 271, 278, 279, 280, 289, 291, 292, 295, 296, 297, 298, 300 criminal activity, 47, 173, 265, 269 criminal acts, 20, 89 criminal justice system, 3, 13 criminal system, 3, 145 criminality, xiv, 5, 14, 34, 65, 76, 78, 131, 182, 191, 266, 298, 300 criminals, xv, xvii, 5, 6, 146, 191, 195 crises, 42, 172, 193 crop(s), 265, 287, 296, 297 cultivation, xviii, 174, 180, 188, 203, 205, 212, 288 cultural heritage, 116 cultural patrimony, 116 cultural practices, 137 cyanide, 205

D damages, ix, 74, 114, 131, 151, 152, 183, 184, 185, 205 danger, 107, 152, 271 DDT, 111 death rate, 159 deaths, 101, 127, 131, 144, 250, 265, 272, 290, 291 defence, 10, 89, 117, 150, 220, 226, 238, 241, 248, 278 defendants, 50, 67, 69, 70, 71, 72, 73, 143, 251, 275, 276 deficiencies, 199 deficit, 141 deforestation, 174 degradation, 83, 136, 183, 184, 186 democracy, 77, 278

310 demonstrations, 93 denial, 19, 45, 116, 131, 253, 277, 296 Denmark, 157, 166 Department of Energy, 275 deposits, 84 depression, 176 deprivation, xv, xvi, xviii, 38, 89, 98, 104, 171, 180, 182, 188, 196, 206, 275, 297 depth, 94, 277, 278, 281 destruction, xii, 11, 12, 25, 36, 37, 43, 61, 62, 64, 66, 68, 74, 79, 84, 85, 88, 96, 198, 251, 265, 275 detention, 45, 194 developed countries, 136, 137, 140, 141 developing countries, 27, 30, 93, 101, 137, 138, 158, 161, 214, 259 developing nations, 44 deviant behaviour, 132 dichotomy, 148, 273 diet, 34, 132, 158, 186, 290 differential treatment, 226 diffusion, 50, 142 dignity, 21, 82, 85, 216, 287 direct action, 149 disability, 159 disaster, xv, xvi, xvii, 28, 35, 36, 47, 48, 50, 63, 103, 124, 127, 131, 133, 144, 180, 182, 188, 260, 268, 295, 297, 299 discrimination, xii, 19, 23, 33, 36, 45, 62, 67, 88, 102, 156, 172, 189, 207, 211, 212, 213, 222, 225, 226, 277, 279, 292 diseases, xvii, 31, 50, 98, 125, 140, 141, 146, 158, 161, 180, 260, 290 displacement, 63, 250, 289 dissonance, 73 distribution, xv, 29, 128, 180, 183, 187, 190, 260, 270 divergence, 79, 200 diversity, 13, 104, 136, 240 doctors, 98, 125 domestic laws, 161, 197, 219 dominance, 42

Index donors, 156, 265 drug trafficking, 4 dysarthria, 131

E E. coli, 51 Eastern Europe, 105 ecological integrity, 87, 91, 104, 105, 106, 108, 109, 115, 117, 207, 219, 243, 244, 248, 249, 280, 281, 282, 283, 286 ecology, 61, 96, 99, 134, 140, 249, 272, 279, 283 economic cooperation, 175 economic damage, 201 economic development, 94, 242, 243 economic growth, 90, 241 economic incentives, 238 economic power, 27, 30, 32 economics, 79, 114, 140, 216, 264 ecosystem, 91, 101, 174, 282 education, 139, 140, 156 effluents, xviii, 35, 98 Egypt, 191 electricity, 92 emitters, 98 emotion, 90 employees, 30, 93, 147, 194, 202, 264 employers, 202 employment, 93, 147, 198 empowerment, 26 endangered species, 243 enemy combatants, 87 energy, 73, 184, 186, 197, 216, 249, 269, 282 energy efficiency, 269 enforcement, 3, 15, 24, 241 England, 77, 132 enslavement, 25, 89, 251 environment, xii, xiii, xv, xvi, 15, 24, 30, 34, 36, 37, 62, 63, 82, 83, 85, 86, 88, 92,

Index 96, 102, 104, 113, 115, 116, 127, 131, 134, 135, 137, 139, 142, 150, 152, 156, 162, 163, 172, 173, 174, 190, 198, 202, 216, 227, 228, 240, 241, 245, 261, 270, 276, 280, 286, 295,298, 300 environmental aspects, 158 environmental change, 282 environmental conditions, 135, 137, 156, 243, 259 environmental control, 65 environmental degradation, 27, 63, 102 environmental factors, 290 environmental impact, 93 environmental policy, 84 environmental protection, 75, 90, 241 Environmental Protection Agency, EPA, 275 environmental quality, 82, 83, 136 environmental regulations, 10, 79, 220 environmental services, 279 environmental threats, 100 environments, 272 epidemic, 51, 97 epidemiology, xvii, 123, 125, 127, 128, 130 equality, 31, 45, 82, 213, 226 equilibrium, 226 equipment, 153, 155 equity, 103, 134, 152, 274 equity principle, 274 erosion, 110, 111 ethanol, 185 ethics, 77, 105, 125, 165, 262, 286 ethnic background, 31 ethnicity, 278 etiology, 15 Europe, 31, 44, 139, 142, 157, 166, 167, 182, 188, 200, 202, 245, 266 European Court of Justice, 182 European Union, 180 evidence, 4, 7, 11, 50, 71, 96, 98, 108, 130, 131, 133, 213, 219, 224, 268, 289 evolution, 21, 76, 110

311 execution, 13, 89, 145, 252 exercise, 25, 39, 115, 116, 160, 189, 202, 218, 225 expertise, 27 exploitation, xii, xviii, 32, 37, 84, 92, 93, 103, 114, 115, 116, 136, 240, 246, 247, 280 exports, 84 exposure, 35, 127, 128, 139, 141, 142, 146, 290, 291 externalities, 74 extinction, 275, 280, 287, 300 extraction, 31, 98, 104, 250, 251, 254, 275 extradition, 15

F facilitators, 14, 276 family development, 221 family life, 67 famine, 180 farmers, xviii, 202, 203, 235, 287, 296 farmland, 91, 293 farms, 180, 212 field trials, 203 financial institutions, 211, 234 fires, 36, 103 first generation, 148 fish, 34, 83, 97, 132, 232, 287, 293 fisheries, 96, 112, 186 fishing, 111, 131, 186, 221, 225, 232 floods, 61, 68, 103, 275 flora and fauna, 95, 112 flowers, 91 food, xv, xvii, xviii, 25, 29, 38, 83, 101, 130, 142, 171, 173, 174, 180, 181, 182, 183, 184, 185, 186, 187, 192, 195, 196, 197, 199, 201, 205, 206, 207, 232, 243, 260, 275, 280, 285, 287, 293, 294, 295, 296, 297, 298, 300 food industry, 195

Index

312 food production, xv, 101, 173, 185, 186, 187 food security, 101, 184, 206, 293 football, 94 force, 16, 19, 32, 37, 67, 83, 86, 87, 90, 91, 111, 112, 113, 172, 173, 179, 186, 189, 211, 225, 228, 268, 294 foundations, 139, 197, 212 France, 93, 143, 199, 231, 244, 255 fraud, 129 free choice, 73 free trade, 186 freedom, 20, 82, 110, 111, 139, 161, 192, 217, 223, 225, 238, 261, 262 freezing, 103 freshwater, 272 fruits, 109, 290, 291

G Galileo, 129, 165 GDP, 27, 28 General Motors, 28, 69 Geneva Convention, 85 genocide, xiii, 14, 16, 21, 24, 32, 45, 46, 62, 85, 88, 95, 189, 194, 213, 250, 251, 263, 266, 279 Georgia, 157, 166 GHG, 269, 300 global climate change, 137, 154 global economy, 289 global security, 62 global trade, 199 global warming, 48, 65, 66, 69, 70, 71, 72, 73, 74, 89, 133, 270, 272 globalization, 1, 11, 18, 27, 64, 75, 78, 155, 156, 159, 196, 245, 260 God, xvii, 153, 191, 192, 261 goods and services, 103

governance, xiv, 43, 44, 90, 103, 115, 139, 178, 204, 212, 237, 239, 248, 266, 270, 289, 290 governments, ix, 11, 26, 42, 51, 75, 78, 80, 90, 98, 142, 157, 162, 163, 181, 202, 240, 269, 295, 298, 299, 300 grants, 232 gravity, 63, 267 grazing, 185, 293, 294 Great Britain, 199 Greece, 237 greed, 245, 278 green belt, 293 green buildings, 269 green land, 243 greenhouse, 185, 186, 277 greenhouse gas, 185, 186, 277 greenhouse gas emissions, 185, 186, 277 grouping, 206 groupthink, 194 growth, ix, 24, 27, 64, 100, 106, 109, 139, 146, 235, 270 guardian, 115, 131, 163, 275 Guatemala, 197, 198, 205 guidance, xiii, xix, 242, 290 guidelines, 38, 51, 219 guilty, 27, 48, 51, 151, 188, 266, 268

H habitat, 105, 137 half-life, 142 harmful effects, 148, 293 hazards, 31, 68, 87, 153, 156 health, ix, xv, xvi, xvii, 13, 34, 35, 36, 38, 46, 51, 63, 66, 67, 81, 83, 86, 87, 89, 92, 101, 102, 107, 108, 118, 124, 125, 128, 130, 133, 134, 139, 140, 141, 142, 144, 148, 155, 156, 157, 158, 159, 160, 161, 162, 174, 180, 181, 182, 186, 201, 202,

Index 241, 260, 261, 273, 274, 285, 290, 295, 298 health care, 102, 125, 160 health effects, 35, 89, 143 health information, 182 health practitioners, 124 health problems, 36, 162, 260 hegemony, 199 herbicide, 203, 265 highways, 206 homosexuality, 77 Honduras, 198 hostilities, 86 human activity, 69, 117, 280 human agency, 67, 95 human condition, 96 human development, 34, 283 human dignity, 1, 13, 193, 277 human existence, 91, 103, 187 human exposure, 123 human health, 81, 96, 101, 127, 135, 137, 152, 158, 173, 272 human nature, 177 human right, xv, 6, 10, 15, 16, 17, 25, 26, 29, 32, 40, 42, 43, 44, 45, 63, 64, 65, 66, 68, 73, 74, 75, 80, 82, 83, 87, 88, 93, 95, 99, 100, 102, 105, 117, 118, 124, 137, 139, 150, 155, 156, 158, 159, 171, 172, 176, 178, 179, 180, 182, 192, 193, 198, 201, 204, 206, 214, 216, 218, 219, 225, 227, 241, 242, 243, 247, 248, 249, 250, 253, 254, 259, 260, 261, 266, 270, 277, 283, 290, 294, 295, 298, 299 human subjects, 236 Hungary, 242, 266 hunting, 221, 294 hurricanes, 68, 184, 295 hypothesis, 127

313 I ICC, xi, xii, xiii, xiv, xv, xvi, xvii, xix, 1, 2, 3, 11, 12, 15, 22, 23, 24, 36, 37, 38, 40, 41, 46, 47, 62, 145, 149, 150, 172, 181, 233, 249, 254, 260, 261, 264, 270, 271, 279, 290, 291, 298, 299 identification, 125, 128, 190, 199, 215, 222, 280 identity, 222, 228, 261 ideology, 162, 286 imbalances, 44, 203 IMF, 214 immigration, 23, 193 Impact Assessment, 72 imperialism, 199, 244, 245, 278 imports, 93 imprisonment, 25 improvements, 93, 108, 131 in utero, 141, 142 incarceration, 266 income, 72, 93, 159, 254, 288 independence, 37, 86, 99, 175, 247 India, 28, 200, 202, 203, 206 Indian law, 203 Indians, 174, 176, 230, 232 indigenous peoples, 99, 172, 176, 177, 178, 198, 205, 214, 215, 216, 217, 218, 219, 220, 222, 227, 231, 254, 294 individuals, ix, 2, 4, 5, 9, 19, 21, 24, 26, 32, 45, 87, 89, 116, 138, 159, 161, 175, 177, 195, 233, 238, 245, 249, 251, 265, 267 Indonesia, 197, 198 industrial chemicals, 81, 141, 142, 148 industrial revolution, 72 industry, 34, 70, 71, 72, 90, 93, 126, 128, 129, 131, 144, 147, 148, 181, 182, 190, 196, 201, 202, 203, 218, 254, 269, 270, 275, 297, 302 inequality, 196, 212, 217, 226 infancy, 140

314 infants, 139 inferiority, 245 informed consent, xviii, 198, 204, 215, 218 infrastructure, 66, 191, 197, 206, 250, 285, 288 inheritance, 134 insanity, 76 insecticide, 266 insects, 287 insecurity, 287 institutions, 2, 9, 42, 43, 45, 87, 130, 138, 160, 193, 201, 212, 234, 235, 236, 239, 267, 298 integration, 242 integrity, xvi, 13, 21, 37, 66, 68, 86, 88, 89, 91, 104, 105, 106, 107, 108, 109, 111, 112, 113, 114, 115, 116, 117, 118, 126, 128, 130, 135, 146, 178, 184, 207, 219, 224, 228, 243, 244, 248, 249, 259, 280, 281, 282, 283, 285, 286 intelligence, 188 interdependence, 223 interface, 18, 34, 35, 67, 68, 75, 83, 87, 98, 100, 124, 148, 156, 173, 186, 245, 248 interference, 73, 93, 108, 228, 283 internalization, 219 International Covenant on Civil and Political Rights, 213 International Criminal Court, xi, xii, xiii, 1, 11, 18, 39, 40, 41, 46, 54, 55, 61, 182, 292 international financial institutions, 183 international law, xi, xiv, 6, 7, 8, 9, 15, 16, 17, 18, 19, 20, 24, 30, 31, 33, 42, 82, 85, 88, 96, 110, 112, 113, 133, 163, 175, 176, 177, 178, 181, 183, 200, 212, 213, 219, 232, 236, 246, 251, 253, 263, 269 International Monetary Fund, 214 international relations, 86 international trade, xiv, 233 intervention, 105, 154 intimidation, 157

Index intrusions, 109, 243, 278 inversion, 20 investment, 27, 197, 239, 264 investments, 27, 198 investors, 179, 199, 206, 239, 293 Iowa, 220, 272 irrigation, 185, 197, 206 Israel, xiv, 19, 46, 90, 191, 193, 207, 246, 254, 278, 279, 294 issues, xix, 3, 12, 14, 28, 30, 35, 38, 41, 61, 63, 66, 69, 72, 79, 80, 81, 82, 110, 111, 113, 130, 138, 146, 152, 161, 185, 187, 192, 196, 227, 241, 262, 267, 273 Italy, 20, 35, 103, 285

J Japan, 36, 131 jihad, 250 judiciary, 222, 227, 271 jurisdiction, xiv, 20, 27, 28, 38, 39, 45, 89, 114, 115, 251, 274, 275 justification, 87

K Kenya, 206, 208, 293, 294 kerosene, 92 uwait, 36, 187 Kyoto Protocol, 65

L labeling, 236 lack of control, 290 lactation, 80 lakes, 34, 187 land acquisition, 198 land tenure, 220 landscape, 107, 109, 174, 244, 283, 285

Index law enforcement, 267, 271 laws, 7, 8, 13, 17, 21, 26, 62, 63, 64, 82, 85, 110, 140, 143, 148, 177, 178, 188, 196, 202, 225, 229, 232, 237, 278, 285, 288, 298 laws and regulations, 143 lawyers, 24, 66, 67, 68, 103, 110, 156, 220, 238, 241 leadership, 71 learning disabilities, 141 legal protection, 128, 295 legality, 18, 28, 42, 65 legislation, 4, 24, 150, 181, 215, 274 leukemia, 141 liberation, 87, 192 liberty, 108 life cycle, 181 life expectancy, 158 light, xii, xv, xvi, 23, 30, 36, 92, 99, 110, 111, 139, 173, 232, 252, 271, 291 limited liability, 26 litigation, 44, 150 livestock, 185, 187, 287 living conditions, 193 local authorities, 35 local community, 253 local government, 278, 294 Love Canal, 35 lung cancer, 128, 290

M machinery, 6, 153 maiming, 94 major issues, 43, 187, 240 Malaysia, 36, 197 malnutrition, 100, 101, 196, 287, 297 manipulation, 184, 204, 217, 219 manure, 186 marine environment, 111, 113 Mauritius, 180

315 measles, 140 meat, 186 medical care, 158 medical history, 97 medicine, 28, 140 Mediterranean, 112 melting, 66, 74, 75 melts, 65, 68, 103, 271, 295 MENA region, 188 mental health, 62, 161, 182 mercury, 34, 98, 131, 132, 268 metals, 98, 104 methanol, 81 methodology, 2, 130 mice, 181 Middle East, 187, 210, 278 migrants, 188 migration, 102, 159, 193 military, 39, 86, 92, 93, 94, 95, 250, 278 military dictatorship, 92, 93, 95 military junta, 278 minorities, 83, 159, 232 minors, 134 mission, 94, 105, 194, 216, 245 models, 188, 212 modifications, 29 Montana, 205 Moon, 114 moral imperative, 283 morality, 8, 13, 77, 148, 195 morbidity, 101 mortality, 101, 141 Moses, 191, 192 mosquitoes, 101 motivation, 23, 264 Mozambique, 180, 197, 206, 208 multinational corporations, xviii, 27, 64, 66, 79, 157, 199, 299 murder, 5, 25, 45, 46, 88, 89, 143, 251, 277 mutilation, 13 Myanmar, xiv, 277, 278, 301

Index

316 N NAFTA, 13 naming, 129, 237, 238 nation states, 75 national interests, 64 national parks, 281, 288 nationality, 45 Native Americans, 22, 53 Native communities, 34 NATO, 87, 105 natural disaster, 102, 183 natural evolution, 153 natural resource exploitation, 240 natural resources, xii, 37, 84, 102, 104, 113, 114, 175, 178, 190, 198, 222, 232, 233, 240, 246, 271, 272, 279 Nazi Germany, 194 negative effects, xix, 187 neglect, 18, 46, 51, 196, 248 Netherlands, xi, xx, 94, 96, 119, 199, 206, 231, 257, 277 NGOs, 215, 290 Nicaragua, 220, 221, 222, 223, 224, 254 Nigeria, 83, 84, 91, 92, 93, 95 Nobel Prize, 278 nodules, 111 normal development, 35, 132 North Africa, 99, 187, 210 North America, 47, 68, 142, 154, 218, 226, 238, 270 Norway, 206 nuisance, 62, 69, 73, 74, 80, 271, 272 nutrition, 158, 180, 260, 297

O obesity, 141 objectivity, 124 OECD, 196, 200, 201

officials, 28, 89, 157, 196, 200, 201, 212, 237 offshoring, 197 oil, 36, 69, 84, 91, 92, 93, 94, 95, 97, 98, 104, 118, 144, 249, 250, 251, 293 oil production, 93 oil revenues, 94, 97 oil sands, 97, 98 oil spill, 91 old age, 31, 48, 135 oligopoly, 196, 197 operations, xviii, 29, 30, 31, 37, 52, 79, 86, 93, 94, 96, 99, 148, 157, 162, 189, 195, 201, 204, 214, 220, 265, 268, 285, 298 optic nerve, 49 oral tradition, 116 organic food, 260 organs, 10, 292 overpopulation, 233 ownership, 174, 175, 180, 230, 285 ozone, 101

P pain, 92, 94, 234 Pakistan, 277 palm oil, 197 paralysis, 132 participants, 71, 87, 142, 188, 194 pasture, 184, 293 pathways, 260 peace, 39, 41, 43, 44, 88, 90, 263 peace process, 90 peacekeeping, 43 peer review, 129 perinatal, 124 permission, 29, 94, 298 permit, ix, 29, 148, 195, 242, 275, 280, 292 perpetration, 39, 145 perpetrators, xii, xvi, 1, 5, 13, 15, 24, 36, 37, 48, 75, 125, 128, 145, 149, 162, 194,

Index 261, 262, 263, 267, 268, 270, 271, 275, 276, 300 personal responsibility, 194 personality, 134, 252 personhood, 9, 149 pertussis, 140 Peru, 266 pesticide, 130, 142, 173, 181, 182, 196, 260 petroleum, 251 pharmaceutical, 161 Philippines, 218 photosynthesis, 185 physical activity, 290, 291 physicians, 125 pipeline, 92 piracy, 190 plants, 28, 70, 91, 104, 132, 203 platform, 203 Plato, 237, 238 playing, 8 point of origin, 177 poison, 33, 267, 280, 301 police, 80, 95 policy, xii, 5, 6, 10, 11, 12, 13, 14, 23, 24, 36, 41, 44, 46, 49, 68, 89, 94, 106, 107, 124, 127, 162, 206, 215, 216, 219, 240, 246, 264, 275 policy choice, 275 policy makers, 124 policymakers, 47, 196, 204 polio, 140 political pluralism, 222 political power, 127, 238 politics, 77, 90, 121 polluters, 67 pollution, xi, 63, 83, 110, 111, 112, 113, 123, 131, 152, 187, 268, 285, 290, 291 ponds, 205 population, 11, 21, 22, 25, 30, 34, 35, 45, 46, 67, 86, 89, 96, 97, 98, 107, 125, 128, 147, 159, 173, 180, 212, 233, 235, 236, 244, 250, 264, 280

317 positivism, 177 poverty, 38, 61, 92, 101, 195, 214, 216, 243, 244, 260 poverty reduction, 216 power plants, 275 power relations, 234 predators, 271 pregnancy, 140 premature death, 158 preparation, 78, 145 preservation, 107, 108, 109, 114, 134, 137 price stability, 101 prima facie, 152, 202, 252 primacy, 3, 13, 17, 18, 44, 83, 105, 117, 202, 281 principles, 2, 7, 8, 15, 17, 18, 25, 33, 34, 43, 44, 46, 50, 89, 150, 177, 194, 200, 231, 238, 240, 243, 252, 263, 290 prisoners, 96, 264, 265 prisoners of war, 96 private sector, 181 profit, 27, 30, 32, 33, 109, 172, 174, 188, 201, 207, 248, 265 proliferation, 18, 42, 44, 136, 160 propaganda, 19, 202 property rights, 172, 226 prostate cancer, 266 protected areas, 243, 279, 280, 282, 283 protection, 15, 16, 25, 29, 38, 44, 51, 66, 67, 81, 85, 86, 100, 105, 106, 107, 110, 111, 112, 113, 115, 116, 117, 124, 129, 133, 134, 138, 140, 141, 142, 158, 162, 190, 199, 201, 213, 215, 222, 224, 225, 232, 233, 240, 242, 249, 261, 273, 274, 281, 283, 285, 287, 288, 296 public health, xv, xvi, xvii, 28, 29, 35, 48, 51, 75, 81, 98, 99, 123, 127, 129, 130, 140, 155, 156, 160, 161, 162, 201, 224, 241, 259, 260, 267, 268, 269, 272, 280, 290, 295, 296, 298, 299 public interest, 125, 199, 202 public life, 126, 225, 266

Index

318 public officials, 125, 201, 251 public opinion, 90 public policy, 35, 103, 104, 105, 140, 249 public sector, 144 public service, 201 punishment, 18, 25, 45, 89, 123, 132, 262, 269 purity, 161

Q quantitative concept, 297 Queensland, 225, 226, 227

R racism, 21, 88, 95, 96, 213, 279 radiation, 290 rape, xii, 25, 36, 80, 88, 252, 269 ratification, 3, 65, 90, 132, 220, 279 reality, 7, 8, 103, 106, 118, 131, 140, 141, 220, 234, 253, 292, 297 reasoning, 238 recall, 174, 278, 284 recognition, 18, 19, 39, 158, 215, 217, 225, 231 recommendations, 125, 161, 218 reconciliation, 231 recurrence, 37 recycling, 186 reform, 157, 219, 289 reforms, 42, 157, 196 refugees, 188, 193 regions of the world, 162 regression, 267 regulations, 49, 50, 80, 103, 110, 160, 161, 200, 296 regulatory system, 51, 203 rejection, 272 relativity, 237 relevance, 2

religion, 178, 232, 277, 301 remediation, 92, 93, 94 repatriate, 197 reproduction, 235 reputation, 40, 76, 78 requirement, 10, 11, 12, 23, 24, 80, 140, 218, 261, 298, 299 requirements, xiv, 76, 127, 138, 139, 147, 161, 213, 215, 217, 218, 233, 262, 263 researchers, 98, 128 reserves, 132, 207, 288 resettlement, 215, 219 residues, 29 resistance, 66, 106, 125, 266 resolution, 64, 176, 227, 292 resource allocation, 191 resources, 64, 83, 84, 99, 103, 104, 110, 111, 112, 114, 115, 116, 160, 162, 175, 176, 178, 190, 195, 198, 205, 207, 214, 215, 217, 225, 240, 241, 247, 248 respiration, 185 response, 94, 99, 193, 268, 277, 299 restitution, 20 restrictions, 80, 196, 232 retribution, 93 rhetoric, 139, 190 rice field, 294 right to life, 83, 100, 105, 110, 117, 124, 173, 182, 223 rights, ix, xiv, 1, 7, 16, 26, 29, 30, 31, 32, 43, 44, 45, 46, 63, 65, 66, 67, 68, 82, 83, 88, 92, 100, 115, 116, 117, 124, 133, 134, 136, 138, 139, 140, 143, 152, 160, 162, 171, 172, 173, 175, 176, 177, 178, 192, 196, 198, 206, 207, 212, 213, 215, 217, 220, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 235, 242, 243, 246, 247, 249, 251, 252, 261, 271, 275, 277, 284, 294, 298, 299 risk, 10, 51, 52, 72, 78, 97, 101, 123, 126, 127, 128, 138, 154, 155, 262, 265, 290, 291

Index risk assessment, 128 risk factors, 97, 290, 291 risks, 49, 51, 52, 123, 151, 154, 217, 241, 263, 290, 291 rubella, 140 rule of law, 6, 31, 152, 190, 191 rules, 6, 7, 8, 16, 17, 18, 51, 63, 64, 87, 176, 189, 190, 194, 213, 214, 247, 274 rural areas, 235 Russia, 206 Rwanda, 33

S safety, xvii, 31, 83, 147, 155, 161, 182, 201, 285, 296 sanctions, 4, 5, 31, 42, 270 Saudi Arabia, 187, 293 savannah, 174 scarcity, 173, 174 school, 6, 35, 84, 93, 177, 179, 288, 296 schooling, 274 science, xvii, 36, 47, 66, 71, 74, 105, 106, 107, 125, 126, 127, 128, 129, 130, 131, 133, 140, 141, 150, 157, 160, 224, 233, 243, 249 scientific knowledge, 79, 289 scientific understanding, 105, 283 Second World, 24, 194, 199, 267 security, 12, 81, 95, 178, 263, 283 seed, 196, 197, 265 serial killers, 5 services, 67, 97, 101, 224, 280, 283 settlements, 229 severe stress, 101 sewage, 81, 158 sexual violence, 62 shareholders, 26, 30 Sharia, 250, 252 showing, xix, 21, 116, 152, 177 Sierra Club, 160, 164

319 slavery, 21, 45, 189, 192, 243 slaves, 20, 178 Slovakia, 242 smog, 36, 272 smoking, xvii, 72, 127, 291, 298 social benefits, 83 social injustices, 292 social interests, 1 social justice, 40, 283, 289 social obligations, 242 social organization, 222, 236 social relations, 172, 281 social situations, xv social upheaval, 172 society, 1, 26, 29, 30, 43, 62, 77, 97, 128, 130, 212, 213, 249, 272 socioeconomic status, 159 sodium, 291 soil erosion, 184 solidarity, 156, 189 solution, xix, 46, 174, 236, 268, 295 South Africa, 197, 206 South America, 176, 288, 298, 304 South Asia, 101, 281, 302 sovereign state, 44, 117, 199 sovereignty, 3, 115, 116, 190, 196, 222, 228, 229, 230, 231, 240, 298 Spain, 15, 103, 177, 199, 284 stakeholders, 29, 30, 181 standard of living, 182 starvation, 68, 189, 260, 297 state planning, 12 statistics, 159 statutes, 150 stereotyping, 236 stethoscope, 80 storage, 81 storms, 66, 68, 271 structure, xii, 43, 146, 157, 195 sub-Saharan Africa, 68, 197 subsistence, 92, 175

Index

320 Sudan, 99, 193, 198, 244, 249, 250, 251, 252, 253, 254, 293 supplier, 202 Supreme Court, 23, 273, 275, 277 surface area, 81, 150 survival, xviii, 67, 83, 86, 88, 109, 137, 158, 180, 181, 192, 201, 230, 243, 244, 248, 249, 281, 285, 295 sustainability, 91, 106, 240, 242, 243, 249 sustainable development, 64, 84, 85, 90, 91, 95, 96, 99, 135, 137, 167, 216, 217, 234, 239, 240, 241, 242, 244, 245, 249, 255, 261, 288 Swahili, 294 Sweden, 206 symbiosis, 286

toxicity, 142, 162 Toyota, 211 trade, 13, 18, 20, 21, 45, 71, 114, 159, 161, 189, 197, 207 trade agreement, 18 traditional practices, 228, 287 traditions, 117, 175, 206, 222, 245, 285 transformation, 247 transnational corporations, 183, 214 transparency, 198 transport, 185, 186, 187 transportation, 216, 250, 269 treaties, 8, 13, 85, 102, 112, 115, 231 tribal lands, 94 type 2 diabetes, 141

U T takeover, 292 Tanzania, 179, 180, 288, 294 tar, 83, 84, 94, 96, 97, 98 tax breaks, 275 telephones, 92 terrorism, 5, 78, 79, 87, 277 terrorist activities, 78, 79 terrorist attack, 296 terrorists, 11, 277 tetrachlorodibenzo-p-dioxin, 35 theoretical approach, 172 Third World, 137, 165, 233, 234, 235, 243, 297 threats, 38, 106, 141, 184, 186, 296 time periods, 69 tobacco, 72, 127, 128, 129, 131, 158, 290 tobacco smoke, 128, 290 Tort Law, 150, 153, 166 torture, xv, 25, 32, 45, 189, 252, 268 toxic substances, xv, xviii, 130, 148, 260, 285 toxic waste, 35

UNESCO, 118, 193, 209 UNFCCC, 64, 100, 120 Union Carbide, 28 United Kingdom, 76 United Nations, 3, 4, 37, 41, 42, 44, 55, 82, 85, 86, 100, 114, 115, 135, 163, 175, 181, 183, 200, 210, 217, 218 United Nations Convention to Combat Desertification, 183 United States, xiv, 19, 20, 25, 40, 41, 45, 105, 110, 113, 121, 159, 227, 246, 252, 256, 271, 273, 295 urbanization, 244

V vaccine, 140 vegetables, 293 vegetation, 184, 283 vehicles, 275 vessels, 10, 111 veto, 19, 217 victimization, 10

Index victims, xii, xv, xix, 22, 27, 29, 36, 63, 86, 95, 102, 133, 141, 206, 245, 281, 292, 295 Vietnam, 85, 88, 194 violence, xii, xiii, xv, xvi, 36, 37, 43, 62, 63, 79, 95, 137, 233, 235, 245, 246, 277, 291 vulnerability, xii, 36, 141

W war, 39, 43, 64, 85, 87, 88, 89, 95, 194, 231, 250, 259, 278, 296, 297 war crimes, 85, 88 waste disposal, 270 water, xv, xvi, 25, 65, 66, 67, 68, 74, 81, 83, 89, 92, 101, 102, 109, 111, 112, 113, 130, 131, 142, 146, 151, 153, 158, 173, 179, 180, 181, 184, 186, 187, 193, 197, 201, 205, 240, 272, 282, 285, 288, 293, 294 water heater, 153 water quality, 240 wealth, 30, 92, 140, 175, 238, 244, 251, 281, 285

321 weapons, 296 welfare, 27, 124, 192, 193 well-being, ix, 26, 29, 30, 82, 85, 276 wells, 93, 288 Western Australia, 227, 228 Western countries, xviii, 142, 270 wetlands, 241 WHO, xiv, xvii, 38, 124, 127, 130, 137, 139, 148, 156, 157, 158, 160, 161, 162, 167, 168, 181, 290, 291, 299, 304 wholesale, 189, 271 wilderness, 108, 191, 280, 287, 289 wildland, 280 wildlife, 98, 109, 144, 244, 280, 293, 294, 300 woodland, 284 World Bank, xviii, 28, 159, 198, 205, 208, 212, 214, 215, 216, 217, 218, 219, 234, 237, 255, 256 World Health Organization (WHO), 38, 124, 130, 137, 156, 157, 160, 161, 166, 167, 168, 290, 291, 304 World Trade Organization, (WTO), 13, 91, 114, 118, 197, 201, 241, 300 World War I, 264, 265