“Enlarging our Vision of
Rights”
2011 Costello Lecture
Monash University Law
15th September
2011
It’s a
great honour to deliver the Costello lecture. As Tim has mentioned, we go back
a long way. I think what has marked Tim out over the years has been his
willingness to take the hard choices – being prepared to be challenged but
making a difference and inspiring us in the process.
Through
World Vision my wife Sally and I for many years sponsored Faustina – a
Guatemalan girl. We feel a connection to this because in 1988 we spent over six months in Guatemala.
It’s
been an amazing couple of weeks for human rights issues.
A
fortnight ago the High Court overturned the Malaysian solution in a clear 6 to
1 decision.
In part, the court relied on our treaty obligations and human rights principles
to do so. Regrettably, the government has announced that it will introduce
legislation in an attempt to revive its failed policy.
Last
week the UN’s Human Rights Committee found that Australia was in breach of the
International Covenant of Civil and Political Rights by deporting Stefan
Nystrom, a Swedish citizen who had lived in Australia since he was 27 days old,
and who had committed crimes – the most serious during a period when he was a
ward of the State. He was sent back to Sweden – a country where he did not
speak the language and where he had no ties – without his elderly mother being
able to say good-bye to him and without the Swedish authorities being informed
that he was coming. He arrived in Stockholm in the middle of winter, with no
money, no one to meet him, no language, and nowhere to go on what happened to
be his 33rd birthday. Little wonder that when we last spoke with him
he was an inpatient in a psychiatric institution.
A week
ago in the Momcilovic case the High Court affirmed the validity and importance of Victoria’s Charter of
Human Rights and Responsibilities. It was a signal victory.
But
yesterday the Scrutiny of Acts and Regulations Committee, in a report
which is shoddy, intellectually stunted, legally illiterate, and doctrinaire,
recommended the evisceration of the Charter of Human Rights and
Responsibilities, which has been an effective tool for upholding human rights
for the past 5 years.
Any one
of these issues could justifiably occupy the whole of the Costello lecture.
They are all crucially important. But I actually think the most significant
event for human rights in the past week was none of these things.
This week the coverage of
Arctic sea ice reached a new historic minimum – half a per cent less ice than
the previous minimum recorded in 2007 – and the melt season is still
continuing. As the Arctic ice melts, warming is accelerated, as the albedo
effect from reflected sunlight is reduced.
None of the other great
events I have mentioned, and which have tied our polity in knots over the past
few weeks, can compare with the gravity of this news – for human rights, for
humanity, for the Earth’s ecosystems.
Why is this a human rights
issue? Let me go back to Faustina’s home – Guatemala.
Our
experience of Guatemala was of an immensely friendly country. Walking down a
road, and meeting a group of people coming the other way, each person in that
party would greet each person in our party individually, often taking our hands
in both of theirs and looking warmly into our eyes as they did so to a chorus
of “buenos dias”s. No shopping experience could begin without a human exchange
between the buyer and seller. Merely asking for what you want was out of the
question. There had to be a greeting, and an exchange of a personal nature, before
moving to business. It was a friendly land where people loved to dance - but a
land riven by violence and death.
Disappearances
occurred regularly while we were there. We did not know anyone who disappeared,
but we knew people whose friends disappeared. Nearly always the body would turn
up on the side of the road a few days later.
How
could such a friendly nation be reduced to such violence?
It
is a beautiful country. In the Guatemalan highlands where the air masses of the
Pacific and Caribbean collide, clouds hover permanently and there cloud forests
grow, with curling branches and epiphytes - home to iridescent darting hummingbirds, lazy sloths, elusive
jaguars, and that magnificent, brightly-plumed bird, the resplendent quetzal.
Resplendent Quetzal
The
Guatemalans have adopted the quetzal as the symbol of the country. With its long tail feathers it adorns
their flag. The currency of Guatemala is called the quetzal, and two cities in
the country are named after the bird: the second largest city, Quetzaltenango,
and Puerto Quetzal - the Pacific Coast port. This bird was sacred to the
indigenous Mayans.
Today
the quetzal is almost extinct in the wild.
This
is a country so fertile it can grow almost anything, and indeed it is the area
where both avocado and corn were first cultivated. But the distribution of
wealth is such that half
the population lives below the poverty line, and the single largest source of income for
the nation is the remittances sent back to their families from expatriates
living in the United States.
In
a land of plenty, people are starving, and subsistence farmers cut down more
and more of the cloud forest so they can grow small crops of corn to feed their
families. In the process, they are removing the last habitat of the quetzal.
Why is
this abundant land so poor?
In
pre-Columbian times, the Mayan civilization included great cities – probably
the largest then on Earth. They had libraries of books, and very advanced
mathematics and calendars – far more advanced than anything then in Europe.
We
spent time in Tikal, the city that once stretched over 16 square kilometers –
with its outlying areas extending way beyond that. Giant pyramids loom out of
the jungle canopy, and ornately carved stelae bear witness to what was once a
civilization of wonderful accomplishments.
It
collapsed very quickly. A large population, rigidly controlled from the top
down, with those at the top consuming all the best resources, dependent on the
water from ten reservoirs, engaged in intensive agriculture, and a period of
low rainfall led to the sudden implosion of the whole structure of the
community, and buildings were abandoned half finished.
In the
subsequent centuries, small wandering bands sheltered from the encroaching jungle
in the alcoves of the buildings, where their scribbled graffiti can be seen to
this day, a pale mockery of the great sculptures that the society could once
produce.
The
collapse of the Mayan civilization was largely because of a poor relationship
with the environment, and poor recognition of the interests of those in the
lower strata of Mayan society.
Human
rights and respect for the environment cannot be separated.
And so
with Guatemala today. Guatemala was devastated by over four decades of civil war
following the 1954 CIA led coup which replaced a democratically elected
government.
Guatemala
is the original banana republic, and in 1954 the country’s largest enterprise
was the US-owned United Fruit Company, two prominent shareholders being the brothers
John Foster Dulles (US Secretary of State) and Allen Dulles (CIA Director).
United
Fruit was also the largest landholder in the country, when many indigenous
communities had no title to land at all. United Fruit rapaciously cleared
rainforest on the rich Caribbean coast for its huge plantations of bananas.
When
President Arbenz moved to buy land that was not being used (offering to pay the
value of the land declared for taxation purposes) so that it could be given to
poor peasants, the US administration acted, and in the midst of the McCarthyist
hysteria falsely labeled Arbenz a communist, and overthrew him and his
democratic government, plunging the country into a series of coups,
disappearances, death squads and atrocities.
When we
lived there in 1988 the CIA presence was strong. One very personable yankee
gave us his business card – which cheerfully announced “archeologist and
military adviser”.
During
the course of the war, which did not end until 1996, over 200,000 people -
mostly poor Mayan peasants - were killed. More than 450 indigenous Mayan
villages were destroyed.
Distracted
by these events, and with no money to foster a robust and independent economy,
is it any wonder that poor people have to grub out a living as best they may?
A foreign
company laid waste to ancient rainforest, and dispossessed indigenous peoples,
so it could make a profit from bananas.
When
this was challenged by democratic government, the result was 42 years of
political instability, and 200,000 deaths. And a dire future for the quetzal.
Time
and again, our treatment of nature and our treatment of people seems to be
interrelated.
Here in Australia our human
rights record is complex. Australia helped pioneer so many social advances: the
8 hour day, free universal education, women’s suffrage, and the basic wage. In
1948 it was an Australian statesman, Dr Evatt, who presided over the passage of
the Universal Declaration of Human Rights in the United Nations.
Australia has a great
tradition of leading the world in issues of rights.
The Rudd government
established the National Human Rights Consultation Committee under Father Frank
Brennan, and after the largest public consultation in Australian history – with
some 35,000 submissions and numerous public consultation meetings, it brought
down a unanimous recommendation for a Human Rights Act in Australia.
After the millions of
dollars spent on this report, and tens of thousands of public submissions, the
recommendation for a Human Rights Act didn’t even get through its first cabinet
meeting. No legislation was ever put before the Parliament.
Internationally Australia is
treaty bound to accept the UN’s Human Rights Committee as arbiter of our human
rights performance. The Human Rights Committee comprises eminent human rights
jurists from around the world. But when the Human Rights Committee finds
Australia has breached the ICCPR – as it has on several occasions in relation
to mandatory detention – what is the reaction?
Typical is the response of the former government in A v Australia in which the Human Rights Committee found that the detention of an asylum seeker for four years, and the lack of adequate process for challenging mandatory detention, violated the ICCPR. The Australian Government responded:
After giving serious and careful consideration to the … views of the Committee, the Government does not accept that the detention of Mr A was in contravention of the Covenant, nor that the provision for review of the lawfulness of that detention by Australian courts was inadequate. Consequently, the Government does not accept the view of the Committee that compensation should be paid to Mr A.
The Committee is not a court, and does not render binding decisions or judgments. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them.
Although legally correct, such a slap in the face to human rights experts, entrusted to uphold the standard of human rights around the world, undermines the effectiveness of these human rights treaties. Why should Third World countries feel constrained to respect these committees, if Australia will not?
This typical reaction is
barefaced defiance of the Human Rights Committee – disagreeing with its
findings of breaches of the ICCPR without even descending to reasons for the
snub. It is the reaction of a petulant teenager. No wonder Australia’s attempts
to engage other countries over human rights issues are met with frank
incredulity. Australia is increasingly regarded as an international human
rights pariah.
The truth is, Australia is
the only developed nation which has not given the force of domestic law to
international human rights instruments. Human rights remain a matter subject to
the whim of the government of the day. As the past few weeks illustrate.
Where
are we going with human rights in Australia?
Although support for human
rights protection has been widespread in Australia, it does not have the status
of mass political support. Perhaps
the threats to human rights do not seem so immediate to most people in our
comfortable community.
Our international human
rights framework has its origin in the aftermath of the Second World War. Shocked
by the barbarities associated with that event, the nations of the world came
together to pass The Universal Declaration of Human Rights in 1948, and then
the great human rights instruments which followed.
This development also drew
on the US Bill of Rights, comprising the first ten amendments to the
constitution – which in turn arose from the independence struggle with the
colonial power, Great Britain. The US constitution and the declaration of
independence, expressed high ideals about equality and liberty:
We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness.
The United States was driven
to revisit this later because the country had not dealt with the all-important
issue of slavery.
In the same way I believe we
must revisit our understanding of human rights today as we confront the
challenge of global warming – which in turn is a symptom of a deep disconnection
between our entire western lifestyle and the biosystems of the Earth.
It was the Enlightenment
which gave the philosophical underpinning to the US constitution and its bill
of rights. It was the Enlightenment which gave primacy to reason and science,
and these tools tell us today of our global warming plight.
But the Enlightenment came
at a great cost. It cost us the Earth.
It was the great thinkers of
the Enlightenment – Galileo, Bacon, Descartes and Newton – who took away the
previous erroneous understanding of the Earth in the universe, but replaced it
with a mechanistic understanding of the Earth – they saw a planet merely part
of some great cosmic astrolabe.
Instead of seeing humanity
as part of the fabric of life on Earth, they taught us that the Earth was
separate from us, a mere inanimate machine – and ours to exploit.
This has had all kinds of
immediate and practical consequences. Take land, a subject to which our courts
devote considerable time and resources – as do those of us who invest in real
estate – all those house inspections, attending auctions – and then years
paying off the mortgage.
The legal basis for absolute
estates in land existed for a time before the Enlightenment, but it is really
only after the Enlightenment that we have had the widespread view that we can
own land.
In the middle ages land was
held from one’s lord, who held it from the king, who held it from God.
Under mosaic law, the
jubilee every fifty years required returning land you had acquired, so that
there was a constant evenness of distribution.
These are paradigms of
trusteeship, of stewardship, if you will – not ownership. Ownership implies
that you can use land but don’t have responsibility to others to care for it.
Forty years ago in the Milirrpum
v Nabalco case (1971) 17 FLR 141, concerning
the ownership of Nhulunbuy in Arnhem Land, it was held by the courts, (before Mabo)
that Aborigines could not be said to have owned land because they could not
alienate it. They could not sell it.
So if your attachment to the
land was so great that you had no concept of getting rid of it, you did not own
the land.
In one sense, the judgment
was right. Aboriginal connection to the land was not such that they saw
themselves as separate from it, as our own concept of ownership implies. Their
relationship was far more grounded than ours.
It
is a very modern idea that we own land.
Can
we take it anywhere? Did we make it? The land has been here for ages before we
were born – indeed for ages before any human existed. We will, whether buried
or cremated, end up resting in the land – not the other way round. Our
so-called ownership will be a mere shrug in the memory of the land.
In
the Judaeo-Christian tradition, the Lord God fashioned mankind from the Earth. In many ancient cultures, the Earth is given
the embodiment of a mother. These
are profound insights into who we are as human beings: the Earth is part of who
we are, and the connection is something from which we cannot escape without
doing violence to ourselves.
We
could not conceive of owning our mother. It is only because of a distorted
relationship with the Earth that we have legal structures permitting ownership
of land.
To
do violence to one’s mother is an ethical offence – and hence, for most of
human existence, doing violence to the Earth Mother has been seen this way. But
today doing violence to the Earth is just good business.
We
do not see the Earth as our Mother, but as some fantastic cyber babe which is
ours to exploit without any real relationship.
Australia,
a nation founded since the enlightenment, has a dismal environmental record. We
have drowned Lake Pedder – that unique jewel in the heart of South West
Tasmania. We have cut down the tallest trees in the world, and indeed the vast
majority of our scarce forest cover. We have the worst rate of mammal
extinctions on Earth – by far. The coat of arms of Tasmania, with its two
thylacines, is a constant reminder of the disgrace. Here in Victoria we are not
far behind, with our avian emblem, and the State’s only endemic bird, the
helmeted honeyeater, on the brink of extinction. About a quarter of Australia’s
plants and animals are on the threatened list now.
Globally
we are in the sixth mass extinction – now competing with asteroid
mega-catastrophes from deep geologic time.
We
have moved well beyond the lifestyle at which the planet can support us into
the future.
And
it’s never enough. Always the environment has to take second fiddle to the
elusive mirage of prosperity. We who are prosperous beyond the wildest imagination
of previous generations never think we are – or not quite enough.
Yesterday
the Herald Sun ran a poll. The question illustrates the way our very prosperity
has impoverished our approach to caring for the Earth. Readers were asked to
vote on the question:
Will you be better off under Prime Minister Julia Gillard's carbon tax
plan?
As
if that were the question.
In
our comfortable world electricity shields us from the diurnal rhythm of night
and day, and even from the seasons: we have our heating in winter and air
conditioning in the summer, and we can buy any fruit at any time of the year.
We do not have to fetch and carry water.
Our
sophisticated lifestyle is comfortable – but it cuts us off from our identity, from
the Earth from which we are fashioned.
Many people here are parents, and all of us are children of
parents. If we are disconnected from our parents we can pay a price all our
lives, and it is the same if we are disconnected from the land.
Today, the Earth is warming,
and the effects of this are already being seen. This should be the dominant
issue in our public discourse.
Here in Victoria, according
to the Bureau of Meteorology, the average mean temperature today is 1 degree
hotter than it was in 1950, and almost 2 degrees hotter than in 1900. That’s
like moving the whole state 400 kilometres closer to the equator.
The predicted effects are
occurring, including more extreme weather events - storms, fires and floods.
Consider this from a third
world perspective – take Bangladesh. In summer 2006 the Bay of Bengal was
unusually rough. Usually there are only one or two weather warnings a year for
fishermen, but that year there were four warnings in just two months. Each
warning cost poor fishermen from Bangladesh several valuable days in lost
production.
When the fourth warning came
most could no longer afford the loss, and went to sea anyway.
The official death toll from
that storm is 1,700, but many believe the real figure is closer to 10,000.
Bangladesh is experiencing
manifest changes to its environment now. Large areas of the Sundarbans wetland
nature reserve – one of the wildest places on Earth and the home of the world’s
largest wild tiger population, are dying from the increased salinity of the
water in the area. Yet Bangladesh has done almost nothing to contribute to the
problems of climate change.
Or imagine you are a
villager in the Himalayas. You live with the constant fear that you will
experience what so many villages in the Himalayas have experienced in the last
few decades: as glaciers melt they form large moraine lakes, held in place by
unstable walls of rock and mud, until one night the rocky moraine collapses,
sweeping away the villages below in a massive tide of water and rock. Many have
died this way, and you live with the fear. You have done almost nothing to
contribute to climate change, but it is daily affecting your life.
Or picture yourself are
living in a small Pacific Island – experiencing extreme high tides which damage
homes, inundate crops and erode coastline in a way no ancestor experienced - and
finding that your water supply is increasingly saline. Again, you have done
nothing to cause global warming, but you are already experiencing it.
The burden of climate change
is not shared equally – nor does it fall on those who have caused it.
Here in Victoria we remember
the heat wave in early 2009 before the Black Saturday bushfires. Victoria’s
Chief Health Officer reported 374 “excess” deaths from this heat wave –
more than in the Black Saturday fires themselves. Many died in Office of
Housing high rise hot boxes, mostly the poor, the elderly, and the isolated –
those who could not afford the very air conditioners which have contributed to
our excessive demand for energy.
Climate change affects the
vulnerable, and this has been recognised by the international community.
As the UN’s Human Rights
Council has said:
The adverse effects of climate change
will be felt most acutely by those segments of the population who are already
in vulnerable situations owing to such factors as geography, poverty, gender,
age, indigenous or minority status or disability.
In dealing with this
environmental issue, human rights are essential. The environment needs human
rights just as human rights require a sound environment – it is all
interconnected.
If our only measure of the
global good is the rights and welfare of our species, we have an inadequate
standard. The countervailing considerations of prosperity from selling coal or
from felling trees or from releasing dangerous chemicals may be all too readily
utilized against the benefit of the Earth. Human wellbeing will have short term
and long term perspectives. How do we decide which is more important? We can
call for intergenerational equity – not leaving a mess for our children and
grandchildren – but when they are not yet able to actively advocate their
interests, this may not be sufficient when realpolitik interposes.
Today I believe it has
become essential that our human rights discourse be informed by recognition of
the rights of the Earth itself.
I am not the first to say
so. Let’s look at the overseas jurisprudence.
Internationally, there have
been many treaties which have sought to co-ordinate action in relation to the
environment. It was the World Heritage Convention which gave the Commonwealth
the power to save the Franklin River in 1983.
UNESCO and many other
international bodies have adopted the Earth Charter – an important, though
limited, document, which is the result of widespread consultation on these
issues.
The 1996 Constitution of
South Africa includes section 24:
Everyone
has the right-(a) to an
environment that is not harmful to
their health or
well-being;
and
(b) to have the
environment protected, for the benefit of present
and future generations …
This important section deals
with environmental protection within the context of a human right to have the
environment protected – it is still human-centered, but it is a huge step
forward.
Article 20a of the Basic Law
(ie the Constitution) of Germany guarantees the rights of animals, following a
2002 amendment. This
followed a controversy which may sound familiar to Australians - over
slaughtering animals without first stunning them.
France has a Charter for
the Environment, which was incorporated in the constitution in 2005. It is a
significant document. Article 1 reads:
Art
1 – Each person has the
right to live in a balanced environment which shows due respect for health.
It is still focused on the
rights of humans, but it contains strong provisions of a kind we do not enjoy
in Australia.
But Ecuador – a
comparatively small Latin American country only slightly larger than Victoria
and with a population of 15 million – has altered the entire international
debate. In 2008 the people of Ecuador by an overwhelming 63% majority, voted
for a new constitution - the first in the world to comprehensively recognise
ecosystem rights and nature rights:
Much of the motivation for
this came from widespread outrage at Chevron dumping millions of tonnes of
toxic waste into the Amazon as part of its mining operations. The new document
refers to “Pachamama” the indigenous Earth mother figure:
Nature
or Pachamama, where life is reproduced and exists, has the right to exist,
persist, maintain and regenerate its vital cycles, structure, functions and its
processes in evolution.
Every
person, people, community or nationality, will be able to demand the
recognitions of rights for nature before the public organisms.
Much of the thinking for
this new constitution was done by the local indigenous community and NGOs. The
process was remarkably rapid – from beginning work on this constitution to its
passage took about 18 months.
Chevron reacted strongly. Its lobbyist told Newsweek:
The
ultimate issue here is Ecuador has mistreated a U.S. company. We can't let
little countries screw around with big companies like this - companies that
have made big investments around the world.
It did not end there. Then
Bolivia’s first indigenous president, Evo Morales, announced his country would
follow suit with “The Law of the Rights of Mother Earth” based on the indigenous belief that
all the inhabitants of nature are created equal. As President Morales put it:
Either capitalism dies, or
Mother Earth dies. We choose Pachamama,
or death.
Bolivia’s Law of the Rights of Mother
Earth was passed on 22nd April this year. Other nations, such as
Nepal, have expressed interest in following suit.
Third World countries have
taken the lead in this. Countries very like Guatemala where Faustina grew up. They
do not benefit from the power arrangements that currently exist, and they stand
to suffer most from climate change. Ecuador and Bolivia retain good connections
with their indigenous heritage.
Meanwhile we in the West
seem hell-bent on choices which harm both the environment and humanity.
To take one example, the
most striking international event of the past ten years was the invasion of
Iraq. We invaded Iraq, at the cost of several trillions of treasure, and
hundreds of thousands of lives, in order that the United States and her allies
could more cheaply import and consume oil which is in turn cooking the entire
biosystem on which we depend. Both the invasion and the deeper reasons behind
it were profoundly wrong.
Let us work to give rights
to the poor, the powerless, to the indigenous, to women, to those who are
marginalized, and build respect for all sectors of our community. For human
rights to resonate most richly today, we should recognize the rights of all
life - the rights of the Earth on which we all depend, the rights of the
community of life of which we humans form part.
Brian Walters
Rights for Nature
Art. 1. Nature or Pachamama, where life is
reproduced and exists, has the right to exist, persist, maintain and regenerate
its vital cycles, structure, functions and its processes in evolution.
Every person, people, community or nationality, will be able to demand
the recognitions of rights for nature before the public organisms. The application and interpretation of
these rights will follow the related principles established in the
Constitution.
The State will motivate natural and juridical persons as well as
collectives to protect nature; it will promote respect towards all the elements
that form an ecosystem.
Art. 2. Nature has the right to an integral restoration. This integral
restoration is independent of the obligation on natural and juridical persons
or the State to indemnify the people and the collectives that depend on the
natural systems.
In the cases of severe or permanent environmental impact, including the
ones caused by the exploitation on non renewable natural resources, the State
will establish the most efficient mechanisms for the restoration, and will
adopt the adequate measures to eliminate or mitigate the harmful environmental
consequences.
Art. 3. The State will apply precaution and restriction measures in all
the activities that can lead to the extinction of species, the destruction of
the ecosystems or the permanent alteration of the natural cycles.
The introduction of organisms and organic and inorganic material that
can alter in a definitive way the national genetic patrimony is prohibited.
Art. 4. The persons, people, communities and nationalities will have the right
to benefit from the environment and form natural wealth that will allow
well-being.
The environmental services cannot be appropriated; its production,
provision, use and exploitation, will be regulated by the State.
