2011 Costello Lecture

photo Ern Mainka

“Enlarging our Vision of Rights”

2011 Costello Lecture

Monash University Law

15^th 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 33^rd 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[3] 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[8]. 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 22^nd 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

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The relevant provisions of the Ecuador constitution are as follows:

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.