Advocating Third Generation Rights

| July 9, 2009

The Australian Network of Environmental Defender’s Offices (ANEDO) are a collection of nine community environmental law centres which, while independent, share a common objective: to work to protect the environment in the public interest.

The link between environmental rights and human rights doesn’t take a huge leap of the imagination. Most people now accept that human health and survival is threatened by ecological problems like air pollution, deforestation, water shortage and of course climate change. In this sense a clean and healthy environment is essential for the effective protection of human rights.

For example the right to food, water and a livelihood is threatened by the water shortages that are crippling the Murray Darling Basin; the right of indigenous communities to practice their culture can be undermined by invasive and destructive mining activities; the right to life, health and an adequate standard of living has been breached in the devastating Victorian bushfires that are commonly accepted to have been caused at least in part by climate change.

ANEDO is very supportive of any measure that would improve the human rights ‘dialogue’ in Australia.  It is especially supportive of a regime that recognises the interconnectedness of ‘first generation’ (civil and political), ‘second generation’ (economic, social and cultural) and ‘third generation’ (environmental, development, intergenerational equity, etc) rights.

For example the right to food, water and a livelihood is threatened by the water shortages that are crippling the Murray Darling Basin; the right of indigenous communities to practice their culture can be undermined by invasive and destructive mining activities; the right to life, health and an adequate standard of living has been breached in the devastating Victorian bushfires that are commonly accepted to have been caused at least in part by climate change.

ANEDO is very supportive of any measure that would improve the human rights ‘dialogue’ in Australia.  It is especially supportive of a regime that recognises the interconnectedness of ‘first generation’ (civil and political), ‘second generation’ (economic, social and cultural) and ‘third generation’ (environmental, development, intergenerational equity, etc) rights.

Some examples of how environmental rights could better be protected within a human rights framework include:

  • improving access to justice for public interest and low income groups in environmental litigation. This could be achieved by abolishing ‘adverse costs orders’ (crippling court costs imposed on the losing party) in public interest litigation, expanding ‘standing’ rights (the ability to qualify as a party to a litigation), and of course increasing funding of NGOs, including environmental NGOs;
  • expanding the role of human rights bodies including the Australian Human Rights Commission; and
  • providing greater and more widespread education, including of community groups and public interest organisations in relation to their human and environmental rights and responsibilities.

All these measures would be really worthwhile. But if we mean what we say about supporting human rights, we need a legislatively enforceable Human Rights Act to make sure they are properly and consistently supported.

If we had a Human Rights Act that included our existing international rights, like those in the International Covenant of Civil and Political Rights (the right to life, the right to freedom of speech, etc) and the International Covenant on Economic, Social and Cultural Rights (the right to health, an adequate standard of living, water, food, and culture, etc), it is possible, depending on how flexible the courts were willing to be, that environmental rights could be protected indirectly.

Even better, we could have a Human Rights Act that contained a separate right to a clean, healthy and sustainable environment.

An Act could also acknowledge the principle of ‘intergenerational equity’, a concept that recognises that rights must be protected not just for the present generation, but also for future generations.

The international human rights community has already made the connection between human rights and environmental rights, and has called on Australia to make this link too. Recently the Committee on Economic, Social and Cultural Rights, in its Concluding Observations on Australia, recommended that Australia take urgent action on the human rights implications of climate change, saying: "the Committee is concerned at the negative impact of climate change on the right to an adequate standard of living, including on the right to food and the right to water, affecting in particular indigenous peoples, …".

So ANEDO believes that third generation rights, especially environmental rights, have an important role to play in the debate around how best to develop a culture of human rights in Australia. We should use this unique opportunity to implement a comprehensive framework that reflects international developments and meets the contemporary needs and values of Australian society. Our environment and our community deserve nothing less.

Click here to read ANEDO’s submission to the National Human Rights Consultation Committee.

Cecilia Riebl is a lawyer with the Environment Defenders Office (Vic). She has significant experience in the area of international human rights law, particularly as it relates to and overlaps with environmental law. In 2007 she was the recipient of the Law Institute of Victoria’s Access to Justice Award and the Victorian Women Lawyers Pro Bono Award for her contribution to pro bono in the field of human rights. Cecilia has previously worked as an environmental lawyer at Blake Dawson and as the associate to the Chief Justice of the Supreme Court of Victoria. 

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  1. Richard J Wood

    July 10, 2009 at 2:00 am

    Capitalism. Property Rights & Markets

    I would argue that economic growth is part of the solution to the environmental challenge.  Growth enables us to afford improved technologies to deal with water, air and congestion problems.  The fundamentals of capitalism, such as the careful designation of property rights and obligations, the enforcement of common law, and the facilitation by government of trading in emissions quotas and so forth, are the essence of efficient solutions to the environmental challenges.  The major failures in the environmental area stem not from the market or from economic growth, but from the failure, often of government, to facilitate market transactions over key parts of our economy in which environmental "bads" are produced.

    As an example, emissions and effluent can, under certain designations of property rights, be well described as invasions of private property — as people are tipping their garbage, if you like, into others’ spaces.  The difficulty is that property rights over the water, air and land which is invaded by unwelcome pollution, are usually poorly defined.  Often this is because the cost of defining and monitoring makes a true vesting of such rights infeasible or technically difficult.  There may also be a lack of common law access to compensation, such that the well meaning actions of free agents in the market place produce inferior outcomes to those which would arise with properly designated trading in environmental "bads".

    The challenge for government, for bureaucrats and for the community at large, is to devise "rules of the game" to minimise these areas where it is not possible for individuals to express their own preference judgements.  Individuals acting privately or in groups can best enhance their future and present opportunities.  Self interest, rather than "command and control" strategies, are more reliable ways of generating improvements, whether economic or environmental.  The literature on privatisation, and on the performance of capitalist versus collectivist economic systems in recent decades, tells us that well defined property rights, clear intelligible and properly enforced laws, and monitoring of behaviour, are the logical and central function of government.  Our prosperity hinges quite crucially on a system in which property is privately owned or managed within the common law, and subject to the rules and covenants laid down by government.  It is, therefore, unsurprising that the most polluting areas of the world happen to be in the communist countries where property rights are poorly defined.

    In Australia, as in other advanced industrial countries, the areas most problematic in terms of environmental pollution include vehicle emissions, toxic waste, pollution of oceans through sewage, and so forth.  These are areas in which property rights are being abused — or where entitlement is difficult to vest.  Pollution is often a problem of failure to construct markets based on private property, rather than a failure of markets.  The problem may be due to a failure of government to install proper incentive systems, or an unwillingness to create the basis for markets and trading in environmental products, or bi-products.  Designating water, fishing, air, emissions, and noise rights, and then allowing trading in these rights is a logical function for government, often at the local level.

    A further problem is that governments have, courtesy of taxpayers, rather deep pockets.  Hence, the state enterprises such as those in transport, electricity, waste management and so forth, can be funded and their poor performance hidden for decades by the capacity of governments to over-charge for other services, or use taxes to fund deficits.  There is rarely the incentive in such organisations to do what is most efficient, but rather an incentive to assist interest groups who happen to have political or other forms of power.  Moreover, where government agencies violate environmental standards, it is unlikely that government will ever prosecute an offender if the offender is another arm of government.  However, with properly defined property rights, with private agencies taking responsibility for water, land, ocean facilities, and so forth, and with legally accountable boards and chief executives, there are incentive mechanisms for holding accountable the polluters who violate standards and covenants.

    Technology is also bringing the potential for additional rights to be brought within the market system.  For example, recent research suggests that car emissions such as carbon monoxide and SO2 can be monitored at minuscule cost per car using modern day technology involving computers and scanners.  The location of cars can also be monitored electronically, at very small unit cost, thereby making it possible for "fast lane clubs", and for congestion taxes to be imposed on the owners of cars causing the problem.  Taxes can, with appropriate technology, also be applied according to the volume and nature of the emissions.

    Private ownership and market approaches can, then, be a powerful force enhancing environmental performance, once rules have been set.  Capitalism is naturally a conserver of resources, and an enemy of waste.  It is not therefore a question of less or more market activity, nor of big government or small government.  It is not a debate between privatisation and state ownership.  Rather, it is a debate about government doing what it is comparatively good at — defining and enforcing the rules — and withdrawing from what it is bad at — managing and owning enterprises — so that the private sector can profit from achieving goals within the government set rules.

  2. Dion_Milok

    July 24, 2009 at 7:02 am

    Intergenerational Rights

    For thousands of years humans have managed to stay afload on this boat called ‘earth’. How? Because both past and future generations were highly respected and had a very real place in present. Making a quick buck and bandaid solutions were pointless exercises if it meant a higher cost to the community down the track. We have alot to learn from our evolutionary past culturally, morally, environmentally and ethically.