Ecological Systems Integrity

Governance, law and human rights

Laura Westra, Janice Gray, Vasiliki Karageorgou

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138574878
• eBook ISBN: 9781317501312
• Edition: 1
• Topic: Scienze biologiche
• Subtopic: Ecologia

Environmental law and governance are the cornerstones of global efforts to conserve the environment, protect resources and ensure fair and equitable outcomes for all of the planet's inhabitants. This book presents a series of thought-provoking chapters which consider the place of governance and law in the defence against imminent and ongoing threats to ecological, social and cultural integrity.

Written by an international team of both established and early-career scholars from various disciplines and backgrounds, the chapters cover the most pressing and contemporary issues in environmental law and governance. These include access and benefit-sharing; the right to food and water; climate change coping and adaptation; human rights; the rights of indigenous communities; public and environmental health; and many more. The book has a general focus on environmental governance and law in the European Union and offers points of comparison with Canada and North and South America.

Part I Biological integrity, ecology and the law

1 Environmental and ecological concerns in Europe and North America contrasted

Laura Westra

DOI: 10.4324/9781315714547-1

Introduction

This volume combines the work of authors from both Europe and North America. Aside from those addressing global issues in international law, there is a decided difference between the approach taken by those considering international or European laws from a European perspective, and those writing from a North American perspective: in short, the Europeans appear far more ready to trust the effectiveness of the environmental law regimes they discuss than their North American counterparts.

This difference applies not only to ecological/biological issues, but extends to the very basis of legal governance and human rights, as there is only one clear Canadian case where the author demonstrates that the law eventually prevailed in defence of human rights against the state itself (see Chapter 15 by Kathleen Mahoney). But that was a sui generis case, that is, one which involved Canadian First Nations, who supposedly enjoy a special relationship with the Federal Government of Canada, given the fiduciary duty of the latter regarding the former.

At any rate this is by no means a new development, as many legal scholars working and publishing in the United States, Canada and New Zealand appear primarily concerned with changing the approach to governance as a whole, rather than focusing on this or that specific legal regime. I include myself in this group, as the whole impetus behind the Global Ecological Integrity Project, from the start, was more than an effort to achieve a specific change in environmental law, perhaps (Westra 1994; Westra 1998), or even to achieve the elimination of environmental racism and the general disregard of human rights (Westra and Lawson 2001). Rather, it was and has been an ongoing effort to effect a radical revision of current forms of governance, with their flaws and lacunae, viewed from the perspective of a principled defence of human rights, starting from the biological integrity of all organisms. That principle is, in turn, grounded on the ecological integrity of the habitat required by each natural organism.

Thus, broadly speaking, it would seem that, outside of Europe, the emphasis (at least in our group’s experience for the last 22 years) has been one of demanding a radical reconstruction of systems of governance founded on the radical destruction of the ongoing systems, which give primacy to trade, capital and unsustainable growth instead of ecologically sound reasoning.

In contrast, European scholars approach the overwhelming problems of the present systems of governance from at least a moderately optimistic position. They seem to consider each legal regime as a ‘work in progress’, or at least as the basis for present and future emendations, intended to render each instrument closer to a more desirable position, closer to one respectful of human environmental rights.

Thus their efforts towards lex ferenda start most decidedly from the present lex lata, which they appear to view as worthy of considered re-elaboration, not only as practically necessary. Clearly, even those who move directly to a discussion of international law must still use it as a basis for the future vision they propose, but there seems to be far less interest in doing what Bill Rees famously termed ‘rearranging the deck chairs on the Titanic’ at one of our meetings some years back.

I believe that this contrast reflects more than different temperaments, perhaps even different age groups, present in the generalizations I am suggesting. It seems that there is a basic difference in the way governance actually functions in North America, in contrast with the way it functions in Europe (perhaps including a country such as New Zealand): the basic difference is the amount and the extent of corporate power present in the respective legal systems in these continents.

That power is, undoubtedly, present everywhere today due to globalization. But there is a substantive difference in the ways the intrusive corporate power is felt, as it operates in North America or in Europe.

From Santa Clara to the Monsanto Immunity Act: the ascent of corporate power

[T]he rise of the giant corporations during the past century has been the principal influence in the creation of a second – the secret – constitution. Corporations, at least those of giant size, are private governments and should be recognized as such.

(Miller 1987: 242)

Although Miller’s argument pertains exclusively to the US Constitution, the fact that the ‘giants’ to which he refers are indeed the supranational powers that intrude in global governance, entails that his position supports the argument of this work, even beyond its application to US governance.

It seemed obvious that the court in Santa Clara did not want to discuss the personhood question, and were quite satisfied taking it for granted as a starting point, without any philosophical or political argument in its support. Some of the commentators suggested personal motives, while others assumed simply carelessness, even negligence.

In contrast, Miller proposes that in fact, the Santa Clara court knew precisely what it was doing, although it could not predict all the ramifications and consequences of its decision over time. Miller says:

Santa Clara, accordingly, is best seen as one of a clutch of decisions in which the Supreme Court was a willing ally of the property-owning class in the United States – those that Alexander Hamilton called ‘the rich and well-born’ in the Constitution Convention of 1787.

(Miller 1987: 243)

The attack on the Fourteenth Amendment is considered to be especially heinous, as it transformed a landmark document designed to protect freed slaves, into one for the protection of those that needed it the least, as ‘the state action doctrine added to corporate privilege, rendering the firms immune from constitutional norms’ (ibid.).

Nor do we need to wait for the racially motivated repressions in South Carolina or Florida (Bullard 1994), or the repression of Indigenous revolts against mining and extracting industries today (Westra 2007). August 2012 saw the violent battle of South African policemen against the miners at America mine, who protested for non-payment of wages and poor working conditions, resulting in four murdered individuals.

But the use of federal troops to repress protesting workers, in the US, dates back to 1895¹ (Miller 1987: 243), when a strike by Pullman workers in 1894 ‘stopped trains and the mail’, killing ‘some of the mob’: a result that was seen as acceptable as a solution to the problem (ibid.). Not only does the working class, one that includes African Americans, suffer from the constitutional dualism Miller decries: every US citizen is affected by it.

The US is ‘governed by a type of democratic elitism’ (ibid.: 246) but the secret institutions of the corporate-directed second constitution ‘have marked antidemocratic authoritarian tendencies’ (ibid.). Miller does not discuss the actual detailed results of this duality, but he does state that the separation between the economy and the polity is only functional, as they are complementary instead. Hence a truthful understanding of the situation would be to term it the ‘corporate state’.

This intimate relation entails that the most important aspects of democratic citizenship are eliminated. Mark Kesselman notes that ‘The hidden face of power is exercised not so much by the suppression of specific issues from the political agenda as by the exclusion of the most fundamental matters of public concern from the political sphere’ (Kesselman 1982: 571).

The corporate control here acknowledged could not persist without an additional control, one we have neglected in this work given its wide reach and the public awareness of its results: the corporate control of the mass media. That is the final form of supranational control: neither the control of the law, of governance, nor of the markets exerts such widespread power. It is the ultimate social control of people’s wants and preferences, so that unhealthy and even injurious choices become the ‘real’ preferences of US citizens to begin with but of people everywhere eventually, as the ‘better way’ is spread, from harmful McDonald’s hamburgers and Coca-Cola, to mind-warping computer games and other such ‘necessities’, promoted to the public from childhood on.

Thus what sets North America apart is the presence of multiple aspects of legal corporate dominance, from the effortless acquisition of personhood in the Santa Clara decision in 1886 to the 2012 Monsanto Immunity act, signed into law by President Barack Obama; which, although expired in 2013, remains as a precedent and as an ominous indication of the incestuous relationship existing between the US government and Big Business (Westra 2014). The main advantage of being a legal person is to avoid responsibility for one’s actions (Neoclous 2003: 147–65), as the ability to avoid the legal consequences that a natural person would endure derive from the corporate powers acquired over time, both legally and illegally.

The corporations, associations and institutions that are part of globalization are not open to any consideration of morality or human rights, beyond their own ‘rights’ and interests. Invoking the criminal law is therefore not only difficult, but often futile: ‘the corporation, as a disembodied jural entity … has no physical body capable of incarceration, or corporal or capital punishment’ (Grear 2010: 91).

The same thought is expressed even more forcefully by an anonymous protester from the Occupy movement in New York, as he waved a placard saying, ‘I’ll believe corporations are people when Texas executes one’ (Collins 2013). Grear acknowledges that ‘the new trade-related market friendly paradigm calls upon the state … to save capital by pursuing “de-regulation”, de-nationalization and disinvestment’ (Grear 2010: 14). But the borderless flow of capital (ibid.: 13) no longer needs the state, which has become, as we have seen, nothing but the agent, the tool of corporate power, for the most part.

Multiple cases simply repeat and reinforce our own case for overwhelming, multifaceted corporate power, no matter how acquired and exercised. But that power demonstrates the underlying criminality, the illegality pursued with impunity, both for acquiring it and for exercising it. In sum, corporate power, as it now exists, fails to reflect law or justice in several, connected ways. This lack includes the following aspects:

1. persistent lobbying of governments and corresponding intrusion in the drafting of treaties and regulations in international law;
2. intrusion in the political process through large donations to parties and individual candidates, especially in the US, home of the most powerful multinational corporations (MNCs);
3. ongoing control of domestic legal regimes to ensure impunity for activities that affect basic human rights to life, health and normal development;
4. arrogating traditional state powers for the protection of citizens, by the imposition of supranational constitutions, through the secret decisions of economic tribunals, such as those of NAFTA or the WTO, as those supersede the decisions arising from state constitutions;
5. the continued production of the chemical and other industrial products that affect human rights as in (3), with full knowledge of their composition and eventual effects, with the impunity guaranteed by both lobbying (1) and their intrusion in the political process (2); and
6. collusion with states’ illegal aggressions, oppressions and attacks, and by the ongoing manufacture of weapons both legal and illegal.

Some of these activities would be viewed simply as criminal were they perpetrated by natural persons. Others, perhaps, are borderline between illegality and immoral legal behaviour. The intrusion in the political, democratic process is particularly worrisome despite the US court decisions that have legitimized that behaviour. The results of that intrusion ensure that elections now range quite far from the ideal of ‘one man one vote’.

When these corporate activities are viewed together, it reinforces the impression of a total lack of concern for the public interest, the public order, and even the legitimacy of domestic governments, and the soundness of international law.

Beyond the state/corporate power grid: present and ongoing issues in Europe

The most daunting challenge of adapting to the realities of the Anthropocene era is achieving a soft transition from state-centric world order, to a geocentric reconfiguring of the political community to enable the emergence of effective and humane global governance.

(Falk 2014)

The corporate control discussed in the previous section entails that the expected connection between democracy and state governance has been broken, as especially North American states’ main alliance is with corporate power not the aspirations, let alone the needs of their citizens. The political community is now formed primarily of transnational citizens (Sassen 2006), whose alliance is to global communities, ‘geo-cent...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preface
• PART I Biological integrity, ecology and the law
• PART II The right to water and to food – climate change
• PART III Environmental legal issues in Europe and beyond
• PART IV Democracy, ecological concerns and the perils of environmental defence
• Index