Ecological Integrity and Biological Integrity: The Right to Life and the Right to Health in Law

• Author: Laura Westra
• Position: Professor Emerita (Philosophy) University of Windsor and Sessional Instructor, Faculty of Law, University of Windsor. Ph.D. University of Toronto 1983, Ph.D (Law) Osgoode Hall Law School 2005.
• Pages: 02

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I Introduction

Insofar as the duty to ensure the right to life is concerned, it requires the State to guarantee access to the material conditions necessary for supporting life; to take all possible measures to prevent violations of the right to life by others; to take all possible measures to safeguard the environment, to control harmful diseases and to pursue policies of peace within the world's community.¹

This Article begins with the proposition that climate change and its dramatic, adverse effects can be more thoroughly understood by comprehending the phenomenon in terms of biological integrity and ecological integrity. Ecological integrity refers to the conditions of ecosystems and natural areas, while biological integrity refers to the single organisms Page 4 within those systems, including humans, and where the latter is dependent upon the former.² Present concerns center on existing legal instruments and possible adaptations or modifications of such instruments that might support modern science regarding the life and health of human and non-human beings in the context of severely altered natural systems.

Non-human animals have long been "sentinels" for human health.³ The mounting rates of extinctions of various species confirm that the environment that humans share with other creatures is no longer safe. The only presently-binding legal document that references the protection of human health is the International Covenant on Economic, Social, and Cultural Rights (ICESCR).⁴Articles 11 and 12 of the ICESCR state, inter alia,

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. General comment on its implementation.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

   (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

   (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need. Page 5

   Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

   (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

   (b) The improvement of all aspects of environmental and industrial hygiene;

   (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

   (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. ⁵

   In 1985, the United Nations Economic and Social Committee (ECOSOC) "created the [I]CESCR as a subsidiary organ to undertake its review of reports on the measures which [state parties] have adopted and the progress made in achieving the observance of the rights recognized [in the ICESCR]."⁶In turn, the need for monitoring arises because the ICESCR contains specific substantive rights, but unlike the International Covenant on Civil and Political Rights (ICCPR), which uses language such as "everyone has the right to... " or "no one shall be...," the ICESCR employs much weaker language.⁷

   Numerous scholars have addressed the strong presence of the ICCPR as compared to the ICESCR. This contrast is exemplified by the proposed monitoring of human rights by a special Commission or some other U.N. organ. For instance, the World Health organization monitors the periodic Page 6 responses of all signatories to the Convention on the Rights of the Child,⁸ and it sends observers to various locations to judge each country's progress. ⁹

   The ICESCR limits the obligation of state parties "to the maximum of its available resources" and states that the obligation "is one of progressive realization."¹⁰ However, because progressive realization is an open-ended concept, the binding obligations supported by this Covenant appear substantially lesser than those supported by the ICCPR. Nevertheless, the ICESCR has produced a series of "general comments" to report on progressive implementation of its goals.¹¹

   In 2000, the ICESCR General Comment No. 14 listed all positive and negative aspects of the right to health through a "tripartite framework through which states must respect, protect, respect and fulfill the right to health:"¹²

   Under a state obligation to "respect" the right to health, a state must now interfere with the negative rights necessary to realize health. Looking beyond the state and its agents, the obligation to "protect" the right to health requires a state to ensure that others, including non-state actors, do not violate this right; lastly, the obligation to "fulfill" the right to health mandates that a state must take positive measures to ensure the full enjoyment of the right to health.¹³

   General Comment No. 14, in its analysis of the "normative Content of Article 12," explains that the "right to be healthy" is not the meaning of the right to health, but that the latter is intended to encompass "determinants of health" beyond vaccines and basic medications to fight infectious diseases. ¹⁴Meier defines the ambit of public health in contrast with "medicine," which also is discussed in General Comment No. 14.

   The term "public health" refers generally to the obligations of the government to fulfill the collective rights of its peoples to conditions in which people can be healthy. Whereas medicine Page 7 focuses primarily on individual curative treatment in clinical settings, public health-a form of social medicine-protects and promotes the health of entire societies. . . . ¹⁵

   Dealing with society and communities, public health requires regulations and legal instruments to implement the collective rights it supports. Hence, states are charged with the implementation and regulation of public health. But the "microbial model" of public health, prevailing until after the Second World War,¹⁶ eventually gave way to the "behavioral mode" of disease, lasting until the early 1990s. Finally, "the rise of the 'ecological model' has led researchers to examine structural underlying determinants of health."¹⁷

   Recently a number of scholars-from Anthony McMichael,¹⁸ to Jonathan Patz,¹⁹ to Susser and Susser²⁰-all emphasized "environmental conditions," including air, climate, water, and food, particularly as all the areas are under attack in various ways through globalization and climate change.

   In the final analysis, "environmental conditions" or even a "healthy environment" are to be taken into consideration or even coupled with human rights. Yet, the vagueness of both expressions persists and one question remains: what is a "healthy environment?" A sustainable environment, or one that simply produces well for the present is not enough, unless strict conditions are in place for the protection of areas of integrity of a sufficient size to support long-term health. Paragraph 15 of General Comment No. 14 discusses the ICESCR's "right to health, natural and workplace environments," and it mentions "the prevention and reduction of the population's exposure to harmful substances such as radiation and harmful chemicals or other detrimental conditions that directly or indirectly impact upon human health."²¹ Page 8

   In addition, even under "industrial hygiene," the Comment only calls for "the minimization, so far as is reasonably practicable, of the causes of health hazards inherent in the working environment."²² The comment makes no attempt to define the meaning of "reasonably practicable," or to explore why any hazard in the work place should be considered "reasonable" at all. In paragraph 16 of the same document, the U.N. Economic and Social Council address the details of Article 12.2(c), "the right to prevention, treatment and control of diseases."²³ Here, environmental safety is the only environmental reference, and it is listed with several other factors as "social determinants of good health."²⁴

   Thus, as recently as 2000, even in a document entirely devoted to "Substantive Issues regarding the implementation of the ICESCR," the question of ecological conditions of the environment is not discussed as a separate issue. The Comment's paragraph 27 on "Indigenous Peoples" comes closest to this goal, as it states: "the vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous...