Healthy Environment

The ACT Government has released a Discussion Paper regarding a 'Right to a Healthy Environment' as part of a 'public consultation to inform consideration of the introduction of a right to a healthy environment in the Human Rights Act 2004 (ACT)'.

The paper states that the ACT Government committed to considering the inclusion of a ‘right to a healthy environment’ in the Act and is accordingly seeking 'community views on how the right to a healthy environment could be included in the Human Rights Act and what the content of the right could be'.

In particular, the community is being asked to provide feedback on the following:

• How could we define the right to a healthy environment? 

• What duties could be included for the Government and private entities to ensure respect for individuals’ right to healthy environment? 

• What additional measures could be considered to ensure protection of the right to healthy environment for vulnerable groups? 

• How could the right to a healthy environment recognise the importance of ‘country’ for Aboriginal and Torres Strait Islander people?

• How could the Government go about fulfilling the right to a healthy environment? 

It comments

The Human Rights Act provides statutory protection of human rights in the ACT. The ACT was the first jurisdiction in Australia to enact a legislative charter of human rights. Similar legislation was subsequently introduced, first in Victoria (Charter of Human Rights 2006 (Vic)) and then in Queensland (Human Rights Act 2019 (Qld)). Australia does not have a national charter of human rights. 

The Human Rights Act protects a number of civil and political rights as well as some economic, social and cultural rights (ESC rights). These rights are primarily drawn from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Public authorities are required to act consistently with human rights recognised in the Act and individuals have a right of action in the Supreme Court for failure to act consistently with human rights. 

The Human Rights Act recognises that human rights may be subject to reasonable limitations that can be demonstrably justified in a free and democratic society. In addition, economic social and cultural rights have aspects that are immediately realisable, and aspects that must be progressively realised by the Government over time, and subject to available resources. 

If introduced into the Human Rights Act, a right to a healthy environment would give rise to certain general obligations that would require immediate action by the Government. In addition, there would be an obligation on the Government to take further positive measures to improve the enjoyment of the right via appropriate means and within available resources. It would also require the Government not to take backwards steps that would reduce protection of the right. These aspects of the right would also be subject to reasonable limitations. 

Human rights vs rights of nature 

The Human Rights Act provides that only individuals have human rights (section 6). This aligns with the international human rights law principle that human rights are held by all people by virtue of being human. xx Commentary on environmental rights suggests that nature and natural phenomena such as rivers, lakes and trees share the right to exist and that the rights of nature should be protected in the same way as the rights of humans. However, the present exploration of whether to include a right to a healthy environment in the Human Rights Act excludes consideration of the rights of nature and non-human species in their own right.

In practice, the proposed regime might not amount to much. The paper states 

The Human Rights Act contains procedural obligations on public authorities aimed at safeguarding human rights.  This includes the obligation on public authorities to give proper consideration to human rights when making decisions,  and the requirement for the Attorney-General to inform the public about human rights impacts through compatibility statements presented with new legislation to the Legislative Assembly. 

It may be complicated to include additional procedural rights specific to the right to a healthy environment in the Human Rights Act. This might lead to inconsistencies with specific obligations and remedies within existing Territory and Commonwealth environment laws. This would also be inconsistent with the way that other human rights are protected in the Human Rights Act. 

Human Rights Act procedures for ‘enforcing’ human rights 

The Human Rights Act in section 40C provides a cause of action in the Supreme Court against a public authority where the public authority has failed to act consistently with human rights or has failed to properly consider human rights in accordance with the duty in Section 40B. 

Decision makers are also required to interpret laws consistently with human rights as far as possible to do so consistent with the purpose of the law. The Supreme Court may issue a declaration of incompatibility where a law cannot be interpreted to be compatible with human rights. Where such a declaration is issued it does not invalidate the law but allows it to be considered further by the Legislative Assembly.  Recognition of a right to a healthy environment would ensure the right is considered as part of government decision-making and given effect through human rights compatible legislation, policy and practice. 

Importantly, inclusion of a right to a healthy environment would not require public authorities to provide all Canberrans with a healthy environment in all circumstances.

Indeed 

Rather public authorities would have to demonstrate that they have properly considered the right and that any limitations on the right to a healthy environment are authorised by law and are justifiable as necessary, proportionate and reasonable in accordance with section 28 of the Human Rights Act. ... 

When it comes to substantive aspects that form part of the right to a healthy environment, according to the UN Special Rapporteur, these would include:

o clean air; 

o a safe climate; 

o access to safe water and adequate sanitation;   

o healthy and sustainably produced food; 

o non-toxic environments in which to live, work, study and play; and 

o healthy biodiversity and ecosystems.

Within each of the substantive areas there is a body of existing international environmental law, which is given effect nationally through inter-governmental agreements between the Commonwealth, states and territories. For example, actions taken by ACT Government agencies relating to ensuring non-toxic environments are based on the extensive body of international law that addresses pollution and toxic substances including the Basel, Rotterdam and Stockholm Conventions.

The paper refers superficially to 'rights of nature' but fortunately does not grapple with questions about personhood for the environment or specific domains.  It dances around the wide range of existing ACT environment legislation and ACT government environment strategies, alongside little engagement with the relationship with Commonwealth legislation (a weakness evident in the proposal for a Four Day Week).

Corporations

'The Corporation as Trinity' by David A Skeel in Seattle University Law Review (forthcoming) comments 

In 'Corporate Capitalism and ‘The City of God’', Adolf Berle references Augustine’s theological classic The City of God in service of his contention that corporate managers have a social responsibility. In this Article, I turn to another work by Augustine, The Trinity, for insights into another feature the corporation, corporate personhood. The Trinity explicates the Christian belief that God is both three and one. I argue that corporations have analogously Trinitarian qualities. Much as theologically orthodox Christians understand God to be both one and three, I argue that corporations are best seen as both a single entity and through the lens of their individual managers and shareholders. 

Part I explores the debate over corporate personhood that was prompted by the Citizen United and Hobby Lobby cases. Part II develops the Trinitarian account of the corporation. After outlining the Trinitarian perspective on corporate personhood, Part III explores its implications for a variety of issues, including the personhood of ‘closely held’ corporations, whether noncorporate entities have personhood, and whether a corporation can have a religious identity. The final section returns to Berle to discuss the current debate over corporate political involvement. .

TRIPS Waiver

'The COVID-19 TRIPS Waiver and the WTO Ministerial Decision' by Peter K Yu in Jens Schovsbo (ed) IPR in times of crisis: Lessons Learned from the Covid-19 Pandemic (Edward Elgar, 2023) comments

In October 2020, India and South Africa submitted an unprecedented proposal to the WTO, calling for the partial suspension of the TRIPS Agreement to facilitate the ‘prevention, containment or treatment of COVID-19’. Although this proposal immediately received considerable support from other WTO members, civil society organizations and individual experts, it faced strong opposition from some developed countries – most notably the European Union, the United Kingdom, Switzerland and, to some extent, also the United States. 

 By December 2021, it was quite clear that the COVID-19 TRIPS waiver proposal would not receive enough support to achieve consensus within the WTO membership. Around that time, the European Union, India, South Africa and the United States, with the support of the WTO, launched quadrilateral consultations to find a compromise solution. The ‘Quad proposal’ that was eventually developed through these high-level consultations became the blueprint from which WTO members developed a new ministerial decision at the Twelfth WTO Ministerial Conference in Geneva in June 2022. This decision allowed WTO members to manufacture COVID-19 vaccines – and, if subsequently approved, also other COVID-19 health products – without the authorization of the relevant patent holders. 

 This chapter traces the TRIPS waiver debate from the submission of the original proposal by India and South Africa in October 2020 to the final adoption of the Ministerial Decision on the TRIPS Agreement in June 2022. The chapter further evaluates the strengths and weaknesses of this newly adopted decision, comparing it with the earlier TRIPS waiver proposal. It concludes by offering suggestions for future actions that WTO members on both sides of the waiver debate could take to help combat the COVID-19 pandemic.

Personhoods

'Signs of Invisibility: Nonrecognition of Natural Environments as Persons in International and Domestic Law’ in International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique comments

Recognition of legal personhood in contemporary international and domestic law is a matter of signs. Those signs identify the existence of the legal person: human animals, corporations and states. They also identify facets of that personhood that situate the signified entities within webs of rights and responsibilities. Entities that are not legal persons lack agency and are thus invisible. They may be acted on but, absent the personhood that is communicated through a range of indicia and shapes both legal and popular understanding of powers and obligations, they lack standing in judicial fora. They are signified as entities that are the subjects of action by legal persons, for example exploitation through rights regarding natural resources or commodification of ‘wild’, companion and other non-human animals. They are also signified as members of a diverse class of non-persons such as ‘nature’ and ‘the environment’. This article explores the consequences of law’s signification of personhood and the natural world before asking whether we both should and could recognise domains such as specific rivers, forests or even Antarctica as a type of legal person. Recognition might acknowledge the salience of nature in the ontologies of colonised First Peoples. It might also underpin a global response to climate change as the existential crisis of the Anthropocene. In understanding law as a matter of signifiers and syntaxes the article cautions that ostensible recognition of some domains as persons has been aspirational rather than substantive, with observers misreading the sign as necessarily transforming power relationships. The article also cautions that personhood for nature or particular domains may be contrary to the self-determination of colonised First Peoples.

It continues

Law is an empire of signs, indicia of what is/is not permitted or required and signifiers of what is often characterised as personhood or identity. It is a realm in which observers or actors sometimes conflate the signifier with what is signified, for example misreading tokens of legal status and individuation such as passports, badges and identity numbers as being a citizen or an official. It is also a realm in which there is frequent reference to ‘identity’ and ‘personhood’, key elements of a legal syntax and of public/private administration but potentially misunderstood by observers who mistake individuation for legal status or by activists who assume that naming—such as a declaration that a specific forest is a legal person—brings into being capability. 

This article enhances the rich theoretical literature on legal identity or personhood by considering the legal person as a matter of signifiers. Law’s signification privileges some classes of entities, notably the live human animal as the paradigmatic legal person in contemporary Western law, while serving both to erase other entities and disregard the ontologies of First Peoples. Those ontologies are the social and conceptual foundation of what is sometimes characterised as traditional or even primitive law, a coherent body of enforceable rules in which specific geographical domains are important for the belonging of peoples within a cosmology and within which nature requires respect. Recent theoretical literature has often been preoccupied with questions about extending the personhood of corporations by granting them a range of human rights and about the utility of recognising some classes of machines (robots) and disembodied artificial intelligence as being persons, with a consequent legal existence and rights independent of that of owners, users and manufacturers. That exploration has co-existed with calls for recognising some non-human animals, for example apes, as legal persons and for the enshrinement in constitutions or other law of rights for nature. It has also coincided with a small and often misunderstood (or merely commonly misreported) body of statutes and judicial decisions that specific domains are legal persons, so that their deemed needs must be considered in policy making and that through guardians (typically representative of the particular First Peoples intimately associated with the domain) must be able to litigate against harms that injure or threaten the domain. Most recently advocates have relied on that law in unsuccessful litigation regarding climate change, in other words seeking to force governments to address climate change that is global, attributable to human activity and existential because it has geopolitical impacts and large-scale species loss rather than inconvenience to property owners in Manhattan, Sydney, Venice and other coastal locations. Signifiers and recognition of what they signify have consequences. 

This article proceeds in eight parts. The following pages initially discuss legal personhood, paradigmatically the live human animal. That discussion notes that personhood is culturally and temporally contingent, arguing that through a lens of legal semiotics all personhood is a matter of legal constructs and thus contestable. The discussion considers personhood as a matter of status and individuation, in other words the functioning of signifiers in contemporary Western and pre-modern legal systems. The article then turns to personhood for nature, in other words invoked locally yet existing globally, and for specific domains. The discussion draws on work regarding the signification of built environments and on the uneven recognition of First Peoples by settler states in moving towards post-colonial legal systems. Imperialism involves processes of naming and claiming. The discussion seeks to encourage discourse regarding signs and justice by asking whether Antarctica might be usefully regarded as a discrete legal person rather than weakly protected commons, underpinning a global response to climate change. In understanding law as a matter of signifiers and syntaxes the article cautions that ostensible recognition of some domains as persons has been aspirational rather than substantive, with observers misreading the sign as necessarily transforming power relationships. The article also cautions that personhood for nature or particular domains may be contrary to the self-determination of colonised First Peoples.

Impersonation

Another impersonation incident, with the BBC reporting than an Indian court has convicted a man for posing as the son of a wealthy Bihar landlord for 41 years. 

Kanhaiya Singh, the actual son, disappeared in February 1977 on the way home from school. A village shaman told his father that the boy was alive and would "appear" soon. In September 1981 a younng man arrived in a nearby village, claiming that he was the "son of a prominent person" of Murgawan, the missing boy's home. The father travelled to the village to see for himself, accompanied by neighbours (who may have been part of a consopiracy) who said that the man was indeed his son. The father reportedly said "My eyes are failing and I can't see him properly. If you say he is my son, I will keep him". The mother subsequently sighted the claimant and realised that the man was not her son; he was missing a telltale scar and failed to recognise a teacher from the boy's school. The mother filed a case of impersonation, with the man being arrested and spending a month in prison before securing bail. 

The BBC reports 

Even as he was on bail, he assumed a new identity, went to college, got married, raised a family and secured multiple fake identities. Using these IDs, he voted, paid taxes, gave biometrics for a national identity card, got a gun licence and sold 37 acres of Singh's property. He steadfastly refused to provide a DNA sample to match with the landlord's daughter to prove that they were siblings. And in a move that stunned the court, he even tried to "kill" his original identity with a fake death certificate. 

The imposter's tale is a grim commentary on official incompetence and India's snail-paced judiciary: nearly 50 million cases are pending in the country's courts and more than 180,000 of them have been pending for more than 30 years. ... 

[A]ccording to the judges who found the man guilty of impersonation, cheating and conspiracy and sent him to prison for seven years, his real name was Dayanand Gosain, who hailed from a village in Jamui district, some 100km (62 miles) away from his "adopted" home. ... His official documents have different dates of birth - it's January 1966 in his high school records, February 1960 in his national identity card and 1965 in his voter identity card. A 2009 local government card for accessing food rations listed his age as 45 years, which would mean he was born in 1964. Gosain's family said he was "about 62", which would tally with his birth date in the national card.

Once accepted by the father (but apparently not by his supposed mother) the imposter was married off to a member of the own landowning caste, had children and on the father's death inherited part of the family property. In court he stated that he had never claimed to be the landlord's lost son as the father "accepted me as his son and took me home". However, at trial he claimed he was indeed the missing person and thus "I did not deceive anyone by impersonation". 

The case was heard over four decades by at least a dozen judges. Finally, a trial court held the hearings without a break for 44 days beginning in February this year and gave its verdict in early April. ... In June, a higher court upheld the order and imposed seven years of "rigorous imprisonment".

Shades of Partha Chatterjee's A Princely Impostor? The Strange and Universal History of the Kumar of Bhawal (Princeton University Press, 2002).