“Arctic Peoples Public Health, Climate Change and Globalization” By, Laura Westra, Ph.D., Ph.D.(Law) Professor Emerita (Philosophy) University of Windsor.

“Arctic Peoples Public Health, Climate Change and Globalization”

By,

Laura Westra, Ph.D., Ph.D.(Law)Professor Emerita (Philosophy)

University of WindsorSessional Instructor, Faculty of Law

Sessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University

E-mail: [email protected]: www.ecointegrity.net

Pack ice to the white man seems like a barrier, something to fear.

But to the Inuit it’s their highway. It’s their communication system,

their freedom, their independence. Without it there is no Inuit

culture.

The Inuit and Ecological and Biological Integrity

While Western developed nations debate about the existence of Global Warming and

what to do about it, the Inuit have been plunged right into the effects of it, with no way

out:

In 2004 scientists with the Arctic Climate Impact Assessment, a comprehensive study of

climate change in the Arctic, reported that the region as a whole has undergone the

greatest warming on Earth in recent decades with annual temperature now averaging 2-

3 degrees Celsius higher than in the 50s.

This change affects the region’s ice, as the “late Summer Arctic sea ice has been

thinned by 40 percent in some parts, and shrunk in the area of roughly 8 percent over

the past 30 years”.

Two Related Areas of Harms to Aboriginal Peoples-Global Warming and Vulnerability In

the Arctic

Table 1 (Ford J.D . et. Al. , 2006 : 150)Harves ting act ivit ies sens itive to observed changing climatic condit ionsActiv ity Time of year Hazardous condit ions Implication of changing condit ions

for hazardous conditionsGeneral hunting/ travel October-December Thin ice New areas of open water, areas of unusuallyOn the sea ice th in ice, and a change in the location of

leadsa have increased the dangers oftraveling on sea ice and lake ice. Peoplehave los t and damaged equipment

October-July Weather More unpred ictable weather and suddenweather changes have forced hunters tospend ex tra unplanned nigh ts on the land .Unusual weather rain in winter, extremecold in sp ring is dangerous becausehun ters are no t prepared

Narwhal hunt June-July Ice break -up Sudden and unanticipated wind changescausing sea ice to unexpectedly dis integrate.Incidence of hunters being s tranded ondrifting iceb and having to be rescued byhelicopter

General Hunting/travel by boat Ju ly-Sep tember Waves /sto rmy weather Sudden changes in wind strength anddirection, combined with stronger winds,have forced hunters to spend extra n ights outon the land wait ing fo r calm weather toreturn to the community

aA crevice or channel of open water created by a break in a mass of sea ice.b Drift occurs if the ice is blown away from ice that is at tached to the land.

Vulnerability in the Arctic – Research by Ford et. al.

There are several areas of law that simply do not engage the reality of the present situation. The reasons for that lack of engagement are several, and they include,

Current Roots of the Problem

(a) The introduction of dozens of new chemicals into several areas of industrial production, from agricultural pesticides, to cleansers, to pharmaceuticals, and house building products;

(b) The development of hazardous systems of mining and extraction, as well as hunting and fishing devices, that exhaust natural systems;

(c) The lack of information and education relating to scientific research, endemic to both legislators and judges, information that would clarify the interface between the environment and public health;

(d) The aggressive emphasis on growth through capitalist structures inherent in globalization;

(e) The constant, ongoing depreciation of “the sacred” and of traditional values and knowledge, replaced by technical knowledge homogenized, rather than specific to places and peoples;

(f) The effect of the dividing “borders” between disciplines and the increasing territoriality of “experts” in various fields;

(g) The prevalence of well-paid “junk-science” supported by big business (e.g. big tobacco, big oil, big pharma), with nearly unlimited funds to support public opinion campaigns, and offer misleading “expertise” in legal cases;

(h) The unexamined persistence of the concept of legal personhood, with all its applicable “rights”, comparable to the rights of natural persons;

(i) The lack of an exhaustive definition of “aggression” in international Criminal Court; economic aggression needs to be added to the understanding of aggression as synonymous with armed conflicts; and finally

(j) The extension of the notion of responsibility to the comparable reach of our power, as – for instance – Agnes Michelot States, citing Hans Jonas: “…l’extension globale de notre puissance entraine de nouvelles forms de responsibilite’”.

Clear evidence can be found in general reports on the far-reaching toxicity of all industrial chemicals, especially in the medical/epidemiological literature coming from Europe, as that research is somewhat less likely to be tainted by political bias, than work by local scholars, dependent on local funding and institution.

The gravity of the problem is recognized by Amnesty International, and other International NGOs like Women in Europe for a Common Future.

The developing human brain is inherently much more susceptible to injury caused by toxic agents, than is the brain of an adult. This susceptibility stems from the fact that during the nine months of prenatal life, the human brain must develop from a strip of cells along the dorsal ectoderm of the fetus, into a complex organ consisting of billions of precisely located, highly interconnected and specialized cells.

In theory, such irreversible neurobehavioural damage is preventable. But only five major groups of chemicals have been admitted to be toxic: lead, methyl mercury, arsenic and polychlorinated biphenyl’s (PCBs) and solvents, yet at least 201 chemicals are known to be neurotoxic in man.

Nor are only developmental abnormalities the only hazards:The combined evidence suggests that neurodevelopmental disorders caused by industrial chemicals has created a silent pandemic in modern society

Two Related Areas of Harms to Aboriginal Peoples-Chemicals, Extractive Operations,

Pesticides and Radioactive Exposures

What we are witnessing in the Arctic is much more than climate change, it is—as the people in Nunavik describe it

—“climatic disruption”. It is more than just warmer temperatures; it is (a) the total unpredictability those changes produce;

(b) the related elimination of the Inuit’s knowledge base; and (c) the severe impact on their cultural life.

If the Inuit are traditionally dependent on their hunting activities, the ability to predict the weather, in order (a) to prepare

ahead of each trip is much more than the source of convenience in their travel: it could be, and often is, a matter of life and

death. For instance, if the expectations are for Spring temperatures, that might be too warm to build igloos, so that tents

might be a better alternative; making this decision ahead of a trip may well prove fatal if the temperature drops suddenly in

the night and the hunters may then freeze to death.

Similarly, the arrival of freak blizzards and sudden snowmelts, may prove equally fatal to hunters unexpectedly falling

through thinner ice. Thus the importance of traditional knowledge is drastically diminished, as is the respect due to

experienced hunters (b). Hunters were formerly the keepers of the “collective social memory”.

Further, as the difficulties encountered in the changed physical environment dissuade the present and older generations

from persisting in their traditional ways, the results have been even worse in the younger generation:

English has replaced Inuktikut as the dominant language among younger generations, older generations

think the young Inuit are not interested in learning the traditional ways, and the Euro-American social norms

of youth are far removed from the traditional upbringing of older generations.

More than Climate Change

People form governments for their common defence, security and

welfare. The first thing that public officials owe their constituents is

protection against natural and man-made hazards.

We have noted the grave problems that beset them: loss of cultural integrity

and identity, primarily, based not only on the loss of an appropriate land base,

but also on the erosion of their traditional knowledge, so that even on the land,

under conditions of changing climate and altered geographical characteristics,

the Inuit are becoming strangers in their own lands, without the reassuring

presence of their age-old skills to guide them.

Self Governance: Necessary but not Sufficient

The Village of Kivalina is a Inupiat Village of approximately 400 peoples:

Kivalina is located on the tip of a six-mile barrier reef located between Chuckchi

Sea and the Kivalina and Wulik Rivers on the Northwest Coast of Alaska, some

seventy miles north of the Arctic circle (Kivalina v. Exxon Mobil et al, para.1)

Native Village of Kivalina v. Exxon Mobil et. al.

C.P. Cal. 2008, No.C08-01138 SBA.

Because of global warming actively fostered by Exxon Mobil and many other

US and multinational corporations, through CO2 emissions, the Arctic sea ice is

melting, hence the village is no longer protected from winter storms. The

village is being destroyed as increasingly severe storms batter the village, and

...its ground crumbles from underneath it...Critical infrastructure is imminently threatened with permanent destruction. If the entire village is not relocated soon, the village will be destroyed (ibid., para.4).

Nor is this simply a claim advanced by a few members of a Native community

Native Village of Kivalina v. Exxon Mobil et. al. (2)

C.P. Cal. 2008, No.C08-01138 SBA.

Both agree that the Kivalina village must be relocated, and they have estimated the costs

to be from US$85 mill to US$400 mill (ibid.)

The substance of the case hinges on the culpable actions (and omissions) on the part of

multiple corporate defendants, and that is an extremely significant aspect of this case, as

we shall see,. However an even more significant part of the consequences of this series

of events was not even considered as part of the case: the cultural and territorial rights of

the Kivalina Natives.

The US Army Corps of Engineers and the US Accountability Office

Even if the U.S. Government spends $400 mill. To “relocate” the inhabitants of the Native

village, their land, their religious and cultural rights will be lost, as most Aboriginal

people’s lives are inextricably tied to the area they have always occupied.

Removed from their traditional areas, even if the individual lives of citizens are saved,

their survival as a people, in fact as those specific peoples of Kivalina, is no longer

possible. One could argue then, that water’s natural beneficial services are thus affected

by these ultimate polluters that even pervert water’s true nature, as that is changed by

human agency from being a “giver of life”, to a source of a deadly threat.

The Right to Cultural Integrity

Of thirty ways to escape danger, running away is best

(Old Chinese Proverb)

With these words, Essam El Hinnawi starts his 1985 Monograph on the topic of

Environmental Refugees. His starting point is the 1972 Stockholm Conference.

Like this concept, which has in recent times morphed into the watered down

notion of “sustainable development,” the definition of refugee is not totally “fixed,”

according to El Hinnawi. He says:

…environmental refugees are defined as those people who have been forced to

leave their traditional habitat, temporarily or permanently, because of a marked

environmental disruption (natural or triggered by people) that jeopardizes their

existence and/or seriously affected the quality of their life.

By adding, “In a broad sense, all displaced people can be described as

environmental refugees,” E1 Hinnawi places environmental refugees in a

category that he views as primary or foundational, rather than simply viewing

them as “displaced peoples” instead. These are not accepted as legitimate

refuge seekers, according to the 1951 Convention on Refugees (CR), but rather

as IDPS, internally displaced persons, not qualified to claim refugee status.

Ecological Refugees and Internally Displaced Persons

It would be highly desirable if environmental harms or, as I have termed them, forms of “ecoviolence”

were to be counted among the gravest crimes. My own move from philosophy to jurisprudence was

motivated, for the most part, by my desire to work to establish the connection between

environmental/ecological rights and other human rights. The Honorable Christian Weeramantry, former

Judge of the International Court of Justice, puts it best in his well known “dissenting opinion” in the

Gabcikovo-Nagymaros case:

Environmental rights are human rights. Treaties that affect human rights cannot be applied in such a

manner to constitute a denial of human rights, as understood at the time of their application. A Country

cannot endorse activities that are a violation of human rights by the standard of their time, merely because

they are take under a Treaty which dates back to a period when such action was not a violation of human

rights.

Today, these are the only norms based on solid principle. Some other related Conventions share

status, The Convention on Genocide, the Convention Against Torture and Cruel and Dehumanizing

Treatment of Punishment are examples, although some powerful Western countries as we all know, are not

observing them at this time. Instead, they employ well-placed government lawyers to treat these universally

binding treaties, as they would tax laws, attempting to find or even manufacture loopholes.

Environmental Rights are Human Right

Note that the vulnerable targets of economic oppression include developing countries,

Indigenous peoples, and racial minorities in developed countries and, in general, the poor.

The role of national governments, internally, should be to protect its own most vulnerable

people, even if that entails denying corporate “developers”; and, internationally, it means

avoiding their participation in agreements such as NAFTA in North America, or,

worldwide, submitting to the dictates of the World Trade Organization (WTO). Neither

happens very often, judging by the plethora of cases brought to the courts by minority and

indigenous peoples against Western governments (e.g. the US, Under the Alien Tort

Claims Act), or the WTO.

Globalization is a capitalist phenomenon: despite its claims about democracy on the

part of its strongest proponents, it is fundamentally an oligarchic “constitution”, a flawed

one, like democracy itself, according to Aristotle.

Who are the Vulnerable?

The right to food, like the right to water, the right to a living environment and to health are part

and parcel of human rights, together with the right to shelter, they are all the most basic and

necessary rights to ensure human survival, and the presence of human agency. These rights are

recognized by UN organs and committees:

Governments must recognize their extra-territorial obligations toward the right to food: they

should refrain from implementing and policies or programs that might have negative effects on the

right to food of peoples living outside their territories.

In the case of all these rights and corresponding obligations, it is impossible to pinpoint the

“perpetrator(s)”, that is, precisely who is depriving a specific community of their basic necessities of

life, but the responsibility must be ascribed to those who have the power to initiate and support

change and activities in the area where such a community lives: local and national governments,

multinational corporations, national enterprises, financial institutions who are prepared to finance

these enterprises. For all, it is far more than the “complacency” of the general public mentioned

above: we have noted the presence of racist attitudes, as well as “gross negligence, wilful blindness

and recklessness”.

Who are the Perpetrators?

No state, acting alone, can insulate itself from major health hazards. The determinants of health (eg.

Pathogens, air, food, water, even lifestyle choices) do not originate solely within national borders. Health

threats inexorably spread to neighbouring countries, regions, even continents. It is for this reason that

safeguarding the world’s population requires cooperation and global governance (It is an oft-repeated truism,

that the poorest countries as well as the poorest peoples suffer the most. Among the latter, the “canaries,” or

the first affected and most vulnerable, are the children (especially 0-5), as “92% of all children that die under

the age of five are from low-income countries” (Lisa Heinzerling, 2008).

Finally, “mass congregation, migration, travel are the source of the spread of infectious diseases among

populations and geographical areas, as people” flee situations of famine, violence or war”:

The gross unsanitary conditions in refugee camps and other mass settings are deeply troublesome for a

public health and humanitarian perspective.

States owe physical protection to all their citizens, according to domestic instruments, such as constitutions.

But respect for all human beings is an international obligation erga omnes and no individual state can impose

inhumane conditions and claim legality for its actions, when asylum seekers show at their borders.

State Protection – Refugees and the Right to Health and Normal Function

The [Genocide] Convention was the first treaty since those of slavery and the “white slave traffic” to criminalize

peacetime actions by a government against its citizens. Since that time, customary international law has

recognized the de-coupling of crimes against humanity from wartime.

The Genocide Convention of 1948 defined that crime as requiring” an intent to destroy in whole or in part a

religious, racial, national or ethnic[al] group as such.” However, it is arguable that to cause the destruction of a

community “in whole or in part”, through wilful blindness, recklessness, negligence, or plain indifference, or as the

crime defined in U.S. law as “depraved indifference”, should not define a lower level of offence, one that might

merit less disapprobation or punishment.

The results of the present economic oppression of local communities in developing countries, are akin, if not equal,

in their effects to the consequences of many crimes against humanity; that starvation and the other deprivations of

extreme poverty, should be treated as belonging to the same category. “Climate refugees” as well as other

ecological migrants, suffer the worst consequences, as they are among the most vulnerable, without either

domestic or international protection.

Genocide or Crimes Against Humanity

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.

Non human animals have been “sentinels” of health for a long time (recall the “canary in

the mine” example), hence the mounting rates of extinctions of various species, must

confirm that the environment that is the habitat we share with other creatures is no longer

safe.

The Right to Health in Law

The consequence of global warming on human migration are distressing since areas

particularly vulnerable to natural disasters will face an increase in the occurrence and

severity of sudden natural environmental disruption. However the phenomenon that

may trigger the most important number of migrants is the rise in sea level.

Considering the fact that one third of the world’s current population lives within sixty

kilometers of a coastline and that the global population is increasing, the rise in seal

level will have devastating implications.

Although this aspect of the problem is not often emphasized, the right to life must

include the right to a safe “habitat”, including the means to survive. According to B.G.

Ramcharan, the right to life includes, “the right to have access to the means of

survival; realizing full life expectancy; avoid serious environmental risks to life; and to

enjoy protection by the state against unwarranted deprivations of life”.

The Right to Life and the Right to Health and Family Life

A recent case decided by the European Court of Human Rights has the distinction of

being the first case involving “death by environment” thus far. The case involved a man

living in a poor quarter of Istanbul, near a garbage dump, where a lethal methane

explosion occurred. The explosion buried eleven houses under refuse, including

Oneryildiz’s house, and he lost nine members of his family to that explosion. According to

Article 2 of the ECHR, the right to life was breached by the negligence of the local

authorities.

In addition, “those responsible for endangering human life”, are indicted with having

committed a criminal offence, in the second point of the Court’s decision, Neither of these

points are easily found in the legal literature and the case law. It is not surprising that they

are found first in European jurisprudence, where cases defending the right to health and

family life can also be found.

Protection of the Right to Life in Relation to the Environment

A sustainable one, 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. In General Comment No.14, Article 12.2(b), “The right to health,

natural and workplace environments” is discussed under No.15, 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.

What is a “Healthy Environment”?

No.27 on “Indigenous Peoples” is the paragraph that comes closest to this goal, as it states, inter

alia;

…the vital medicinal plants, animals and minerals necessary to the full enjoyment of health of

indigenous peoples should also be protected.

Further, it adds that,

…the Committee considers that development-related activities that lead to the displacement of

indigenous peoples against their will from their traditional territories and environment, denying them

their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious

effect on their health.

The second cited paragraph represents a significant understatement, as it belittles what amounts to

an ongoing crime against humanity. As Indigenous communities severed from their territories and the

practice of their traditions, for the most part, cannot survive as peoples.

Impermissible Alteration of Local Ecologies