Preamble: placing humanity in a holistic and well-being context
The purpose of human rights is, at its most basic level, to ensure a minimum standard of human wellbeing. It is proposed that the concepts of ongoing human happiness and human wellbeing be taken as the overarching values from which any instrument of human rights in Australia is derived.
Increasingly, Australians, like other human beings across the planet, have been confronted with the imminent dangers of mistakenly separating human from ecological rights. The effects of climate change, the dwindling access to potable water, and the nutritionally depleted and devastated soils and landscapes, are numerous and widespread.
Inattention to ecological wellbeing inevitably leads to violations of the right to food, right to health (physical, mental, and spiritual), and right to shelter, severely compromising people’s ability to procure the basic means of fulfilling the right to life. Included in such effects on personal wellbeing are the widespread social difficulties associated with food production and farming, that seem to correlate closely to the growing number of mental illnesses and suicides amongst farmers.
As more and larger areas become polluted and unable to sustain food production and access to water, it appears inevitable that people will give up their homes and move to areas where they may be less vulnerable to the effects of ecological degradation and catastrophe.
Existing policies based on "polluter pays” principles are insufficient to address the long-term devastating effects of many industrial practices, including conventional farming methods. The payments are not always directed towards the restoration of the affected environment or for finding and funding alternatives to the practices that create the pollution in the first place. Too often these policies are considered to be satisfactory solutions to the ecological problem, when they should only be seen as temporary solutions until more holistic and ecologically sustainable forms of energy, water supply, or farming are developed.
Unfortunately, where they exist, the human rights regimes of other countries are anthropocentric - only protecting the planet for the purposes of continued resource exploitation. This extends to affording functional (as opposed to theoretical) protection to ecological species, populations and communities once they are extremely endangered.- Australia at least has an advantage in being late to develop a human rights instrument in that it can learn from the weaknesses of existing instruments, overcoming limitations such as anthropocentrism and instrumentalism. Australia is exploring the scope for an instrument to protect human rights at the very point in human history when human society is at an ecological crossroads.
The measures we put in place now to protect Earth and its inhabitants will determine the sustainability of the human race, as well as other species and the environment. We do not have the luxury of engaging in half-measures. A factor which is interwoven with this is the maintenance and improvement of ecological integrity. We do not have the luxury of engaging in half-measures.
Australia is the driest inhabited continent with severely compromised water systems. Australia cannot afford to proclaim any human right that would in any way compromise ecological integrity. Short-term economic benefit; considerations of corporate profit and loss; contractual obligations; or continuation in jobs causing extensive and significant ecological damage cannot take priority over repairing and living sustainably on, from and with the ecosphere.
Priorities for consideration include:
- Provision for individuals or groups to bring claims of violations of ecological integrity irrespective of the locality in question. (Humans should be able speak for entities that cannot speak for themselves).
- Investigations of ecological (inclusive of social) impact should not be limited to the immediate vicinity of a project. Scientists and people with traditional or local knowledge should be solicited to ascertain the possible long-term, off-site and not immediately identifiable effects of particular projects.
- Ecological protection cannot be limited to what might be described as ecological excisions or exclusions, e.g. not cutting down particular trees or leaving some portions of a river in their natural state to enable the survival of a particular species. Ecosystems, inclusive of the human component, are inter-connected. Actions in a distant area can have significant impacts on other beings and systems.
- Profit and loss calculations should not be limited to conventional measures of GDP but incorporate the values inherent in natural entities such as river, mountains, and trees, including the value of their role in the various ecological cycles. Practices must be developed which avoid the “playing off” of one resource against another, i.e. mining against water; potable and irrigation water supply schemes against ‘environmental flows’ in streams.
- Australia is already ecologically damaged. There should be a strong political, industry, and social commitment in support of major efforts to restore the health of land and water and the ecological integrity required to maintain a full range of Australian ecosystems and their components.
- It is not enough to enact laws that address human wellbeing more holistically. Consideration must be given to the development of holistic thinking at all levels and across all sections of Australian society. For instance, legal officials, including judges, need to be better educated about ecological issues so that their judgments are not short-sighted or reliant on experts appointed by the proponents and opponents that appear before them. .
Without particular ecological rights, human happiness and human wellbeing are neither well supported nor advanced. We note that the Australian Treasury, which guides this nation’s economic and financial policies, already operates within a Wellbeing Framework.
Treasury’s mission is ‘to improve the wellbeing of the Australian people by providing sound and timely advice to the Government, based on objective and thorough analysis of options, and by assisting Treasury Ministers in the administration of their responsibilities and the implementation of Government decisions’.
Increasingly, Western cultures are moving to an understanding that has been integral to indigenous and many Eastern cultures: that we co-exist in a web of life that is, with due care and responsibility, sustainable.
The rights proposed should not be seen as the totality of human rights that might be introduced in any future instrument. This proposal has intentionally limited itself to ecological rights and those rights which would enable the free discussion of and activism in support of those rights.
Right to Water
* The sufficiency, safety, affordability, of and accessibility to water, are fundamental to human dignity, happiness and well-being. These are fundamental to the human right to water. The human right to water entitles everyone to sufficient, affordable, physically accessible, safe, and acceptable water for personal and domestic use subject to sustainability and ecological restraints.
* Water is a fundamental human right, a public good, a public trust and part of the global commons.
* Water must also be managed to protect ecological integrity inclusive of the rights of future generations.
* Water must not be treated as a commodity and must neither be subjected to privatization, corporate profit nor international trade agreements.
* Water must not be traded in a stock exchange fashion
* Water must be re-bundled with land. Land and water cannot be separated.
* Responsibilities extend beyond the Australian government to corporations, international financial institutions operating within Australia and other non-governmental water actors.
* Water systems must be locally, publicly and democratically owned and controlled, in a transparent manner. Reports on such ownership, control and management must be made annually in Australian, State and Territory Parliaments.
* Australian governments – whether federal, state, territory, or local government – and their agencies, agents and instrumentalities together with the private water industry and international financial institutions and others must not interfere with nor circumscribe the human right to water.
* Sustainable access to water resources for agriculture must be protected to realise the right to adequate food subject to ecological constraints (inclusive of the need to produce food closest to where it will be consumed)
* Individual, family, and small companies must be considered for positive attention and action with regard to equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology, to prevent imbalance by large corporate agricultural holdings.
* Governments must ensure access to water for subsistence farming and for securing the livelihoods and self-determination of Aboriginal and Torres Strait Islander people subject to ecological restraints.
* Water is to be treated as a social and cultural good, not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations.
* While the adequacy of water required for the right to water may vary according to different conditions, the following factors apply in all circumstances:
(a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. The quantity of water available for each person should correspond to World Health Organization (WHO) guidelines. Some individuals and groups may also require additional water due to health, climate, and work conditions;
(b) Quality. The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health. Furthermore, water should be of an acceptable colour, odour and taste for each personal or domestic use.
(c) Accessibility. Water and water facilities and services have to be accessible to everyone without discrimination.
Accessibility has four overlapping dimensions:
(i) Physical accessibility: Water, and adequate water facilities and services, must be within safe physical reach for all sections of the population. Sufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace. All water facilities and services must be of sufficient quality, culturally appropriate and sensitive to gender, life-cycle and privacy requirements. This has particular applicability in indigenous communities. Physical security should not be threatened during access to water facilities and services;
(ii) Economic accessibility: Water, and water facilities and services, must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other rights, particularly the right to adequate food;
(iii) Non-discrimination: Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination; and
(iv) Information accessibility: accessibility includes the right to seek, receive and impart information concerning water issues.
* All Governments – Federal, State, Territory, and Local – to take steps to remove de facto discrimination, interference, barriers by which individuals and groups are deprived of the means or entitlements necessary for achieving the right to water. Such discrimination, interference, barrier may include lack of investment in facilities in remote communities; failure to update facilities in small or remote communities.
* All Governments – Federal State, Territory or Local - should ensure that the allocation of water resources, and investments in water, facilitate access to water for all members of society. Inappropriate resource allocation can lead to discrimination that may not be overt.
* Water investments should not favour expensive water supply services and facilities that may, for practical purpose, be only accessible to a small, privileged fraction of the population, rather than investing in services and facilities that benefit a far larger part of the population.
* Children must not be prevented from enjoying their human rights due to lack of adequate water in educational institutions and households. Provision of adequate water to educational institutions, including provision of refrigerated water in tropical climates, without adequate drinking water should be addressed urgently;
* Rural and deprived urban areas must have access to properly maintained water facilities. Access to traditional water sources in rural areas should be protected from unlawful encroachment and pollution. Deprived urban areas, including informal human settlements, and homeless persons, should have access to properly maintained water facilities. No household should be denied the right to water on the grounds of their housing or land status;
* Indigenous peoples’ access to water resources on their ancestral and traditional lands must be protected from encroachment and unlawful pollution. Governments should provide resources for indigenous peoples to design, deliver and control their access to water;
* Groups facing difficulties with physical access to water, such as older persons, persons with disabilities, victims of natural disasters, persons living in disaster-prone areas, and those living in arid and semi-arid areas, or on small islands must be provided with safe and sufficient water.
* The right to water, like any human right, imposes four types of obligations on Government: obligations to respect, obligations to protect, obligations to fulfil and obligations to promote.
* The obligation to respect requires that governments refrain from interfering directly or indirectly with the enjoyment of the right to water. The obligation includes, inter alia, refraining from engaging in any practice or activity that denies or limits equal access to adequate water; arbitrarily interfering with customary or traditional arrangements for water allocation; unlawfully diminishing or polluting water, for example through waste or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law.
* The obligation to protect means Government need to prevent third parties from interfering in any way with the enjoyment of the right to water. Third parties include individuals, groups, corporations and other entities as well as agents acting under their authority. The obligation includes, inter alia, adopting the necessary and effective legislative and other measures to restrain, for example, third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems. Where water services (such as piped water networks, water tankers, access to rivers and wells) are operated or controlled by third parties, governments must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established, in conformity with the Covenant and this General Comment, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance.
* The obligation to fulfil places on Governments the obligations to facilitate, promote and provide. The obligation to facilitate requires the Governments to take positive measures to assist individuals and communities to enjoy the right to water.
* The obligation to promote obliges Governments to take steps to ensure that there is appropriate education concerning the hygienic use of water, protection of water sources and methods to minimize water wastage. Governments are also obliged to fulfil (provide) the right when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal.
· Governments should adopt comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations. Such strategies and programmes may include:
(a) reducing depletion of water resources through unsustainable extraction, diversion and damming;
(b) reducing and eliminating contamination of watersheds and water-related eco-systems by substances such as radiation, harmful chemicals, industrial discharge, human excreta and farm runoff;
(c) monitoring water reserves;
(d) ensuring that proposed developments do not interfere with access to adequate water;
(e) assessing the impacts of actions that may impinge upon water availability and natural-ecosystems watersheds, such as climate changes, desertification and increased soil salinity, deforestation and loss of biodiversity;
(f) increasing the efficient use of water by end-users;
(g) reducing water wastage in its distribution;
(h) response mechanisms for emergency situations; and
(i) establishing competent institutions and appropriate institutional arrangements to carry out the strategies and programmes.
* All victims of violations of the right to water should be entitled to adequate reparation, including restitution, compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human rights commissions, and similar institutions should be permitted to address violations of the right.
* Citizens and residents have the right to hold governments, government agencies and instrumentalities and similar organisations as well as corporations accountable for environmental degradation impacting on food and the rights outlined herein.
* Enjoyment of the highest attainable standard of physical, mental and spiritual health without discrimination of any kind
* Vulnerable groups are to receive such positive discrimination that will ensure a high standard of health by both Australian and international standards.
* Access to a sufficient amount of safe and clean water for personal, domestic and communal use is fundamental to the realization of the right to the enjoyment of the highest attainable standard of health. Good governance, sound economic policies, and responsive democratic institutions are key to the full realization of the right
* People living in remote Australia should enjoy equity of access to all that is necessary to raise their health and their living conditions to an equitable Australian standard within a sound sustainable and ecological context.
* Enjoyment of air, water, land, workplaces, buildings in a healthful and life-sustaining manner free of toxicity or other threats to life and health
* Enjoyment of adequate and appropriate housing to meet changing climatic conditions
* Citizens and residents have the right to hold governments, government agencies and instrumentalities and similar organisations as well as corporations accountable for ecological degradation impacting on health and disease.
* Adverse ecological impact deemed to be within the parameters of human control can be taken to limit access to this right and may, therefore, be subject to judicial redress for those adversely affected and impacted.
- Quality - fresh; nutritious; healthful; pollutant free; free of genetic modification; disease free; cruelty free; non-damaging.
- Availability – distribution which provides fair and equal access to everyone; freedom to reproduce food plants and save seeds; freedom to lawfully grow food plants on private and public property.
- Food information – freedom of access to food information relating to diet, nutrition, health, food processing and production; freedom of information in respect to accessible, intelligible, easily understandable, and clearly laid out labelling of all food. Where food can be purchased without labelling, information must be provided by fact sheets and must be publicised on shelving and fittings where food is accessed in intelligible and easily understandable form.
- Food from animals – Must be cruelty free; must contain information relating to additives such as anti-biotics, growth stimulators. Food which appears to be free from animal products must be clearly labelled to be such or have the animal products boldly identified.
- Connectedness – the right to connectedness with the production of food so that there is widespread community understanding of animals, animal cruelty, use of pesticides and genetic modification; and any possible ecological harm or degradation brought about by food production.
- In no case, may citizens and residents be denied of their own means of subsistence except with regard to ecological degradation or to safeguard animal and plant species and their reproduction.
- Citizens and residents have the right to hold governments, government agencies and instrumentalities and similar organisations as well as corporations accountable for ecological degradation impacting on food and the rights outlined herein.
- Citizens and residents of Australia may not be disadvantaged by an deleterious effect on the quality of their environment which may prevent their enjoyment of other rights such as the right to life; the right to water; the right to adequate food and the right to health
- People outside Australia have a special case for seeking asylum and refuge in Australia on the basis of adverse ecological impact within their own nation.
- The precautionary approach shall be widely applied by Australian governments and corporations. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent ecological degradation.
Rights of Indigenous Peoples
* Cultural and spiritual practice and their transmission
* Traditional country and its resources of food and water subject to sustainable ecological restraints.
The same access to health, education, and other services as all other Australians.
The same access to health, education, and other services as all other Australians.
- Provided that the rights of others are not infringed upon, all persons with a particular cultural, religious, racial or linguistic background must be allowed the right, in community with other persons of that background, to enjoy his or her culture, to declare and practice his or her religion and to use his or her language.
- Freedom to transmit cultural and ecological practices within sustainable ecological restraints.
* Citizens and residents have the right to hold corporations, private actors, agencies, agents and instrumentalities and similar persons and entities accountable for cruelty and poor animal welfare practices in the supply of food.
* A code of conduct will be drawn up by governments and corporations with widespread and representative community input to ensure a high standard of interactive consultation and dialogue. Such interactive consultation and dialogue will be based upon freedom of information with the same rights of discovery as exist judicially. This will be known as the Consultation and Dialogue (CaD) process.
* All major environmental applications will be subject to the Consultation and Dialogue (CaD) process.
Right to Public Participation
* Every person has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives
Every eligible person has the right, and is to have the opportunity, without discrimination to vote and be elected at periodic elections, whether Federal, State/Territory or Municipal, that guarantee the free expression of the will of the electors
Resources used in preparing this proposal:
Australian Human Rights Commission: Background Paper - HUMAN RIGHTS AND CLIMATE CHANGE,
Blue Planet Project,
Environment Defenders Office Victoria, Environmental Health Perspectives,Human Rights Act 2004 - ACT,
Human Rights Law Resource Centre,
International Covenant on Economic, Social and Cultural Rights,
International Working Group for Indigenous Affairs,
PILCH - Public Interest Law Clearing House,
Policy advice and Treasury’s wellbeing framework,
UN Division for the Advancement of Women,
UN Economic and Social Council Document - General Comment No. 15 (2002): The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights),
Victorian Charter of Human Rights and Responsibilities,
Water is a human right,
The Human Right to Water