Environmental Law

18/05/2021

From ‘Climate Chang(ed)’, ‘Climate (Is) Changing’ to Climate Justice

Globalisation and global warming: When legal regimes diverge over contrasting goals

Nairita Roy Chaudhuri *

Since the United Nations Framework Convention on Climate Change (UNFCCC) treaty was established, global atmospheric CO2 increased by 16% from 359.99 ppm of CO2 to 417.83 ppm of CO2 from 1992 to 6^th February 2021. If we are to restrict global heating and rise in mean temperature to a worst case-scenario of 2°C (according to the Paris Agreement) above pre-industrial levels, we have to restrict CO2 concentration to 450ppm. The CO2 concentration limit will reduce if we look at 1.5°C above pre-industrial levels as the target. Temperature conveys little about how global heating is actually experienced by human and non-human species in reality. Furthermore, a rise in global ‘mean’ surface temperature suggests that some places may have temperatures above or below the global average. Nevertheless, atmospheric carbon & global heating continues to increase despite the law. Those reading this piece at least might already know that we are continuing to destroy the support systems of life on this planet. With a business-as-usual approach, the world is already heading to a global mean temperature rise of 3°C this century.

The local & scattered nature of climatic impacts mean that disasters are not being experienced simultaneously by people across the globe, which makes the problem difficult to solve than this pandemic. We read and hear news about climate disasters assuming they will not impact us because of inadequate public awareness, utmost faith in technological prowess, psychological denial, or the nature of our livelihoods/jobs that disassociates us from a direct material relationship with non-human natural resources (a trend that comes with capitalist economic growth). Could be one, many or different reasons. I take ‘nature’ as a category that includes both humans and non-humans that constitute the web of life. Perhaps, human’s disconnection from non-human natural resources provides one with a temporary luxury of remaining in denial. Just last week, a massive Himalayan glacier burst open to flood northern India with more than 100 villagers missing. The year 2020 saw 15 most expensive climatic impacts including severe tropical cyclones, floods, locust swarms, bushfires and other disasters, two of which were in India.

The lack of simultaneity in experiencing climatic impacts, possibly render climate change as ‘forthcoming’ for some and ‘urgent’ for some, depending on the advantages & disadvantages available with people. Further, the slow-onset tendencies of many climatic impacts including but not limited to insect infestations, droughts, inland water salination/pollution due to sea-level rise make threats seem like an eventuality. But, none of these psychological short-sightedness really help us to flourish the support systems required for our future-generations to live safely on this planet, if we are to go beyond the Darwinistic assumption that the success of a species depends on its numbers. By no means do I subscribe to this logic in a society because, for me, success of humanity depends on many features of social progress such as nurturing an ethic of non-anthropocentric care (i.e. a care ethic that does not put human well-being at the centre but the well-being of life on this planet), social & wealth equality, justice for non-human species, gender justice, racial justice and many other significant developments. We are yet to achieve such progresses despite amassing economic prosperity.

On the one hand, international environmental law provides legal frameworks to tackle the problem of environmental deterioration and climate change. On the other hand, international economic law is allegedly protecting transnational capital at the cost of surging inequality and ecosystem destruction that accompanied globalisation. In addition, the lack of actual political will seems to steer away environmental priorities because of a structural problem in our economic thinking. One of the major breakthroughs in exposing global wealth (not income) inequality came through the publication of a French economist, Thomas Piketty’s book, Capital in the Twenty-First Century. Analysing historical wealth data from developed countries in Europe, United States of America, Canada and Japan, Piketty shows that just like in the 19^th century, the 21^st century is also witnessing a upward trend wherein the rate of return on capital (including profits, dividends, interest, rents, and other income from capital) is significantly exceeding the growth rate of the economy (nation’s annual income or output). If returns from capital exceed national income, it means it is accumulating in the hands of owners of capital. Logically, inherited wealth is growing faster than income gained from a lifetime’s labor by a huge margin, according to Piketty. This rise in inequality especially since the 1980s happened due to the political and ideological shifts regarding policies on taxation and finance, and most notably the failure of communism, as argued by Piketty in his other book titled, ‘Capital and Ideology’.

Inequality has massive and regressive implications on social justice, democracy, meritocracy, and very likely on the ecosystem too. Studies on high income and ASEAN countries show that wealth/income inequality is positively (not causally) linked with rise in CO2 emissions and environmental degradation. In Piketty’s words, “the history of inequality is shaped by the way economic, social, and political actors view what is just and what is not”. The role of economic law here comes in disenabling capital accumulation in a few hands. Because, if the unequal trend in capital’s and national income’s growth continues without any global intervention in the form of a global wealth tax (including assets and tax, as proposed by Piketty himself), the world will essentially see concentration of wealth and plutocracy in few hands, and a subsequent rise in populist-nationalism. What is unique about Piketty’s analysis is that it ruptures the artificial walls between the economic and the political, a wall that was created in the late 19^th century wherein the discipline of ‘economics’ replaced ‘political economy’. However, his analysis, like most mainstream economic analyses falls short of considering a theoretical framework that captures the implications of wealth inequalities on the environment, and the nature of Global North-South politics that drives material extraction in the Southern states.

Political economist, Saskia Sassen argues, economic globalisation calls into question the extractive logic underpinning its frameworks that legitimise the claims of foreign investors’ and firms’ mobilization of transnational capital, acquisition of foreign lands, and expulsion of local communities & their habitats. Since the 1980s, structural adjustment projects implemented by global regulatory institutions, including the IMF, the World Bank and the WTO are allegedly weakening the democratic institutions of governments in the global South by forcing them to deregulate their economies, and pay billions of dollars as shares of their GDP, for interest on their debts rather than for local development.

Indian economist Utsa Patnaik, who studies India’s agrarian economy argues that the global market is structured in a way that promotes Southern countries’ dependence on cheap imports of heavily subsidised (given as direct cash transfers) dairy products and grains from economically richer Northern countries despite say, India’s environment being suitable for growing food grains. The economically richer Northern countries, on the other hand depend on the other countries for import of tropical and sub-tropical crops that do not grow in temperate zones. There has been growing pressure on economically poorer Southern countries to end the public stocking of their grains (a policy usually taken to ensure domestic food security for the poor) and reduce subsidies provided to farmers because they make agricultural commodities cheaper and competitive. Economically poorer post-colonial countries have been exposed to unfair global trade and volatile global market prices without proper access to social security benefits. This is incurring a lot of debt on farmers. These insecurities are magnified by climate change-induced unpredictable/erratic weather conditions. This trade model of ensuring food security for the poor living in developing countries through dependence on Northern countries is what she calls ‘recreation of colonial times’.

Also, global trade as we know, comes with unequal ecological exchange that allows richer states to – 1) import high impact commodities from low & middle income states and 2) outsource much of their ecologically impactful industries to poorer states. Ecological economists Jason Hickel and Giorgos Kallis show that the material footprint of the rich states have been increasing at a rate that is equal to or greater than Gross Domestic Product (GDP). What I understand through these ‘long’ global or local supply chains is a “spatial separation” between consumers and non-human natural resources, which is likely to shield human consumers from building any connection with or care for non-human nature.

There are ample debates arguing that capitalism structurally devalues ethics of care and ecological processes while siphoning off their benefits. The “structural negligence” within the monetised and capitalist economic system towards both ecological processes and care economy shows that a capitalist market-economy only values commodities that can be priced and whose value is worth exchanging in the market. None of these subsidised processes even features in GDP measurements. The devaluation of care ethic comes with gendered injustice too. With the pandemic, the burden of care and economic insecurity dramatically increased for women across the globe affecting both formal & informal economies. The crises exposed the valuable nature of essential services that run the economy silently in the background on shoulders of domestic care workers, labourers and healthcare workers.

For the women living in rural areas in India specifically, the crises increased their responsibility of ensuring household food security. In rural areas as we know, lack of access to public amenities like safe drinking water and sanitation increases women’s their care-burden in addition to executing domestic chores. Scarcity within households accompanied increased women’s exposure to domestic violence and care-negligence. Care negligence means neglecting women’s well-being i.e. healthcare, food and other requirements, due to prioritization of well-being of other household members.

Historian, Dipesh Chakrabarty argues that the ‘globe’ of globalisation brought global interconnectedness through European expansion and technological communication that was propelled by interests based upon power and profits. There is no doubt that it did bring prosperity for many but it also brought deprivation for millions along with planetary crisis. This is precisely because the ‘globe’ of globalisation never referred to the ‘globe’ within the meaning of global warming, the latter being a product of science and exploration of life on planet earth. Both the approaches invite separate legal regimes wherein one protects power & capital and the other protects the planet. Both these approaches lack a deep political understanding of conditions and everyday realities of humans whose livelihoods & securities are directly and (in many cases) regularly being impacted by changing weather patterns, reduced precipitation, cyclones, wildfires, droughts, floods and many more.

Let’s say, a farmer’s well-being is directly impacted by climatic irregularities in comparison with someone working in the services sector because the former group’s livelihoods directly depend upon non-human natural resources. For them, the relationship with non-human natures will be very different from that of those who do not interact with non-human natures for livelihood purposes. Also, the nature of such relationships varies among humans, because not all cultures look at non-human natures from solely monetary perspective. Psychological connections easily fall out of such monetary valuation of natures. All these considerations miss from climate science-induced climate law and globalisation. And even if they consider principles of equity and sustainability, they do so based on market-approaches that rely on mainstream economic theories. And, mainstream economic theories as I highlighted earlier herein, structurally devalue ecosystem & care functions, and assume that life on this planet and economic growth can be sustained simultaneously.

Population, sustainability and climate change

Today, as ‘population’ continues to grow to an expected 10 billion by 2050, this social construct continues to be problematized in relation to solutions to sustainability and climate change even by well-meaning environmentalists. The problem of production that is catered towards meeting the needs of unnecessary and ecologically harmful consumerism by the global elites is still being ignored. While we can morally blame the rich billionaires for amassing wealth and inducing economic inequality, we cannot ignore that capitalism is also culturally producing/attracting a material- and carbon-intensive lifestyle upon which the rising middle classes are nudged to depend through advertisements, relative possession & display of wealth & goods and many other social factors.

In a 2017 study, it was shown that 10% of the global elites are responsible for 36% of carbon emissions. This is an equivalent of 26.3 tonnes per capita emissions. The global elites comprised of populations from countries including USA, European Union, Japan, Australia, Canada and the elites from developing countries whose daily income is higher than $23 Purchasing Power Parity (PPP). The proportion of carbon emissions comes from consumption of goods and services emitted through the process of production along global supply chains. On the contrary, 50% of the global poor with daily income of less than $2.97 PPP contribute to 15% of global carbon emissions. And the extreme poor who earn less than $1.9 PPP contribute to 4% of global carbon emissions amounting to 1.9 tonnes of carbon dioxide on average. The same study goes on to detail that the poor and lowest income segments across 90 poorest countries consume three items including food & beverages, clothing, and housing which account for about three quarters of their household income.

Most of the arguments problematizing population misleadingly camouflage unequal patterns of consumption & carbon emissions and unsustainable means of production, thereby invoking a sense of scarcity, insecurity and doom that is more harmful to the rural & urban poor than the ones who are better off. Given the backdrop of inequality, it is questionable to argue that the world has a problem of absolute scarcity, without looking into the problem of inadequate distribution of surplus. And, this is exactly what development economist Amartya Sen took up in his 1987 book, Poverty and Famines: An Essay on Entitlement and Deprivation. He shows that famines are not necessarily a problem of availability of resources but a problem of access. Poverty is a human rights concern and the poor populations need entitlements to support stable jobs or income security that allow them to live on basic-necessities and freedoms towards a decent and secured life. Mainstream population debates also harm gender justice concerns because population control measures under most circumstances convert into women-centred policies that simply focus on women’s choice especially in the global South, without attempting to dismantle structural causes like patriarchy and nurture care between sexes.

Climate Politics: An example

Global isolationsism in the pretext of sovereignty is not a solution to address global climate injustice. Resistances from below can no longer be framed as national problems. Climatic impacts are crises that come with winners and losers. Unfortunately, climate already ‘changed’ and it is continuously ‘changing’. Some communities are already living with climate change. It is only a matter of time when the climate impacts such as rising sea-level, heatwaves and among others will directly cost the lives of the those living relatively comfortable lives. Elsewhere, I recently argued how rural & poor Indian farmers are already looking for political and legal tools to address the aggravated climatic impacts on their food and income insecurities because unpredictable droughts and floods are destroying their crops and bringing new economic losses. Recently, I also learnt how farmers in Taiwan are facing the worst drought in over half a century due to climate change.

Take for instance, the massive farmers’ protests happening in India today against the Indian Government’s move in passing farm laws without any public deliberation towards agricultural modernisation. At the domestic level, peasant movements are asking for seed & food sovereignty and alternative ways of achieving a good life that serves both material (social security, food security) and non-material (psychological connection with flora, fauna, land) needs in balance. These values are incompatible with global materialist & laissez-faire capitalist order. At the global level, Gita Gopinath, Chief Economist of the IMF has supported the farm laws in favour of deregulating the agricultural sector. Even Nobel laureate and economist Abhijit Banerjee commented on the farm laws in a way that supports the farm laws while adding that pandemic is not the right time to pass the farm laws. Deregulation comes with legalising contract farming (with agribusiness firms) and making public stocking of agricultural commodities illegal. The farmers fear that this model will make the domestic firms powerful and the sole controllers of price of agricultural commodities. Utsa Patnaik adds that it will make Indian farmers additionally vulnerable to the whims of global agribusiness firms. I must add that she is one of the few renowned economists who is critical of the profit-oriented capitalist model of agricultural development and contract farming. It seems to me that the farmers’ protests indeed has become a site of clash in political & economic ideologies between eco-socialist aspirations, and faith that runs the global order i.e. trust in capitalism and neoliberal (i.e. reduced role of the state) market efficiency for allocation of agricultural commodities. In the context of this messy transnational politics entwined with climate and agrarian crises, solutions are increasingly coming from experts who are still not connecting with protesting farmers.

While it is, tough to take a position on this mess yet, it is nevertheless important to consider that agricultural policies are made for farmers who live in a real world, and are finally responsible for the food that is on our plate. It just does not seem just and practical to oversee food security policies while ignoring farmers’ collective voice, while climatic impacts are already being felt on the agricultural grounds. If say, our bodies breakdown, we usually go to the doctor for advice instead of healing ourselves. We do this because we acknowledge that we are not experts in healing and hence trust some doctors. Similarly, if the agrarian crisis is impacting farmers, we need to question our paternalistic assumptions that farmers are not experts and certain economists/lawyers/political scientists are. Arguing that farmers are committing suicide or protesting (at the cost of their life) because they are unable to cope with crises does not say anything about circumstances that hinder them to cope. Often, they are not deemed as experts because their interests or ideologies hurt those in possession of specialised knowledge, interest or both. Lastly, it is also important to evaluate whether contract farming in its current form within a capitalist model is ecologically sustainable because often profit-oriented agricultural growth models come at the cost of soil and environmental health (nitrogen emissions from artificial fertilizers, pesticides and intensification), which may not be a wise choice given the climate scenario. Otherwise, we may land up emulating agricultural models that are failing (in terms of sustainability) in the Northern advanced capitalist countries albeit with a rise in material standard of living. I see this as an opportune moment to undo the mistakes that have been done in the past. Perhaps, it is important to engage in everyday realities of a society in order to uncover solutions that cut across climate law, climate science, economics, gender studies and political ecology.

Climate Justice

Addressing climate change is in fact a test of humanity of those humans who caused and are causing climatic crises. Climate justice helps us to break through the contradictory regulatory regimes of Environmental Law and Law & Economics, by politicising the apolitical phenomenon of ‘climate change’ beyond the contours of the nation-state and the politico-economic systems operating therein. It transpires the deep inequalities and dominations that nurture globalisation and global warming. It allows us to question who owes what to whom and why, and how these obligations should be distributed. It also helps us to question power dynamics that structure unequal control over resources that have climatic impacts at a local or planetary scale. Climate justice is thus, not only important to minimize the impacts of climate change but also rectify the structural causes of GHG emissions that are often embedded in neoliberal global development paradigms. Given the intimate relationship between GHG emissions, consumption and business-as-usual economic growth-model, we need a deeper democratic engagement that aims to redistribute power while holding the climate polluters & states ethically responsible if not legally. This can come through empowering grounded communities who can hold climate polluters into account. Macro-economically speaking, the state of affairs today highlight the urgency of human withdrawal from business-as-usual. The pandemic has already demonstrated the impact of our withdrawal, in that CO2emissions from fossil fuel and other industries dropped by 7% in 2020 due to lockdowns and reduced mobility.

Transformation as the way forward

Historians/Sociologists Dipesh Chakrabarty, and Ramachandra Guha & Madhav Gadgil (in their book, This Fissured Land: An Ecological History of India) argue that whether we blame climate change on those who are “retrospectively guilty in the West or those who are prospectively guilty in the South” (although not on a per capita basis) is a question that is undoubtedly tied to the histories of industrial mode of development (including industrial socialism & industrial capitalism), economic growth, neo-colonial continuities, modernization. To these categories, I shall also add patriarchy. I name these categories by borrowing a quote from Jerry Mander’s book, The Capitalism Papers– “If you are going to remember a thing, you must first name it…Naming something diminishes its amorphousness and stimulates focus – what it is, and what it is not.”

At the global level, regulatory bodies need to transform their governance mechanisms by decentering industrial mode of economic growth and dismantling neo-colonial continuities, patriarchy and other forms of domination that reify capture of power & capital by elite groups, in their policy and legal instruments. An enabling external environment is important for nation-states to decenter these majoritarian values from their respective national laws. Simultaneously, policy and political goals need to center an ethic of care for humans and non-humans through redistribution of power and capital.

Care needs to be centered in order to nurture collective well-being of life- including humans’ and non-humans’. However, the ethic of care needs to pay attention to politics in order to dismantle identity-based hierarchies and privileges that structure oppressive realities. Power decides much of the politics. Hence, power needs to be redistributed radically and meaningfully in order to empower those living in the margins (whether due to patriarchy, racism or other forms of domination). Further, capital needs to be redistributed equitably through wealth tax reforms so as to avoid unnecessary resource extraction which has further consequences on climate change and habitat loss of marginalised humans and non-humans.

Solutions to climate change need a transformation in adaptation and mitigation approaches keeping in mind that they address the ‘everyday’ realities especially of people who are living on the edges of the crises. People struggle or live every day; and everyday lives constitute realities on the ground. Hence, I emphasise on ‘everyday’ as the focal point of solutions. Transformations also undo structural causes of multiple crises (inequality, poverty, patriarchy, infinite economic growth, neo-colonial continuities) that make up for climate crises. We need to look away from solutions that speak to power, capital, and domination and look for solutions from the ground that center people who are directly being impacted by the crisis rather than speaking on behalf of them. What matters is the voice of those affected populations because they cannot afford to think and offer solutions on majoritarian assumptions of power. Majoritarian propositions are marginalizing them. Legal reforms could perhaps bear in mind the required decentering and centering of values as discussed in this essay, and capture changes that climate-affected people ask for. Law making, legal monitoring and implementation must be democratised.

* The author is a PhD researcher who can be contacted at N.roychaudhuri@tilburguniversity.edu

14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.

09/04/2017

From ‘Natural Objects’ to Holders of Legal Rights: The Expanding Concept of Personhood in India

In 1972, Christopher Stone published one of the seminal articles in environmental legal thinking: ‘Should Trees Have Standing?’. Stone observed that the history of law has seen the gradual extension of legal personality, and accompanying legal rights, to entities to whom it had previously been unthinkable that rights should be granted. Although such entities have included various categories of human beings (such as women, children, and slaves), the boundaries of legal personality have also been stretched to include certain non-humans, such as corporations. From this foundation, Stone proceeded to construct an argument for the extension of legal rights to what had hitherto been ‘natural objects’. Later the same year, in his dissenting opinion in Sierra Club v Morten, US Supreme Court Justice William Douglas famously aligned himself with Stone’s position, asserting that ‘[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. Nevertheless, it is probably safe to assume that, as had been the case in respect of other historically ‘rightless’ entities, the suggestion that rights be conferred upon nature initially struck many as being completely outlandish.

Fast forward almost half a century, and Stone’s proposal does not sit quite as uncomfortably as it might have when initially published. In the period since the early ‘70s, an abundance of environmental laws have emerged at both the international and national levels; and although it is not yet commonplace for states to bestow rights upon the environment (or components thereof), this practice is rapidly gaining traction in several jurisdictions. In 2008, Ecuador became the first country to include ‘rights of nature’ in its Constitution, including ‘the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’, as well as ‘the right to be restored’. Then, in 2014 and 2017 respectively, New Zealand passed the Te Urewera Act and the Te Awa Tupua (Whanganiu River Claims Settlement) Act, recognizing a national park and a river to be legal entities, with ‘all the rights, powers, duties and liabilities of a legal person’.

Last month, India became the most recent country to grant rights to particular features of the natural environment – not through legislation, but rather through two public interest litigation cases decided by the High Court of Uttarakhand (for an overview of how the cases emerged, see here). This post provides a brief synopsis and critique of the two judgments and comments on their significance.

Judgment #1: Cracking open the door to personhood

River Ganga (Photo by Flickr user Roehan Rengadurai)

In the first judgment (Mohd. Salim v State of Uttarakhand & Others), the Court was of the view that the ‘extraordinary situation’ in which the Ganga and Yamuna Rivers ‘are losing their very existence’ requires that ‘extraordinary measures be taken to preserve and conserve’ these rivers. After noting the deep spiritual connection between Hindus and the Rivers Ganga and Yamuna, the Court cited several previous judgments (predominantly from India’s Supreme Court) in which the concept of legal personality and its extension have been considered. The Court paid particular attention to decisions holding that a Hindu idol/deity is a juristic person, capable of possessing its own property (which is managed on the deity’s behalf by a human guardian), being taxed, and suing as a pauper. It further emphasized that the concept of ‘juristic persons’ emerged to serve ‘the needs and faith of society’ and that ‘a juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons’. The Court proceeded to again stress the religious significance of the Rivers Ganga and Yamuna. Importantly, it also commented on the rivers’ role in supporting ‘both the life and natural resources and health and well-being of the entire community’ and pointed to provisions of the Constitution of India which require both the state and its citizens to protect the environment.

The Court ultimately held that ‘to protect the recognition and the faith of society’ and ‘preserve and conserve’ the Rivers Ganga and Yamuna, it was necessary to declare these rivers, ‘all their tributaries, streams, [and] every natural water flowing with flow continuously or intermittently of these rivers’ to be juristic persons ‘with all corresponding rights, duties and liabilities of a living person’. It further declared the Director of government’s NAMAMI Gange project, along with the Chief Secretary and Advocate General of the State of Uttarakhand, to be ‘persons in loco parentis as the human face to protect, conserve and preserve’ the rivers and their tributaries; and directed these persons to ‘uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers’. The Court stated that, in making this decision, it was exercising parens patriae jurisdiction (i.e. the jurisdiction to assume responsibility for the welfare of those unable to act on their own behalf), but did not elaborate upon this principle.

Judgment #2: Allowing more persons to enter the room

A mere ten days after its striking decision concerning the Rivers Ganga and Yamuna, the Uttarakhand High Court widened the ambit of legal personality even further to encompass ‘the Glaciers including Gangotri [and] Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’, and declared several individuals to be persons in loco parentis of these entities in the State of Uttarakhand (Lalit Miglani v State of Uttarakhand & Others). This second judgment was penned by the same two judges as the first, but is considerably longer and, unfortunately, also considerably less coherent.

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

While the first judgment had hinged largely – albeit not exclusively – on the religious importance of the rivers in question, less weight was placed upon this aspect in the second judgment. In reaching its decision, the Court considered the significance of, and threats to, various features of the natural environment. It expressed concern that the Gangotri and Yamunotri Glaciers (from which the Rivers Ganga and Yamuna originate) are receding due to pollution and climate change; that the various natural parks in the State of Uttarakhand, which ‘function as lungs for the entire atmosphere’, are threatened by human activities; that the State’s forests are threatened by large scale deforestation; and that forest fires are polluting the environment and harming wild animals, whose habitat is also shrinking. Throughout its judgment, the Court quoted extensively from several publications, which discuss, inter alia, the biodiversity of the Himalayas; the importance of trees from religious, cultural, economic and ecological perspectives; and the need to deviate from traditional approaches to protecting nature by recognizing nature’s rights. Curiously, no extracts from Stone’s ‘Should Trees Have Standing’ appeared in the decision, despite Stone having advocated precisely the kind of expansion of legal personality that the Court undertook in this judgment. Nor were excerpts included from the dissenting opinion in Sierra Club v Morten, although the Court did refer to New Zealand’s Te Urewa Act as an example of a country having recognized the legal personality of a national park.

The Court additionally drew text from a variety of international environmental instruments, reproducing the 1972 Stockholm Declaration, 1992 Rio Declaration, and 1992 Rio Forest Principles in their entirety, and also quoting large portions of the 1982 World Charter for Nature and 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). References to forests in the 1997 Kyoto Protocol and 2007 Bali Action Plan were additionally mentioned. The Court drew no distinction between legally binding and non-binding instruments – indeed, several mistakes in the judgment (which, for instance, erroneously refers to the Kyoto Protocol as the ‘Kyoto Declaration’) suggest that its authors failed to fully appreciate the nature of India’s commitments under the various instruments they referred to. The Court also failed to explain why it considered this selection of instruments to be relevant in reaching its decision, though presumably its rationale was that they illustrate the existence of wide-scale agreement amongst states concerning both the importance of the natural environment and the concomitant need for environmental protection. Further, although none of the instruments go so far as to call upon states to bestow legal rights upon nature, doing so is conceivably one route through which to achieve environmental protection, and thereby respond to some of the exhortations/obligations that the instruments contain. That said, the list of instruments that the Court chose to cite is somewhat surprising – in both its inclusions and its exclusions. Amongst the instruments referred to in the judgment, CITES stands out as a particularly odd choice. While numerous CITES listed species inhabit Uttarakhand (examples including the snow leopard, Uncia uncia, and the snow orchid, Diplomeris hirsuta), the Convention requires only that states protect these species from overexploitation through international trade, not that they engage in broader in situ conservation efforts, such as the protection of natural habitats. Given that the Court’s eventual expansion of legal personality pertained to particular habitats, but not to individual species, the 1992 Convention on Biological Diversity (CBD) would seemingly have provided better support for the decision – especially considering that this Convention recognizes the intrinsic value of biodiversity, whereas CITES’ focus is strictly utilitarian. However, the CBD received no mention in the judgment. Nor did the 1971 Ramsar Convention on Wetlands of International Importance or the 1972 World Heritage Convention, despite the Court both recognizing the legal personality of wetlands and emphasizing the need to protect natural parks in the State of Uttarakhand (which include the World Heritage listed Nanda Devi and Valley of Flowers National Parks). Still further instruments that could have been referred to, but weren’t, include the 2007 Non-legally Binding Instrument on All Types of Forests, the Outcome Document of the 2012 Rio+20 Conference (‘The Future We Want’), the 2015 Sustainable Development Goals, and the 2015 Paris Agreement. The Court’s failure to consider these four relatively recent documents might be explained by its apparent reliance on the outdated book Documents in International Environmental Law (2^nd ed.: 2004) as its primary source of information concerning relevant international instruments.

As had the initial judgment regarding the Rivers Ganga and Yamuna, this second judgment referred to citizens’ Constitutional duty to protect the environment. It further stated that ‘[t]he Courts are duty bound to protect the environmental ecology under the “New Environment Justice Jurisprudence” and also under the principles of parens patriae’. It then provided a lengthy collection of quotes from judgments and journal articles discussing parens patriae – in particular, in the context of allowing states in a federal system to sue to prevent injury to the environment. What is remarkable about this collection, however, is that the texts cited discuss the origins and evolution of parens patriae in the United States’ legal system, and provide no explanation whatsoever of how this principle operates in Indian law.

Towards the end of its judgment, the Court stressed that ‘[b]esides our constitutional and legal duties, it is our moral duty to protect the environment and ecology’, and ‘to hand over the same Mother Earth to the next generation’. It stated further that ‘rivers, forests, lakes, water bodies, air, glaciers, [and] human life are unified and are [an] indivisible whole’; and that rivers and lakes have an ‘intrinsic right not to be polluted’, and rivers, forests, lakes, water bodies, air, glaciers and springs ‘have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system’. In holding that these entities are legal persons the Court directed that their rights ‘shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury to the human beings’. At an earlier point in the judgment, the Court had also commented that ‘[t]rees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment’ – however, the rights of wild animals were not reasserted in the decision’s concluding paragraphs and, as noted above, the Court did not go so far as to recognize the legal personality of any of Uttarakhand’s native fauna.

Where to from here?

Whilst Indian law already obliges both citizens and the government to protect the environment, the legal significance of these two judgments is (as suggested by the title of Stone’s article) that litigation can now occur on behalf of certain features of the natural environment. Whether or not this enhances the environment’s protection in practice remains to be seen, although concerns have already been raised regarding the Indian government’s poor track record regarding environmental matters and the Court’s appointment of government officials as persons in loco parentis. As noted by Shivshankar, the second judgment did recognize the need for community participation (providing that ‘[t]he Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers’), but failed to specify how community members will be chosen or what their precise role will be. The judgments have further been criticized for failing to unpack what these new ‘persons’ can sue for, who they can sue, and whether there are any breaches of duty in respect of which they themselves can be sued. As things currently stand, a great deal of uncertainty thus remains concerning the implications of their newly established personhood. It is further significant that, since they originate from a High Court judgment rather than the Indian Supreme Court, the orders only apply within Uttarakhand. This clearly dilutes their potential to contribute to the protection of transboundary entities such as the Rivers Ganga and Yamuna.

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

The judgments would also arguably have been of greater persuasive value for courts in other Indian states, as well as foreign jurisdictions, had their legal reasoning been more carefully developed. Nevertheless, the Court’s acceptance that the spiritual and ecological value of certain aspects of the natural environment, combined with the threats faced thereby and the duties enshrined in the Indian Constitution, constitute ‘good and sufficient reasons’ for attributing legal personality provides an important precedent for future expansions of personhood. Indeed, the Nonhuman Rights Project has already stressed the potential of this precedent to assist animal advocates in making the case for legal rights for nonhuman animals.

Regardless of the various difficulties that will inevitably arise in implementing the Court’s orders, at the very least they reflect an important conceptual shift away from humans’ traditional, anthropocentric notion of environmental management, which has thus far been largely unsuccessful in preventing environmental destruction. Decades before Christopher Stone suggested that nature might be afforded legal standing, Aldo Leopold posited that: ‘We abuse the land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.’ Recognizing that various aspects of the natural environment, rather than simply being things for us to use, are capable of holding legal rights is an important step towards embracing the latter perspective.