Ananya Jha is a fourth year student at National University of Study and Research in Law, Ranchi

 

Just as human beings have human rights, all other beings also have rights which are specific to their species or kind and appropriate for their role and function within the communities within which they exist.

-Universal Declaration of Rights of Mother Earth

The present era is rights-based, with the ambit of rights constantly expanding, so much so that ethics and rights are no longer the sole domain of humans but have extended to non-humans as well. A cursory glance at recent developments will make us familiar with a proliferation of campaigns for rights of various non-human entities: animals, artificial intelligence and nature amongst a few.

The rights of nature discourse arguably gained greater impetus in 2008 when Ecuador adopted a new Constitution which bestowed rights to nature. Thereafter, Bolivia introduced Law of the Rights of the Mother Earth, which recognises the rights of “Mother Earth” and the duties of Multinational State and society to ensure respect for these rights. This was followed by a plethora of judgments in some countries asserting rights of nature in one form or other. New Zealand’s Whanganui river, which has spiritual significance for the Maori people, was granted legal personality.[1] Following this judgment, Uttarakhand High Court imputed the status of legal person to rivers Ganges, Yamuna, their tributaries and “every natural water flowing continuously or intermittently with these rivers.”[2]

However, there has not been any comparable activity in international legal system. For understanding whether nature can be attributed legal rights, and by extension legal personality in the international domain, we have to first understand how international legal personality (ILP) is derived. There are many competing theories on this issue, one of them being the factual-realist theory. Traditionally, states are the principal international legal persons and any other entity can become a legal person only if the state deems so. A state can attribute legal personality explicitly by way of legal instruments like treaties or implicitly through state practice. However, factual-realists point to the growing significance of non-state actors in international arena (like non-governmental organisations, private corporations etc) and the simultaneous decline in significance of states. Since states are no longer capable in themselves to resolve international problems but have to rely on non-state entities, non-state entities should also be granted legal personality. Put simply (at the cost of generalisation), the criteria for ILP as per this theory is significance in the international domain.[3]

Environmental issues have progressively gained more prominence in international law. The third generation of human rights concerned itself with protection of environment and rights of indigenous peoples. One of the earliest international documents for protection of environment was the Stockholm Declaration of 1972. Thereafter, a number of international conventions have been issued, none of which are legally binding. These sources provide for protection of nature only indirectly i.e. through protection of rights of human beings. Thus, these are a reflection of anthropocentric approach to environmentalism. However, a growing disillusionment with efficacy of anthropocentric approaches for resolving environmental crises led to development of an opposing approach- ecocentrism, which focuses on the inherent value of nature. Rights of nature discourse is a part of this philosophy.

The Ecuadorian and Bolivian municipal laws can be seen as continuation of this ecocentric approach. In 2015, during UNFCC Climate Change Conference at Paris, a two-day International Rights of Nature tribunal was held where a panel of judges heard and offered judgments on the crimes committed by international bodies, states and corporations against nature. The claims of the parties were based on alleged violations of the constitution of Ecuador. The tribunal has not been established by mutual consent of states and its judgments are not legally binding. But even as we question the legal force of such assertions, the international facts seem to be very gradually shifting in the favour of nature having international rights. There is an ongoing global campaign for formal adoption of Universal Declaration of Rights of Mother Earth (UDRME) by UN.

In the present international context, rights of nature are not legally enforceable in the dearth of any legal instrument or consistent state practice to that effect. Nevertheless, the contemporary discourses on rights of nature may influence international environmental jurisprudence in the long run because firstly, the discourse and the surrounding campaign are gradually bringing rights of nature to prominence; and secondly, it may become influential if it becomes a part of the corpus of international soft laws. The latter may be possible if the UDRME is formally adopted by the UN.

Rights of nature can be used as a supplement to the extant lacunae in the present environmental jurisprudence. One of the lacunae where this concept can be instrumental is the area of standing. EU has acknowledged that in many of the Member States, the rules regarding standing are very restrictive and the litigation is too expensive and inefficient. Granting rights to nature will make environment-litigation more efficient and will help refocus the courts’ attention to protection of environment rather than technicalities of standing.

[1] A legal person is any entity having legal rights and duties.

[2] Mohd. Salim v. State of Uttarakhand & Others, 2017 SCC OnLine Utt 367; the judgment was later overruled by the Supreme Court.

[3] See James E. Hickey Jr., ‘The Source of International Legal Personality in 21st Century’ (1997) 2 Hofstra L. & Pol’y Symp. 1.

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