This project aims at understanding the genesis of rights of nature, to examine the validity of rights accorded to rivers in India, as per the latest Uttarakhand High Court and Supreme Court judgement. By explaining the legal elements of rights of nature, the standing issues, the translation of cultural and religious rights to legal rights, this project tries to understand the Indian position on river rights. In addition to this, the project will also refer to the position of law on this issue internationally, in countries such as New Zealand, Ecuador, and Bolivia. This is important to understand the real-world significance of according rights to beings such as rivers. The project concludes with an analysis of how relevant these rights are, and their practical implications.
For centuries, legal systems around the world have treated land and nature as “property”. Laws and contracts have been formulated for protecting property rights of individuals, corporations, and other legal entities.[1] Effectively, environmental protection laws legalize environmental harm by means of regulating the occurrence of pollution or destruction of nature sanctioned by law. In a nutshell, nature and all of its non-human elements have no standing.[2]
‘Right of nature’ is the recognition and honouring that Nature has rights.[3] It is the recognizing that our ecosystems – including trees, oceans, animals, and mountains – have rights similar to humans.[4] It involves balancing the interests of human beings, with those of other species and the planet.[5] As opposed to treating nature as property under the law, the rights of nature framework accounts that all forms of nature have the right to exist, persist, maintain and regenerate its vital cycles.[6]
Thus, natural features have intrinsic rights and should own themselves, rather than being considered property; this is similar to the treatment of corporations as ‘persons’ by the law.[7] The basis of rights of nature rests on giving it more protection from human destruction.[8] As per this, humans have relinquished their assertion of ownership, and have acknowledged that it is more sustainable for the land to own itself.[9] Ecosystems also have the right to restoration in the event of damage.[10] Moreover, polluters can be held directly accountable for the damage they cause by invoking these rights.[11]
‘Legal persons’ have been conceptualized as interest-driven; the according and withholding of this status to somebody or something is an exercise of power.[12] Hence, if animals and plants were legal persons, it would not be easy to destroy them; they would have enforceable rights. Against this backdrop, the proponents against the rights of nature stem have vested economic interests that wish to own, use, pollute, or destroy nature without obstacles.[13]
It is accepted that humans have the responsibility towards rights’ enforcement, on part of ecosystems.[14] The ecosystem itself can be named as the injured party, with its own legal standing rights, in cases where there is a rights violation.[15] Indigenous cultures around the world recognize rights of nature as consistent with their traditions of living in harmony with nature.[16]
Standing of Rights of Nature
Legal standing, or the entitlement of a party to demonstrate before courts, the sufficient nexus to action challenged to support that party’s participation in the case, is a big issue in environmental law.[17] Access to justice is given to all citizens in a democracy; they should be enabled to approach court if their rights are not respected.[18]
However, this procedural dimension has not been given much importance, leading to an implementation failure of environmental law.[19] It needs to be considered that who should act on behalf of nature, for bringing claims to enforce current laws or its rights.
To enforce nature’s legal rights, firstly, there has to be an appointment of someone to act on its behalf.[20] A legal system can appoint legal agents (e.g., NGOs) who may act for nature in representative actions.[21] Secondly, for ensuring enforceable rights, both the ‘guardians’ and users of the resource should recognise their joint rights, duties, and responsibilities, because possession of a right implies existence of commensurate duties to observe these rights.[22] Thirdly, litigation is an expensive process, and enforcement of legal rights for nature also requires adequate funding, and access to legal expertise.[23] Finally, anyone wishing to enforce such rights may require legislative independence from state and national governments, as well as sufficient real-world power to take action, in case such action is politically controversial.[24]
Cultural and Religious Rights translating to Legal Rights
Economic, social and cultural rights can be judicially enforced; however, such justiciability has been often questioned.[25] Firstly, these rights are viewed as ambiguous in allowing judges to justify decisions on occurrence of violations.[26] Secondly, their actualization depends heavily on government policies, and the judiciary might have to overstep its constitutional role by taking decisions on these rights.[27] Thirdly, courts cannot always possibly assess their progressive realization.[28]
Despite this, it is important to consider the role of indigenous peoples to understand how cultural and religious rights translate to legal rights.
The concept of ‘rights of nature’ has deep roots in long histories of indigenous movements according legality within diverse cultural traditions in Andean cultures of South America (including Bolivia, Ecuador, Peru, and parts of Columbia).[29] This is evident from the institutionalization of the ‘rights of nature’ in the Bolivian and Ecuadorian constitutions and legal systems. Moreover, the World People’s Conference on Climate Change and the Rights of Mother Earth Meeting in 2010 in Cochabamba, Bolivia, where through the Universal Declaration of the Rights of Mother Earth, it was proposed that, “Mother Earth is a unique, indivisible, self-regulating community of interrelated beings that sustains, contains and reproduces all beings.”[30]
Such indigenous communities’ religious-rights-based claims to water resources secure rights, and have positive, as well as negative implications for cultural and ecological conservation, interpretation of existing water law, and resolution of water conflicts.[31]
Indigenous communities may develop valuable ‘traditional ecological knowledge’ (TEK), embodied in religious ceremonies and teachings that promote sustainable water management; this provides legal support.[32] TEK is a “body of knowledge, practice and belief, evolving by adaptive processes and handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with their environment.”[33] The failure to protect this could adversely affect ecology, as there exists an inextricable link between cultural and biological diversity.[34]
However, such spiritual character of water is often ignored while considering the development, interpretation, and analysis of water law.[35] This is because it is an inconvenient coreligionist placed against an objective analysis of economics of water supply-demand, and the science involved in water quality protection. It may potentially lead to numerous legal complications.[36] The religious-rights argument to ownership or control of water resources could be unfairly used for securing unsustainable allocations of water, and religious arguments could unwisely privilege religious belief. [37]
For avoiding or mitigating water conflict, policymakers and judges should facilitate strategies for cooperative water-resource management by looking beyond politics, economics, and incorporating cultural, religious considerations in the formulation and interpretation of water law. [38] It is not necessary that the spiritual character of water will inevitably be used by zealots for divisive politics. Instead, with the proper legal support, the spiritual character of water might be a unifying force.[39]
The Indian Position
Mohd. Salim v State of Uttarakhand[40] primarily relies on the spiritual, religious value of the rivers Ganga and Yamuna to grant them the status of a juristic or legal person having rights.
In essence, the High Court of Uttarakhand decided in the Ganges and Yamuna, and in the Glaciers case[41] that the Ganges and Yamuna rivers, the Gangotri and Yamunotri glaciers, as well as other natural objects in the state of Uttarakhand possess legal rights.[42]
In both these cases, the High Court accorded the position of legal minors to natural objects, and granted guardianship responsibilities to several officers working for the state government of Uttarakhand.[43] These judgments were responsible for creating interesting legal rights for nature and demonstrate the increasing relevance of rights-centred environmental protection. However, the impact of this case law is uncertain.[44]
The Court, in the Mohd Salim case, had considered the term ‘legal person’ (or ‘juristic person’) to be interchangeable with ‘living person’. The Uttarakhand High Court blurs this distinction by creating legal rights equal to rights of a living person.[45] Such finding sits uncomfortably with the long-established distinction between legal rights and human rights.[46] This is particularly problematic in light of the ongoing debate regarding the appropriateness and ability of human rights to protect the environment from human impacts.[47]
In the Glaciers case, the Court explicitly states that the rights of these legal entities “shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury caused to the human beings.”[48] Thus, it appears to equate harm to nature with harm to humans, which is significantly different to the way in which environmental law traditionally protects natural objects by simply regulating human impacts.[49]
In both cases, the Court relied on parens patriae doctrine to justify intervention. This doctrine refers to the public policy power of the state to intervene on behalf of someone in need of protection, and, as acknowledged by the Court in the Glaciers case, the courts do not typically employ it independently of the legislature or the executive branches of government.[50]
The Courts relied on the duties prescribed in the Constitution of India to protect the environment[51] but also argued that there is an additional, moral duty to protect the environment from climate change and pollution,[52] on the basis of their sacred and reverential value. However, the criticism is that rivers are explicitly considered as not sacred to many people in India,[53] which could make this a shaky foundation for the creation of legal rights for the rivers themselves.
It is also interesting to note that only the rivers Ganga and Yamuna have been given these rights. None of the other Indian rivers, such as Godaveri, Kaveri, Narmada, Brahmaputra etc have been granted similar rights as these two. If protection was the objective, then similar rights should have been given to these rivers. Couching the protection granted within the ambit of religious rights not only provides a weak basis for according these rights, but they also deprive other rivers of being placed at an equivalent position in terms of getting protection. In such a situation, nature simply cannot make use the same legal rights as human beings.
In both cases, the responsibility of acting on behalf of the natural objects is imposed on existing roles in the state government, rather than creating new, independent positions, as opposed to the case of the Whanganui river in New Zealand, where the relevant legislation has created a new guardian organisation (Te Pou Tupua), and the government has committed $30 million to implement the new management arrangements for the river.[54]
In addition, it is unclear which actions the mentioned officials may be required to carry out to “promote the health and well-being” of the natural objects.[55] According to status quo, the rivers are already highly polluted, and the prospective of further pollution, climate change and hydropower developments are real.[56] It is unclear what actions will these officers be required to take, as per the judgment.
Finally, the state government has been unwilling to shoulder these new responsibilities. The Ganges and Yamuna rivers extend beyond the borders of Uttarakhand (and in the case of the Ganges, into Bangladesh), which makes delineating the specific responsibility of the state government difficult.[57]
A problematic question is whether the rivers, as legal minors, cease being legal persons at the State (or country) border. Moreover, the state government objects to the extent to which it would now be responsible for activities of the river.[58] In particular, the State expressed concern over its potential liablity for damage caused by flooding, or suicide in the river. Ultimately, this concern underscores the difficulty of recognising nature as a legal subject because many of the ‘actions’ of a natural object are unintentional and out of human control.[59]
However, the identification of a moral duty to protect the environment (in addition to the existing constitutional requirements outlined above) is a potentially powerful precedent for climate change litigation in India and other common law jurisdictions.[60] Relying on the severe risks posed by climate change to spur creation of new legal rights for nature is an approach that could be applied in other jurisdictions to drive legal reform.[61] Once nature has legal rights and legal personality, the natural objects can initiate further litigation seeking protection. In this way, legal rights for nature can transition environmental protection beyond the sphere of public law, and empower nature to proactively pursue private legal remedies.[62]
Despite this benefit, the immediate challenge for the implementation, enforcement of legal rights for nature is the requirement to create, or nominate an organisation, or person to speak for nature.[63]
Tracing Rights of Nature Internationally
In the United States, ‘rights of nature’ was first embraced by the US Supreme Court Justice William O’ Douglas in his famous dissent in Sierra Club v Morton.[64] This case concerned the issue of standing.
In 2008, Ecuador revolutionised the rights of nature by becoming the first nation in the world to constitutionally establish such rights. Nature is now endowed with rights under Article 10 of the Ecuadorian Constitution.[65] The legal status of nature is further developed in Title II, “Rights”, Chapter 7, titled ‘Rights of nature’, through Articles 71 to 74.[66]
The Bolivian Constitution allows any person to legally defend environmental rights, which also resolves the issue of problematic standing.[67] However, Bolivia was the next nation state to follow, passing the world’s first laws granting nature equal rights to humans. Law 071, known as the Law of Mother Earth was passed by the Legislative Assembly in 2010 to recognise the rights of Mother Earth and the duties to ensure such rights.[68] In late 2012, Law 300, an extension to the agenda of Law 071, was passed. It aims to link the concepts of the rights of Mother Earth, holistic development and living well.[69]
In New Zealand, the rights of nature have actualized by virtue of an agreement between the government and indigenous tribes, before being adapted into legislation. Legal personhood has granted to the Te Urewera area, and the Whanganui River.[70]
Conclusion
Ecocentrism should prevail:
There are two broad reasons supporting rights of nature to be adopted. Firstly, most economic systems and development policies are premised on anthropocentric models, on the assumption that nature would never fail; assuming it does, technology will prevail. Such major environmental degradation is a result of a wasteful and consumer based society, which is propelling the Earth towards a major planetary catastrophe.[71] This needs to change. Secondly, it is essential to remember the morally appropriateness of these actions.
Additionally, it is interesting to note that ecocentrism is a nature-centred approach, as opposed to a human-centred one. As per this, the earth is valued as a community to which all of us belong, and not as a commodity owned by us. Earth jurisprudence can be successfully developed by internalizing ecocentrism in environmental law. It requires adapting law to ecology, by valuing and giving voice to the environment.[72]
Ecocentrism aims at extending respect and care towards all life, including terrestrial, aquatic ecosystems.[73] This expands the moral community, along with ethics from being restricted to humans.[74] It also reflects the fact that humans have evolved from other species, which forges a bond of kinship with other life forms, thus conferring moral responsibilities on us towards them.[75] There is increasing evidence of ecocentric values merging with nature-based, ecocentric spiritualities that view the earthly ecosystems as sacred, hence worthy of reverent care.[76] Most importantly, ecocentrism reminds us that all life is interdependent, and that humans and non-humans are dependent on one another. Merely anthropocentrism is wholly insufficient for conserving biodiversity.[77]
For these reasons, nature should possess the highest level of legal protection, as well as tremendous societal value, through the recognition of rights, that remain irrelevant of intrinsic or extrinsic motivations to protect the environment.
It is also interesting to note that the rights of nature are being articulated by Indian courts, and their efforts are increasingly incorporating an ecocentric orientation.[78] Moreover, as discussed earlier, countries such as United States, Ecuador, Bolivia, and New Zealand have begun to implement an ecocentric ‘rights of nature’ framework, that have been shaped by the efforts of their indigenous communities.
Standing Issues need to be Resolved:
The pre-requisite for any effective environmental protection and governance at a national level is clear and enforceable standards.[79]
Many economies are heavily dependent on natural resources, thus leading to unsatisfactory decisions, as governments need to balance economic realities with leniency for powerful environmental movements.[80]
Another obstacle to the ‘rights of nature’ movement is the general conception of world as nature being their personal property.[81] Governments own most of the world’s land, and they do not necessarily have the same personal attachment individuals do. Further, many indigenous cultures around the world have never viewed nature as property; hence, they often cherish and protect nature in ways modern cultures do not.[82]
The work of environmentalists in terms of minimizing damage will not help with ineffective laws in place, considering they remain in the context of a deeply flawed system. The traditional modes of environmental activism, which includes mere regulation, and the human centric view of standing, have proven to be ineffective so far.
Keeping in mind that existing modes of protecting nature only regulate, and thus fail, because they do not prevent the destruction of nature, it becomes imperative to give formal effect to the rights of nature.[83] The favoured economistic approaches of capitalism will not help in protecting the environment, as it entails a further commodification of nature’s ecosystems – a framework that has been failing miserably.[84]
Thus, this paper suggests that there should be a fundamental change in terms of adoption an ecocentirc approach, and a standing position that should not begin and end with humans.[85]
